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

The Committee notes the Government’s detailed report received at the ILO on 2 September 2009, as well as the documents attached. It also notes the observations made by the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers of Peru (CUT) and the Autonomous Confederation of Workers of Peru (CATP), dated 31 July 2009 and 1 September 2009 respectively, on the application of the Convention, which the ILO sent to the Government on 16 November 2009. However, the Government has not provided any comments concerning the points raised.

Article 6 of the Convention. Status and conditions of service of labour inspectors. According to the CGTP, the CUT and the CATP, in several regions of the country, labour inspection staff do not benefit from the status and conditions of service guaranteed to other public officials (level of pay and career prospects in particular), which are such that they are assured of stability of employment and are independent of any change of government and any improper external influence. The trade unions indicate that 33 of the 181 labour inspectors are carrying out their duties under temporary administrative service contracts (CAS), even though the career system and the guarantee of job stability should apply to all inspectors under the relevant regulations. Noting these allegations, the Committee notes that sections 6 and 25 of General Labour Inspection Act No. 28806, read in conjunction with section 3 of Supreme Decree No. 021-2007-TR, are in full conformity with the requirements of Article 6 of the Convention. Supreme Decree No. 037-2006-TR, which the trade union organizations emphasize may be amended on a discretionary basis by the Executive Authority, is not available to the ILO. The Committee nonetheless emphasizes that it is essential that the status, level of pay and career prospects of labour inspectors are such that they attract quality staff, retain them and protect them from any improper external influence. These conditions should not only be expressed in law on the basis of legal provisions, but should also be applied in practice. The Committee therefore requests the Government to clarify the status and conditions of service of the staff carrying out labour inspection duties as defined in Article 3(1) of the Convention. It requests it, in any case, to take measures to ensure the full application in both law and practice of Article 6 of the Convention, and to keep the ILO duly informed in this regard.

Article 7(3). Training of labour inspectors. According to the Government, in 2007, 1,394 persons, including inspectors carrying out labour inspection duties, as well as persons belonging to other groups (employers, workers, trade unions, administrative staff), were given various training (relating in particular to occupational safety and health, legislation, the safety and health management system and industrial relations) in the context of a training project promoted by USAID and MYPE Competitiva, with the aim of enabling labour inspectors to carry out their duties more effectively. The Committee notes that it is envisaged to continue and strengthen the training of labour inspectors, especially in matters relating to their new duties and in specific complex areas (freedom of association, outsourcing, forced labour, child labour). The Committee would be grateful if the Government would provide further information on the content, frequency and duration of the training given to inspectors in the course of their employment, as well as on the exact number of inspectors concerned in each case.

Articles 10 and 11. Human resources, transport facilities and other means of action available to the labour inspection services. With regard to the number of labour inspectors, the Committee notes that, according to the Government, the Regional Directorate of Labour and Employment Promotion of Lima was strengthened through the appointment of 100 additional inspectors in 2007. It was also envisaged to recruit 100 additional inspectors in 2008, to be deployed across the other regions taking into account the number of enterprises and the size of the economically active population, with the aim of recruiting 250 additional inspectors by 2011. The Committee notes that, according to the CGTP, the CUT and the CATP, labour inspectors usually have to wait around 45 days to be reimbursed for their travelling expenses. Furthermore, the amounts reimbursed do not correspond to the amounts actually spent and are instead calculated and granted on the basis of distance and limited to a maximum of four inspections per day. The Government acknowledges that the National Directorate of Labour Inspection (DNIT) does not have its own means of transport and that the four cars and six lorries allocated to it under Supreme Decree No. 002-2007 were made available to the headquarters of the Ministry of Labour and Employment Promotion, where they are used by the entire administration. The labour inspection services are therefore forced to call on other units or even use their employees’ own private vehicles to carry out inspections in areas where access is difficult. The Government further points out the shortage of protective clothing required for occupational safety and health inspectors as well as measuring equipment required to assess the risks posed to the health of workers, and indicates that some national directorates do not have offices that are suitable for the performance of inspection duties (accessibility, guarantee of confidentiality, etc.). In the Government’s view, the labour inspection budget should be increased to enable labour inspectors to carry out their duties more effectively. The Committee emphasizes that it is necessary that the needs to that end are expressed as precisely as possible by means of an assessment detailing the labour inspectorate’s current means and its results in relation to the number of workplaces covered (nature of activities, specific risks, geographical location, etc.) and the number and classes of workers employed therein. The Committee therefore requests the Government to take measures to carry out an assessment of the operation of the labour inspectorate and determine the human resources and material means that are necessary for its gradual improvement taking into account priority objectives. It requests it to keep the Office informed of any steps taken to that end and any progress made, as well as any difficulties encountered.

