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Comments adopted by the CEACR: Paraguay

ADOPTED_BY_THE_CEACR_IN 2020

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Institutional framework for the prevention and repression of trafficking in persons. In its previous comments, the Committee noted the consolidation of the institutional framework for action to combat trafficking in persons, and emphasized in particular the action undertaken by the Interinstitutional Forum for preventing and combating trafficking in persons, established in the Ministry for Women, and the Specialized Unit to combat trafficking in persons and the sexual exploitation of boys, girls and young persons (UFETESI). It requested the Government to continue strengthening the resources and capacities of the competent authorities for the identification of cases of trafficking in persons for both labour exploitation and sexual exploitation, and to provide information on the adoption of the National Plan to prevent and combat trafficking in persons.
In its report, the Government provides information on the technical approval of the National Plan for the prevention of trafficking in persons by the Interinstitutional Forum for preventing and combating trafficking in persons in the Republic of Paraguay. The Committee observes, that according to the information available on the official website of the Ministry of Foreign Affairs, in August 2020 a workshop was held for the approval of the Plan during which, with the participation of most of the members of the Interinstitutional Forum, the text was unanimously approved.
The Committee also notes the detailed information on the interventions of the Unit to combat trafficking in persons and the sexual exploitation of boys, girls and young persons of the Office of the Public Prosecutor to build the capacities of the competent authorities (investigators, magistrates, police officers, labour inspectors, officials in the migration services) and to release victims of trafficking in persons. The Committee also notes that the Office of the Public Prosecutor has a system to receive complaints, as well as a Manual of Operational Procedures which covers cases of victimization, assistance to victims, the recording of cases and the evaluation of risks. In 2018, a total of 110 complaints of trafficking in persons were dealt with, 201 complaints of pornography and 51 complaints of proxenetism, and a total of 15 convictions were obtained. Between January and June 2019, the Unit received a total of 68 complaints concerning trafficking in persons, nine for pornography and 63 for proxenetism.
The Committee hopes that the National Plan for the prevention of trafficking in persons will be adopted in the very near future and requests the Government to provide information on the measures adopted by the competent bodies for its effective implementation. In this regard, the Committee requests the Government to indicate whether the authority responsible for coordinating the application of the Plan undertakes a regular evaluation of the progress achieved and the difficulties encountered. The Committee also requests the Government to continue providing information on the awareness-raising and capacity-building activities undertaken, and on the cases of trafficking in persons reported, current prosecutions and the penalties imposed.
2. Protection of victims. The Committee notes the information on the support provided to victims of trafficking by the UFETESI and the Ministry of Women, which provide comprehensive support (protection, and psychological, social and legal support) and continued assistance to victims through its referral centre and its temporary accommodation. It notes that in 2018 the technical support department of the UFETESI provided assistance to a total of 110 victims, consisting of 95 women and 15 men. Since 2017, the UFETESI, through the seed fund for immediate assistance to victims of trafficking in persons has been implementing the Immediate Victim Support Plan, providing them with, among other forms of support, food, the payment of medical care, the payment of training, daily expenses (for foreign victims), the payment of accommodation in hotels (as a security measure and when the victims are men), and support for small micro-undertakings. With a view to the social and labour reintegration of victims of trafficking, the Government has supported the development of micro- undertakings by victims assisted by the Ministry of Women. Similarly, since 2016, the Ministry of Social Development has included coordinated assistance in its social programmes for women victims of trafficking, in the form of support for family, social and community reintegration. The Government also refers to the Guide on services for persons who are victims of trafficking, as a tool for actors in the justice system, which sets out a map of the services required by victims and an analysis of the services that exist in the country, by department.
The Committee notes the indication by the CUT-A in its observations that support measures for victims of trafficking are only focused on women and girls, and that other possible victims are not envisaged, such as men, indigenous persons of both sexes and transgender persons.
The Committee notes the action taken by the various Government institutions to provide support for victims of trafficking and encourages the Government to continue its efforts in this regard, including specific measures for men and LGBTI victims of trafficking for sexual exploitation and labour exploitation. The Committee requests the Government to provide information on this subject and to indicate the manner in which the various institutions coordinate their action. It also requests the Government to provide a copy of the Guide on services for victims of trafficking intended for actors in the justice system.
