Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 81) sur l'inspection du travail, 1947 - Pérou (Ratification: 1960)

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Observation

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The Committee notes the observations of the National Confederation of Private Business’ Institutions (CONFIEP), received on 31 August 2023.

The Committee notes the Government’s reply, in its report, to the observations made by the Autonomous Workers’ Confederation of Peru (CATP) in 2020. It particularly notes the following: (i) while Legislative Decree No. 1499 of May 2020 amended section 6 of the General Labour Inspection Act, the labour inspectorate provides guidance and technical assistance, including for enterprises and workers with the aim of promoting compliance with the regulations under section 3(2.1) of the General Labour Inspection Act; (ii) labour inspection is carried out in enterprises, work sites and, in general, places in which work is performed, even when the employer is in the public sector or companies in the State enterprise sector, which are governed by the labour legislation regulating private activities, (section 4(1) of the General Labour Inspection Act); and (iii) regarding the safety and health conditions of labour inspectors, including during the COVID-19 pandemic, the Government indicates that the occupational safety and health policy of the National Labour Inspection Authority (SUNAFIL) was approved by Decision of the Board of Directors No. 06-2022-SUNAFIL/PCD, of 11 November 2022. In this regard, the Government adds that SUNAFIL implemented a series of measures with the aim of ensuring occupational safety and health conditions, including: the provision of personal protective equipment for inspection personnel, as well as in central and local inspection offices; dissemination of visual material and the organization of discussions with the aim of educating and raising awareness among officials within the context of the COVID-19 pandemic; the conduct of COVID-19 elimination campaigns; the implementation of measures such as temperature checks, physical distancing and isolation; and the provision of training on occupational safety and health. Regarding the activities of SUNAFIL’s Training and Capacity-building Centre for the Labour Inspection System, the Committee refers to its comments under Article 7(3) below.

Articles 3(1) and 16 of Convention No. 81. Inspections in the mining sector. The Committee notes that, in its observations of 2023, the CATP expresses concern at the fact that, while the legislation does not exempt mining and transport enterprises or parts of these enterprises from the purview of the labour inspectorate, occupational safety and health inspection in small-scale and informal mining is not within the competence of SUNAFIL, but rather within that of regional governments through the Regional Office or Directorate for Energy and Mining (section 11 of the Regulations on Occupational Safety and Health in Mining, approved by Supreme Decree No. 024-2016-EM). The CATP indicates in particular that, due to the lack of SUNAFIL’s preventive and inspection powers, there have been many deaths in the sector, such as those of 27 miners in Yanaquihua resulting from the inhalation of carbon monoxide in a mining accident. The Committee requests the Government to provide its comments in this regard. The Committee also refers to its comments on the Safety and Health in Mines Convention, 1995 (No. 176).

Article 4. Central authority. The Committee notes that, in its 2023 observations, the CATP indicates that SUNAFIL does not have permanent competence or functions in the area of labour inspection. Specifically, it indicates that section 3 of Act No. 30814 on strengthening the labour inspection system, of 5 July 2018, provides for the temporary assignment to SUNAFIL for a period of eight years as from the entry into force of the Act of competences and functions in the field of inspection which were the responsibility of regional governments. The Committee requests the Government to provide its comments in this respect.

Articles 5(a), 12(1)(a) and 18 of the Convention. Effective cooperation between the inspection services and other government services and public or private institutions engaged in similar activities. Freedom of access to workplaces liable to inspection. Obstruction of inspectors in the performance of their duties. Further to its previous comments, the Committee notes that the Government indicates in its report that the joint interventions by the labour inspectorate and the National Police on fundamental rights, forced labour and/or child labour are carried out periodically, and generally also involve the participation of the Public Prosecutor’s Office or other competent entities. In particular, the Government indicates that, according to the records of the labour inspectorate’s integrated computer system, during the period 2022-23, a total of 1,044 inspections were conducted with the intervention or support of the National Police (944 in 2022). Regarding the obstruction of labour inspectors in their duties, the Committee notes that the Government refers to sections 45 and 46 of the Regulations to the General Labour Inspection Act, which cover serious and very serious infringements in such cases. In this respect, the Government indicates that, in the context of the inspections in which the National Police also participated, the matters addressed are related to child labour and forced labour, and that, since 2022, 15 inspection infringement reports have been issued, nine of which proposed a fine for obstruction of labour inspection, four for hazardous work and two for child labour. Lastly, regarding the safety and security of labour inspectors, the Committee notes that the Government refers to section 15(15)(2) of the Regulations to the General Labour Inspection Act, which establishes that the authorities and the National Police shall provide the assistance and cooperation required by labour inspectors for the discharge of their investigation duties. It also indicates that, under section 7.12.3.2 of Directive No. 001-2020-SUNAFIL/INII on the exercise of inspection duties, approved by Decision No. 031-2020-SUNAFIL, inspectors may be accompanied by police personnel to ensure their physical safety and entry, and may request a police report in the event of denied or impeded entry. The Committee notes the information provided, which responds to the previous request for information.

