Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the information sent in reply to its previous comments, and the appended documentation. It notes in particular Act No. 10.593 of 6 December 2002 to reorganize the career of inspector of the national treasury (now "inspector of federal revenue") and to organize the career of inspector of social welfare and that of labour inspector, and Decree No. 4.552 of 27 December 2002 issuing new labour inspection regulations.

The Committee also takes note of the observations made by the National Association of Occupational Safety and Health Workers (ANAHST), the Gaucha Association of Labour Inspectors (AGITRA) and the Association of Labour Inspectors of Minas Gerais (AAFIT/MG) concerning the application of Convention No. 81, received at the Office on 7 January 2004, 2 April 2004 and 21 July 2004 respectively, and the information sent by the Government concerning the observations of the ANAHST.

According to the ANAHST, Act No. 10.593 of 2002 and Decree No. 4.552 discriminate against occupational health and safety workers and are inconsistent with Article 6 of the Convention. A technical notice from the Occupational Health and Safety Department of the Ministry of Labour and Employment, giving an opinion on the action that ought to be taken on the claims of the health and safety of workers, finds that the offending legislation does discriminate against these workers because the Act excludes them from the career of labour inspector and the Decree relieves them of duties conferred on them by the old labour inspection regulations and provides for a special occupational card to be issued for this category of workers. The same technical notice states that Decree No. 97.995 of 1989 (supplementing Decree No. 55.851 of 1965) established their integration in the federal labour inspection system as a labour inspection authority on a par with other inspection workers, and that as a consequence they received the same occupational identity card, the training required by law to carry out supervisory duties in the areas of occupational safety and health and labour legislation, and the same transport allowances as other inspection workers. Furthermore, in the Brazilian classification of occupations, their duties are defined according to the same criteria as those of labour inspectors. The technical notice concludes that their claims were warranted and that they should accordingly be covered by Act No. 10.593 of 2002 and recover the duties of which they were relieved by Decree No. 4.552 of 2002.

The Government takes the view that under Act No. 10.593 of 2002 the occupational safety and health workers were never treated as labour inspectors. Decree No. 97.995 of 1989 integrated them in the federal labour inspection system to carry out auxiliary inspection duties, and Decree No. 4.552 of 2002 issuing the new labour inspection regulations merely confirmed this. Furthermore, neither their posts nor the recruitment requirements were covered by the same rules as those for labour inspectors, and the fact that they received transport allowances and training does not alter the auxiliary nature of their duties. As to the Brazilian classification of occupations, the purpose of which is to provide a databank for public consultation and the preparation of labour market policies, it identifies and describes the occupations only roughly. As public employees, occupational safety and health workers are appointed by competition on the basis of their merits, and as labour inspectors have security of tenure. The Government considers that their claim to the career of labour inspector is utterly misplaced, but concedes that their claim to a pay increase could be legitimate and warrants examination.

AGITRA and the AAFIT/MG refer to the murder, on 28 January 2004, of three labour inspectors and a driver of the Ministry of Labour by a farmer in the context of an inspection in connection with forced labour. The Committee notes in this connection that there have been numerous demonstrations expressing indignation by representative organizations of employers and workers worldwide.

One of AGITRA’s objections is that the Brazilian Government has shown total lack of commitment to applying the law and providing labour inspectors with even minimum security for the performance of their duties. AGITRA alleges that the labour inspectorate suffers from heavy political interference aimed at preventing inspection: political authorities, who are likewise landowners, have close links with the military police, which protects their interests turning a blind eye to their actions. Furthermore, the labour inspection system is in the process of being dismantled, as reflected by:

(a)  a lack of effective cooperation between the labour inspection services and other government services and institutions, witness the murder of three labour inspectors and the Ministry of Labour driver (Article 5, paragraph (a));

(b)  the insufficient and constantly dwindling staff of the labour inspectorate despite a larger economically active population, and hence less frequent and less efficient inspections (Articles 10 and 16);

(c)  the precarious material resources of the labour inspectorate and the freeze on travel allowances for labour inspectors, who are reduced to paying for travel from their own pockets (Article 11, paragraph 2);

(d)  breach of the rule that labour inspectors are free to carry out inspections in workplaces liable to inspection (Article 12, paragraph 1(a));

(e)  a cumbersome and therefore inefficient system for legal action and a lack of transparency in the Ministry of Labour’s administrative proceedings, and also in the judicial system, allowing the perpetrators of violations to go unpunished (Articles 17 and 18).

