Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 of the Constitution of the ILO). The Committee notes the discussions that took place in the Conference Committee on the Application of Standards in June 2010, the conclusions of the Conference Committee, a communication from the National Union of Federal Roads and Bridges Access and Related Services of Mexico which was sent to the Government on 2 August 2010, and the Government’s report received on 14 September 2010.

A. Conference Committee on the Application of Standards. The Committee notes that in its conclusions the Conference Committee asked the Government to provide detailed up-to-date information for the 2010 meeting of the Committee of Experts on the follow-up measures taken with respect to the recommendations adopted by the Governing Body, concerning the representation made under article 24 of the ILO Constitution in relation to the accident that took place in the Pasta de Conchos mine. The Government was to have provided information on the number and nature of accidents, in both the formal and informal sectors of the mining industry; the risk evaluation methods used in the mining industry; the compensation actually paid and compensation still owing to the survivors and the families of the victims – including compensation for damages to be borne by the company involved in this case – and the relevant state benefits, and also any social benefits provided for the families of miners without social protection. Furthermore, the Committee urged the Government to ensure that all relevant actions and measures relating to this case are taken in close cooperation with the social partners and asked the Committee of Experts to continue to follow up on events and on progress made.

B. Communication from the National Union of Workers of Federal Roads and Bridges Access and Related Services of Mexico (SNTCPF). The Committee notes the detailed communication which alleges failure by the Government of Mexico to comply with the recommendations made by the Governing Body in its report on the representation. The Committee notes that the trade union – which was one of the complainants – asks for a recommendation to be issued complementing the report on the representation (document GB.304/14/8). The Committee informs the union that, according to established practice, when facts and allegations similar to those of a representation are presented, it is for the Committee to examine them in the context of the follow-up to measures taken further to the recommendations made by the Governing Body. Noting that the Government has still not made its comments, the Committee will deal with this communication in greater detail at its next meeting, in the light of any comments that the Government sees fit to make. The key points of the lengthy communication would appear to be the following:

(a).. Registration of reliable data on existing mines, adequate OSH measures and labour inspection. The trade union alleges failure to apply Official Mexican Standard NOM‑032‑STPS-2008, inasmuch as there is no register providing a full list of legal, illegal and clandestine mines in the coalmining region of Coahuila, and as a result it is impossible to plan the necessary measures, the labour inspectorate is unable to monitor them and there is no way of knowing the percentage of mines that were inspected. The union refers to discrepancies in the figures for the mines recognized by different state bodies (the Ministry of Labour and Social Security (STPS), the Mexican Geological Service (DGM), the Ministry of the Environment and Natural Resources (SEMARNAT) and COCOSHT (the state advisory committee on OSH)).

(b).. Pocito mines. Lulú mine and “Ferber” pocito mine. The trade union’s report contains extensive information on the pocito mines, stating that many of them are clandestine. With regard to the “Lulú” mine, the union describes the lack of OSH measures in the mine and indicates that, although the mine was closed down, nobody informed the workers. The union indicates that the various inspection documents are not displayed in the mine and the workers are not informed of them. As regards the “Ferber” pocito mine, it indicates that the labour inspectorate, during an inspection on 13 August 2009, established that there was failure to comply with 76 safety rules, including the requirement for the mine to have two exits and the provision of a methanometer and emergency breathing equipment. After the failure to comply with 76 safety rules was recorded, the inspection report stated as follows: “The representative of the enterprise is therefore informed that the access of personnel working inside the mine must be restricted until the employer or legal representative of the enterprise complies with the safety measures indicated. Consequently, should the employer or legal representative continue with work inside the mine, he will be held fully responsible for endangering the physical safety of the workers in the event of any accident”. The union indicates that on 11 September 2009 a 23-year-old worker died as a result of a rockslide. According to the union, as far as the Coahuila STPS is concerned, it appears sufficient to fill in inspection forms and have the workers believe that it is protecting their rights, and the union describes inspection activities in the region in question as “acts of simulation”.

(c).. Impact of measures. The union indicates that the enactment of NOM‑032‑STPS‑2008 did not produce any change in the region, that even in 2009 the mortality rate increased by 200 per cent, and that enterprises will not comply with the standard as long as it is cheaper to pay fines than pay for the introduction of safety measures.

