Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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 in 2020, as well as the Government’s reply. The Committee also notes the observations of COHEP, received on 31 August 2021, as well as the Government’s response to these observations, received on 19 November 2021.

Legislation. The Committee notes the Government’s indication that a broad discussion and consultation took place between Government representatives, workers, represented by the workers’ confederations, and employers, represented by COHEP, which resulted in the approval of the Regulations Implementing the Labour Inspection Act, through Agreement STSS-350-2019, published in the Official Gazette on 24 February 2020.

Articles 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 its previous comments, the Committee requested the Government to provide 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 notes from the Government’s report that in 2019 and part of 2020, police assistance was only required during one labour inspection. In this regard, the Government indicates that, although this situation posed a considerable risk to the labour inspector, the relevant penalty procedure was able to go ahead. In response to the Committee’s request for information on the implementation of the Labour Inspection Act, approved through Decree No. 178-2016 of 23 January 2017, the Government indicates that inspections were carried out in coordination with the Public Prosecutor’s Office, the Police Investigation Department and auditors with expertise in verifying biosafety protocols and that inspection operations were launched in various areas nationwide, in accordance with Government directives. Regarding the imposition of penalties for obstructing the work of labour inspectors, the Government indicates that in 2019, 55 penalties totalling 13,750,000 Honduran lempiras (approximately US$568,909) were imposed and that during the period from 1 January to 13 March 2020, 10 penalties totalling 2,500,000 lempiras (approximately US$103,429) were imposed. The Committee requests the Government to continue providing information on the number of inspections during which the police have ensured the integrity and safety of labour inspectors and their free access to workplaces. It also requests the Government to continue providing information on the number of cases of obstruction of inspections, as well as the number of penalties imposed in this respect.

Article 7. Recruitment and training of labour inspectors. Further to its previous comments on the recruitment procedure and training courses for labour inspectors, the Committee notes the Government’s indication that: (i) appointments of labour inspectors are made in accordance with job profiles; (ii) candidates’ CVs are sent to the General Directorate of the Civil Service, which ensures the suitability of candidates by means of a pre-appointment assessment, in accordance with sections 63 and 64 of the Regulations Implementing the 2009 Civil Service Act; and (iii) following their appointment, inspectors are trained by the Ministry of Labour and Social Security. The Committee also notes the Government’s indication that the Human Resources Subdivision is the office in charge of recruiting labour inspectors. Noting that section 63 of the Regulations Implementing the Civil Service Act provides that the suitability assessments are determined by the General Directorate of the Civil Service and the Human Resources Subdivision, the Committee requests the Government to provide detailed information on the assessment methods used to verify candidates’ skills for the performance of labour inspection duties.

With regard to training courses for labour inspectors, the Committee notes the information provided by the Government on the various training courses carried out in 2019 and 2020, including the second national training day on the Labour Inspection Act, which included all labour inspectors at the national level, training on labour law provided to 30 labour inspectors from different areas of the country in the framework of the FUNDAPEM project, "Strengthening labour inspection and workers’ organizations to better protect labour rights in Honduras", and the training on labour rights, child labour and occupational safety and health, carried out in coordination with World Vision Honduras, which included an average of 120 inspectors from different regional offices. The Committee further notes COHEP’s observations on the content of this training, the drafting and review process of which involved the participation of employers’ and workers’ representatives. The Committee requests the Government to continue providing information on the training given to labour inspectors for the performance of their duties, indicating the duration of training and education courses, the subjects covered and the number of inspectors involved.