Article 5(b). Collaboration between labour inspectors and employers. The Committee notes that, in its observations, CONFIEP expresses concern at the lack of cooperation between labour inspectors and employers, particularly during the investigation stage of inspections. The Committee requests the Government to provide its comments in this respect.

Article 7(1). Conditions for the recruitment of labour inspectors. Further to its previous comments, the Committee notes the Government’s indications that the internal promotion competitions for labour inspectors and supervisors are aimed at ensuring that those selected have knowledge and experience for the performance of their duties. In this regard, the Government indicates that assessments of knowledge, skills and/or competencies are carried out, and that labour inspector candidates must have two years of experience in the effective discharge of inspection duties as an assistant inspector, while inspection supervisor candidates must have three years of experience as a labour inspector. The Committee also notes that the Government reports that, in 2019, internal promotion competitions were held for six inspection supervisor positions and 23 labour inspector positions, and in 2021 for 15 and 22 positions, respectively. The Government also indicates that, in the 2021 competitions, measures were adopted for decentralized knowledge assessments. With reference to its observation on Articles 6 and 15, the Committee requests the Government to provide information on the selection process for labour inspectors, both in relation to the process of the transfer of public servants to the civil service system and after this process has ended.

Article 7(3). Training of labour inspectors. Further to its previous comments, the Committee notes that the Government indicates: (i) the training activities for labour inspectors carried out between 2021 and June 2023, including the duration, number of participants and the manner in which they are selected; (ii) that the Training and Capacity-building Centre for the Labour Inspection System trained 427 inspectors from the Lima metropolitan inspection office and regional inspection offices at the national level in 2021, 475 in 2022 and 604 officials working for the national labour inspectorate between January and June 2023; (iii) that the selection of participants is carried out by means of a nomination request by the participant’s inspection office or by direct registration through an open competition, with priority given to the relevance of the subject matter to the duties of the official, as well as their availability; and (iv) that, during this period, the training consisted of courses, workshops and modules, some of which were delivered with the support of the ILO.

In reply to the observations of the CATP in 2020, the Committee notes the Government’s indications that: (i) at the Training and Capacity-building Centre for the Labour Inspection System, each year, a planning process is carried out which includes a training needs assessment, the identification of objectives and the formulation of programming in line with the institutional operational plan and the allocation of budgetary resources; (ii) the programming is developed in accordance with the technical and methodological recommendations contained in Directive No. 141-2016-SERVIR-PE on regulations for the management of the training process in public bodies, approved by the National Civil Service Authority (SERVIR); and (iii) this planning also includes action undertaken within the framework of strategic alliances with agencies such as the ILO.

The Committee notes that, in its observations in 2023, the CATP expresses concern at the training provided by the Training and Capacity-building Centre for the Labour Inspection System, indicating that training is insufficient, is provided by teachers who are not involved in labour inspection, and is not delivered from a fieldwork approach, but from a purely doctrinaire perspective. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to continue to provide detailed information on training offered to labour inspectors, including the number of inspectors attending each session and the duration and nature of training provided at these sessions.

