Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Colombia

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1967)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1976)

Previous comments on Convention No. 81: observation and direct requestPrevious comments on Convention No. 129: observation and direct request

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the observations of the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), received on 1 September 2018, as well as the joint observations of the CUT, CTC and the General Confederation of Labour (CGT), communicated with the Government’s reports, on the application of Conventions Nos. 81 and 129. The Committee also notes the joint observations from the International Organisation of Employers (IOE) and the National Association of Employers of Colombia (ANDI), received on 31 August 2018, the observations of the IOE, received on 31 August 2022, and the observations of the ANDI, communicated with the Government’s reports, on the application of Conventions Nos. 81 and 129. In addition, the Committee takes note of the Government’s comments, received on 16 November 2018, relating to the observations of the CUT, CTC, IOE and ANDI of 2018.

Further to its previous comments, the Committee notes the Government’s comments on the previous observations of the CTC, CGT, CUT, IOE and ANDI, received in 2015, on the application of Conventions Nos. 81 and 129.

Articles 3(1), 9, 13, 14, 20 and 21 of Convention No. 81 and Articles 6(1), 11, 18, 19, 26 and 27 of Convention No. 129. Labour inspection functions in the area of occupational safety and health (OSH). Industrial accidents and cases of occupational disease. The Committee notes the Government’s indication in its reports that, pursuant to Decisions No. 3029 and 3233 of 2022, internal working groups on occupational risks inspection were established in various territorial directorates and special offices in order to strengthen inspection in this domain. The Committee notes that, according to the aforementioned decisions, each group must include at least four officials, including a coordinator who must hold a valid licence for the design, administration and implementation of OSH management systems, as well as having had the necessary training in this regard. Furthermore, the Committee notes that the functions of each group include monitoring and supervising the application of OSH standards and ordering the immediate cessation of work in the event of failure to comply with the rules on the prevention of occupational hazards if there is a serious and imminent danger to the safety or health of the workers, until the failure is resolved. In respect of the latter function, the Committee recalls that Article 13(2)(b) of Convention No. 81 and Article 18(2)(b) of Convention No. 129 empower labour inspectors to adopt measures with immediate executory force, which may go as far as halting work, in the event of imminent danger to health or safety, without requiring the danger to be serious. Accordingly, the Committee requests the Government to take the necessary steps to amend Decisions Nos. 3029 and 3233 of 2022 in order to ensure that they are consistent with these provisions of the Conventions.

In addition, the Committee requests the Government to describe the composition of the internal working group on occupational risks inspection, and to specify whether the inspectors in that group perform only the functions assigned to it.

The Committee also requests the Government to provide information on the application in practice of the aforementioned decisions. In particular, the Committee requests the Government to provide statistical information on the preventive measures taken by inspectors: (i) in order to eliminate defects in workplaces (including in connection with the use of hazardous materials and substances in agriculture) which they may have reasonable cause to believe constitute a danger to the health or safety of workers (Article 13(1) of Convention No. 81 and Article 18(1) of Convention No. 129); (ii) to make or cause to make orders that such alterations to the installation, plant, premises, tools, equipment or machines are carried out, within a specified time limit, as may be necessary to ensure compliance with the legal provisions relating to health or safety (Article 13(2)(a) of Convention No. 81 and Article 18(2)(a) of Convention No. 129); and (iii) to make or have made orders requiring measures with immediate executory force, which can go as far as halting the work, in the event of imminent danger to the health or safety of workers (Article 13(2)(b) of Convention No. 81 and Article 18(2)(b) of Convention No. 129).

Noting that the CGT refers, in its observations, to a high rate of accidents in the mining sector and that the quarterly bulletins on inspection, monitoring and control do not contain relevant information, the Committee requests the Government to provide annual statistics, disaggregated by sector, on occupational accidents, including their causes, as well as on occupational diseases, including their causes.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional functions of labour inspectors. The Committee notes that the Government indicates that by Decision No. 3445 of 2021, the Ministry of Labour, territorial directorates, special offices and labour inspectorates were assigned new responsibilities with regard to inspections, as well as conciliation and assistance to citizens. The Government also refers to Decision No. 1043 of 2022 which details the remit of assistance to citizens. The Committee notes that these decisions provide for the establishment of different internal working groups for inspection, conciliation and/or assistance to citizens in various units of the Ministry of Labour.

