Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report, the annual general and social security inspection report for 2006, and the other documents attached thereto, including the copies of recently adopted legislation. The Committee notes the comments dated 27 October 2006 of the Latin American Confederation of Labour Inspectors (CIIT), which were forwarded to the Government on 28 November 2006, and the comments of the Inter-Union Assembly of Workers–National Convention of Workers (PIT–CNT), sent to the ILO by the Government. The Committee notes that the comments of the CIIT and the PIT–CNT refer mainly to issues which it has been addressing for a number of years.

1. Article 6 of the Convention. Withdrawing the possibility for labour inspectors to hold multiple jobs. In its past comments, the PIT-CNT emphasized that labour inspectors exercising a parallel professional activity in the private sector are subject to such constraints that it is impossible for them to update their skills to the level necessary for the discharge of inspection functions. The Government subsequently introduced a procedure by which labour inspectors are required to declare, under oath, their second employment, a measure which the Committee considered inadequate with regard to the requirements of the Convention. The Government’s attention was once again drawn to the importance of reconsidering the matter in view of the credibility and probity required for the exercise of labour inspection functions. The principle of prohibiting inspectors from having a relationship of dependence in respect of legal or natural persons subject to the supervision of the offices in which they are employed is set forth in section 27 of Decree No. 30 of 23 January 2003. This measure, which in some ways represented a step forward, still gave inspectors considerable latitude to dedicate time and energy to parallel activities in order to supplement their incomes.

Having acknowledged in its previous report that parallel employment seriously undermines the energy necessary for the discharge of inspection functions, the Government finally announced budgetary measures to improve the remuneration of labour inspectors so that they would not have to seek other sources of income to support their families. The Committee notes with satisfaction that the Government has followed up on its commitment, since the information it has provided, together with the new legal provisions, show that the staff of the labour inspectorate are now public servants in their own right. Pursuant to sections 240 and 241 of Finance Act No. 18.172 for 2006, labour inspectors who opt for the principle of exclusivity are employed on an exclusive basis, eight hours a day, within the labour inspectorate, and may not exercise any other activity, whilst those who do not opt for this principle may, subject to the authorization of a higher authority, exercise parallel activities only in the form of cultural, sporting, family or other activities which do not interfere in any way with inspection duties. The CIIT considers, however, that the absence of a measure regulating the principle of exclusivity constitutes a violation of Article 15 of the Convention. The Government, for its part, seems to consider the raising of the wages of inspectors who have opted for the principle of exclusivity to be an encouragement for other inspectors to also choose this option. The Government points out that the increased wages take effect on the date of submission to the principle and that the retroactive payment of these wages will be effected once the corresponding budget is released by the Ministry of the Economy.

The Committee would be grateful if the Government would indicate whether the principles set forth in sections 240 and 241 of abovementioned Act No. 18.172 are of a permanent nature, and would provide information, including any relevant documents, on the measures taken for their application, in particular with regard to section 241, to ensure that the authorization to exercise a parallel activity such as those provided for under section 241 of Act No. 18.172 establishes the period, duration in hours and nature of the activity so that the labour inspectors concerned are not hindered in the exercise of their inspection duties.

Wage discrimination. The issue of the disparity between the wages of tax inspectors and labour inspectors, raised previously by the PIT–CNT, has once again been referred to by the CIIT, which states that this disparity also exists in respect of inspectors belonging to other bodies of the administration, as well as within the labour inspectorate itself between inspectors employed in identical posts and carrying out the same duties. The Committee notes that the information sent by the Government in this respect concerns only the case of labour inspectors recruited following the dissolution of a former air transport enterprise, PLUNA, who are not included in the labour inspection budget, but whose wages are higher than those of their labour inspection colleagues. Stating that the only labour officials who have benefited from a pay rise during the period covered by the report are labour inspectors, the Government considers that this increase, together with the application of the principle of exclusivity already mentioned, should reduce the current disparities.