The AAFIT/MG asserts that the murder of January 2004 is a reflection of the Government’s usual non-committal attitude towards officials responsible for enforcing legislation and other state employees, which is also evidenced by the lack of any investment in the public service for decades. According to the organization, a thorough reorganization of the labour inspectorate is urgently needed and there is a policy gradually to dismantle the labour inspectorate and its institutions. Policy-makers see the labour inspectorate as an obstacle to the implementation of political-economic projects and the country’s development. There is evidence that the inspectorate is being deliberately dismantled. Labour inspectors are confined to administrative work (Article 3, paragraph 2):

(a)  the Minister of Labour uses far too many interns instead of state workers and avoids organizing public competitions thus encouraging political clientelism and a deterioration in the working of institutions. Furthermore, management posts are ill-paid and managerial appointments in the labour inspectorate go for political reasons to persons outside the inspection system who frequently lack the necessary technical capacity, with negative administrative and operational implications (Article 6);

(b)  the number of labour inspectors and labour inspection support workers is highly inadequate (Article 10) and central planning of the inspectorate’s activities means that visiting cannot be scheduled more specifically to meet local needs (Article 16);

(c)  local inspection offices, particularly the Minas Gerais office, are ill-equipped and inadequate and often lack computers, telephones, and even the most basic furniture (tables, chairs) needed by inspectors to carry out their duties (Article 11, paragraph 1(a));

(d)  subsistence allowances for inspectors on mission outside their jurisdiction are absurdly low (Article 11, paragraph 2); and

(e)  labour inspectors’ duties increasingly involve negotiation to the detriment of supervision and the punishment of violations. All these factors, compounded by a shortage of staff, are conducive to infringements since employers are sure of going uninspected or, at worst, being given time to take remedial action, and in the end go unpunished. Furthermore, the interval between the reporting of an infringement and the start of  proceedings is so long that the latter become time-barred (Article 18).

The Committee notes that the Government provides in its report information on recent measures to improve the working of the inspectorate and the status and conditions of service and work of inspectors.

It would be grateful if the Government would provide any information or comments it deems useful on the objections raised by the two above organizations, together with any relevant legislative, regulatory, administrative or other relevant texts so that the Committee may examine them at the next appropriate session. It requests the Government to provide any information on the action taken in order to raise safety and health agents’ salaries.

Article 5. The Committee notes with interest that the secretariat of the labour inspectorate sent a circular in 2003 to the regional offices recommending closer links with the social partners and the public institutions with a view to inspection activities being planned on the basis of needs. Noting that pursuant to a decree of regional labour delegates providing for the creation of trade union advisory committees on the planning of supervisory activities, such committees have already been formed in almost all the regional offices, the Committee would be grateful if the Government would provide a copy of the abovementioned decree together with information on the subjects addressed in these committees.

Article 10. In its previous comments, the Committee noted that in March 2001 the total number of serving labour inspectors was 3,094 including 308 specialists in occupational medicine and 395 in engineering, in addition to 100 health and safety inspectors, and that the inspection staff was distributed according to the number of inhabitants in each of the 26 states and the federal district. It also noted the Government’s view that the staff of the inspectorate was too small in relation to the size of the country and the large population. It was not possible to hold the competition to recruit for the 100 or so vacant posts owing to financial difficulties which required measures to adjust public expenditure, as had occurred with the competition for new recruitment between 1999 and April 2000. On 14 September 1999, the Federal Tribunal issued a decision ordering implementation of a public competition held in 1994 in which some 700 applicants had been successful. The decision prevented the recruitment of new labour inspectors owing to the financial implications of training the successful applicants. The Committee notes that the obstacle to recruitment was nonetheless removed in June 2002, that the 2003 competition to fill 150 vacancies is under way and that 75 more vacancies should shortly be filled pursuant to a decision by the Ministry of Planning. Noting that, according to the inspection reports sent by the Government for the years 2002 and 2003 and the information in the Government’s report for 2004, the number of inspectors, which had declined significantly between 2001 and 2003, has increased appreciably in 2004 and is at a level comparable to that of 2001, the Committee requests the Government to account for this recent change in trend, as the figures appear to suggest that the recruitment measures have been implemented successfully.

