Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 81) sur l'inspection du travail, 1947 - Equateur (Ratification: 1975)

Autre commentaire sur C081

Observation

Demande directe

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The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 24 January 2020 and 30 August 2022, and the joint observations of ASTAC and the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020 on the application of this Convention. Furthermore, the Committee notes the joint observations of the Ecuadorian Confederation of Free Trade Unions (CEOSL), the Ecuadorian Federation of Municipal and Provincial Workers (FETMYP), the National Federation of Education Workers (UNE) and the National Ecuadorian Federation of workers of provincial governments (FENOGOPRE), received on 1 September 2022 on the application of the Convention.

Articles 6, 10 and 16 of the Convention. Status and conditions of service of labour inspectors. Inspection staff and coverage of inspection needs. The Committee notes the Government’s indication that, in 2020, there was a total of 160 inspectors at the national level, while, at 31 August 2022, this figure was 200 (99 with permanent appointments and 101 with temporary appointments). While it welcomes the increase in the number of inspectors, the Committee also notes that the 31 labour inspectors recruited between 2020 and August 2022 were appointed on a temporary basis (8 in 2020, 7 in 2021 and 16 between 1 January and 31 August 2022) and that the majority of inspectors are appointed on a temporary basis. In this regard, the Committee notes the Government’s indication that, due the COVID-19 pandemic, it was necessary to reduce public spending and remove public posts in 2020, with the exception of labour inspectorate positions. In particular, the Government indicates that it was vital to allocate resources to health, and to set aside the call for a merit-based competitive exam to fill labour inspector vacancies. Furthermore, the Government indicates that the low number of inspectors with permanent appointments in August 2022 is due to the fact that merit-based competitive exams involve considerable budgetary expenditure, and the regulations governing the examination processes are currently being amended. Despite the fact that there are inspectors with temporary appointments and occasional contracts, the Committee notes the Government’s indication that the stability of employment of these inspectors is guaranteed and that this stability is not affected by government changes.

Concerning the observations of the social partners, the Committee notes the following: (i) ASTAC indicates that there were only four inspectors in the province of Los Ríos, which meant that it was impossible for them to carry out their work; (ii) ASTAC and CEDOCUT indicate that, in accordance with their analysis of personnel distribution data, there were 196 inspectors in August 2020, and that there is no transparency on the part of the Government regarding the number of labour inspectors. They also indicate that, in recent years, there has been evidence of setbacks in the duties of labour inspectors, and that the situation was exacerbated by the reduction and restriction of spending by public institutions, which enables labour inspectors to obtain sufficient resources to carry out their work; and (iii) the CEOSL, FETMYP, UNE and FENOGOPRE indicate that the increase in the number of inspectors is not sufficient for them to carry out their duties.

The Committee also notes the Government’s indication that, between 1 January and 24 September 2020, the number of inspections was 6,446 (2,857 in progress, 3,222 archived and 367 that resulted in penalties). In this regard, the Government indicates that, with the aim of adapting labour inspections to the mobility restrictions resulting from the pandemic, telematic tools were adopted to carry out control and monitoring work in relation to workers’ rights. The Committee also notes that the Government does not provide information on the inspections carried out in 2021 and 2022.

The Committee understands the impact and difficulties caused by the COVID-19 pandemic. The Committee requests the Government to make every effort to ensure stability of employment for labour inspectors with temporary appointments, in accordance with Article 6 of the Convention. The Committee also requests the Government to provide detailed information on the conditions of service of labour inspectors, including their levels of remuneration and their employment tenure in comparison to the remuneration levels and job tenure of other officials exercising functions of similar complexity and responsibility, such as tax collectors and the police. The Committee also requests the Government to provide: (i) information on the measures adopted or envisaged in order to ensure that the number of labour inspectors is sufficient for the effective performance of their duties; (ii) updated statistical information on the number of inspectors and of inspections carried out; and (iii) detailed information on the manner in which it is ensured that workplaces are inspected with necessary frequency and thoroughness to ensure the effective application of the provisions of this Convention.

