Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Occupational Safety and Health Convention, 1981 (No. 155) - Mexico (Ratification: 1984)

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

The Committee is following up the recommendations made in the report adopted by the Governing Body in March 2009 (document GB.304/14/8) in relation to the accident that occurred at the Pasta de Conchos coalmine in Coahuila. In its comments in 2011, the Committee noted the discussions in the Conference Committee on the Application of Standards in June 2011 and its conclusions, a communication from the National Union of Federal Roads and Bridges Access and Related Services (SNTCPF), the Government’s report and the Government’s observations on a communication from that union received in 2010. The Committee observed that the discussion and conclusions of the Conference Committee on the Application of Standards also referred to the follow-up of the report on the representation and, in that context, to the application of the Convention to workers in coalmines in Coahuila. The communications of the trade union in 2010 and 2011 also referred to the same situation. The Committee notes the Government’s detailed report and a communication from the National Union of Workers (UNT). The UNT asserts that the Government has not provided reliable information to the public on the number of accidents, the general conditions of work and the organizations representing formal and informal workers engaged in the so-called pocitos (small-scale mines or pits), and it is unsure whether such information is included in the reports. It provides information on further occupational accidents, which have cost the lives of miners, and which was published in the media. The Committee invites the Government to provide the comments that it considers appropriate in relation to the communication of UNT.

I. Measures to be taken in consultation with the social partners

Articles 4(1) and (2), and 7 of the Convention. National policy. Overall reviews or reviews relating to specific areas: hazardous types of work such as those performed in the coalmining sector.

(a) Register of reliable data on existing mines and workers in these mines.

Background. In its previous comments, the Committee noted that, according to the Government, in Coahuila there are 909 mining concessions covering a surface area of 2.5 million hectares and that there are nine large coalmines and 62 medium-sized mines. With regard to the pocitos, the Government indicated that, as from March 2010, the GeoInfoMex satellite system was used for the location of such small-scale mines or pits, and that the project ended in May 2011. This resulted in the identification of 563 vertical shafts, in 297 of which activity was detected, which will be inspected. The Committee noted the distinction drawn by the Government between the registration of mining concessions and the registration of workplaces, and its indication that progress is being made in terms of coordination between the various State bodies connected with mining in Coahuila. The Committee requested the Government to continue supplying updated information on the number and type of mines and, recalling the request made by the Conference Committee on the Application of Standards, asked it to distinguish in that information between registered and unregistered mines. The Committee also requested the Government to indicate the estimated total number of miners in Coahuila, the number of registered miners and the estimated number of unregistered miners. These are two different but complementary issues that form part of the application of the Convention in all workplaces and to all workers at the workplace, for which reason it requested the Government to take the necessary measures to keep the fullest possible records in this respect and to provide information on this subject.

The 2012 report. The Committee notes the Government’s indication that, according to the information provided by the General Directorate of Mines of the Secretariat of the Economy, as of May 2012, there were 30,458 current concessions at the national level, of which 2,463 are located in the State of Coahuila; of these, 970 are coalmines of which 297 are small-scale mines or vertical shafts. With reference to the 297 small-scale mines or vertical shafts identified in Coahuila, of which the Committee took note in its previous comments, 149 have been inspected. The Government indicates that, with regard to the estimated number of miners, according to the inspections carried out by the labour authorities, 24,527 workers have been detected, and that the Mexican Social Security Institute (IMSS) has a record of 95,000 workers in the mining sector. An inter-institutional group has been established composed of the Secretariat for the Economy, the Mexican Social Security Institute, the Office of the Federal Attorney for the Protection of the Environment, the Office of the Federal Attorney for the Defence of Labour and the Secretariat of Labour and Social Welfare (STPS), for the purpose of exchanging databases so as to develop a single register of enterprises engaged in mining. The Committee notes that the information provided does not indicate whether the 24,527 workers referred to by the Government are located in Coahuila or at the national level, or whether they consist of registered or unregistered workers. With regard to the figure of 95,000 workers, this appears to refer to the national level, and not only to Coahuila. The Committee observes that the information provided by the Government does not correspond fully to the requests made by the Committee in its most recent comment. The Committee hopes that the new working group will contribute to improving coordination and the compilation of reliable and clear data, as a basis for making progress in improving the safety and health conditions in mining. The Committee once again requests the Government to provide information on the number and type of mines in Coahuila, including: (1) information distinguishing between registered and unregistered mines; (2) the total estimated number of miners in Coahuila; (3) the number of registered miners; and (4) the estimated number of unregistered miners.