Articles 4, 15(c), 16 and 19. Planning and carrying out of inspections. The Committee notes that, according to the CGTP, the CUT and the CATP, labour inspectors continue to act mainly in response to complaints and not according to a schedule of inspections that takes into account predetermined criteria and allows them to target the branches of activity most exposed to hazards to the health and safety of workers, the legal provisions most liable to violation and the most vulnerable categories of workers. According to the unions, inspections relating to occupational safety and health are rare and, in 2008, these inspections accounted for 6.28 per cent of the total inspections carried out, while the number of inspectors responsible for inspections in this area was reduced by 50 per cent. The unions draw particular attention to the high rate of fatal accidents affecting temporary workers and point out that inspections in the public sector are rare. The Committee recalls that, under Article 16 of the Convention, workplaces should be inspected as often and as thoroughly as is necessary to ensure the application of the legal provisions enforceable by the labour inspectorate. Furthermore, it emphasizes that inspections give inspectors the opportunity to supply on-site technical information and advice to employers and workers (Article 3(1)(b)), particularly in matters relating to occupational safety and health, but also in other areas, and to make use of the broad powers of investigation defined in Article 12(1) to ensure the application of the relevant legal provisions. Furthermore, reiterating its 2008 direct request, the Committee once again stresses the need for the labour inspectorate to introduce a combination of different types of inspection (programmed, thematic, in response to a complaint) in order to cover as many workplaces as possible, but also to ensure the principle of confidentiality relating to complaints laid down in Article 15(c). In paragraph 263 of its General Survey of 2006 on labour inspection, the Committee recommends a practice of unannounced visits on a regular basis as a means of observing this principle. According to the information contained in the inspectorate’s 2007 annual report, 102,123 inspections seem to have targeted several branches of activity that are particularly sensitive with regard to safety and health, such as construction, home work, port work, oil companies, transport and mines. However, the Committee emphasizes that, in order to assess the coverage of the labour inspectorate, it requires not only the number of inspections carried out, but also the number of workplaces visited, and, above all, the number of workplaces liable to inspection across the country. The latter figure is particularly important for the planning of inspection activities. The Committee notes with interest the Government’s indication in its report that it is envisaged to ensure that, in future, the labour inspectorate develops a proactive approach based on information obtained in collaboration with the tax administration. It also notes with interest, with reference to its general observation of 2009 concerning the inter-institutional cooperation required for the establishment of a register of workplaces, that the labour inspectorate plans to establish broad cooperation with the National Superintendance of Tax Administration (SUNAT), the National Superintendance of Public Registries (SUNARP), the National Registry of Identification and Civil Status (RENIEC), the social security bodies (EsSalud), as well as the Public Sector Pension Fund (ONP) in order to implement the labour inspectorate’s integrated computer system (SIIT). It hopes that this will result in a mapping of workplaces which will allow the central labour inspection authority, established under Act No. 28806 on labour inspection, to draw up an appropriate schedule of inspections.

The Committee requests the Government to provide the ILO with its opinion concerning the inadequate coverage of the labour inspectorate with regard to occupational safety and health, as well as information concerning any measures taken to give effect to the above Articles of the Convention.

Articles 12(1)(a) and (c), and 15(c). Scope of the principle of the right of free entry of labour inspectors to workplaces liable to inspection. The Committee notes that, according to the Government, steps have been taken to bring the legislation into conformity with the above provisions of the Convention. However, it notes that, under section 8 of Supreme Decree No. 019-2007-TR amending Act No. 28806 on labour inspection, labour inspectors are authorized, where there is a threat to the life or safety of the workers, to carry out inspections on their own initiative without a prior mission order but that subsequent approval is required to validate the inspection. Consequently, it seems that labour inspectors still do not enjoy the right of free access to workplaces, as defined by Article 12(1). The Committee is therefore bound to emphasize once again that it is essential that labour inspections are not subject to any authorization. Furthermore, the requirement of a mission order containing a description of the purpose of the inspection constitutes an obstacle to the guarantee by inspectors of confidentiality concerning the source of the complaint and the link between the inspection and a complaint (Article 15(c)). Recalling that it has been commenting on the right of labour inspectors to enter freely any workplace liable to inspection for several years (2001, 2004, 2006, 2008), the Committee requests the Government to take measures as soon as possible to bring the legislation and practice into conformity with the Convention on this point, in particular through the repeal of the legal provisions which make inspection visits dependant on an order issued by a higher authority, as well as those providing that the scope and purpose of inspections must be established in advance for all inspection visits. The Committee requests it to provide information in its next report concerning these measures and to provide a copy of any relevant text.

Articles 20 and 21. Noting with interest, following its repeated requests, the provision of a report on the work of the labour inspectorate for 2007, the Committee draws the Government’s attention to the useful guidance contained in Paragraph 9 of the Labour Inspection Recommendation, 1947 (No. 81), concerning the manner in which the information required by Article 21(a)–(g) could be presented and would be grateful if it would take the necessary measures to ensure that an annual report containing the information set out in these provisions is published and communicated to the ILO in the near future.