(d).. Systematic negligence. Ventilation. The union states that the accident at Pasta de Conchos was not an isolated tragic incident but evidence of systematic negligence in the application of safety and health standards. It states that it can prove that the accident was due not only to a lack of “dusting” but also to a lack of adequate ventilation. It claims that this is important for the future since the Government continues to maintain that it did not know what happened to cause the accident and this claim of not knowing has allowed the suspicion to remain, in the history of coalmining in Mexico, that it could have been a worker who was responsible and has enabled the Government to shirk its responsibilities in OSH. The union adds that the Government is responsible for determining unequivocally the cause of the accident. The union also claims that there are plans to exploit the methane gas connected with the coal and that the Government states that it will extract the methane gas beforehand and this will make for greater safety, but in reality this will lead to more fatalities because there are no applicable safety and health standards. The union also mentions that workers were reportedly recruited to locate the bodies of the deceased workers without any inspection of the site and with the only available methanometer non-operational.

(e).. Compensation and treatment of the victims’ families. The union states that the relevant benefits were calculated incorrectly, payments started at the end of 2009 but without being adjusted to wage levels, that the Pasta de Conchos Family Support Association was not included in dialogue, that the victims’ families have been improperly treated by various state bodies and that their lawyers have been subjected to harassment, threats and intimidation and their offices have been raided.

The Committee requests the Government to supply information on the communication from the trade union and, in particular, on the points referred to by the Committee in the above paragraphs, taking account of the general context of the follow-up to the Governing Body’s report, including the relevant comments indicated below.

C. The Government’s report. The Committee will examine in the following paragraphs the information supplied by the Government as follow-up to the recommendations of the Conference Committee on the Application of Standards and the Committee’s observation of 2009, relating to the measures adopted to comply with the recommendations made in the aforementioned Governing Body report (GB.304/14/8).

Request for information on any developments concerning the possible ratification of the Safety and Health in Mines Convention, 1995 (No. 176), based on Official Mexican Standard NOM‑032‑STPS‑2008 concerning safety in underground coalmines. Ventilation. Protection against undue consequences in the event of interruption of work. In its previous observation the Committee noted the adoption of Official Mexican Standard NOM‑032‑STPS‑2008 of 23 December 2008 concerning safety in underground coalmines, drawn up with the technical assistance of the Office. Moreover, while noting the Government’s indication that this standard includes provisions from Convention No. 176, the Committee hoped that this could facilitate the ratification of that Convention and asked the Government to supply information on any developments in this respect. The Committee notes that, according to the report, the STPS recommended in 1998 that the Convention should not be ratified on the grounds that the labour legislation does not have such specific labour standards as those laid down within Article 7(f) of Convention No. 176 which establishes the obligation of the employer to ensure adequate ventilation for all underground workings to which access is permitted, and Article 13(e), concerning the right of workers to remove themselves from any location at the mine when circumstances arise which appear, with reasonable justification, to pose a serious danger to their safety or health. The Government indicates that no amendments have been made to date to the Federal Labour Act in relation to these two aspects of the Convention because the reasons why Convention No. 176 has not been ratified continue to apply. The Committee notes that Chapter 8 of the recently adopted NOM‑032‑STPS‑2008 contains detailed provisions on ventilation in coalmines and that it ascertained in previous comments that Article 13 of Convention No. 155 applies in practice in Mexico. The Committee refers to this last matter in its direct request. The Committee requests the Government to contemplate the possibility of requesting technical assistance from the Office with a view to overcoming the remaining obstacles to the possible ratification of Convention No. 176. The Committee requests the Government to continue to supply information in this regard.

I.         Measures to be adopted in consultation with the social partners

Articles 4 and 7 of the Convention. National policy and reviews, either overall or in respect of particular areas. The Committee notes that the Governing Body, in paragraph 99(b) of its report, invited the Government, in consultation with the social partners, to continue to take the necessary measures in order to:

(i)... ensure full compliance with Convention No. 155, and, in particular, continue to review and periodically examine the situation as regards the safety and health of workers, in the manner provided for in Articles 4 and 7 of Convention No. 155, with particular attention given to hazardous work activities such as coalmining. The Committee notes that, according to the Government’s report, the National Advisory Committee on Occupational Safety and Health (COCONASHT) is working on nine projects, including the development of a national information system on occupational accidents and diseases, and that the Government also provides information on online training workshops and diplomas. The Committee requests the Government to supply information on the aforementioned system and requests it to provide further details of the application of Articles 4 and 7 of the Convention to hazardous types of work such as coalmining. The Government is also requested to indicate whether it has a register of existing mines, including pocito mines, and to provide information on OSH policies adopted or planned in relation to large, medium-sized and small enterprises;