The Committee notes that, in its observations, ASTAC indicates that, in the province of Los Ríos, acts of corruption of inspectors were reported, and that a higher body should be established to assess the performance of inspectors, as corruption comes predominantly from within enterprises. The Committee requests the Government to provide comments in this respect.

Articles 12 and 17. Free initiative of labour inspectors to enter workplaces without prior notice, and discretion to initiate legal proceedings without previous warning. The Committee notes that the Government refers to four types of inspections: (i) targeted inspections; (ii) comprehensive inspections; (iii) inspections by means of electronic verification; and (iv) random inspections. The Government indicates that, during comprehensive inspections, labour inspectors shall review and plan for the assigned inspections, according to the non-compliances established by the computer systems of the Ministry of Labour. Where there are potential cases of non-compliance, the employer is notified electronically in order for an inspection to be conducted after the 15-day period following the issuance of the notification. At the site of the field inspection, the employer shall be notified of the cases of non-compliance identified, in order for the employer to justify, correct or remedy the non-compliance observed, within a period of five days. Where the case of non-compliance has been justified or the facts have been disproved, within the timeframe established, the proceedings are be closed. In the opposite case, if, within the five days following the notification issued during the field inspection, the cases of non-compliance have not been corrected or remedied, the employer shall be notified of a decision containing the date of a hearing, in order for the employer to justify the cases of non-compliance. If the hearing takes place, the inspector shall review the information submitted and draft a report within five days, which shall be brought to the attention of the regional labour director. The regional director has a period of 15 days to issue an administrative decision to impose a penalty or terminate the proceedings. The Committee notes that, according to the procedure described by the Government and established in Ministerial Decision No. MDT-2016-0303 of 29 December 2016, pursuant to which it was agreed to issue the “General Rules Applicable to Comprehensive Labour Inspections”, and its amendment by Ministerial Decision No. MDT-2017-0110 of 10 July 2017, labour inspectors must give prior notice of the inspection to the employer. Labour inspectors are also required to give notice of compliance to the employer, while administrative decisions imposing penalties may only be issued by the regional director at the end of the hearing.

In their joint observations, the CEOSL, FETMYP, UNE and FENOGOPRE indicate that labour inspectors cannot enter, freely and without prior notice, establishments subject to inspections, as inspectors only conduct their activities during working hours, from 8 a.m. to 5 p.m., and are required to give prior notice of the inspection to the employer. In particular, they indicate that comprehensive field inspections require 15-days’ notice to be given to the employer in accordance with section 12(1) of Ministerial Decision No. MDT-2016-0303 of 3 February 2017. In this regard, they also indicate that only inspections on request are conducted, as evidenced by the procedures for conducting targeted, electronic and comprehensive field inspections.

The Committee recalls that, in accordance with Article 12(1)(a) of the Convention, labour inspectors shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee also recalls that Article 17 of the Conventionprovides that, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings. The Committee requests the Government to adopt measures to ensure that labour inspectorsare empowered, in law and practice and in line with Article 12(1)(a) and (b) of the Convention, to make visits without previous notice. The Committee also requests the Government adopt the necessary measures to ensure that labour inspectors are able to prompt legal proceedingswithout previous warning, where required, in accordance with Article 17 of the Convention. Furthermore, the Committee requests the Government to provide information on the number of announced and unannounced inspections conducted by labour inspectors, and to indicate in detail the number of violations detected and the specific sanctions imposed through both announced and unannounced inspections.

Articles 19, 20 and 21. Periodic reports and the preparation, publication and transmission of an annual report on the work of the inspection services. The Committee notes that the Office has not received the annual report on the activities of the labour inspection services. In this regard, the Committee notes that the 2019 accountability report contains information on the total number of inspections carried out and the penalties imposed. The Committee once again requests the Government to make every effort possible to ensure that the central authority on labour inspection transmits to the ILO an annual report on the work of the inspection services containing all the information required under Article 21(a)–(g) of the Convention. The Committee also requests the Government to provide information on the publication of the annual report in accordance with Article 20(1) of the Convention.

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