Article 2(2)(c). Prison labour. The Committee previously noted that persons sentenced to imprisonment are obliged to carry out work assigned to them. Without prejudice to this obligation, detainees are not forced to work, although an unfounded refusal to work is considered a violation of the rules and has a negative impact on the assessment of their behaviour (sections 138 and 139 of the Code of the Execution of Criminal Sentences). The work may be organized by the administration, through a decentralized entity, or by a mixed or private enterprise, or carried out on the own account of the detainee or through a cooperative system. Where the work is organized by a mixed or private enterprise, the detainee’s remuneration is equivalent to the wage paid on the free labour market. The Committee once again requests the Government to indicate whether and, if so, in what manner mixed or private enterprises are involved in the organization of the work of detainees, within or outside prison. It also requests the Government to specify how in practice the free and informed consent of prisoners is obtained for work for mixed or private enterprises.

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion held in June 2017 in the Committee on the Application of Standards of the International Labour Conference (hereinafter the Conference Committee). The Committee notes the Government’s report received in 2019, and the observations of the International Organisation of Employers (IOE), received on 1 September 2017, the International Trade Union Confederation (ITUC), received on 1 September 2017 and 9 September 2019, the Central Confederation of Workers Authentic (CUT-A), received on 2 September 2017 and 30 August 2019, and the National Confederation of Workers (CNT), received on 26 August 2019.
Articles 1(1), 2(1) and 25 of the Convention. 1. Institutional framework for action to combat forced labour. In its previous comments, the Committee considered that the adoption of the National Strategy for the Prevention of Forced Labour 2016-20 (Decree No. 6285 of 15 November 2016) constituted an important step in action to combat forced labour. It urged the Government to take the necessary measures for the effective implementation of the Strategy, particularly in regions and sectors where indicators of the existence of forced labour have been detected and to raise awareness of the issue. The Committee notes that, in its conclusions, the Conference Committee urged the Government to: continue including the social partners in the process of the implementation of the Strategy; develop regional action plans; and develop priority action to raise awareness of forced labour and protect victims.
The Committee notes the Government’s indication in its report that Decree No. 7865 of 12 October 2017 provided for the establishment of the National Commission on Fundamental Labour Rights and the Prevention of Forced Labour (CONTRAFOR), under the responsibility of the Ministry of Labour, Employment and Social Security (MTESS), replacing the Commission on Fundamental Labour Rights and the Prevention of Forced Labour. The participants in the Commission include the representatives of 14 ministries, the Paraguay Indigenous Institute (INDI) and the Council of Indigenous Peoples of Chaco, as well as representatives of employers’ and workers’ organizations. The general function of the CONTRAFOR is to coordinate public policies for the prevention and eradication of forced labour at the national level, and specifically to determine the processes for the implementation of the National Strategy for the Prevention of Forced Labour 2016-20 and to propose relevant adjustments. The Committee also welcomes the adoption, through the CONTRAFOR, of the Plan of Action for the prevention and eradication of forced labour in Paraguay 2017-19. The Plan covers three areas: (i) the preparation of a diagnostic study on the situation with regard to forced labour; (ii) interinstitutional and tripartite coordination (including the coordination of action for the implementation of the Strategy and the strengthening of labour inspection so as to be able to deal effectively with complaints and denunciations); and (iii) awareness and visibility of the issue of forced labour. The Plan also calls for the Monitoring and Evaluation Commission, which includes representatives of social partners, to prepare an annual report on progress and the achievement of the planned objectives as a basis for making adjustments and coordinating the development of the next plan of action.
The Committee notes that, in her 2018 report on her mission to Paraguay, the United Nations Special Rapporteur on contemporary forms of slavery commended the Government on the positive steps taken in the development of a legal and institutional framework in the country to combat modern forms of slavery and also emphasized as a positive development the greater awareness in society of the various forms of exploitation (A/HRC/39/52/Add.1, paragraph 18).