Article 11. Adequate financial and material resources, including transport facilities. Further to its previous comments on the material conditions of the inspection services and the reimbursement of the expenses incurred by inspectors in the performance of their duties, the Committee notes from the Government’s report that the labour inspectorate has 20 regional offices that are suitably equipped to provide inspection services. The Government indicates that 7 of the 20 inspection offices have vehicles to carry out regular and advisory inspections. With regard to the reimbursement of expenses incurred by inspectors in the performance of their duties, the Government indicates that no claims were submitted. The Committee notes, in this respect, that only 7 of the 20 labour inspection offices throughout the country have vehicles. The Committee requests the Government to take the necessary measures to ensure that the 20 labour inspection offices in the country have the necessary means of transport for the performance of their duties, in the absence of suitable means of public transport. It also requests the Government to provide detailed information on the progress achieved in the implementation of these measures.

Article 13. Preventive duties of the labour inspectorate. Further to its previous comments on the requirement for labour inspectors to consult the relevant experts before ordering the adoption of occupational safety and health (OSH) measures, the Committee notes the Government’s indication that, under section 12(9) of the Labour Inspection Act, the issuance of reports by qualified experts is a requirement prior to the adoption of any of the safety measures provided for in section 59(2) of the same Act. The Government adds that the restrictive measures contained in section 59(2) of the Labour Inspection Act result in economic prejudice to the workplace and therefore require the labour inspector to have a broad and clear picture before ordering a measure that may unnecessarily and unfairly harm an undertaking. The Committee notes that section 59 of the Labour Inspection Act establishes the requirement to order immediate corrective or preventive measures in the event of danger or imminent risk to safeguard the life, physical integrity and health of workers or the premises of the undertaking. These measures include the total or partial suspension of the workplace’s activities and the restriction of workers’ access to part or all of the workplace until the necessary safety measures have been taken to prevent the occurrence of an accident. In this regard, in its 2006 General Survey, Labour Inspection, paragraph 117, the Committee indicates that measures, such as suspending work, closure of the establishment, or evacuation of premises, are intended principally to ensure protection of workers. Indeed, the requirement of an expert opinion before taking OSH measures, in the event of danger or imminent risk, delays the timely corrective or preventive measures, thereby putting workers’ safety and health at risk. The Committee therefore requests the Government to take the necessary measures to ensure that labour inspectors are effectively empowered to order measures with immediate executory force to eliminate imminent danger to the safety and health of workers.

Article 14. Notification of industrial accidents and cases of occupational disease to the labour inspectorate. Further to its previous comments, the Committee notes the Government’s indication that the General Directorate of Labour Inspection (DGIT) has electronic platforms for the notification of industrial accidents in undertakings. The Government adds that, through the implementation of the National Inspection Strategy, it seeks to cover the sectors with the highest potential risk of accidents and to conduct intensive training sessions for employers on the scope and effects of the requirement to notify industrial accidents. With regard to the requirement to notify the labour inspectorate of cases of occupational disease, the Committee notes the Government's indication that the method and time limits established in the Labour Inspection Act are applicable. In relation to the method, the Government refers to the formal notices of summons, in which the identified labour law violations are recorded and, in relation to the time limit, it refers to the time limit granted by the inspector to the employer to compensate for the prejudice caused. In this respect, the Committee requests the Government to provide detailed information on the notification mechanism for occupational diseases established in the law, indicating the relevant sections. Also noting the Government’s indication that the DGIT has electronic platforms for the notification of industrial accidents, the Committee requests the Government to provide information on the number of industrial accidents and occupational diseases duly notified to the labour inspectorate, as well as the number of fatalities.

