Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Labour Inspection Convention, 1947 (No. 81) - Honduras (Ratification: 1983)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations of the Honduran National Business Council (COHEP), received on 31 August 2016 and 22 August 2017, as well as the Government’s replies in this regard, of 23 November 2016 and 31 October 2017, respectively.

Article 3(1), 5(a), 12(1)(a) and (b), and 18 of the Convention. Obstruction of labour inspectors in the performance of their duties. In relation to its previous comments, the Committee notes the Government’s indication in its report that the new Labour Inspection Act, approved through Decree No. 178-2016 of 23 January 2017: (i) defines, in section 84, the act of obstruction; (ii) establishes, in section 90(3), a fine of 250,000 Honduran lempiras (HNL) (approximately US$10,440) for the obstruction of inspection work; and (iii) authorizes inspectors, in section 15(5), to request police backup without a court order. In this respect, the Committee duly notes that the new Act replaces the provisions of the Labour Code in relation to the obstruction of labour inspectors in the performance of their duties. The Committee also notes the Government’s indication that, since the entry into force of the new Labour Inspection Act, five cases of obstruction have been penalized, with fines amounting to HNL1,250,000 (approximately US$51,107). The Committee notes that the Government has not provided information on labour inspections during which the police ensured in practice the integrity and security of labour inspectors and their free access to workplaces. The Committee once again requests the Government to provide information on this matter. The Government is also requested to provide information on the application of the new Labour Inspection Act, including the number of cases of obstruction of labour inspectors in the performance of their duties, with updated information on the number of penalties imposed on employers under section 90(3) of the Act.

Article 7. Recruitment and training of labour inspectors. With regard to its previous comments on the procedures for recruiting labour inspectors and their training courses, the Committee notes Government’s indication that inspectors are recruited by means of an analysis of curricula vitae, tests (psychometric, inspection, knowledge and reliability) and assessments. The Committee notes that section 7 of the Labour Inspection Act establishes that the regulations of the Act shall determine the minimum requirements to join the inspection service in terms of professional training, experience, functions and profiles. The Committee also notes the information from the Government indicating that it plans to extend the training of the labour inspectorate in the future. In this respect, the Committee notes that the National Labour Inspection Strategy 2018–2022 includes information on a plan to strengthen the capacities of the General Directorate of Labour Inspection, with a curriculum covering a wide range of issues related to labour inspection, from its principles, policies and strategies, to practical tools and methods for dealing with issues and specific economic activities. The Committee requests the Government to provide information on the progress achieved in this respect, indicating the duration of the training courses for labour inspectors, the number of participants and the topics covered. The Committee also requests the Government to provide further information on the procedures for recruiting labour inspectors, including the testing methods used.

Article 12(1)(a) and (c) and (2). Scope of the principle of free access for labour inspectors to workplaces liable to inspection. In its previous comments, the Committee requested the Government, in the context of the ongoing legislative reforms, to bring the law into line with the provisions of Article 12(1)(a) and (2) the Convention, in order to guarantee the right of labour inspectors to freely enter workplaces liable to inspection. The Committee notes that section 15(I) of the new Labour Inspection Act establishes that labour inspectors are authorized to freely access any workplace, establishment or location liable to inspection at any time of the day or night, provided that work is in progress in the work centre. The Committee also observes that section 49 establishes that, during the inspection, the labour inspector shall question the workers and the employer or his or her representatives separately and the questions shall only relate to the subject matter of the inspection, in order to avoid possible influence on the replies. The Committee requests the Government to provide information on the manner in which the requirement that labour inspectors may only enter establishments liable to inspection provided that work is in progress in the work centre is applied in practice. The Committee also requests the Government to take the necessary measures to amend section 49 of the Labour Inspection Act to ensure that labour inspectors are authorized to interrogate, alone or in the presence of witnesses, the employer or the staff of the undertaking on any matters concerning the application of the legal provisions, in accordance with Article 12(1)(c)(i) of the Convention.

Article 13. Preventive duties of the labour inspectorate. The Committee notes that section 11(19) of the new Labour Inspection Act establishes the obligation for labour inspectors to mandate the adoption of occupational safety and health measures (OSH) when, on the basis of the relevant visits to the work centres and having sought the opinion of the relevant experts, they identify unsafe actions or conditions. The Committee requests the Government to provide further information on the requirement for labour inspectors to consult the relevant experts before ordering the adoption of OSH measures.