The Committee welcomes the efforts made by the Government to strengthen the institutional framework to combat forced labour and firmly encourages the Government to continue taking measures for the full implementation of the National Strategy for the prevention of forced labour and the Plan of Action for the prevention and eradication of forced labour in Paraguay 2017-19. The Committee requests the Government to provide information on the results achieved, including specific information on the roles assigned to the institutions responsible for its implementation, interinstitutional coordination mechanisms, the adoption of regional plans, the annual reports prepared by the Monitoring and Evaluation Commission and the diagnostic study on forced labour, including information on the factors that are identified as potential facilitators of forced labour. The Committee further requests the Government to provide information on the process of the development and adoption of the second National Strategy for the prevention of forced labour and encourages the Government to promote tripartite dialogue in its action to combat forced labour.
2. Exploitation of the labour of indigenous workers in the Chaco. For several years, the Committee has been urging the Government to take measures to bring an end to the economic exploitation, and particularly the debt bondage of indigenous workers in the Chaco region. The Committee has drawn attention to the need to reinforce the presence of the State in that region so as to be able to identify victims and carry out investigations of the complaints received. In this regard, the Committee previously noted the establishment of a Labour Office in the locality of Teniente Irala Fernández (central Chaco) and the recruitment of 30 labour inspectors at the national level, the establishment of new courts in the Chaco region (including labour tribunals) and of the subcommission of the Commission on Fundamental Labour Rights and the Prevention of Forced Labour in the Chaco region. The Committee observes that the Conference Committee also urged the Government to allocate sufficient material and human resources to the Ministry of Labour offices in the Chaco region to receive workers’ complaints and reports of forced labour and take appropriate measures to ensure that in practice victims are in a position to turn to the competent authorities.
In its report, the Government refers to the conclusion, in July 2017, of a Framework Interinstitutional Cooperation Agreement between the MTESS and the government of the Department of Boquerón with a view to the strengthening of the activities of the MTESS in the Chaco region in order to, inter alia, facilitate the access to information and complaint procedures for all members of indigenous peoples. Within this framework, the Office of the Labour Department for Indigenous Peoples was established in March 2018 in the city of Filadelfia, Department of Boquerón (Chaco). The Office has since been strengthened and offers an accessible complaints procedure for workers and is raising the awareness of indigenous peoples concerning their rights and providing them with advice. The Government also provides information on awareness-raising campaigns (“The Paraguayan Chaco with decent work”) and capacity-building workshops for the population of the Paraguayan Chaco on their labour rights in various languages (Spanish, Guaraní, Enxet, Sanapaná, Nivaclé, Ayoreo, Toba Qom, German and the Menonnite dialect), as well as for the private sector and public officials. The Government indicates that since 2018 it has been taking action to strengthen the Regional Office of the MTESS in the Chaco, including: the preparation of a list of public institutions in the three districts of the Boquerón (Filadelfia, Mariscal Estigarribia and Loma Plata) with which the Regional Office has constant relations, the development of a list of indigenous communities in each district; and the organization of the Office to receive, provide advice to and mediate between employers and workers. In the month of January 2019, a total of 117 persons received advice from the MTESS in the city of Filadelfia.
The Committee notes that, in its observations, the ITUC indicates that the Filadelfia Office does not have the minimum level of administrative resources necessary for its operation nor the independence to ascertain possible irregularities on site. The ITUC indicates that the Government has not provided information to workers’ organizations on the activities of the Office, the number of complaints received and the action taken on forced labour and other violations of labour rights. The CUT-A indicates that the Filadelfia Office does not have staff trained in “building a case” and gathering evidence, or in interviewing potential victims. The CUT-A adds that it does not have information on the outcome of any interventions that have been made, hence the ongoing lack of exemplary penalties.
The Committee notes that, in her report, the United Nations Special Rapporteur observes that, according to information received, cooperatives and ranches generally comply with the national legislation and there have been recent improvements in the level of compliance in the Chaco region. Nevertheless, she remains concerned at cases of forced and slave labour in smaller workplaces and more remote and less accessible ranches, and at labour practices that she views as exploitative (para. 50).
