Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the Government’s report, the partial replies to the comments made in 2006 by the Ibero-American Confederation of Labour Inspectors (CIIT), the documents attached and the press release by the Ministry of Justice and Labour dated 15 October 2009, received later. It notes with interest the adoption of a Decent Work Country Programme under a tripartite agreement concluded between the Ministry of Justice and Labour, employers’ and workers’ organizations and the ILO, and draws the Government’s attention to the following points.

Articles 3, paragraphs 1(a) and 2, and 18 of the Convention. Low level of supervision; impunity of those committing offences. In reply to the criticism made in 2006 by the CIIT concerning the low level of supervision of the legislation relating to conditions of work and the protection of workers, the Government points out that the new administration, in office since the election of a new President in August 2008, has been able to bring to light numerous cases of reported violations which have not resulted in legal proceedings and bring them to the attention of the public prosecutor. Referring to the statistics attached to its report, the Government emphasizes that the number of charges and penalties imposed (where cases have been the subject of court decisions) has since increased and the amounts of the fines imposed have also increased substantially. The Committee notes this information with interest and requests the Government to provide, while awaiting the production of an annual report on inspection activities as provided for by Articles 20 and 21, statistical data on the violations reported by inspectors in the areas covered by the Convention, the legal action taken against employers at fault and the penalties imposed.

Recalling that, in accordance with Article 18, the penalties should be not only adequate but also effectively enforced, the Committee requests the Government to provide information on the proportion of penalties imposed which are effectively enforced. It invites the Government to refer to Paragraph 9(c) of the Labour Inspection Recommendation, 1947 (No. 81), with regard to the manner in which statistics could usefully be presented.

Article 6. Precarious status and conditions of service of labour inspectors. In reply to the allegations made by the CIIT concerning the poor conditions of service and precarious status of labour inspectors, the Government acknowledges that the collective agreement concluded in 1998 by the Ministry of Justice and Labour and the Single Union of Officials and Employees of the Ministry of Justice and Labour (SUFEMJTPY) is not applied in practice. It indicates that 85 per cent of labour inspectors are permanent officials, while the remaining 15 per cent are new recruits or persons seconded from other ministerial departments or State institutions. With regard to the level of remuneration of inspectors, the Government provides information showing that it is very close to the legal minimum wage and is in no way commensurate with their level of training, the complexity of their duties or their length of service. The Government also indicates that an investigation conducted in respect of several inspectors following allegations of corruption resulted in six titular controllers/inspectors being charged and suspended until the end of the proceedings. It also resulted in more than half the number of titular inspectors being transferred to other posts within the same Ministry and the recruitment of nine new inspectors. These developments have resulted in a substantial reduction in the level of seniority of personnel. The Committee expresses concern at the situation described by the Government and urges it to take the necessary measures to enhance the conditions of service of labour inspectors and controllers (remuneration, career prospects, consideration of their socio-economic role) to protect them from the corrupt practices to which they are currently exposed on account of their vulnerability. The Committee requests the Government to refer in this respect to paragraphs 201 to 220  of its 2006 General Survey on labour inspection and to provide information in its next report on the measures taken or envisaged in this regard including, in particular, information allowing a comparison of the conditions of service of labour inspectors with those applicable to other officials carrying out activities with a comparable level of responsibility, such as inspectors in the ministry responsible for finance and tax.

Article 7, paragraph 3. Inadequacy of training for labour inspectors. The Committee notes three resolutions of the Deputy Minister of Labour and Social Security attached to the Government’s report concerning the various training courses which have been provided for officials, including labour inspectors, namely: a four-day training workshop in the context of the HIV/AIDS in the workplace project; a three-day workshop on work and health within the labour inspectorate; a day on labour law and AIDS in the context of the HIV/AIDS project; and an advanced computer course. The Government also announces other courses organized specifically for occupational safety and health inspectors, without providing further information. The Government adds that a labour inspection manual has been produced in cooperation with workers’ organizations (CPT, CNT and CUT) and employers’ organizations (UIP and FEPRINCO). The manual deals with: the objectives and principles of labour inspection and supervision; the characteristics of the labour inspection service and its fields of competence; the different types of inspection and the various areas covered; the responsibilities and duties of inspectors; the labour inspection procedure; the preparation of inspection reports and follow-up inspections; and finally the penalties applicable under the labour legislation. The relevant ILO Conventions and Recommendations, as well the national legislative provisions, laws and decrees, governing the activity of labour inspection and supervision are attached to the manual. Referring to the allegations made by the CIIT concerning the inadequacy of training for labour inspectors, the Committee notes that the training sessions mentioned by the Government are very short, concern relatively limited matters compared to the numerous and complex duties they have to carry out and were only attended by a small number of inspectors. The Committee requests the Government to take measures to improve the initial training provided to labour inspectors to enable them to carry out the duties set out in Article 3(1) of the Convention, as effectively as possible and to offer them subsequent training in the course of employment  to update their knowledge and skills to enable them to adapt to technological or other developments in the world of work. The Committee would be grateful if it would provide information on the measures taken or envisaged to that end and on any difficulties encountered. The Committee also requests the Government to provide a copy of the above labour inspection manual.

