Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the Government’s report and the various documents attached or subsequently sent to the ILO. The Committee further notes the joint comments on the application of the Convention by the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), transmitted to the Government on 6 September 2010, reiterating partly their previous comments and those previously made by other trade unions.

Adoption of a new approach to labour inspection and implementation of corresponding measures. The Government refers in its report to the implementation of a number of measures taken or envisaged in the framework of the USAID–Midas (More Investment for Alternative Sustainable Development) programme to establish a comprehensive and coherent approach of labour inspection (Sistema Integral de Inspeccion de Trabajo (SIIT)). These measures include: (i) the increase of preventive visits promoting so-called improvement agreements; (ii) the consolidation of data through the establishment of Excel registers at district level and the implementation and design of an information system on national level through financial and technical cooperation with the Canadian Government; (iii) the risk assessment to identify high-risk areas based on these databases at the national and local levels; (iv) the organizational restructuring of the Ministry for Social Protection (MPS), including the establishments of two new municipal labour inspection offices (El Bagre and Jagua de Ibirico) in the directorates of Antioquia and Cesar; (v) the appropriate adaptations within the structures of the labour inspectorates (including the establishment of new working groups), the reassignment of functions of labour inspectors; (vi) the strengthening of the number of labour inspection and technical staff and their geographical distribution; (vii) the provision of additional office space; (viii) the purchase of additional technical equipment (computers, etc.);
(ix) the envisaged involvement of representatives of different sectors and public and private institutions; as well as (x) the simplification of administrative procedures and the improvement of the academic profile of labour inspectors with a view to improving the effectiveness of service. The Committee notes that the Government refers to a national inspection plan focusing on the health-care sector. It also notes the increased inspections in associated work cooperatives (CTAs) and the information that the risk-assessment in the framework of the SIIT should allow inspections to be focused on high-risk sectors.

For their part, as concerns the implementation of the recently adopted measures, the CUT and CTC deplore the absence of appropriate consultations with trade unions. In relation to the new preventive approach, they observe that: (i) an increasing number of inspectors are appointed on a provisional basis, have no career prospects, are not provided with adequate and regular training and their competences are not evaluated in the course of service; (ii) labour inspectors are entrusted with a multiplicity of additional tasks; (iii) the labour inspection staff is insufficient (despite recent recruitments) in view of the number of workplaces liable to inspection; (iv) the number of inspections is low, especially in high-risk sectors, such as coal mines; (v) complaint procedures are slow; (vi) the collaboration of technical experts in occupational safety and health is not adequate; (vii) the resources allocated to the labour inspectorate, office equipment and transport facilities are scarce and the reimbursement of travel costs is inadequate and lengthy; (viii) cooperation between labour inspection services and other governmental services or public or private institutions does not operate in practice, particularly between labour inspectors and employers and workers and between the labour inspectorate and the judicial authorities; (ix) labour inspectors are not empowered to initiate judicial, or in particular penal procedures in case of violations of labour rights; (x) the labour inspectorate is informed only of cases of grave or mortal accidents; and (xi) the annual report merely contains information on the number of inspection visits and sanctions imposed. Further, according to the trade unions, the mandate of the labour inspectorate should be extended to cover commercial establishments (particularly as the number of informal workplaces in this sector has increased), and the exclusion of Part II of the Convention (commercial establishments) from its ratification should be lifted accordingly.

Article 3(1)(b). Implementation of a preventive approach to labour inspection. The Committee notes that the SIIT particularly recommends the adoption of a preventive approach to labour inspection based on risk assessment in order to identify high-risk sectors and aimed at promoting so-called “improvement agreements” between employers and workers on the occasion of preventive inspections. The Committee notes the information on the number of preventive inspections and of improvement agreements concluded in 2008 and 2009, as well as the organization of various information sessions, the publication and distribution of information material and press coverage. The Committee notes, however, that no information is provided by the Government on the measures taken or envisaged to strengthen the mechanism for notification to the labour inspectorate of industrial accidents and cases of occupational disease with a view to achieving the objectives of the preventive approach. According to the CUT and CTC, preventive inspection visits: (i) are only carried out in the formal sector; (ii) are subject to previous authorization by employers which in most cases is not granted; (iii) in the case of the detection of violations of labour law, labour inspectors are not able to impose sanctions or initiate investigations; (iv) a written commitment by an employer to remedy defects is non-binding; and (v) remedial activities of employers are merely followed-up by telephone due to the heavy workload of labour inspectors (although in theory follow-up visits have to be carried out after six months).