(ii).. conclude and adopt the new regulatory framework for OSH in the coalmining industry, taking into account the Safety and Health in Mines Convention, 1995 (No. 176), and the ILO code of practice on safety and health in underground coalmines, 2006. The Committee notes the indication in the Government’s report that, in relation to NOM‑032‑STPS‑2008, a special inspection operation for underground coalmines was launched on 25 March 2009. The Government indicates that an inspection protocol was used for this operation which was submitted to the members of the Subcommittee for the Coalmining Region at its ordinary session of 17 March 2009 and that this was updated for the actions of 2010, including the material relating to training and skills. The Government also indicates that between March and October 2010 a total of 11 underground mines and 20 pits (pozos) were inspected in Coahuila. The Committee requests the Government to continue to supply information on its application in practice, also taking into account the comments made by the SNTCPF.

Article 9. Adequate and appropriate inspection system. The Committee also notes paragraph 99(b)(iii) and (iv) and 99(d) of the Governing Body’s report, in which the Government was asked, in consultation with the social partners, to continue to take the necessary measures in order to:

(iii). ensure, by all necessary means, the effective monitoring of the application in practice of laws and regulations on occupational safety and health and the working environment, through an adequate and appropriate system of labour inspection, in compliance with Article 9 of Convention No. 155, in order to reduce the risk that accidents such as the accident in Pasta de Conchos occurs in the future;

(iv). monitor closely the organization and effective operation of its system of labour inspection taking due account of the Termination of Employment Convention, 1982 (No. 158), including its paragraph 26(1);

....... ...

(d).. review the potential that the Labour Inspection Convention, 1947 (No. 81), provides to support the measures that the Government is taking in order to strengthen the application of its laws and regulations in the area of occupational safety and health in mines.

The Committee notes the Government’s statement that the STPS is undertaking various actions within the context of the sectoral objective aimed at promotion and monitoring of compliance with labour standards. This objective seeks to increase the number of workplaces which comply with OSH standards, undertake actions relating to the supervision and monitoring of inspection, generate a culture of self-evaluation, and impose penalties designed to have a heavy impact on offenders. The Government highlights the strategy implemented to strengthen the enforcement of labour standards with a view to ensuring that all large and medium-sized coalmining companies comply with the laws and regulations relating to OSH and implement remedial measures. The Government indicates that, in cases where conditions endangering the health, safety and lives of the workers and posing a risk to installations are detected, the Federal Labour Inspectorate restricts coalmining activities from the date of the inspection visit in question until such time as safety and health measures are complied with, and proceeds to issue a warning. The Committee notes the Government’s indication that the text of the warning is as follows: “Imminent danger. The Ministry of Labour and Social Security (STPS) restricts the access of workers to this area .... In the event that work operations continue, they shall be the exclusive responsibility of the employer”. The Committee notes that the trade union considers in its communication that the abovementioned measure is inadequate and refers to the example of the Felber mine. The Committee requests the Government to ensure that the labour inspectorate enforces the interruption of work in areas where there is imminent danger, and to examine these matters in consultation with the social partners and provide information in this respect.

With reference to its previous comments, the Committee also notes the information on the follow up given to labour inspection measures. It notes that 931 measures were ordered, 899 of which were not upheld (owing to various situations such as areas to which measures applied no longer being exploited, and therefore being closed and sealed off, or machinery and equipment to which the measure applied being withdrawn from service), 32 measures were upheld and, of these, 20 were complied with and 12 were not complied with. The Committee considers that, in the light of the report on the representation, it is essential to verify that action is taken to follow up on the measures issued, and requests the Government, in consultation with the social partners, to examine ways of creating mechanisms enabling it to substantially increase its activities to uphold or verify the implementation of the measures issued and to continue to supply information in this regard.

Degree of application and impact of the measures taken. The Committee notes that, according to the Government, inspections are undertaken on the basis of the “Protocol of inspection for underground coalmines”, which coincides with the provisions of the procedure for the evaluation of conformity (PEC), provided for in Chapter 18 of NOM‑032‑STPS‑2008. The Committee also notes the Government’s indication that in April 2010 it launched the special inspection operation to inspect underground coalmines, including 20 pits (pozos) and open‑cast mines, and that 28 workplaces were visited with 88 inspections, of which 30 related to general safety and health conditions. The Committee observes that, since the accident, the Government has established a particular standard and a protocol of application. It notes, however, that the figures supplied do not provide a clear picture of the degree of application of OSH standards in coalmines. In order to verify the improvements made and progress achieved, it would be necessary to have reliable data on the number and types of mines that exist in the state where the accident occurred, drawing a distinction between large, medium-sized and small mines (pocitos), the estimated percentage of unregistered mines, workers and accidents. This would enable progress to be measured at intervals. The Committee therefore requests the Government to provide information on the mines existing in the state of Coahuila, drawing a distinction between large, medium-sized and small mines (pocitos), indicating if possible the number of registered and unregistered pocitos, the number of accidents and fatalities each year, and existing policy for ensuring compliance with OSH standards in the three abovementioned sectors. Finally, the Committee repeats the request for information made by the Conference Committee on the Application of Standards, including on the risk evaluation methods used in the mining sector.