The Committee encourages the Government to intensify its efforts to facilitate the access of indigenous workers to administrative and judicial procedures to report situations of forced labour, taking into account their geographical location, linguistic and cultural situation and educational level. In this regard, the Committee requests the Government to continue taking measures to ensure the presence of inspectors in the most remote areas of the Chaco where indigenous workers are present, and to indicate the current number of inspectors covering the region and their geographical distribution, the number of inspections undertaken, complaints received and administrative and criminal penalties imposed, and the manner in which the Ministry of Labour cooperates with the Office of the Public Prosecutor and the police for the investigation of cases of forced labour. The Committee also requests the Government to indicate the measures taken to protect workers who have reported being the victims of forced labour and in providing them with support and assistance. It also requests it indicate the manner in which the MTESS collaborates with the Paraguay Indigenous Institute for the identification and action to address problems affecting the indigenous peoples of the Chaco which make them vulnerable to situations of forced labour.
3. Article 25. Application of penal sanctions. The Committee previously noted that persons who exact forced labour (debt bondage and other practices involving forced labour) have not been prosecuted or penalized. In the same way as the Conference Committee, the present Committee requested the Government to ensure that the criminal law contains sufficiently specific provisions adapted to national circumstances to enable the competent authorities to initiate criminal proceedings against the perpetrators of these practices. The Government indicates that a preliminary draft Bill has been prepared to criminalize forced labour and that it establishes a sentence of imprisonment of up to five years or a fine for any person “who through force or threats compels another person to perform work or provide a service, irrespective of whether or not it is paid”. The preliminary draft text contains a list of aggravating circumstances which carry a sentence of imprisonment of up to ten years. These circumstances include the fact of submitting the victim to a situation of slavery, servitude or degrading conditions that undermine their humanity or the victim being in a seriously defenceless or vulnerable situation. The Committee also notes the adoption of the Tripartite and Interinstitutional Guide on Intervention in Cases of Forced Labour, which contains indicators of forced labour and proposes intervention maps in cases of complaints of forced labour, from both a criminal and a labour perspective. The Guide makes it clear that in cases where there has been no complaint, but it is known that there is a situation of forced labour, the Office of the Public Prosecutor must take action at its own initiative.
The Committee observes that the penalty envisaged when there are no aggravating circumstances, that is a sentence of imprisonment of up to five years or a fine, is not sufficiently dissuasive. Indeed, the Committee has already indicated that “when the envisaged sanction consists of a fine or a very short prison sentence, […] it does not constitute an effective sanction in light of the seriousness of the violation and the fact that the sanctions need to be dissuasive” (2012 General Survey on the fundamental Conventions, paragraph 319). While welcoming the preparation of draft legislation criminalizing and penalizing forced labour, the Committee trusts that the Government will take the necessary measures to review the draft legislation to ensure that the exaction of forced labour is punishable by criminal penalties that are really effective and sufficiently dissuasive. The Committee trusts that the draft legislation will be adopted in the very near future and requests the Government to provide information on the awareness-raising and capacity-building activities undertaken to promote knowledge of the legislation and its use by the competent authorities. The Committee also once again requests the Government to provide information on the prosecutions initiated against persons who exact forced labour and their outcome.
Article 2(2)(c). Obligation to work imposed on non-convicted detainees. For several years, the Committee has been emphasizing the need to amend the Act on the prison system (Act No. 210 of 1970), under the terms of which prison labour shall be compulsory for persons subject to security measures in a prison (section 10 in conjunction with section 39). The Committee previously requested the Government to take measures to formally repeal these provisions of the Act. The Committee notes the Government’s indication that in 2017 a formal proposal was submitted for the repeal of section 39 of the Prison Act No. 210/70 in order to harmonize it with the provisions of the Convention. This proposal was submitted to the Office of the President of the Republic for referral to the National Congress. The proposal was sent back to the MTESS by the Office of the President accompanied by legal opinion No. AJ/2017/No. 1073 of 16 July 2018, with the recommendation to obtain the legal opinion of the Ministry of Justice concerning the draft text. The Committee urges the Government to continue taking the necessary measures for the prompt approval of the draft legislation repealing section 39 of Act No. 210/70 on the prison system and to provide information in this regard.