Article 11. Inadequacy of material resources for inspectors. The Committee notes that the Government does not indicate any progress concerning the material resources made available to inspectors and does not reply to the concerns expressed by the CIIT in this regard. However, it notes that under the Decent Work Country Programme, labour inspection is one of the five priorities of labour policy. The Committee requests the Government to take measures, if necessary with external financial assistance, to improve the material and logistical resources available to labour inspectors with a view to the effective performance of their duties and to provide information in this respect.

Article 12, paragraph 1(a), and Article 15(c). Restrictions on the right of inspectors to enter workplaces liable to inspection: obstacles to compliance with the obligation of confidentiality relating to complaints. The Committee notes, according to the documents attached to the report, that labour inspectors are not empowered, as provided for under Article 12(1)(a) of the Convention, to enter freely any workplace liable to inspection and that all inspections seem to be subject to an order by the Deputy Minister of Labour. In its 2006 General Survey mentioned above, the Committee considered that the requirement for a formal authorization issued by a higher authority or by another competent authority to carry out an inspection constitutes a restriction on the principle of the inspectors’ free initiative with regard to the inspection of workplaces (paragraph 265). In accordance with Article 12 of the Convention, inspectors should be empowered to carry out inspections subject only to their being provided with proper credentials. The inspector’s professional identity card should suffice to meet the requirement of proper credentials referred to in the Convention. The Committee therefore requests the Government to take the necessary measures to bring this practice to an end and to ensure that inspectors are empowered, in both law and practice, to enter freely at any hour of the day or night any workplace liable to inspection, as provided for by paragraph 1(a) of Article 12, and to provide information on these measures and their results.

Articles 15(c), 16, 19, 20 and 21. Planning of inspections: conditions required for compliance with the obligation to treat complaints as confidential and for the publication of an annual report on labour inspection activities, as a tool for the evaluation and improvement of the labour inspection system. The Committee notes with interest Decree No. 580 creating the Department for the Registration of Employment Relationships, regulating the Employee Employer Register and defining the penalties applicable in the case of violation, under which all employers are under the obligation to ensure registration in the Employment Register within 60 days from the start of an employment relationship (section 3). It also notes that the tripartite agreement on the Decent Work Country Programme provides for improved computerization of administrative registers and the granting of benefits to employers, particularly to SMEs, who enter into formal employment relationships. The Committee hopes that the Decent Work Country Programme will be launched quickly, as the existence of a workplace register is necessary to achieve the objectives of the Convention. Such registers are an essential tool for the application of Article 16 relating to the frequency and quality of inspections. They facilitate the planning and carrying out of routine inspections in the workplaces covered by the Convention and ensure that labour inspectors comply with the obligation to treat complaints as confidential with a view to preventing the employer or his representative from detecting any link whatsoever between the inspection and the likelihood of a complaint, identifying the person responsible for the complaint and taking reprisals against that person (Article 15(c)). The Government is requested to take measures, particularly through the implementation of the Decent Work Country Programme, to give full effect in both law and practice to the above provisions and to provide information on the progress made in that regard, in particular on the results of the implementation of Decree No. 580 in relation to the above objectives of the Convention.

Noting the continued failure to give effect to Articles 20 and 21 concerning the publication, transmission and content of the annual inspection report, as well as the lack of information on this matter, the Committee requests the Government to provide information in its next report on the implementation of the necessary measures to that end, particularly in response to the efforts to computerize data as envisaged in the Decent Work Country Programme and apply the provisions of the inspection manual relating to the obligation of inspectors to submit periodical reports to the higher authority (Article 19).

Articles 5(a) and 21(e). Effective cooperation between the labour inspection services and the judicial bodies. According to the press release of the Ministry of Justice and Labour, dated 15 October 2009, the creation is envisaged, in the context of the Decent Work Country Programme, of units specializing in labour law within the public prosecutors’ offices in the towns of Pozo Colorado, Filadelfia and Villa Hayes, with a view to improving conditions of work in the Chaco area. Appropriate training should be provided to these public prosecutors to enable them to support the measures taken by labour inspectors in enforcing the law. The Committee takes due note of this information and requests the Government to keep the ILO informed of the follow-up to this project and to indicate any other measures taken to promote effective cooperation between the labour inspection services and the judicial bodies.

The Committee is raising other points in a request addressed directly to the Government.