Articles 10 and 16. Number of labour inspectors and frequency and thoroughness of inspections to ensure the application of the relevant legal provisions. Further to its previous comments, the Committee notes the Government’s indications that, between April 2014 and December 2022, the number of labour inspectors increased by 153 per cent, from 311 to 787. The Committee also notes that the number of inspections increased considerably between 2018 and 2019, from 75,240 to 110,671, but that, in the subsequent years, this number decreased by over half, with 54,035 inspections carried out in 2020, 42,847 in 2021 and 32,130 in 2022. The Committee notes that, in its 2023 observations, the CATP indicates that, despite the fact that the number of labour inspectors has increased since 2014, this number continues to be insufficient and does not ensure adequate coverage of inspection. The CATP also expresses its concern about the inadequate territorial distribution of labour inspectors. In particular, it indicates that this distribution does not correspond to the number of waged workers in the different regions of the country and does not appear to include criteria such as the level of noncompliance with labour legislation, the incidence of complaints or their seriousness, particularly considering that, in some regions, the majority of both formal and informal workers are engaged in specific activities such as mining, agro-industry and fishing, in which the incidence and seriousness of non-compliance varies.

The Committee also notes the Government’s indications that SUNAFIL develops the annual labour inspection plan, the purpose of which is to contribute to the planning and implementation of all inspection activities of the labour inspection system, with the aim of ensuring compliance with social and labour, occupational safety and health and social security legislation. The Committee notes that, in its 2023 observations, the CATP indicates that, given the low number of labour inspectors, there is no permanent and regular inspection system in place. While there are occasional and random inspections, inspections are generally carried out in response to allegations or complaints by workers or trade unions, which demonstrates that, currently, labour inspection in the country is basically reactive rather than preventive. The CATP adds that section 3 of Supreme Decree No. 007-2017-TR and its amendments establish that, for the same fiscal year, the Labour Inspection Authority shall not schedule more than one inspection order on the same subject for the same enterprise, except for occupational safety and health, fundamental labour rights and the registration of workers on the payroll, and allegations of non-compliance with social and labour obligations. Lastly, the CATP states that, according to the latest report of the National Institute of Statistics and Information Technology, 80 per cent of workers in the country work in the informal sector. The Committee requests the Government to provide its comments with respect to the observations of the CATP. The Committee also asks the Government to continue to provide information on the number of labour inspectors and inspections conducted, including inspections concerning the informal sector, disaggregated by region and also by specific industries or activities to the extent possible.

Article 11. Material resources available to labour inspectors. Reimbursement of travel expenses. The Committee notes that, in reply to its previous request, the Government indicates that SUNAFIL has decentralized the services that it provides at the national level through its 26 offices and ten labour inspection platforms, with the aim of reaching more people and areas of the national territory. Regarding inspections in locations far from regional headquarters, the Government indicates that the budget covers travel and daily expenses, personal protective equipment, stationery, and furniture rental. With respect to mobile units, there are 25 units assigned to regional offices and 17 to the Lima metropolitan inspection office and four administrative units. In this regard, the Committee notes that, in its 2023 observations, the CATP indicates that: (i) in various regional offices, the work facilities are inadequate in view of the number of labour inspectors, the furniture is in poor condition, occupational safety and health standards are not respected, cleaning is insufficient, there is a shortage of water, and the electronic equipment is not correctly maintained; (ii) there is a lack of personal protective equipment; (iii) transport facilities are insufficient for labour inspectors to adequately carry out their duties, particularly to reach work sites and workplaces that are distant or remote, and that, consequently, the scope of action of the labour inspectorate is mainly limited, in practice, to urban and easy-to-reach areas, thus leaving workers in remote areas completely unprotected; and (iv) in several regional offices, there are delays in the reimbursement of local transport expenses for inspections due to cash-flow problems. The Committee requests the Government to provide its comments in this respect, and also to provide detailed information on whether the decentralization of services has enabled more effective inspection of remote and distant workplaces.

Articles 12(1)(a) and 15(c). Inspections without previous notice. Duty of confidentiality in relation to complaints. Further to its previous comments, the Committee notes the Government’s indications that, in accordance with the principles of confidentiality and technical and functional autonomy provided for in the General Labour Inspection Act, inspection personnel carry out their duties and responsibilities free from any undue external influence, and maintain full confidentiality regarding the origin of any complaints or allegations reporting violations of the legal provisions under the purview of the labour inspectorate. Concerning the duty of confidentiality, the Government indicates that section 13 of the General Labour Inspection Act provides that, during the discharge of inspection duties, the personnel responsible shall respect the duty of confidentiality and maintain due discretion regarding the existence of a complaint and the identity of the complainant, which shall be maintained following the completion of the inspections. The Government adds that the duty of confidentiality regarding the complainant is maintained from the filing of the complaint (subsection 7.4.1 of the fourth version of Directive No. 002-2017-SUNAFIL/INII on the treatment of labour complaints, approved by Decision No. 204-2020-SUNAFIL), and that the entity receiving the complaint may grant protection measures for complainants, to guarantee their safety and prevent them from being prejudiced in any way (section 116(116)(4), of the single consolidated text of General Administrative Procedure Act No. 27444, approved by Supreme Decree No. 004-2019-JUS).