Other discrimination against labour inspectors affiliated to a trade union organization. According to the CIIT, the distribution of competencies and responsibilities between the inspectors is arbitrary and does not take into account professional merits. The organization makes particular mention of acts of persecution against inspectors affiliated to a trade union organization, involving transfers, unjustified changes in working hours and the assigning of inspectors to purely administrative tasks. Promotions are granted only to non-affiliated inspectors who are given investigative powers in respect of the activities of their colleagues and the power to interfere in the affairs of the organization. The Committee notes that the Government did not consider it useful to communicate its opinion on these matters. It would be grateful if the Government would provide any comments that may be considered appropriate on the above allegations and any relevant documents.

2. Article 7. Training of labour inspectors. The CIIT considers it desirable to require that specific training is given to candidates for labour inspector positions. It regrets that labour inspectors do not receive appropriate training for the exercise of their duties and laments the inexistence of a permanent training authority and the fact that no training activities have been provided for labour inspectors by the current administration.

The Government, for its part, states that upon entering into service, labour inspectors receive basic training on the areas which will form part of their work (general conditions of work, health and safety) and that training activities are also organized periodically to update their skills. Moreover, courses have been organized within the framework of Spanish and ILO cooperation on occupational safety, hygiene at work, safety in the construction industry and risk prevention in forests. A further course on chemical substances, which will be taught by an expert from the abovementioned cooperation, is currently being prepared. Other training activities on the inspection process and fiscal reform have also been held.

3. Article 10. Number of labour inspectors. The PIT-CNT and the CIIT continue to consider the number of labour inspectors insufficient. For the CIIT, the number is insufficient in relation to the size of the active population and the number of establishments to be covered, the volume and complexity of the legislation to be enforced and the additional duties conferred upon inspection staff. According to this organization, the number of inspectors is established in accordance with budgetary restrictions and the ranking given by the public authorities to other priorities and not on the basis of the criteria set forth in Article 10. Moreover, inspectors are distributed unequally between the capital (80 per cent) and the rest of the country and between the Work Environment Conditions Division and the General Conditions of Work Division. The lack of lawyers within the Legal Division and the shortage of administrative staff are the reasons for the slowness of inspection procedures and thus affect the credibility of the institution.

In reply to these allegations, the Government states that the staff of the labour inspectorate includes 142 inspectors, divided into three teams (one operating in Montevideo, the other in the interior of the country and the third in the ports), that three new inspectors have been recruited to the General Conditions of Work Division and that steps have been taken to recruit 33 occupational health and safety inspectors for the Work Environment Conditions Division. It also states that three lawyers have joined the staff of the labour inspectorate and that seven others will soon take up their duties. The Committee would be grateful if the Government would continue providing updated information on the situation of labour inspection staff and their distribution in geographical terms and by field of competence.

4. Article 10(a)(i) and (ii), and Articles 11 and 16. Material working conditions of labour inspectors and inspection visits. The CIIT once again regrets that the functioning of the labour inspectorate is impeded by a lack of basic materials, equipment, furniture, computer facilities, and means of transport suitable for the performance of inspection duties in rural areas. Moreover, inspectors do not have any form of occupational manual to guide them, which means that the methods used for inspection visits vary widely. This situation is further aggravated by the absence of any inspection policy prioritizing the activities characterized by a high level of occupational accidents and cases of occupational disease. According to the organization, the frequency of inspection visits is significantly higher in establishments located in the capital than in other parts of the country. Furthermore, establishments in industries in which there is no trade union representation often go uninspected, since the labour inspectorate reacts mainly to complaints that it receives and situations which are the focus of media attention.

With regard to the material working conditions of labour inspectors, the Government states that the offices in Montevideo have vehicles and travel allowances at their disposal to travel around in the interior of the country and that tenders have been invited for the acquisition of four-wheel drive vehicles. The Government also states that computer equipment has improved. Offices are equipped with the apparatus needed for inspectors to measure contamination in the workplace, first-aid kits, digital cameras, and communication equipment, including mobile telephones. Personal protection items such as gloves, masks, helmets, ear protectors are also provided to inspectors for use when carrying out their duties.

