Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Labour Inspection Convention, 1947 (No. 81) - Brazil (Ratification: 1989)

The Committee notes the detailed report supplied by the Government and also the attached documentation. It also notes the information supplied by the Government in reply to comments made by the Gaúcha Association of Labour Inspectors (AGITRA) and by the Association of Labour Inspectors of Minas Gerais (AAFIT/MG) concerning the application of this Convention, received at the ILO on 2 April and 21 July 2004, respectively. The Committee also notes the comments on the application of the Convention made by the Union of Road Transport Workers (Liquids, Gas, Oil and Chemicals) of the State of Rio Grande do Sul (SINDILIQUIDA/RS), received at the ILO on 29 August 2007 and transmitted to the Government on 11 September 2007. These comments echo those submitted by the AGITRA in 2004, as regards the ineffectiveness of prosecutions and penalties. According to these comments, Article 13, paragraph 1, and Articles 17 and 18 of the Convention are not applied inasmuch as situations involving imminent and serious danger to workers are not rectified. Reported contraventions are not sufficiently penalized and the appeals procedure is excessively slow. The trade union also deplores the failure to publish an annual inspection report. It considers it important that statistics regarding contraventions and penalties are made known to the public. The Committee requests the Government to forward any comments which it considers relevant in reply to the points raised by the trade union, to enable the Committee to examine them at its next session.

1. Article 3 of the Convention. Compatibility of further duties entrusted to labour inspectors with their primary duties. According to the AAFIT/MG, labour inspectors are required to act as mediators in collective or individual negotiations in the context of labour relations. While acknowledging that these officials may be considered as being in the best position to assist the social partners in the development of the negotiations, the Committee draws the Government’s attention to the need to ensure that exercise of the role of mediator does not constitute an obstacle to the exercise of the main function of inspection, which is to enforce the legal provisions relating to conditions of work and the protection of workers and does not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. It requests the Government to indicate the manner in which it is ensured that additional mediation duties and administrative duties assigned to inspectors do not obstruct, on account of the staff and the material resources required for this purpose, the performance by inspectors of duties which, by means of controls, advice and technical information to employers and workers, are designed to ensure compliance with the legislation on conditions of work and protection of workers (Article 3, paragraph 2).

2. Article 5. Cooperation and collaboration on labour inspection. The Committee notes the communication of the text of Ministerial Decree Portaria) No. 216 of 22 April 2005 establishing regional committees for collaboration between the regional labour offices and the trade unions and all bodies concerned with the discussion and preparation of an annual inspection plan and the evaluation of the results achieved. The Committee notes with interest that partial effect is thus given to this Article of the Convention and it would be grateful if the Government would supply information concerning the practical application of this Decree, especially on the number of committees established and the results of their work, and also indicate the steps taken or contemplated to promote collaboration between the inspection services and the employers or their organizations, in accordance with Article 5(b) of the Convention.

3. Articles 6 and 7. Ensuring the probity of labour inspection officials. Qualifications of inspectors. The Committee notes the information supplied by the Government concerning the activities of the Corregedoria – the body responsible for monitoring the probity of officials – in 2004, 2005 and up to August 2006. It notes, however, the claim made by the AAFIT/MG that the Government, in order to fill managerial posts within the labour inspectorate, is acting improperly by recruiting, on the basis of political criteria, temporary staff who do not possess the requisite technical skills, thereby promoting cronyism and the influence of political and economic interests. The organization deplores the fact that inspection visits are being entrusted to trainees. Noting the Government’s statement that the recruitment of managerial staff in the labour inspectorate is by means of competition, the Committee would be grateful if the Government would indicate how it is ensured firstly, that, in conformity with Article 6, the inspection staff is composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences and, secondly, that, in accordance with Article 7, paragraphs 1 and 2, labour inspectors are recruited with sole regard to their qualifications for the performance of their duties and are adequately trained.

4. Articles 10 and 16. Number of inspectors and coverage of economic sectors. With reference to the comments made by the AGITRA and the AAFIT/MG regarding the inadequate numbers of labour inspectors – which, they claim, is constantly decreasing as the economically active population increases, thereby causing a reduction in the frequency and quality of inspection visits – the Committee notes with interest the creation of 225 new inspectors’ posts in 2004 and the opening of competitions to fill 200 new posts between 2006 and 2007. The Committee would be grateful if the Government would supply information on changes in the numbers of inspectors and their geographical distribution, in relation to the geographical distribution of the industrial and commercial workplaces liable to inspection.