(b) Accidents in the coalmining sector.

Background. In its previous comments, the Committee noted that, according to the Government, over the past ten years (2001–10), the IMSS has registered 38,069 occupational accidents and diseases in the mining sector and 340 fatalities. The Government indicated that, if a comparison is made between 2001 and 2010, the number of workers in the mining industry increased by 35.74 per cent and that, in terms of the number of fatalities, there was no significant change (31 in 2010 and 30 in 2001). The Committee noted that, according to a communication by the SNTCPF, between June 2010 and August 2011, 33 more miners died in occupational accidents, including 26 in Coahuila; 14 miners died on 3 May 2011 in Pit No. 3 of the BINSA company, none of whom were registered with the IMSS, including one miner under 14 years of age. In 2011, the Committee requested the Government to continue providing detailed information on these matters, including on accidents in coalmines and on the application of the Convention in the mines where the accidents occurred.

The 2012 report. The Committee notes the Government’s indication that the labour authorities have at all times supported the families of the deceased workers, including through the lodging of applications for work-related benefits, and that it provides details in this regard. In this respect, the Federal Arbitration Board handed down decisions supporting the claims, although they have not yet been executed as the parties can still appeal. The Government provides information on the various forms of assistance provided for the families. The Committee also notes the tables attached by the Government, and particularly the table entitled “Accidents in the mining industry”, which refer to certain accidents, the number of violations detected, the fines imposed and whether charges were made or are being brought. However, this information does not give the Committee an overview of developments in relation to occupational accidents in the coalmining industry, and whether their numbers have fallen or remained stable. The Committee requests the Government to provide statistical data on the number of occupational accidents in the coalmining industry, and particularly in Coahuila, with an indication of the number of accidents and victims since 2010 and up to the time of the preparation of the next report, with a distinction being made between accidents occurring in so-called “pocitos” and in medium-sized or large mines.

(i) The Lulú mine. In its previous comments, the Committee noted the information provided by the SNTCPF indicating that two workers died in the Lulú mine on 6 August 2009. According to the trade union, the mine has been in operation since 2001, but has never been inspected. In its 2011 report, the Government indicated that it had been planned to carry out an inspection in the Lulú mine in August 2009, but that the accident occurred on 6 August, before the inspection, so that an emergency inspection was carried out from 7 to 10 August, followed by another inspection on 13 and 14 August, and access was then restricted. The Committee also noted that the 2011 communication of the SNTCPF included as an appendix Recommendation 12/2011, of 29 March 2011, of the National Human Rights Commission (CNDH), which has constitutional status, concerning the accident in the mine. In its examination of the case, the CNDH states that “with the omissions described above on the part of the public servants of the Secretariat for Labour and Social Welfare (STPS) and the Secretariat for the Economy, operations at the enterprise were allowed under conditions that did not guarantee the integrity and the health of the workers, and they were placed in grave danger and were exposed to situations such as the one which resulted in the deaths (of two workers)”. The CNDH added that this situation was in violation of Articles 7 and 9 of the Convention. In its 2012 report, the Government indicates that the representatives of the Office of the Federal Attorney for the Defence of Labour (PROFEDET) provided advice and legal representation to the widows, one of whom explicitly declined them, while the other did not come to the offices of the PROFEDET, for which reason it is assumed that she declined its services. The Government adds that the STPS accepted the recommendation of the CNDH, emphasizing that all times it discharged its functions of vigilance and verification in the mine in which the accident occurred. The Committee requests the Government to indicate whether an inquiry has been held regarding the accident, as provided for in Article 11(d) of the Convention, and its findings, particularly on the causes of the accident.