With regard to its previous comments on assistance to citizen services, the Committee notes the Government’s indication that such services: (i) are concentrated in the aforementioned assistance to citizen groups of territorial directorates and special offices; (ii) seek to supply technical information and advice to employers and workers on the most effective means of compliance with the legal provisions; and (iii) also include the issuance of authorizations, approvals and certificates and the administration of registrations and deposits provided for in the relevant legislation.

Further to its previous comments on conciliation functions, the Committee notes the Government’s indication that these functions: (i) do not affect labour inspectors’ activities relating to the management of inspections, monitoring and control of labour standards; and (ii) can be carried out not only by inspectors but also by regional and local representatives of the Office of the Ombudsperson, agents of the Public Prosecutor’s Office dealing with labour issues (procurators delegated to labour courts) and, failing all of the above, by civil or mixed municipal judges, pursuant to section 28 of Law No. 640 of 2001.

The Committee notes that, in their observations, the CTC, CUT and CGT mention: (i) that labour inspectors are not performing their advisory function on labour matters sufficiently; and (ii) that they could be performing their conciliation function by reducing their preventive, investigative, disciplinary and advisory function. The Committee notes that the Government finds the position of workers’ organizations in respect of the first question difficult to understand and acknowledges that they have previously indicated that they disagree with the assistance to citizen service functions entrusted to inspectors.

Lastly, the Committee notes that, according to the statistics contained in the quarterly bulletins on inspection, monitoring and control, in 2021 the labour inspectorate dealt with a total of 17,080 conciliations and 96,764 consultations in the context of assistance to citizens.

The Committee requests the Government to take the necessary steps to ensure that labour inspectors are primarily responsible for securing compliance with the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and, therefore, to consider entrusting the functions of conciliation and assistance to citizens (with the exception of those aimed at supplying technical information and advice to employers and workers on the most effective means of complying with the legal provisions) to other units authorized in this regard. The Committee requests the Government to provide information on these measures.

With reference to Decisions Nos 3445 and 1043 adopted in 2021 and 2022, respectively, the Committee requests the Government to describe the composition of the internal inspection, conciliation and assistance to citizen groups, indicate the precise number of labour inspectors and other officials involved in these groups, and specify whether the inspectors involved perform only the functions assigned to the group to which they are attached. The Committee also requests the Government to provide detailed information on the time and resources allocated by inspectors to assistance to citizens and allocated to conciliation activities, and on the combined amount of such time and resources as a percentage of the time and resources allocated by inspectors to the discharge of their primary functions, as envisaged under Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129.

Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129. Number of labour inspectors. Frequency of inspections. Further to its previous comments on the filling of vacant labour inspector posts and the assignment of inspectors to regions outside the capital, the Committee notes the Government’s indication that: (i) in 2016, a competition was held to fill vacant posts in the public administration career system permanently, including labour inspector posts; (ii) there were 904 inspector posts in 2018 and 355 new posts were created in 2021; and (iii) there were 866 active inspectors in 2019 and 816 in 2021, specifying their geographical distribution at the national level (117 inspectors in the territorial directorate of Bogota D.C. and the remainder in other directorates and special offices). The Committee notes that the Government does not provide updated information on the number of existing labour inspector posts or on the number that remain vacant.

In addition, in response to its previous comments on the number of inspections undertaken, including the decrease in that number in previous years, the Committee notes the Government’s indication that: (i) between 2011 and 2014, the total number of inspections carried out decreased both because the activities of the labour inspectorate focused on critical sectors of the economy (specifically, on mining, ports, flower growing, palm growing and sugar) and on detecting situations of unwarranted use of labour intermediation and also because additional formalities were introduced to the legislation on administrative procedure regulating these activities in 2012 and the procedure therefore takes longer to complete; and (ii) the number of inspections was 7,289 in 2015, 6,351 in 2016, 5,445 in 2017 and 762 in the first quarter of 2018. The Committee notes that the Government does not provide information on the number of inspections carried out subsequent to the latter date nor does it indicate the number of inspections that took place in agricultural enterprises.