The Committee is raising other matters in a request addressed directly to the Government.

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Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. Further to its previous comments on participation by labour inspectors in monitoring migrants, the Committee notes from the Government’s report that in 2016 the General Directorate of Migration concluded an inter-institutional agreement with the Ministry of Labour, Employment and Social Security (MTESS), the Social Insurance Institute (IPS) and the Industrial Union of Paraguay, with a view to establishing a strategic alliance to monitor and regulate the situation of migrants undertaking work in the various regions of the country. The Government indicates that the aim of the agreement is to allow the parties to coordinate their work in order to monitor enterprises and workplaces housing documented or undocumented foreigners, so as to determine their migratory status and, when appropriate, regularize them as immigrants, complying with the Migrants Act and to giving effect to the labour law in force. The Committee requests the Governing to indicate the measures adopted or envisaged to ensure that the duties entrusted to labour inspectors under the inter-institutional agreement concluded by the DGM with other parties, do not interfere with the effective discharge of their primary duties, established in Article 3(1) of the Convention, or prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers, as provided in Article 3(2) of the Convention. Equally, the Committee requests the Government to provide information on the number of inspections in which labour inspectors participate under the inter-institutional agreement, the results obtained and the measures subsequently adopted, providing details of the number of cases which resulted in the regularization of the migrant workers.
Article 5(a). Cooperation between the inspection services and other government services and institutions. With regard to its previous comments concerning the Employer Worker Register, the Committee notes the adoption of Decree No. 8304 of 2017, regulating the registration of workers and employers, presentation of payrolls, communication and submission of electronic data and documents to the Administrative Labour Authority. The Committee also notes the adoption of Decree No. 9368 of 2018, which modifies certain provisions of Decree No. 8304. The latter Decree makes it obligatory for employers to register at the Department for the Registration of Employers and Workers of the MTESS within a fixed time-limit (section 3), it also provides for penalties in case of non-compliance with that obligation (section 6) and allows registration through the MTESS website and by means of the Unified System for Opening and Closing Businesses (SUACE), under the Ministry of Industry and Trade (section 4), specifying that the institutions that make up the SUACE will share data on the opening and closing of enterprises (section 14). In that regard, the Committee takes note of the information contained in the MTESS management reports from 2015 to 2019 on the operation of the Worker Employer Register, which includes the number of new employer registrations each year and, in some cases, the number of workers that they employ. The Committee also notes that the SUACE web site operates as a one-stop shop for information concerning the opening and/or formalization of enterprises, and is composed of the MTESS, the IPS and the DGM, and other institutions.
Still in relation to its previous comments, the Committee notes the Government’s indication that a framework agreement was concluded between the MTESS and the IPS in 2015, to share information on registration of enterprises in order to monitor social security contributions and registration of workers more closely against the payrolls recorded in the Employer Worker Register. In that regard, the Committee notes the adoption of the Resolution No. 593 of 2018, which provides for automatic migration of enterprises registered with the IPS when they are absent from the MTESS registry and that, according to the MTESS management report, 2018–2019, joint monitoring with the IPS is planned, under the coordination of the MTESS General Directorate of Labour Inspection and Monitoring (DGIF) and the IPS General Directorate of Workers’ and Employers’ Contributions, with the aim of detecting violations of labour standards and of uniting elements for social security monitoring, among other matters. The Committee requests the Government to provide further information on the way in which information received by the MTESS under the agreement concluded with IPS is used for the effective planning of inspection visits. The Committee also requests the Government to provide information on the number of inspections carried out jointly with the IPS and their results.
