CMNT_TITLE

The Committee duly notes the information supplied by the Government concerning the new provisions of legislation giving effect to a number of provisions of the Convention which have been the subject of previous comments in relation to the observations made by the Union of Labour Inspectors (SIT) in 2005.

Article 6 of the Convention. Conditions of service of inspection staff. The Committee notes with interest the adoption of a specific pay scale for inspection staff and the pursuit of discussions with the trade union regarding variable pay modulations linked to seniority, merit and other criteria. The Committee would be grateful if the Government would supply information on the outcome of these discussions and any practical follow-up action taken.

Articles 12, paragraph 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. With reference to its previous comments, the Committee notes that the Government has not replied to its concerns regarding the legal restrictions on inspectors’ right of free access to workplaces, this right still being dependent on a mission order, regardless of whether the inspection visits are planned, are initiated following a complaint, or are intended to provide information and technical advice. These restrictions are laid down by section 10(2) and section 13(a) of General Labour Inspection Act No. 28806, and also sections 8 and 9.1 of the implementing regulations issued by Supreme Decree No. 019-2006-TR of 29 October 2006. Restrictions also apply to the scope of controls (section 13(5) of the Act and section 11 of the Decree). The Committee regrets that inspectors’ right of free access to workplaces liable to inspection, as laid down by section 5(2) of the abovementioned Act, is so limited by the abovementioned provisions that it is completely negated, which is in contradiction with Article 12, paragraph 1(a), of the Convention. This provision states that the exercise of this right may be subjected to the sole condition that the labour inspector is provided with proper credentials. On the basis of the preparatory work for the Convention, the Committee emphasizes that the expression “proper credentials” means documents which certify the status of the labour inspector. Without prejudice to the provisions governing inspection visits on the basis of criteria fixed at national or regional level by the central inspection authority for each branch of activity or legislative domain, the Committee once again emphasizes the need to give legal recognition to inspectors’ right of free access and free investigation in workplaces subject to inspection as provided for by Article 12, paragraph 1(a) and (c). It invites the Government to refer to paragraphs 265–271 and 274–278 of its General Survey of 2006 on labour inspection to grasp the foundation and scope of these provisions in relation to the goal the of effectiveness which they pursue, particularly in the light of Article 15(c) of the Convention, which states that labour inspectors must treat as absolutely confidential the source of any complaint … and must give no intimation to the employer or his representative that an inspection visit was made further to receipt of a complaint. Sufficient freedom to take the initiative with regard to inspection visits is essential for labour inspectors to be able to abide by the obligation of confidentiality by having the possibility of conducting a visit arising from a complaint in the same way as routine controls. By using his visit to extend controls to various other matters, the inspector will avoid the risk of the employer or his representative becoming aware of the existence of a complaint and exposing the person who made the complaint to possible reprisals. The Committee therefore strongly hopes that the Government will take the necessary measures as soon as possible to bring the legislation into conformity with these provisions of the Convention, i.e. that it will take steps to abolish the legal provisions which systematically make inspection visits dependent on an order issued by a higher authority, and also the provisions which state that the scope and subject of controls must be fixed in advance for all inspection visits.

Practical functioning of the labour inspection system. In its previous comment, the Committee noted that, owing to the ILO/FORSAT project, the labour inspectorate would soon have a system for the computerization of data concerning its activities. It notes that an annual inspection report has still not been published as provided for by Article 20. It hopes that the central authority will be in a position to meet this obligation in the near future. In the meantime, it would be grateful if the Government would supply in its report on the application of the Convention all available practical information and relevant documents enabling an evaluation of the coverage and effectiveness of the labour inspection system; the number, grades and geographical distribution of inspection staff; the number and geographical distribution of workplaces liable to inspection; the distribution of the vehicle fleet or a description of transport facilities available to inspectors; a description of arrangements promoting effective cooperation between the labour inspectorate and other public bodies and judicial institutions and relevant documentation (for example, concerning the establishment of the register of workplaces liable to inspection, statistics on industrial accidents and cases of occupational disease); a description of arrangements promoting cooperation between the labour inspectorate and employers and workers or their organizations (particularly with regard to occupational safety and health and information on new legislation); forms for inspection visits; copies of inspection reports ordering or recommending prosecution; copies or extracts of administrative or court decisions penalizing those responsible for violating the legal provisions on conditions of work; and any other relevant information or documentation.