II.        Other measures

Compensation. The Committee noted that the Governing Body, in paragraph 99(c) of the document referred to above, asked the Government to:

(c).. ensure, considering the time that has elapsed since the accident, that adequate and effective compensation is paid, without further delay, to all the 65 families concerned and that adequate sanctions are imposed on those responsible for this accident.

Humanitarian aid. With reference to its previous comments, the Committee notes the elements laid out by the Office of the Federal Attorney for the Defence of Labour (PROFEDET) in its requests representing the widows and children of 56 deceased workers. It also notes that 750,000 pesos were granted to 63 out of 65 beneficiaries and 80,800 pesos were granted to 61 families and that this money was not by way of compensation but by way of “humanitarian aid”. The Committee notes that the trade union disagrees with various aspects of the criteria used and the amounts due. The Committee considers it essential with respect to the workers who died in the accident at the Pasta de Conchos mine that their families receive amounts of money which enable them to live decently and that the State and the employers assume their responsibilities in this regard. The Committee indicates that it will deal with this matter in depth in its next comment and requests the Government to make comments on the matters raised by the trade union in its communication and also to indicate whether, in addition to this “humanitarian aid”, the families of the workers have received adequate and effective compensation and the amount thereof. Furthermore, it is unclear to the Committee, from the information supplied, how the amounts of 750,000 and 80,800 pesos were determined which, according to the Government, are not compensation (for example, whether wage supplements were counted and, if so, which) and the criteria for changing the amount from the initial offer made by Industrial Minera México (IMMSA), which was the equivalent of ten years’ wages according to paragraph 26 of the report, to the subsequent amount, which was lower, and it requests the Government to indicate clearly which of the two amounts was actually granted to the workers.

Compensation. The Committee notes the Government’s indication that the amounts determined by way of compensation and other benefits to the family members of the 65 deceased miners were determined in each specific case in the legal proceedings instituted by the families. The Government indicates that IMMSA, on its own behalf or acting on behalf of General Hulla (GH), has deposited credit instruments in 58 cases which the Government indicates with their numbers; in five cases the corresponding cheques have not been displayed and two are still being processed. The Committee points out to the Government that it cannot fully understand from this information whether adequate and effective compensation was paid rapidly in accordance with the national legislation. It also notes the disagreement of the trade union and the families on this point. The Committee requests the Government to provide clearer information in this respect, also taking into account the comments of the trade union, and any other information that contributes to an understanding of the effect given to this recommendation.

State and social benefits. The Committee notes the Government’s indication that, through the Ministry of Social Development, support amounting to 1 million pesos was provided to cater for 65 productive projects of up to 15,000 pesos per person; a pledge was made to provide workshops on productive support; a pledge was made to support a project for the construction and equipment of a social, cultural and childcare centre for women belonging to the families of the accident victims; basic products were also provided; INFONAVIT liquidated the total balance of the credits previously taken out by the deceased workers as well as measures relating to mortgages, while the National Fund for Public Housing provided support with a grant of 33,000 pesos so that the persons concerned could obtain housing. While noting the information supplied by the Government, the Committee cannot fail to note that the communication from the trade union, including its appendices such as the report from the Pastoral Laboral National Team, seriously questions the payments and benefits and the attitude of the state bodies, including PROFEDET, as regards treatment of the deceased workers’ widows. The Committee recalls that the Governing Body in its report made special mention of the families of the victims. The Committee requests the Government to provide detailed information on all aspects of the communication which relate to the families of the victims in order to gain a clearer picture of the situation and of the existing disputes and court cases. In general, the Committee trusts that the Government will take all necessary steps to find an appropriate solution, including by means of dialogue, to the complaints submitted by the families of the victims of the Pasta de Conchos accident. The Committee also trusts that the families will be given support by the Government, and it requests the Government to provide information in this regard. It also requests information on the allegations of harassment of the lawyers representing the victims’ families.

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

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