Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the Government’s report for the period ending 31 May 2008 and the information provided in reply to its previous comments, as well as the attached copy of Resolution No. 20/2007 issuing new regulations governing the national labour inspection system. It also notes the adoption on 29 May 2007 of Legislative Decree No. 246 respecting violations of the labour legislation concerning protection, occupational safety and social security.

Article 3, paragraph 1(a) and (b), of the Convention. Scope of the competence and functions of the labour inspectorate. The Committee notes with interest that the legislation respecting wages has now been entrusted explicitly to the labour inspectorate under the terms of the regulations adopted by Resolution No. 20/2007 referred to above (section 1). It also notes that the labour inspectorate is no longer entrusted with competence in relation to self-employed workers and other persons who work outside a relationship of subordination, but that the scope of the inspectorate could be extended by supplementary legislation to other areas (section 3). Legislative Decree No. 246 respecting violations, measures for their elimination and the penalties applicable to those committing them, excludes from its scope of application Cuban commercial societies covered by Legislative Decree No. 166 of 15 July 1996. The Committee requests the Government to indicate the reasons for entrusting enforcement of the legislation respecting wages to the labour inspectorate and to specify the extent of its powers in this area.

Article 7. Requirements for applicants to the profession of labour inspector. The Committee notes with interest the new requirements established by section 23 of Regulation No. 20/2007 to exercise the profession of labour inspector and hopes that the Government will be able to report in due time their impact on the effectiveness of inspection activities.

Article 12, paragraphs 1 and 2. Restrictions on the freedom of action of labour inspectors in relation to the inspection of workplaces. With reference to its previous comment on this subject, the Committee notes that the 2007 Regulations maintain the requirement of the existence of a written inspection order specifying the purpose of any inspection, and the communication of this document to the employer (sections 11 and 12). The Committee is bound to emphasize once again that these conditions are contrary to the Convention, which envisages, following the introductory phrase of Article 12, paragraph 1(a), that inspectors shall be empowered to enter freely any workplace liable to inspection and, in accordance with paragraph 2, that they should be able to refrain from notifying the employer or his representative of their presence on the occasion of an inspection. Although it notes the Government’s explanations that the freedom of entry and investigation of inspectors is not hindered by the provisions in force, the Committee requests the Government to take measures rapidly to bring the legislation into conformity with the Convention in this respect.

The Committee notes the content of section 32 of the repealed text, under the terms of which those liable to inspection shall be informed of the date of the inspection where it is not a surprise inspection, has not been reproduced in the 2007 Regulations in the corresponding section 31. The Committee would be grateful if the Government would indicate the reasons for the removal of this provision.

Article 13. Measures to remedy violations. The Committee notes with interest that, under the terms of section 15(b) of the 2007 Regulations, those responsible for violations identified by the labour inspectorate are required, in addition to the same obligations as those set out in the repealed Regulations (of 2002), to send a copy of the measures planned to the National Labour Inspection Office (ONIT). It notes that sections 52 and 54 of Legislative Decree No. 246 refer respectively to section 8, subsections (b) and (c), but the text available in the ILO does not include the subsections indicated on the requirement to take measures (injunctions), but does include those repeating the principal and auxiliary sanctions applicable in the case of violations. The Committee would be grateful if the Government would keep the ILO informed of the impact in practice of section 15(b) of the 2007 Regulations and the action taken by the labour inspector competent in technical or territorial terms in respect of employers that are in default. It requests the Government to provide a complete copy of Legislative Decree No. 246.

Article 17, paragraph 2. Discretion of labour inspectors on the action to be taken on relation to a violation. The Committee notes with interest that effect is given to this provision by section 12 of Legislative Decree No. 246. It would be grateful if the Government would provide information on the manner in which effect is given in practice to this provision by all labour inspectors, and on its impact in relation to the objectives of the Convention.

Articles 20 and 21. Annual report on labour inspection. The Committee notes the Government’s commitment to ensuring that the guidance provided in Recommendation No. 81 is taken into consideration in future for the preparation of the annual inspection report. Noting that the last annual inspection report received covered the year 2005, the Committee reminds the Government that such a report should be published and communicated by the central authority within the time limits set out in Article 20, and it would be grateful if the Government would take the necessary measures for this purpose.