Concerning inspections without notice, the Government refers once again to section 5 of the General Labour Inspection Act, and indicates that, in the context of inspection activities, the personnel communicate their presence on site at the inspected workplace in order to identify themselves, which therefore does not constitute previous notice of their presence. Furthermore, this communication is subject to the condition that it does not undermine the effectiveness of the duties of the inspection personnel during the inspection. In this regard, it indicates that inspectors are empowered to enter freely any work site, establishment or place liable to inspection at any time of the day or night, and without previous notice, and to remain there for as long as the investigation warrants (second version of Directive No. 001-2020-SUNAFIL/INII on the exercise of inspection duties, approved by Decision No. 216-2021-SUNAFIL). The free entry of inspection personnel is subject to exceptions when the workplace is also the employer’s home, a situation which, although different from the normal activities of the inspection personnel, does not prevent them from performing their duties. While taking note of this information, the Committee refers to the point raised in its observations on Articles 12(1)(a) and (c), and 15(c).

Article 18. Adequate and effectively enforced penalties. Further to its previous comments, the Committee notes the Government’s indications that, according to SUNAFIL, 8,656 decisions imposing fines were handed down in 2022 and 3,899 before June 2023. The Committee also notes the Government’s indications that the Contribution Recovery and Enforcement Unit of the SUNAFIL Administrative Office was created on 17 June 2022, which covers contribution collection and enforcement. After its creation, contribution collection specialists from the 25 regional inspection offices, and both administrative and legal contribution collection and enforcement personnel from the Lima metropolitan inspection office, joined the new unit. These specialists collect fines at the national level. The Government also indicates that the enforced recovery of fines by regional inspection offices is the responsibility of the contribution recovery officer and enforcement auxiliary from the Bank of the Nation, in accordance with the agreement signed on 20 September 2017 between SUNAFIL and the Bank of the Nation, which is in the process of being renewed. The Committee also notes the Government’s indications that training workshops were held for personnel of the Contribution Recovery and Enforcement Unit in order to harmonize criteria for the management of contribution collection and enforcement at the national level, and working groups were set up with the aim of coordinating work and the amendments and adjustments to procedures and guidelines under the new Regulations on the Organization and Functions of the Contribution Recovery and Enforcement Unit and the powers granted to the Unit.

The Committee notes that, in its 2023 observations, the CATP indicates that: (i) the reforms carried out in recent years have been aimed at reducing the amount of fines, resulting in the weakening of inspections, as fines have no deterrent effect whatsoever for perpetrators; (ii) the frequency with which inspections result in effective sanctions is minimal and, according to the data published in SUNAFIL’s reports, in recent years, only one out of five infringement reports resulted in a final decision imposing sanctions; (iii) there is a lack of information on the amount of fines that are effectively collected, as they are often cancelled in administrative or judicial proceedings; and (iv) section 17(3) of the Regulations to the General Labour Inspection Act and section 40 of the General Labour Inspection Act provide for the reduction of fines if the fault is corrected as directed. The CATP states that the reduction of fines to such an extent weakens inspection and makes the procedure less effective. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to provide information on the functioning and the results of the Contribution Recovery and Enforcement Unit of the SUNAFIL Administrative Office, and particularly the amount of the fines collected. In addition, the Committee requests that the Government provide detailed information on the number and nature of violations found, the amount of fines imposed and collected, and the nature of any other sanctions imposed.

Articles 20 and 21. Preparation of periodical reports and publication and transmission to the ILO of the annual report. The Committee notes that the Government has published and communicated to the ILO the annual labour inspection reports for 2018, 2019, 2020 and 2021, which contain the information required under Article 21(a)–(g).The Committee welcomes this development and requests that the Government continue to provide the annual inspection reports containing all information required under Article 21(a)–(g).

[The Government is asked to reply in full to the present comments in 2024.]