Articles 13 and 16. With reference to its previous comments, the Committee notes with satisfaction that inspections focusing on occupational safety and health have been conducted in the CEPISA electricity company where a number of irregularities liable to cause serious or fatal accidents have been remedied following the labour inspectors’ injunctions. It further notes that the Occupational Safety and Health Department has embarked, in consultation with the social partners, on a review of Regulation No. 10 on electricity installations and services. Since, according to the Government, this text marks an important development in the regulation of preventive measures for occupational risks in the electricity production and supply sector, the Committee would be grateful if the Government would provide a copy of it once it has been adopted.

Labour inspection and forced labour. With reference to its previous comments, the Committee notes with interest the information provided by the Government on measures to combat child labour, including: the partnership with several institutions and bodies; monitoring of supervisory operations by the Public Prosecutor for Labour (as from 2001) and the Federal Public Prosecutor (as from 2003); the launching in 2003 of the National Plan to Eliminate Forced Labour; the creation, in 2003, of the National Committee to Eliminate Forced Labour (CONATRAE) to replace GERTRAF; the list, compiled by the labour inspection secretariat, of the names of landowners/employers who have committed more than one offence in the area of forced labour, whose publication in the media has enabled public institutions to restrict their access to credit, allowances and social benefits; training on forced labour for labour inspectors, other public employees and the social partners; the mobile inspection handbook produced by the Special Mobile Inspection Unit (GEFM) and the creation of a databank. The Committee also notes the information that, thanks to the GEFM, the number of workers released from forced labour increased between 2001 and 2003 and that decentralization is under way to allow the regional labour offices, particularly those in the localities concerned, to tackle forced labour directly. The Committee would be grateful if the Government would continue to provide figures concerning the activities of the labour inspectorate to combat forced labour, and on their results.

Labour inspection and child labour. With reference to its previous comments, the Committee notes with interest that a card of indicators of labour by children and young persons has been produced and published; a list of the worst forms of child labour has been drawn up; data and information have been sent to the Ministry of Protection and Social Assistance with a view to the grant of scholarships on a priority basis to children and young persons engaged in activities considered to be among the worst forms of child labour; an order (Instrução normativa No. 1 of 23 March) has been drafted and published to prescribe the procedure to be followed by labour inspectors in coping with child labour in the formal and informal economies and in the family; a decree has been adopted on activities and premises that are unhealthy and unsafe for minors; GECTIPAS has been given the necessary computer tools for planning, recording and monitoring supervisory activities; cooperation agreements (termos de compromisso) have been signed between the Ministry of Labour and Employment and the ABRINQ foundation for the rights of children and young persons, with production companies, for implementation of activities to prevent and eliminate child labour and to protect adolescent workers; a technical cooperation agreement has been signed by the Ministry of Labour and the Ministry of Welfare and Social Assistance, on joint action for the execution, monitoring, evaluation and publication of data on activities conducted under the Child Labour Eradication Programme (PETI); a cooperation agreement has been signed with the Ministry of Health for joint activities in the area of occupational safety and health; a technical cooperation teaching programme "Teaching workers of the future" is being implemented with municipal education secretariats to train teachers and provide material and includes training activities for children and young persons; activities have been undertaken by the Inter-ministerial Committee to Combat Violence and the Sexual Exploitation of Children and Young Persons, with participation by the labour inspection secretariat and in cooperation with the police, with medical supervision in establishments suspected of such sexual exploitation of children and young persons.

The Committee would be grateful if the Government would ensure that figures on the supervisory activities related to combating child labour and the results of such activities are included in the annual inspection report in future.

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