5. Article 11, paragraphs 1(a) and 2. With regard to the comments made by the AGITRA and the AAFIT/MG regarding the inadequacy of resources made available to the labour inspectors for the performance of their duties and the trifling nature of the allowances paid to them, the Committee notes with interest that daily allowances granted for inspection activities have been re-assessed by Decree No. 5.554 of 4 October 2005 and that inspectors are entitled to the free use, within their areas of jurisdiction, of public and private transport on presentation of their professional card. The Government is requested to send a copy of the said Decree, to supply information on the impact of its application on the number of inspection visits in workplaces far away from economic centres, and to indicate whether provision has been made for additional unforeseen expenses exceeding the official travel allowances to be reimbursed to inspectors.

6. Article 13. Preventive action with regard to occupational safety and health in hazardous work. The Committee notes Regulation No. 10 on plant and service safety in the electricity industry relating to the prevention of occupational risks in the production and electricity distribution sectors. The Committee would be grateful if the Government would supply information on the impact of the practical application of this regulation in terms of industrial accidents in the sector concerned, and indicate whether it is envisaged to adopt legislation aimed at substantially improving occupational safety and health in other high-risk sectors, such as construction and public works.

7. Articles 17 and 18. Action with regard to reports of contraventions and adequacy of penalties. According to the AGITRA, the system of prosecutions and the imposition of penalties is ineffective, since the cumbersome and opaque nature of administrative procedures results in impunity for the perpetrators. The AAFIT/MG, for its part, deplores the fact that the monitoring and enforcement powers exercised by inspectors have been replaced by negotiation with the employers. The Committee recalls that although Article 17, paragraph 1, establishes the principle of the immediate prosecution of persons responsible for contraventions, it must be left to the discretion of labour inspectors, under the terms of Article 17, paragraph 2, to give warning and advice instead of instituting or recommending proceedings. In this respect, decisions are based on criteria such as the nature of the contravention, the circumstances under which it is committed, the attitude of the person responsible with regard to his legal obligations, repeat offences, the consequences of the contravention and the risks that it entails, correct conduct or misconduct, the age of the enterprise, the resources of the employer, etc. Consequently, whenever an inspector considers that advice or warnings are no longer sufficient, he must have the power of recourse to legal proceedings provided for by paragraph 1. Also referring to its previous comments regarding the need for a system of dissuasive penalties which are applicable to those guilty of contraventions, the Committee notes the Government’s statement that the labour inspection secretariat has submitted several items of draft legislation for examination by the National Congress aimed at re-assessing the amount of penalties. It requests the Government to inform the ILO of the progress made with regard to these drafts and to supply copies of the final texts.

8. Articles 20 and 21. Annual reports. The Committee notes the information from the Federal Labour Inspection System (SFIT) published in the Official Journal on the work of the labour inspectorate for 2004 and 2005 and for January–May 2006, and also data concerning industrial accidents for 2004. The Committee reminds the Government of its obligation to ensure that an annual report on the work of the labour inspectorate is published and forwarded to the ILO in the form and according to the deadlines prescribed by Article 20 and that such a report should contain the required information on each of the subjects specified by Article 21. It hopes that measures will be taken quickly to give full effect to these provisions of the Convention and that the annual report will henceforth include information such as the number of workplaces liable to inspection and the number of workers employed in them, and also statistics of occupational diseases and industrial accidents, so that the report constitutes an effective tool for evaluating and improving the functioning of the labour inspection system.

9. Physical safety of labour inspectors. The AGITRA and the AAFIT/MG referred to the murder, on 28 January 2004, of three labour inspectors and a driver of the Ministry of Labour during an inspection to a rural establishment suspected of practising forced labour. The above organizations claim that this tragedy is not an isolated case. Rather, it illustrates the adverse working conditions imposed on labour inspectors, in which even their lives are at risk during inspections of certain establishments where their presence is not desired. Certain landowners are claimed to have a privileged relationship with the military police, while others are alleged to use private militia to protect their interests and conceal criminal activity. The Committee requests the Government to provide information on the investigations carried out and the legal proceedings initiated against those responsible for the murders referred to by the AGITRA and the AAFIT/MG. It requests it to indicate the measures taken to ensure that labour inspectors are protected by the police during inspections in certain industrial and commercial workplaces where their physical safety is not guaranteed.