Article 18. Adequate and effectively enforced penalties for obstructing labour inspectors in the performance of their duties. Further to its earlier comments on the penalties for obstructing labour inspectors, the Committee notes that Title I of Book V of the Labour Code, which the Government references, provides for penalties for non-compliance with its provisions, but not for penalties for obstructing labour inspectors in the performance of their duties. In that regard, the Committee also notes that section 18 of Act No. 5115 of 2013, creating the MTESS, establishes that, for the proper and efficient performance of its functions and attributions, when circumstances so require and where there has been opposition to inspection, the Director-General of Inspection and Monitoring may request the competent labour court to issue a search order for public and private institutions, enforceable by public force. Section 3 of Resolution No. 47 of 2016, which approves the general inspection procedure for monitoring labour, social security and occupational safety and health legislation, establishes that: (i) during inspection visits inspectors may be accompanied, among other persons, by police officers (section 2.1.1.); (ii) where access to an enterprise, or a specific part of it, is refused, the inspector may submit a report on the situation to the Director-General of Inspection and Monitoring, in accordance with section 18(2) of Act No. 5115 (section 2.1.1.); and (iii) cases of obstruction of labour inspection include: preventing the inspector from questioning persons working in the workplace; removing, or allowing those persons to withdraw before being identified by the inspector; refusal by the employer, or by another person in charge, to provide information on workers that have not been adequately identified (section 2.1.2.). The Committee notes that neither Act No. 5115, nor Resolution No. 47 provide penalties for obstructing labour inspectors in the performance of their duties. The Committee requests the Government to provide information on the application of sections 3, 2.1.1. and 2.1.2. of Resolution No. 47, and of section 18 of Act No. 5115, which refer to cases of obstruction of labour inspectors in the performance of their duties, specifying the number of cases of obstruction observed and giving details of cases where a labour court has issued a search order in respect of workplaces liable to inspection and where the inspectors have been accompanied by the police. Likewise, the Committee requests the Government to adopt the measures necessary in order for the national legislation to provide adequate penalties for persons who obstruct inspectors in the performance of their duty, in accordance with Article 18 of the Convention.
Articles 20 and 21. Annual report on the work of the labour inspection services. Further to its previous comments, the Committee notes that section 26 of Act No. 5115 establishes that the Director-General of Inspection and Monitoring shall publish an annual report, of a general nature, on the work of the inspection service under his control. In that regard, the Government indicates that the DGIF is responsible for drawing up the report and for its transmission to the ILO. The Committee notes that the MTESS management reports for 2015 to 2019 (available on the MTESS website) contain a section on the activities of the DGIF and provide information on legislation relevant to the functioning of the labour inspection service and on the number of inspection visits.
Nevertheless, the Committee notes that the MTESS management reports do not consistently present complete information on: (i) the staff of the labour inspection service; (ii) statistics on the workplaces liable to inspection and the number of workers therein; (iii) statistics on violations committed and penalties imposed; of (iv) statistics on occupational accidents and occupational diseases. The Committee encourages the Government to continue its efforts in preparing and publishing annual reports on the activities of the labour inspection services. The Committee trusts that future reports will cover all the issues listed in Article 21 of the Convention. In that connection, the Committee reminds the Government that it may request ILO technical assistance.

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The Committee takes note of the observations of the National Confederation of Workers (CNT) and the Confederation of Workers Authentic (CUT-A), received in 2019.
Articles 6, 7, 10 and 11 of the Convention. Labour inspectors. Status and conditions of service, recruitment, training, number and material conditions of work. In relation to its earlier comments, the Committee notes from the Government’s report that the establishment of the Ministry of Labour, Employment and Social Security (MTESS) by Act No. 5115 of 2013 has improved labour inspectors’ working conditions. The Committee notes in particular the information provided by the Government to the effect that: (i) their remuneration is higher than that under the former Ministry of Justice and Labour; (ii) open competitions have been held for the recruitment of new inspectors to the public service: the MTESS employed 31 inspectors in 2015 and 25 inspectors in 2019; (iii) the new inspectors have received training through the training plan put in place by the ILO Country Office for the Southern Cone of Latin America, and continuous training was given to inspectors from 2015 to 2019 in areas including forced labour, child labour, and occupational safety and health; and (iv) new office space has been allocated to the Directorate for Labour Inspection and Monitoring (DGIF), and the inspectors are provided with all office supplies.