(ii) The Ferber pocito mine. In its previous comments, the Committee noted that, according to the SNTCPF, on 13 August 2009, the periodic inspection of the mine was conducted and, leaving aside the provisions that do not apply to small-scale operations, 85 breaches of the regulations were reported and 76 corrective measures were ordered, and access was restricted. On 11 September 2009, a worker aged 23 died. The union adds that the labour inspectorate only appeared on 17 September 2009 to note or verify the implementation of the corrective measures ordered. It alleges that the STPS is negligent. The Committee noted that in the examination of the case conducted by the CNDH (Recommendation No. 85/2010 of 21 December 2010), it affirmed in similar terms that the provisions of the Convention were breached. In its 2012 report, the Government provides information on the action taken by the PROFEDET to obtain a higher benefit for the widow, and indicates that it achieved a higher sum than that originally granted. The Government adds that the STPS accepted the recommendation of the CNDH and recognized that its institutional responsibility consists of monitoring safety conditions in enterprises and punishing violations. The Committee requests the Government to provide information on whether the applicable regulations require follow-up inspections within a fixed period when one or a substantial number of violations are reported or corrective measures ordered, and to provide details on the time frame stipulated for such follow-up. The Committee further requests the Government to indicate whether an inquiry has been held regarding the abovementioned accident as provided for in Article 11(d) of the Convention, and its findings, particularly on the causes of the accident.

The Committee also asks the Government to report whether inquiries have been held in accordance with Article 11(d) of the Convention, where cases of occupational accidents – in this case in the coalmining sector in Coahuila – appear to reflect serious situations, and also to report the findings of such inquiries, particularly as regards the causes of such accidents.

In its previous comments, the Committee noted the Government’s statement that the Lulú mine and the Ferber pocito mine are not covered by the recommendations adopted by the Governing Body in its report on the representation, but that the Government was providing information on this subject to clarify such matters. The Committee indicated to the Government that information on accidents in these mines actually forms part of the follow-up to the recommendations made by the Governing Body, as the recommendation in paragraph 99(b)(i) of the report refers to ensuring the application of Articles 4 and 7 of the Convention, with particular emphasis on coalmines, and the recommendation in paragraph 99(b)(iii) of the report refers to ensuring the application of Article 9 of the Convention “in order to reduce the risk that accidents such as the accident in Pasta de Conchos occur in the future”. The Committee therefore indicated that information on accidents in coalmines in Coahuila and the analysis of their causes contribute to determining the real impact of the measures adopted and understanding whether everything was done that could reasonably have been expected to avoid or reduce as far as possible the causes of the hazards inherent in the working environment, in accordance with Article 4(2) of the Convention.

The Committee also drew the Government’s attention to the fact that the recurrence of accidents in mines which had manifestly failed to adopt the requisite occupational safety and health (OSH) measures, highlights the need to reinforce government action to ensure the application of the Convention in practice. The Committee therefore urged the Government to undertake, in accordance with Articles 4 and 7 of the Convention, and in consultation with the social partners, the periodic examination of the situation relating to the health and safety of workers and the working environment in coalmines in Coahuila, including the pocitos mines, with a view to identifying the principal problems, drawing up effective measures to resolve them, defining the order of priority of the measures to be taken and evaluating their results. The Committee also urged the Government to provide detailed information on this subject, including on the consultations held.

The Committee notes the Government’s indication that the forum for drawing attention to the OSH situation in coalmines in Coahuila consists of the National Occupational Safety and Health Advisory Commission (COCONASHT), the State Occupational Safety and Health Advisory Commissions (COCOESHT) and the State Occupational Safety and Health Advisory Subcommissions (SUBCOCOESHT). The Government adds that in 2008, a SUBCOCOESHT was created with the task of establishing appropriate measures to create safe conditions for workers in coalmines in Coahuila, and has held meetings with the social partners. The Committee notes with interest the information provided concerning the action taken or planned, as described below. The Government refers to an inspection programme with five main priorities: (1) the completion of the full register (work will continue on completing a list of mines and mineshafts to be visited with a view to updating the databases of the participating authorities); (2) documentary requirements (enterprises which have not been inspected previously will be required to provide documentation demonstrating compliance with the respective standards); (3) inspections (which will be programmed in workplaces where inspections have been carried out before or where the records show repeated failures to comply with the regulations); (4) large-scale mining (targeting ten mines with a large number of workers); and (5) promotion (with the objective of promoting compliance with the various official Mexican Standards, and specifically NOM-032-STPS-2008 on safety in underground coalmines). The Government also provided information on the training and support activities undertaken by the Government of the State of Coahuila and the Federation of Coal Producers; the preparation in 2011 of a guide to assess compliance with safety and health standards for small-scale coalmining operations; and training for STPS staff, with courses being undertaken between January 2011 and May 2012 with 154 participants. Furthermore, on 28 March 2012, the STPS concluded an agreement with the CNDH for the consolidation of a human rights culture among public officials in the STPS, with particular reference to inspectors.

