Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Labour Inspection Convention, 1947 (No. 81) - Colombia (Ratification: 1967)

With reference to its observation, the Committee draws the Government’s attention to the following points.

Articles 2 and 3(1) of the Convention. Associated work cooperatives and pre cooperatives. With regard to control of the improper use of associated work cooperatives and pre-cooperatives, the Government’s report indicates that in the second half of 2012, 287 inspections were conducted in associated work cooperatives and five in associated work pre-cooperatives, while in the first half of 2013, 27 inspections were carried out in associated work cooperatives and three in associated work pre-cooperatives; 161 penalties were imposed on associated work cooperatives and two on associated work pre-cooperatives in the second half of 2012, while in the first half of 2013, 76 penalties were imposed on cooperatives and pre-cooperatives. The Committee requests the Government to continue to provide figures showing the inspections undertaken to control the improper use of associated work cooperatives and pre-cooperatives (particularly in the sectors most affected by this practice, including cooperatives and pre-cooperatives that provide services in high-risk sectors, those holding contracts in the mining sector, flower growing, etc.). It again asks the Government to provide information indicating the sector and region concerned, including: (i) the penalties imposed (fines, suspension and/or annulment of legal status); (ii) reduced penalties granted pursuant to section 10 of Decree No. 2021 of 2011; (iii) any measures taken or envisaged allowing labour inspectors to visit unregistered as well as registered premises of associated work cooperatives and to exercise all the powers vested in them and not only the control of documents, as advocated previously by the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC); and (iv) the number of “improvement agreements” concluded under the programme to monitor and control associated work cooperatives, and their impact on the objective set out in the Convention.

Article 3(2). Additional duties of labour inspectors. The Committee notes that the CUT and the CTC stress that the working time of labour inspectors is poorly distributed since providing oral advice and conducting conciliation continue to have priority among their duties. The trade unions advocate that mediation should be a service performed by the Ministry of Labour, and not a function of the labour inspectorate. Further to its previous comments, the Committee notes that Resolution No. 2605/09, which according to information in the Government’s previous report, assigned a special group of inspectors to conciliation and another to inspection and monitoring, was amended by Resolution No. 00000404 of 22 March 2012. It notes that pursuant to the latter resolution, internal working groups are set up which report to the territorial directorates or the Ministry’s special offices. The Committee observes that according to the abovementioned resolution, in addition to conciliation, labour inspectors continue to deal with various procedures and tasks other than those prescribed in the Convention. It further notes that section 3(3) of Act No. 1610 of 2 January 2013 maintains among the duties of labour and social security inspection conciliation in individual or collective labour disputes. The Committee again reminds the Government, that, according to Article 3(1) of the Convention, the functions of the system of labour inspection. It also draws the Government’s attention to the guidance provided in Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), which provides that “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee asks the Government to provide information on the time and resources of inspection services spent on conciliation in relation to their primary duties as defined in Article 3(1) of the Convention. Consequently, the Committee requests the Government to provide information on the measures taken to ensure that any additional duties entrusted to labour inspectors do not interfere with the effective discharge of their primary duties or prejudice in any way the authority and impartiality which are necessary in their relations with employers and workers, in accordance with Article 3(2) of the Convention.

Article 6. Legal status and conditions of service of labour inspectors. The Committee notes that the CUT and the CTC again report that new labour inspectors are not career civil servants, nor have they been appointed on the basis of merit and have no job security, most of them having been appointed provisionally and for political favours. The Committee again asks the Government to specify: (i) the current number of inspectors appointed on a provisional basis as compared to those in the administrative career category; (ii) the duration of temporary appointments; (iii) the tasks assigned to temporary inspectors; (iv) the powers assigned to them; and (v) the manner in which it is ensured that they are independent of changes of Government and of improper external influences, as required by Article 6 of the Convention.