The Committee notes in its observations that the CUT-A remains concerned that: (i) the number of inspectors (fewer than 30 in all), is insufficient to cover the entire national territory; (ii) there is a lack of initial and continuous training for inspectors and no profile whereby to determine the requirements for their posts; (iii) there is a lack of inspectors holding public servant status. Instead, inspectors are contracted employees, which prevents them from performing their functions fully; and (v) inspectors are poorly remunerated. The Committee also notes from the CNT’s observations with regard to public sector workers that the contracted employees do not enjoy the same employment conditions as appointed public servants, for example, the right to a retirement pension, healthcare or cover against occupational risks, occupational accidents and diseases.
The Committee notes from the information provided by the Government that all inspectors who entered the service in 2015 did so through a merit-based competition and enjoyed the status of temporary public servants, while 22 of the 25 inspectors employed in 2019 held the status of temporary public servants, while three inspectors held the status of permanent public servants. In that connection, the Committee notes the Government’s indication that inspectors obtain their posts through open competition in conformity with sections 15 and 35 of Act No. 1626 of 2000 on the Public Service, and Decree No 3857 of 2015, which approves the general regulations governing selection for entry and promotion in the public service for permanent and temporary posts. Section 8 of the Decree cited establishes merit-based competition as the technical mechanism of selection for the recruitment of persons to the public administration, applicable, inter alia, to technical, daily wage or professional posts.
The Committee recalls in respect of the temporary recruitment of labour inspectors, apparently the case for the large majority of inspectors, that that form of recruitment is not in conformity with Article 6 of the Convention, which provides that the status and conditions of service of the inspection staff must be such that they are assured of stability of employment and are independent of changes of government and of improper influences. The Committee urges the Government to take the necessary measures to ensure that the status and conditions of service of labour inspectors comply with the requirements of Article 6 of the Convention. In that respect, it also requests the Government to provide additional information of the salary structure and benefits applicable to labour inspectors and to public servants who perform similar functions in other government services (such as tax inspectors or the police). The Committee also requests the Government to indicate the measures taken or envisaged to increase the number of labour inspectors. The Committee further requests the Government to continue providing information on the number of inspectors and their distribution by region, their status and conditions of service, giving details of the method employed for their recruitment and of their remuneration. The Committee also requests the Government to provide information on the number of suitably equipped local offices, as well as on availability of transport facilities necessary for the performance of labour inspectors’ duties, in accordance with Article 11 of the Convention.
Articles 11, 12, 16 and 18. Application in the Chaco region. Further to its earlier comments on the creation of labour law enforcement units in the Chaco region, the Committee notes that CUT-A indicates deep concerns in its observations at the shortcomings in labour inspection in that region, and that although the Government has opened an MTESS office there, the office has neither the means nor the independence to monitor possible irregularities in situ, and that the inspectors are only able to enter rural properties under court order. Moreover, CUT-A points out that not only do workers have to go to the MTESS office to register their complaint, but they must also deliver the official notice to their employer summoning the employer to clarify the situation. The Committee requests the Government to communicate its comments in respect of the CUT-A’s observations. With reference to its comments under the Forced Labour Convention, 1930 (No. 29), the Committee requests the Government to provide information on the functioning of the MTESS office established in the Chaco region and its impact on the application of the legislation on the working conditions and protection of workers in that region, including information on the number of inspection visits undertaken, the violations detected and the penalties imposed. The Committee also requests the Government to provide information on the number of labour inspectors at work in the region.
Article 12(1)(a). Restrictions on labour inspectors freely to enter workplaces liable to inspection. In its previous comments the Committee once again requested the Government to take the necessary measures, including through the amendment of Resolution No. 1278 of 2011 (which provides technical and legal guidance on aspects of the inspection and monitoring services and summary inspection procedures), to ensure that labour inspectors are empowered to enter freely any place liable to inspection. In that connection, the Committee notes the information provided by the Government to the effect that Resolution No. 47 of 2016 approved the general inspection procedure for monitoring labour, social security and occupational safety and health legislation, and repealed sections 1.1 and 1.19, on inspection processes, of Resolution No. 1278.