Article 15(c). Confidentiality of the source of complaints. In its previous comments, the Committee requested the Government to indicate whether the inspection order, required under section 43 of the Labour Inspection Act, had to specify that the objective of the inspection was to investigate a complaint. In this regard, COHEP indicates that the reports prepared by inspectors must contain the requirements established in section 41 of the Labour Inspection Act, their wording must be directly related to the facts that are the subject of the inspection, detailing the documents submitted to the inspectors and that served as the basis for their inspection, and that, in the event that the report contains statements, the names of the persons who gave testimony and their personal details must be mentioned. The Committee notes with regret that the Government does not refer to this point in its report. Regarding measures taken to ensure the confidentiality of the source of complaints, the Government indicates that, in the event that a worker does not wish to provide personal information for fear of reprisals, the DGIT has implemented electronic, telephone or face-to-face complaint mechanisms in which it is not necessary to provide the complainant's personal information. The Government adds that the DGIT does not require the complainant’s personal details to institute an investigation process through a scheduled inspection or advisory inspection. However, it indicates that, in the case of an unscheduled inspection, the complainant’s details are essential, as this type of inspection seeks redress for the rights of a specific worker. The Committee notes that, notwithstanding the complaint mechanisms implemented in practice, which do not require the complainant’s personal details to be provided, the Labour Inspection Act does not guarantee the principle of confidentiality regarding the origin of complaints and denunciations and the possible link between the complaint and the inspection visit. Indeed, the Committee notes the failure thus far to amend sections 40(2), 45, 49 and 53 of the Labour Inspection Act, to which the Committee referred in its last comment, which limit the need to treat as absolutely confidential the origin of any complaint and the fact that the inspection visit was made in consequence of the receipt of such a complaint. The Committee recalls that the main purpose of the provisions contained in Article 15(c) of the Convention is to ensure that workers are protected against any risk of reprisals by the employer, should the labour inspectorate take action against employers as a result of their complaint. The Committee therefore once again requests the Government to make the necessary legislative amendments to ensure the confidentiality of complaints, and to supply a copy of the legislation adopted in this respect.

Article 17. Prompt legal or administrative proceedings. In its previous comments, the Committee referred to sections 48 (scheduled inspection), 36, 37 and 38 (advisory inspections), 54 (granting of a period of time to remedy the shortcomings or breaches) and 58(1) (definitive archiving of proceedings in case of remedy of violations) of the Labour Inspection Act, which limit the discretionary power of labour inspectors to immediately institute or recommend judicial or administrative proceedings in case of violation of the legal provisions. In response to its previous request, the Committee notes the Government’s indication that the Labour Inspection Act seeks the voluntary remedy of a labour law violation before the application of an administrative penalty. The Government notes that the granting of periods of time or the provision of technical advice does not limit the inspector’s power to ensure the effective enforcement of labour regulations, as the inspector is given enough leeway to assess the complexity of the case and the prejudice caused and, on that basis, to grant more stringent periods of time to ensure prompt compliance with the law and the redress of workers’ rights. The Committee draws the Government’s attention to the fact that the power provided for in Article 17(2) of the Convention consists of the possibility of warning and advising, instead of instituting or recommending proceedings, and that such a possibility should be left to the discretion of labour inspectors. The granting of periods of time and the provision of technical advice limit the inspectors’ discretion to immediately institute or recommend judicial or administrative proceedings in cases of violations of legal provisions, thus undermining their role in enforcing labour law. The Committee therefore requests the Government to ensure that it shall be left to the discretion of labour inspectors to institute judicial proceedings immediately, without previous warning, and to limit any exceptions to such discretion, so as not to undermine the effectiveness of the labour inspection’s activities in securing compliance with the legal provisions relating to working conditions and the protection of workers while engaged in their work.

Articles 20 and 21. Publication and communication to the ILO of an annual report on the activities of the labour inspection services. The Committee has repeatedly 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 the annual inspection report. In this respect, the Government indicated that it had informed the Director-General of Inspection that the information required under Article 21 of the Convention would be requested from him by the end of the current year. With regard to its request for information on the implementation of the Simplified National Registration System for Employers (SRNSP), the Committee notes the Government’s indication that the system is in a trial period and that its purpose, requirements, procedure and time limits are established in the Labour Inspection Regulations (sections 4, 5 and 6). The Committee requests the Government to continue providing information on progress in the implementation of the SRNSP. Finally, it requests the Government to make every effort to ensure, without delay, that annual inspection reports are published and submitted to the ILO in accordance with the requirements of Articles 20(3) and 21 of the Convention.