With regard to inspection visits, the Committee notes with interest Decree No. 108/007 under which any individual or entity employing staff is required to keep and register with the General Labour Inspectorate or its regional offices a list of the staff employed, together with a logbook containing the results of inspection visits and information on occupational accidents. Noting the Government’s statement to the effect that the General Labour and Social Security Inspectorate is to undergo restructuring with a view to improving the quality of inspection visits, the Committee hopes that the implementation of the above Decree will enable the inspection services to identify establishments liable to inspection and to establish visiting schedules taking into account priority sectors particularly in respect of occupational safety and health issues. The Committee would be grateful if the Government would continue providing information on developments in the working conditions of inspectors and on the nature of the structural changes planned for the General Labour Inspectorate. The Committee also asks the Government to provide information on the implementation of Decree No. 108/007 and its impact on the way in which the labour inspection services operate and on the scheduling and quality of inspection visits.

5. Article 5(a). Cooperation within the inspection services and between the inspection services and other public bodies. According to the CIIT, the functioning of the inspection services suffers from a lack of coordination between the various divisions and the working groups of the General Labour Inspectorate, with this lack of coordination being particularly marked in regions far from the capital. While recognizing the efforts made by the Government to promote collaboration between the various inspection service structures, the organization feels that the impact of the measures taken on the efficacy of the functioning of the inspection services is limited due to the lack of resources and the strongly centralized nature of the system. Moreover, it condemns the lack of cooperation between the inspection services and other public bodies, particularly those engaged in technical and scientific investigations, and states that it is unaware of any coordination between the inspection services and other state institutions or bodies engaged in activities relating to labour inspection. It regrets that information on the results of inspection service activities, in particular the follow-up given to investigations concerning occupational accidents, is not systematically communicated to the labour inspectorate. The Committee notes with interest that this will no longer be the case, thanks to the preparation of an annual report containing relevant information (see under Article 18).

As regards the coordination of inspection services, the Government indicates that the labour offices in the interior of the country are in contact with the General Labour and Social Security Inspectorate through the National Directorate for Coordination of the Interior (DINACOIN) of the Ministry of Labour and Social Security.

Without responding to the concern regarding the absence of cooperation with other public bodies mentioned by the organization, the Government refers to various other forms of cooperation such as the conclusion of agreements between the General Labour Inspectorate and (i) the State Insurance Bank, dated 17 November 2006, on the exchange of information relating to occupational accidents and diseases; and (ii) the Ministry of the Interior, which is responsible for the technical police, so that the latter systematically notify the inspection services of serious and fatal accidents which have required their intervention. It also states that the General Labour Inspectorate has provided members of the technical police with training on the need to preserve evidence at the scene of the accident until the arrival of the inspectors.

6. Article 14. Notifying the labour inspectorate of industrial accidents and cases of occupational disease. According to the CIIT, the application of the procedure of notifying the labour inspectorate does not allow for the establishment of reliable statistics in this regard. It also states that the labour inspectorate does not monitor the application of this procedure and that no penalties are therefore imposed for failing to apply it. The Committee notes with satisfaction that notification methods and deadlines are now governed by Annex 1, Group B 1 of Decree No. 64/004 issuing the new National Code on Notifiable Diseases and Health Situations, and section 1, paragraph 1, of Regulatory Decree No. 169/004 extending the compulsory notification of occupational accidents and diseases. During the period covered by the annual inspection report, 17,237 occupational accidents were notified, 78 of which were investigated. The Government indicates that a report on investigated accidents was to have been prepared by the end of 2006. The Committee hopes that regulatory and administrative measures (especially instructions and circulars) will be taken to ensure that effect is quickly given to the abovementioned Decrees throughout the territory. It asks the Government to keep the Office informed and to communicate any relevant documents together with a copy of the report on the accidents that have been investigated.

7. Article 18. Effective enforcement of adequate penalties. From the point of view of the CIIT, the penalties imposed for violations are neither adequate nor dissuasive. In general, it is less costly for enterprises to pay off fines than to put an end to the violations, in particular on temporary construction sites. In practice, only a small percentage of the fines imposed are received by the administration, following a lengthy procedure.

In this respect, the Committee notes with interest that under Act No. 15.903 and Decree No. 186/004, the amounts of the penalties have increased substantially and that, thanks to the registering of enterprises that have committed violations, provided for by Act No. 17930/2005, supplemented by Decree No. 263/006, it is now possible to increase financial penalties, notably for repeated offences.

The Committee notes with satisfaction that a register of enterprises that have committed violations, containing information on the reported violations, the rules violated and the penalties imposed will be made available to each inspection service.

The Committee is addressing a direct request to the Government concerning a number of other points.