Articles 3(2), 10 and 16. Multiplicity of tasks entrusted to labour inspectors. Human resources in relation to the workplaces liable to inspection. The Committee notes the restructuring of the Ministry for Social Protection (MPS) and the reassignment of functions entrusted to labour inspectors in the General Labour Inspection Directorate (GLID) and its local offices by Decree No. 1293 (amending Decree No. 205 of 2003), as well as the corresponding assignment of functions by resolution No. 2605 of 2009 to the newly created working groups in the GLID and in its local offices. The Committee notes that, under the terms of the above provisions, labour inspectors are still entrusted with too many additional tasks, including conciliation of individual and collective labour disputes. According to the CUT and CTC: (i) Decree No. 1293, which enumerates the functions of the labour inspectorate at the national and local levels, and entrusts further new functions to labour inspectors; (ii) resolution No. 2605 of 2009 confines itself to redistributing functions; and (iii) in practice, labour inspectors are also required, in addition to the heavy workload imposed by law, to assume secretarial tasks due to the lack of clerical staff. The Committee requests the Government to refer to paragraph 69 of its 2006 General Survey on labour inspection in this regard and emphasizes once again that the primary duties of labour inspectors are complex and require time, resources, training and considerable freedom of action and movement and that any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. With reference to the conciliation of labour disputes, the Committee also requests the Government to refer to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), in accordance with which the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes.

Articles 5(a) and (b) and 17. Cooperation with government services and the judicial authorities and collaboration with employers and workers. The CUT and CTC continue to deplore the lack of cooperation between labour inspectors and other government services and the lack of collaboration with employers and workers. With regard to cooperation with other government services, they point out that no cooperation exists between the Superintendence of Economic Solidarity and the National Directorate for the Prevention of Accidents despite a relevant cooperation agreement. The Committee notes in this regard the brief indication by the Government that cooperation with representatives of different sectors and public and private institutions is envisaged under the SIIT.

With regard to collaboration with employers, workers and their respective organizations, the Government refers to the conclusion of 219 improvement agreements in 2008 and 238 in 2009 between employers and workers during preventive inspections in different sectors.

The trade unions call for the involvement of the most representative unions in the design, implementation and evaluation of the system of preventive inspections, collaboration with judicial authorities and the establishment of a register of judicial decisions, as well as the conclusion of cooperation agreements between the various government services.

Article 11. Material working conditions and transport facilities necessary for labour inspectors. The CTC and CUT continue to deplore a lack of material resources allocated to the labour inspectorates and the lack of necessary equipment, such as computers, Internet access, filing cabinets, equipment for technical investigations and adequate transport facilities. In this regard, the trade unions point out that travel expenses of labour inspectors are only reimbursed up to an amount of 4,000 pesos, that the procedure of reimbursement is very slow and that higher or unexpected costs have to be borne by labour inspectors themselves. In addition, the unions allege that in practice, travel expenses are not reimbursed when inspections are carried out without prior notice and the authorization of the director of the local directorate, which can take up to one week or more despite the emergency of certain situations.

Associated work cooperatives (CTAs). The Committee noted in its previous comment that both trade unions and the Government had reported the existence of fraudulent strategies in CTAs to circumvent the obligations arising out of a salaried employment relationship. In this regard, the Committee notes with interest that Act No. 1233 of 2008 establishes the obligation of associated work cooperatives and pre-cooperatives to make contributions to the Colombian Institute for Family Welfare (ICBF), the National Apprenticeship Service (SENA) and family benefit funds. It further notes with interest that this Act explicitly prohibits such cooperatives and pre-cooperatives from acting as employment mediation enterprises or from providing temporary labour, and provides in the case of violation for the withdrawal of the legal personality of the CTA. The Government mentions in addition the intensification of inspections in cooperatives (1,632 inspections and 1,022 investigations in 2009) to control the evasion of social security contributions, the exercise of their approved activity and to detect cooperatives acting as employment mediation enterprises or providing temporary labour, contrary to the law. However, according to the CUT and CTC, inspections in CTAs are not effective, for inspections are only carried out at the registered offices of the CTA, merely resulting in the control of documents, while for the control of the prohibition of employment mediation, inspectors would also have to control other workplaces. The Committee finally notes that the trade unions request information on the violations of legal provisions that have led to the imposition of fines or the withdrawal of the legal personalities of CTAs.

