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

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

Further to its observation, the Committee would like to raise the following issues.

Since the Government has not provided a reply in relation to any of the questions raised in the Committee’s previous direct request, the Committee is bound to repeat its previous comments, which read as follows:

Articles 3 and 5 of the Convention. Inter-institutional cooperation for the enforcement of the Labour Code in cases of public procurement. The Committee notes that an audit carried out in 2010 by the United Nations Development Programme (UNDP) on the role and sanctioning system of the public inspection services, which the Government has attached to its report, indicates that despite Act No. 2051/98 on public procurement which stipulates that such procurement is subject to compliance by the contractor with the provisions of the Labour Code and despite cooperation agreements between the National Directorate of Public Procurement, the Ministry of Justice and Labour and the Social Security Institute to ensure its implementation in practice, the supervision of contractors remains insufficient. The Committee requests the Government whether measures are envisaged by the labour inspection authority in cooperation with other competent institutions, to achieve greater effectiveness in the supervision of contractors executing public contracts under Act No. 2051/98.

Articles 12 and 18. Right of labour inspectors to free access of workplaces and penalties applicable in cases of obstruction of labour inspectors. Further to its comments since 1999 relating to the measures taken to cope with cases of denial by employers of the right of labour inspectors to free access for inspection purposes, it appears from the 2010 audit that in such cases labour inspectors can request the assistance of the police, together with an application for a judicial inspection order to enter the premises. However, it would appear that such procedures are lengthy and give employers the opportunity to camouflage potential shortcomings. In this regard, the Committee noted in its last comments a press release of the Ministry of Justice and Labour, dated 15 October 2009, concerning the creation of labour law enforcement units in the towns of Pozo Colorado, Filadelfia and Villa Hayes, in order to provide for the security of labour inspectors during inspection visits and improve the precarious conditions of work in the Chaco area.

The Committee asks the Government to indicate the specific provisions of the national legislation that prescribe penalties for obstructing labour inspectors in the performance of their duties, in accordance with Articles 12 and 18, and to provide information on the number of penalties actually imposed and effectively enforced for such violations.

The Committee also asks the Government to provide information and, where applicable, a copy of any relevant text(s) on the circumstances in which labour inspectors can request the assistance of the police if they are refused entry to workplaces, or if their lives and safety are endangered, including copies of inspection reports which refer to collaboration between police officers and labour inspectors in the exercise of their duties and the number of any relevant judgments handed down. Please also provide information on whether labour law enforcement units in the Chaco area have been created, and the impact on the enforcement of legislation on conditions of work and the protection of workers in this area.

Article 18. Level of penalties for labour law violations. The Committee notes that the 2010 audit refers to the inadequacy of applicable sanctions for labour law violations which do not have a sufficiently dissuasive effect. The Committee also recalls that the Government has not provided a copy of the labour inspection manual which contains information on the penalties applicable for such violations. The Committee requests the Government to specify the penalties applicable for labour inspection violations and to provide information on their actual enforcement as well as on any steps taken or envisaged to ensure that penalties have sufficiently dissuasive effect over the years.

Articles 19 and 20. Improvements in the computerization of administrative registers. The Committee notes that the Decent Work Country Programme for Paraguay envisages improvements in the computerization of administrative registers. The Committee requests the Government to specify whether these improvements include the data collection system used by the labour inspection service and, if so, to describe the impact of such improvements in the functioning of this service.

As the Government’s report contains only partial replies to its previous direct request, the Committee hopes that the next report will also include full information on the following matters previously raised, which read as follows:

Article 3(1) and (2), and Articles 5(a), 6, 12, 15(c) and 17 of the Convention. Additional duties entrusted to labour inspectors. The Committee notes that, according to the Government, contrary to the comments made by the Ibero-American Confederation of Labour Inspectors (CIIT) in 2006, the function of mediation falls within the remit of a department within the Ministry of Justice and Labour which is separate from the labour inspectorate and that inspectors are only involved in conciliation work very rarely. Referring to the Government’s report, the Committee notes, however, that labour inspectors have carried out joint activities with other inspection services, such as the Social Welfare Institute, the General Directorate of Migration, which comes under the Ministry of the Interior, and other bodies responsible for enforcing standards in the public transport sector, particularly under Decree No. 8768 of 17 May 2000 establishing an inter-institutional committee composed of these ministerial departments responsible for supervising labour standards and migration in the border areas of the national territory. In its General Survey of 2006 on labour inspection, the Committee was particularly interested in the negative effects that the involvement of labour inspectors in operations aimed at enforcing national migration policy can have on the performance of their primary duties (paragraph 78). In this regard, it drew the attention of governments to the need to ensure, in accordance with Article 3(2) of the Convention, that additional duties that are not aimed at securing the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work are assigned to labour inspectors only in so far as they do not interfere with their primary duties. The Committee noted that inspections of clandestine work or illegal employment, which are increasingly closely linked to irregular migration, were carried out in many countries through a partnership between the labour inspectorate and other public administration bodies, each in pursuit of its own objectives. An examination of the situation relating to labour inspection in these countries showed that efforts to control the use of migrant workers in an irregular situation required the mobilization of considerable human and material resources, which inspectorates could only provide to the detriment of their primary duties. Furthermore, the Committee noted that, where the workers concerned are foreigners residing illegally in the country, they are doubly penalized in that, in addition to losing their job, they face the threat of expulsion, if not actual expulsion. The Committee considered that, in order to be compatible with the protective function of labour inspection, the verification of the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers concerned, and that the objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers. In paragraph 161 of the same General Survey, the Committee emphasized that the cooperation of the labour inspectorate with immigration authorities should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions. The Committee would be grateful if the Government would indicate, in view of the above, the manner in which it is ensured that the participation of labour inspectors in operations to supervise the legality of the employment of migrant workers in no way contravenes Article 3(2) of the Convention and does not interfere with the discharge of the inspection functions defined in paragraph 1.