Nevertheless, the Committee emphasizes that the purpose of the reviews envisaged in Article 7 of the Convention is to identify major problems, evolve effective methods for dealing with them and priorities of action, and evaluate results, and that the Government has not provided information on all the points raised. The Committee once again requests the Government to indicate whether, in conformity with Articles 4 and 7 of the Convention and in consultation with the social partners, periodic examination has been undertaken of the situation relating to the health and safety of workers and the working environment in coalmines in Coahuila, including the pocitos mines, and to provide information on the following issues which, in accordance with Article 7 of the Convention, constitute the purpose of such examinations; (a) the major problems identified; (b) the methods proposed to deal with them; (c) the priorities for action; and (d) the evaluation of the results. Please also indicate the organizations of workers and employers represented and whether miners’ organizations participated in the examination.

Article 9. Adequate and appropriate system of inspection. In its previous comments, the Committee noted that the Lulú mine, which the Government closed on 10 February 2011, was first inspected on 7 August 2009, the day after the death of two workers, and that numerous irregularities relating to OSH were reported but that in spite of this the closure of the mine took 17 months. In the case of the Ferber pocito mine, the owner undertook the closure. The Committee referred to the Government’s statement that the inspectors enforced the existing regulations. The Committee considered that, in such a case, the regulations do not appear to constitute a framework that ensures an appropriate and adequate inspection system for safeguarding the lives, safety and health of workers in underground coalmines. The Committee also reminded the Government that in its recommendations the Governing Body asked it to ensure, by all necessary means, the effective monitoring of the application in practice of laws and regulations on occupational safety and health and the working environment, in consultation with the social partners. The Committee therefore requested the Government to examine, as part of the review required pursuant to Article 7, the manner in which the labour inspectorate can be strengthened, particularly in cases of imminent danger, and to provide information on this matter and also on the measures of immediate enforcement currently available to the labour inspectorate, including closure, in the event of imminent danger to the health and safety of the workers. It also requested the Government to undertake an analysis of the inspections conducted, concerning which it provided information to the Committee, in order to identify the principal problems with a view to achieving greater effectiveness of inspection activities in coalmines, and also to provide information on the measures proposed to address these problems. Pending the above reviews, the Committee urged the Government to take the necessary measures very rapidly to safeguard the lives and safety of the workers and to provide information on this point. The Committee notes that, according to the Government’s 2012 report, the STPS has established protocols for conducting safety and health inspections in mines, and that it also refers to the Guide for assessing compliance with safety and health regulations in small-scale coalmining operations. The Committee also notes the various measures for the strengthening of labour inspection, which are taken into account in various paragraphs of the present comment. The Government also refers to training courses and an increase in the number of federal labour inspectors, with 400 new inspectors envisaged in the budget for 2012. Reference is also made to the Support System for the Inspection Process (SAPI), through which the annual inspection programme will be generated at the central level, harmonization of records of violations and the measures ordered will be harmonized and greater control will be exercised over inspection activities in general. Work is also being undertaken for the specialization of inspectors in occupational safety and health regulations. With regard to measures of immediate enforcement, including closure, the Government indicates that all the measures proposed during a safety and health inspection within the mine shall be of immediate enforcement and permanent compliance and, in situations involving an imminent risk to the safety, physical integrity and life of workers, access to the interior of the mine has to be restricted in part or in full, with the reasons being given before the order is issued. In cases of failure to provide training to workers on the safety and health aspects of their work, their immediate withdrawal from the working area shall be ordered until compliance with this requirement is certified, where there exists a serious danger to the safety and health of the worker. The Committee nevertheless notes that the information provided previously, both by the Government and the SNTCPF, particularly regarding the Lulú mine, which took 17 months to close, does not appear to show that the inspectorate can, among its immediate powers, order the closure of the enterprise. The Committee notes that this point was not clarified by the information provided by the Government. The Committee once again requests the Government to indicate the measures of immediate enforcement currently at the disposal of the labour inspectorate, and to indicate clearly whether closure is among the measures of immediate enforcement in the case of imminent danger to the health and safety of workers.