The Committee notes that article 3 of Resolution No. 47 provides that: (i) the general inspection procedure may be initiated ex officio, or by inspection order signed by the Minister or Vice-Minister of Labour, or at the request of a party. Once initiated, the DGIF will submit the complaints and/or requests for inspection to the legal counsel of the Vice-Minister of Labour, for a ruling on whether or not to proceed with an inspection (section 1.1.); (ii) in order to carry out inspections in response to complaints or requests, the respective inspection orders must be issued. Where the legal counsel of the Vice-Minister of Labour deems the orders inappropriate, they will be dismissed and filed (section 1.1.); (iii) in the case of an ex officio inspection or inspection at the request of a party (following acceptance of the request or complaint), the Director-General of Labour Inspection and Monitoring will submit a draft inspection order to the Minister or Vice-Minister of Labour for consideration (section 1.2.); (iv) the inspection orders must, among other requirements, be signed by the Minister or Vice-Minister; they are otherwise void (section 1.2.); (v) inspectors holding an inspection order are empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection and to remain there for the time required; and, (vi) to broaden the scope of the inspection (to monitor aspects not included under the inspection order), the inspectors must inform the Director-General of Labour Inspection and Monitoring, so that the Director-General may propose the consequent broadening of the inspection order to the Minister or Vice-Minister, including in the event of detection of imminent danger to the lives, physical integrity, safety and health of the workers (section 1.2.).
The Committee notes that Resolution No. 56 of 2017 amplifies Resolution No. 47 and approves the regulations governing the procedures for ensuring compliance with labour, social security, and occupational safety and health standards, and those for addressing non-compliance. Those regulations provide that: (i) the inspector dealing with the complaint alleging non-compliance and/or request for inspection shall submit the complaint to the Director-General of the DGIF for consideration (section 1); (ii) on receipt of the complaint and/or the request for inspection, the Director shall forward it to the Chief Legal Counsel of the Vice-Ministry of Labour, who shall decide whether or not an inspection is appropriate; if so, the DGIF shall submit the draft inspection order to the Minister or Vice-Minister of Labour (section 2); (iii) where the action is ex officio, the DGIF shall submit the draft inspection order for signature by the Minister or Vice-Minister (section 3); and (iv) Following endorsement by the Minister or Vice-Minister, the order shall be forwarded to the DGIF (section 4).
The Committee notes that by virtue of Resolutions Nos 47 and 56, only inspectors in possession of an inspection order signed by a higher competent authority (the Minister or Vice-Minister of Labour) may enter freely, at any hour of the day or night any workplace liable to inspection. The Committee recalls that Article 12 of the Convention provides that labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee also recalls that the requirement to obtain prior authorization before an inspection constitutes a restriction on the freedom of inspectors to conduct inspections, especially if they have reason to believe that an enterprise is violating compulsory legal provisions. The Committee therefore urges the Government to adopt without delay the necessary measures to amend MTESS Resolutions No. 47 of 2016 and 56 of 2017, on inspection procedure, to ensure compliance with labour, social security and safety and health standards, so as to guarantee that inspectors provided with proper credentials are able to enter freely any workplace liable to inspection, in accordance with Article 12(1)(a) of the Convention, without the need to obtain previous higher authorization.
Article 16. Frequency and thoroughness of labour inspections. The Committee notes that section 3(2.1) of Resolution No. 47 provides that: (i) more than one inspection visit may be made under one inspection order wherever the first visit has not made possible collection of all relevant data; and (ii) in no case may more than two visits be made under one inspection order.
In addition, the Committee notes from the observations of the CNT that for the period between 16 August and 1 November 2019 (slightly over two months) 98 enterprises where allegations of non-compliance with labour standards had been registered received inspection visits. The CNT points out, however, that while that figure represents a twofold increase in the number of monthly visits (about 40 visits) compared to the monthly average in 2017 and part of 2018, it is not even equivalent to one per cent of all enterprises listed, as at June 2019, by the Directorate for the Registration of Employers and Workers (59,567 enterprises nationwide). Consequently, the CNT indicates that the labour inspection is not fulfilling its fundamental role of ensuring compliance with the labour laws. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that workplaces are inspected as frequently and as thoroughly as is necessary to guarantee the effective application of the relevant legal provisions, in conformity with Article 16 of the Convention.
The Committee is raising other matters in a request addressed directly to the Government.
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