The Committee asks the Government to submit any comments it deems relevant in response to the observations made by the CUT and CTC and to provide information on the progress made through the implementation of the programme to establish a comprehensive and coherent approach of labour inspection (Sistema Integral de Inspeccion de Trabajo (SIIT)) in the establishment and operation of a labour inspection system consistent with the principles laid down in the Convention, and the guidance provided in the accompanying Recommendation No. 81.

It requests the Government to provide information in particular on the measures adopted to secure effective cooperation between the labour inspection services and the other public or private institutions and bodies engaged in similar work, including judicial bodies (Article 5(a)); the measures for effective collaboration between labour inspectors and employers and workers
(Article 5(b) and Part II of Recommendation No. 81); the status of the current labour inspection staff and their conditions of service (Article 6); the strengthening of initial training and subsequent training during employment for inspectors, including on risk assessment (Article 7(3)); the determination of the number of labour inspectors in relation to the number of workplaces liable to inspection, and the association of qualified technical experts and specialists (Articles 9 and 10); the reimbursement of inspectors’ professional travel expenses and the granting of advances for that purpose (conditions, amount, time required for reimbursement, etc.) (Article 11(1)(b) and (2)); the application in practice of the right of free entry, without previous authorization, to workplaces (Article 12(1)(a)); the application in practice of the power to make or have made orders requiring measures to remedy situations harming the safety and health of the workers (Article 13); the measures taken to improve the mechanism of notification to the labour inspectorate of industrial accidents and cases of occupational disease (Article 14); the available means for the performance of planned inspections and inspections made in consequence of the receipt of a complaint, with a view to covering as many workplaces as possible while taking into account priority sectors (Articles 11 and 16); the role of labour inspectors in legal proceedings against employers in breach of the labour law, including in CTAs (Article 17); the dissuasive nature of the sanctions applied (Article 18); and the reinforcement of the reporting obligation of labour inspectors and local inspection offices with a view to the publication by the central authority of an annual report (Article 19); and the issue of the eventual extension of the scope of labour inspection to commercial workplaces (Article 22 and Part II of the Convention).

In addition, noting that the Government did not reply to the requests under the following points, the Committee is bound to repeat the relevant comments which read as follows.

The Committee draws the Government’s attention to paragraph 133 of its General Survey of 2006 on labour inspection concerning the meaning and scope of Article 3, paragraph 1(c), of the Convention, which provides that labour inspectors shall bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions. In the Committee’s view, the deterioration in the working conditions of a large number of workers, many of whom are women, would be ample reason for entrusting to inspectors the task of conducting an inquiry into the employment relationships that exist between those giving instructions or receiving goods and services produced by the CTAs and the workers of the CTAs. Any defects or abuse affecting these workers could thus be identified and improvements introduced in the legislation on conditions of work and the protection of workers in the performance of their work. The Committee hopes that labour inspectors will shortly be entrusted with such an investigation to enable the law to keep pace with new situations in the world of work such as the relationship in which CTAs are subordinate to the enterprises for which they produce goods and services outside any form of work contract. The Government is asked to provide information, together with copies of any texts giving effect to Article 3, paragraph 1(c), of the Convention.

The Committee also asks the Government to inform the ILO of its views on the unions’ proposals on this matter.

Principle of the confidentiality of the source of Article 15(c). Complaints. The Committee notes once again that the Government has not sent the information requested on the existence of a legal basis ensuring that labour inspectors comply with the principle of the confidentiality of the source of complaints. It once again urges the Government to take steps rapidly to supplement the legislation to ensure the confidentiality of complaints so as to protect workers from reprisals, to keep the ILO informed and to provide any relevant laws or bills.

Annual inspection report. Articles 20 and 21. The Committee once again draws the Government’s attention to the obligation on the central inspection authority to publish and communicate to the ILO, in accordance with Article 20 of the Convention, an annual report on the work of the inspection services containing the information required by clauses (a) to (g) of Article 21. The Committee firmly hopes that, with the international cooperation currently under way to reinforce the labour inspectorate, the Government will not fail to take the necessary steps to ensure that full effect is given to these Articles of the Convention. It would be grateful if the Government would in any event provide information on all developments in this area, including any problems encountered.

[The Government is asked to reply in detail to the present comments in 2011.]