Article 7(3). 1. Continuous training of labour inspectors. With regard to the recommendations of the ILO high-level tripartite mission that visited the country from 14 to 18 February 2011, in connection with the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee noted in its previous comments that, according to the Government, a special training programme had been implemented for labour inspectors and that it was planned to provide them with intensive training in the analysis of labour risks, the law of evidence and the updating of standards. The Committee notes in this connection that according to the table showing the comprehensive programme of training for inspectors and other players in the inspection and monitoring system for 2012, included in the Government’s report, a few inspectors took part in an updating exercise concerning the Act on Occupational Risks; others attended a course on the strengthening of the system of inspection, monitoring and control and others, a course on building the capacity of the labour inspectorate to promote fundamental rights in Colombia. Furthermore, a total of 725 officials from the territorial offices took part in courses on the new Code of Administrative Procedures and Judicial Review of Administrative Acts. The Committee further notes that by the end of August 2013, a total of 125 inspectors, ten coordinators and 11 directors had participated in three courses on administrative labour procedure. The courses addressed the development of legal tools to facilitate the development of labour inspectors’ work; the formalization of employment and labour intermediation; collective rights, disputes settlement and the functions of inspection, monitoring and control. The Committee notes that the CUT and the CTC report that labour inspectors receive no training on their own occupational safety. The Committee encourages the Government to pursue its efforts to ensure that labour inspectors receive adequate training for the performance of the duties assigned to them pursuant to Article 3(1)(a)–(b) of the Convention and asks it to keep the ILO informed in this regard. Please continue to provide information on any other measures adopted or envisaged including under the abovementioned project, to implement an adequate and periodic programme of continuous training for labour inspectors, which includes training in the risks to which they may be exposed in performing their duties along with the safety measures to be taken for risk prevention.

2. Training in the area of freedom of association. In its previous comments the Committee asks the Government to indicate the measures taken or envisaged to ensure that programmes of initial and further training for labour inspectors include a specific module on awareness raising and training in the area of freedom of association. The Committee notes with interest that according to the Government, the Ministry of Labour, in cooperation with the ILO, has been organizing special training workshops on freedom of association, with emphasis on Conventions Nos 87, 98, 151 and 154 and that in the course of 2013, workshops have been held in Cali, Arauca and Villavicencio. The latter were attended by labour inspectors, judicial investigators, trade union organizations in the case of Arauca, and employers’ organizations in the case of Villavicencio, and were supplemented by a practical workshop in the afternoon. The Committee requests the Government to continue to provide information on any measures taken or envisaged to include awareness raising and training on freedom of association in the initial and further training programmes held for labour inspectors, and to indicate any effects these activities may have in terms of labour inspectors’ responsiveness in performing their duties relating to freedom of association.

Article 13. Labour inspectors’ powers to make or have made orders regarding occupational safety and health. The Committee notes that, pursuant to section 8 of Act No. 1610 of 2 January 2013, labour and social security inspectors may order as a function of the closure of a workplace for a period of three to ten working days, according to the seriousness of the violation, where there are conditions endangering the life, physical integrity and safety of the workers. Furthermore, in accordance with section 11 of the same Act, inspectors may order an immediate stoppage or prohibition of work or tasks for breach of the rules on the prevention of occupational risks in the event of serious and imminent risk to the health and safety of the workers, until the failure to comply with the rules has been overcome. The Committee draws the Government’s attention to paragraph 107 of its General Survey of 2006 on labour inspection, and requests it to ensure that the necessary measures are adopted to confer on labour and social security inspectors the authority to: (a) order such alterations to the installation or plant, to be carried out within a specified time limit, as may be necessary to secure strict compliance with the legal provisions relating to the health and safety of workers; (b) order measures with immediate executory force in the event of imminent danger (whether or not it has arisen from non-compliance with the legislation) to the health and safety of the workers; or failing (a) and (b) above, to apply to the competent authority for the issue or adoption of the necessary measures.

Article 14. Notification to the labour inspectorate of industrial accidents and cases of occupational disease. The Committee draws the Government’s attention to paragraph 118 of its General Survey of 2006 on labour inspection, and would be grateful if the Government would take the necessary measures to ensure that industrial accidents and cases of occupational disease are notified to the labour inspectorate, in accordance with this Article of the Convention and to keep the ILO informed of any progress made in this regard.

Articles 17 and 18 of the Convention. Prosecution and punishment of offences. The Committee notes that the CUT and the CTC allege the inertia of labour inspection as, in the rare cases where a decision is obtained, it is very often subject to a ruling not based upon the merits of the case, including violations in freedom of association. In addition to this, in cases where the ruling is on the merits, particularly in cases where the sanctioned employer is at fault, fines are negligently enforced. The Committee requests the Government to communicate its observations on this matter.

Articles 22 et seq., Part II of the Convention. Labour inspection in commerce. The Committee notes that the CUT and the CTC strongly advocate acceptance of the second part of the Convention on a system of labour inspection in commercial workplaces, given the growth of this sector, which according to data from the DANE employed 5,474,000 people in 2010, and the increase in commerce in the informal economy. The Committee welcomes the Government’s statement in its report that the matter will be examined by the Subcommittee on International Affairs for the Labour Sector, and the findings will be submitted to the Standing Commission on Labour and Wage Policies. The Committee would be grateful if the Government would send the conclusions adopted by the Subcommittee on International Affairs for the Labour Sector regarding this matter.

[The Government is asked to reply in detail to the present comments in 2014.]