Request for information on any developments concerning the possible ratification of the Safety and Health in Mines Convention, 1995 (No. 176), based on Mexican Official Standard NOM-032-STPS-2008 respecting safety in underground coalmines. In its previous comments, the Committee requested the Government to provide information on the results of the consultations held on 18 July 2011 with the Confederation of Chambers of Industry (CONCAMIN), the Employers’ Confederation of the Republic of Mexico (COPARMEX), the Confederation of Workers of Mexico (CTM) and the Mining and Metallurgy Union. The Committee notes the Government’s indication that on 17 August 2012, with a view to complying with the requirements set out in article 19 of the ILO Constitution respecting submission, the conclusion of the review of Convention No. 176 was transmitted to the Office of the Legal Advisor of the Secretariat for Foreign Relations so that the Senate can consider whether to ratify the Convention. The Committee once again requests the Government to provide information on the developments relating to the ratification of Convention No. 176, including information on any obstacles identified concerning its ratification.

II. Technical assistance

In its previous comments, the Committee invited the Government to request technical assistance from the Office in relation to the possible ratification of Convention No. 176. The Conference Committee on the Application of Standards, in its 2011 conclusions, also invited the Government to request technical assistance from the Office. In its most recent comments, the Committee indicated that, in view of the difficulties of application that persist in the coalmining sector, it once again invited the Government to avail itself of technical assistance from the Office in order to address these problems and it requested the Government to notify the Office of its decision in this regard. The Committee notes the Government’s statement that it can be seen from the information provided that the STPS has strengthened the action of the Federal Labour Inspectorate through an adequate inspection programme, although it nevertheless indicates that, if necessary, it will avail itself of the technical assistance of the Office. Recalling that the invitation to request technical assistance from the Office was related to the possible ratification of Convention No. 176, the Committee once again invites the Government to consider requesting technical assistance from the Office with a view to the possible ratification of Convention No. 176 and to provide information on this subject.

III. Other measures

Compensation – Pensions. The Committee notes the information provided by the Government concerning the benefits established by law, the collective contract and also on the situation in relation to the compensation ordered and the appeals of the family members of the workers who died in Pasta de Conchos. With regard to their legal appeals, the Government indicates that, despite having challenged the various measures ordered with a view to raising the daily wages received by the workers, the Supreme Court of Justice of the Nation found that the benefits were to be calculated on the basis of the wage registered with the Mexican Social Security Institute (110–113 pesos/day). It also notes that, as a result of the criminal case deriving from the accident, the enterprise paid to all the dependants of the deceased workers the amount of 182,000 pesos in compensation. The Government also provides information on the payments made by the STPS in accordance with the rulings on claims for State responsibility. The Committee requests the Government to continue providing information on pending issues relating to the compensation and pensions of the family members of the deceased workers.

State and social benefits. The Committee notes that, according to the Government, an educational trust was created for the dependants of the workers of Pasta de Conchos to enable them to continue their studies while receiving financial and academic support, starting with their initial training until the conclusion of their studies. In June 2006, the educational trust covered 111 beneficiaries and, six years after it was created, six recipients of scholarships from the trust have completed their studies. The Committee requests the Government to continue providing information on this subject and to indicate how many of these 65 families have received assistance for access to housing.

Dialogue with the Pasta de Conchos families. With reference to its previous comments, the Committee notes the Government’s indication that in 2011 a meeting was held with the Pasta de Conchos Families Organization which covered subjects related to the situation of mining in the Coahuila coal region. With reference to the recuperation of the bodies, the Government reiterates the importance of safeguarding the lives of rescuers, for which reason any possibility of recuperating the bodies has to be based on the fundamental premise of not risking the lives and limbs of other persons. The Committee requests the Government to continue the dialogue with the organization and with the families to find an appropriate solution concerning the complaints raised by the families of the victims of the Pasta de Conchos accident and it requests the Government to continue providing information on the dialogue.

The Committee also draws the Government’s attention to its comments on the application of the Labour Administration Convention, 1978 (No. 150).

The Committee is raising other points in a request addressed directly to the Government.