Article 15(c). Confidentiality of the source of complaints. With regard to the new Labour Inspection Act, the Committee notes with regret that this Act includes several provisions that could limit the requirement to treat as absolutely confidential the source of any complaint and the fact that a visit of inspection was made in consequence of the receipt of such a complaint, in accordance with Article 15(c) of the Convention, such as: (i) section 40(2) providing for the practice of extraordinary inspections carried out on the basis of complaints or reports, which establishes that, in the event that the complaint or report is lodged by a worker, information revealing the worker’s name or identity shall only be declared confidential by the labour authority at the request of the complainant; (ii) section 43, which establishes that, at the start of regular or extraordinary inspections, the labour inspector shall provide to the employer or worker or their representatives, as applicable, an inspection order setting out, inter alia, the objective and scope; (iii) section 45, which establishes that a written record shall be prepared for all inspections, including the statements of the employer and the workers who made or were subject to a complaint; (iv) section 49 establishes that, during the inspection, the labour inspector shall only ask questions that relate to the subject matter of the inspection and these questions and their replies shall be included in a special annex to the inspection report; (v) the final part of section 49, which provides that, in the event that the employer makes a written request to the labour authority to find out the names and personal details of the workers interviewed during the inspection, this information shall be provided to the employer, who, upon receipt of the information, shall sign under oath that he or she will not take any action to violate the rights of the workers or against the interviewees; and (vi) section 53, which establishes that the labour inspector shall require the persons who have taken part in the process to sign the inspection report, and then provide a copy of that report to the parties. The Committee requests the Government to take the necessary measures to guarantee that labour inspectors treat as absolutely confidential the source of any complaint and give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. The Government is requested to provide information on the measures adopted in this respect, including the amendment of sections 40(2), 45, 49 and 53 of the Labour Inspection Act. The Committee also requests the Government to provide further information on the content of the inspection order required under section 43, indicating whether this order must specify that the objective of the inspection is to investigate a complaint.

Article 14. Notification of cases of occupational disease to the labour inspectorate. In its previous comments, the Committee requested the Government to ensure the establishment of a mechanism for the notification of cases of occupational diseases to the labour inspection services. Recalling that in its previous report the Government indicated that the new Labour Inspection Act, the draft of which was being discussed by the social partners, presented a favourable opportunity for the codification of such a mechanism, the Committee notes with regret that the new Labour Inspection Act does not establish such a mechanism. However, the Committee notes the Government’s indication that the notification process for industrial accidents and/or cases of occupational disease that occur in work centres is being examined by the General Directorate of Labour Inspection. The Committee urges the Government to adopt all the necessary measures to establish a mechanism for the notification of cases of occupational diseases to the labour inspection services.

Article 17. Prompt legal or administrative proceedings. With reference to the new Labour Inspection Act, the Committee notes with regret that the Act contains several provisions that limit the discretionary power of labour inspectors to initiate or recommend prompt legal or administrative proceedings in the event of violations of the legal provisions enforceable by labour inspectors. In this regard, the Committee notes that section 54 establishes that when a labour inspector detects violations of labour regulations during an inspection, he or she shall grant the employers a period of time to remedy the shortcomings or breaches identified in the view of the inspector (in cases of imminent danger or risk, the remedy shall be immediate) and, once the time period granted has elapsed, an inspection shall be conducted to verify that the measures mandated have been implemented. The Committee also notes that section 58(1) establishes that, in the event that the employer remedies the violations, the proceedings shall be immediately and definitively archived. The Committee further notes that Chapter II of Title III on technical guidance inspections (sections 36, 37 and 38) establishes that, if follow-up visits to guidance inspections uncover failures to comply with labour legislation, an extraordinary inspection shall be scheduled or, otherwise, administrative disciplinary proceedings shall be initiated. This shall also apply in the case that, during the technical guidance inspection, the employer refuses to receive the visit or implement or adopt the necessary measures to regularize their legal situation or prevent or reduce the imminent risks detected. The Committee also notes that section 48 establishes that, if during a regular inspection it is established that the work centre employs ten workers or fewer and the enterprise as a whole has no additional establishments or branches to the location visited, the labour inspector shall conduct the visit in the manner established in Chapter II of Title III. The Committee recalls that, under the Convention, it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings. In this regard, the Committee requests the Government to ensure that labour inspectors have the discretionary power to initiate prompt legal proceedings without previous warning, in accordance with the provisions of Article 17 of the Convention, and limit any exception to this power, in such a way as not to impair the effectiveness of labour inspection actions for the effective implementation of legal provisions relating to working conditions and the protection of workers.

Articles 20 and 21. Publication and communication to the ILO of an annual report on the activities of the labour inspection services. In its previous comments, the Committee requested the Government to publish and communicate to the ILO annual reports on the work of the labour inspection services. The Committee notes with regret that it has not received any annual inspection reports. The Committee also notes the Government’s indication that section 4 of the new Labour Inspection Act establishes the Simplified National Registration System for Employers (SRNSP) with which any natural or legal person employing persons in any of the forms provided for in national legislation must be registered, and that the analysis of this system of registration of employers is ongoing. In this respect, the COHEP reports that, with a view to operationalizing the SRNSP, the private sector requested the Government to convene the Tripartite Committee to draft the implementing regulations of the new Labour Inspection Act. The Committee requests the Government to communicate information on any developments in the implementation of the SRNSP, and to provide its comments in relation to the observations of the COHEP. The Committee also requests the Government once again to publish and communicate to the ILO, annual reports on the work of the labour inspection services, containing information on all the subjects covered by Article 21(a) to (g).