Furthermore, the Committee notes that, in their observations, the CTC, CUT and CGT consider the number of labour inspectors to be insufficient and, in addition, indicate that the 355 new labour inspector positions are currently vacant. The Committee notes the Government’s indication, in this regard, that the number of inspectors has been gradually increasing in recent years, which has resulted in their greater presence throughout the country, and that although the number of posts should remain under constant review, any adjustment must be made in accordance with the relevant technical and budgetary considerations.

The Committee requests the Government to adopt the necessary measures to ensure that the number of labour inspectors is sufficient to guarantee that establishments are inspected as often and as thoroughly as necessary in order to ensure the effective application of the relevant legal provisions.

The Committee also requests the Government to provide updated information on: (i) the number of labour inspector posts, specifying how many are currently occupied by active inspectors and their geographical distribution, as well as any measures taken or envisaged to fill the vacant posts; and (ii) the number of inspections carried out annually, disaggregated by sector.

Articles 11(1)(b), (2) and 15(a) of Convention No. 81 and Articles 15(1)(b), (2) and 20(a) of Convention No. 129. Transport facilities. Principle of the independence and impartiality of labour inspectors. Further to its previous comments, the Committee notes the Government’s indication that: (i) the Constitutional Court declared inadmissible a constitutional claim filed in 2015 by the Ministry of Labour in respect of section 3(2) of Law No. 1610 of 2013, which allows labour inspectors to seek logistical assistance from employers or workers, where conditions on the ground so require, in order to access workplaces liable to inspection; (ii) the Ministry of Labour gave instructions to inspectors to refrain from applying the aforementioned provision until the matter was properly resolved; (iii) inspectors travel in vehicles supplied by the Ministry of Labour in order to provide their services in rural areas; and (iv) labour inspectors are entitled to reimbursement of the full cost of transport and the transport expenses that they incur in accordance with Circular No. 12 of 2018, which reorganized the distribution of the budget of territorial directorates with a view to ensuring that inspectors have all necessary financial resources to discharge their functions.

The Committee notes that, in their observations, the CTC, CUT and CGT: (i) indicate that labour inspectors are not independent with regard to transport, since the necessary resources may be provided by trade unions or by employers; (ii) note that because Colombia has inaccessible rural areas, many of which are war-torn, inspections are difficult when inspectors do not have reliable access to vehicles or security measures; (iii) consider that the Government should provide information on the vehicles, among other resources, available to inspectors, in order to determine if they are sufficient. The Committee further notes that under the Public Policy for the prevention, inspection, monitoring and control of labour 2020–2030, it is envisaged that each region will carry out a transport study so that the minimum costs associated with the performance of labour inspection functions, including inspections, can be established in order to assign an appropriate budget.

The Committee urges the Government, in the interest of legal certainty, to consider amending section 3(2) of Law No. 1610 of 2013, with a view to excluding the possibility of labour inspectors seeking logistical assistance from employers or workers in order to gain access to workplaces liable to inspection. The Committee also requests the Government to indicate whether, in practice, inspectors are in fact disregarding the aforementioned provision, and to provide information on the percentage of inspection visits carried out using transport facilities provided by employers or workers. Furthermore, the Committee requests the Government to provide information on any study conducted relating to transport for inspectors, the findings and the actions taken or envisaged in this regard. In addition, the Committee requests the Government to provide information on any measures adopted or envisaged to ensure the safety of inspectors performing functions in regions where law and order could pose a problem.

Lastly, the Committee once again requests the Government to provide information on progress made with regard to the purchase of vehicles for labour inspection services and to describe the availability of means of transport in the different territorial labour inspection services.

Articles 17 and 18 of Convention No. 81 and Articles 22 and 24 of Convention No. 129. Adequate and effectively enforced penalties. Discretion to give a warning or advice. 1. Fines imposed and collected. Further to its previous comments on the body responsible for the collection of fines, the Committee notes that, according to the information provided by the Government, fines imposed by the labour inspectorate prior to 1 January 2020 continue to be collected by the National Apprenticeship Service (SENA) and incorporated in its budget, and fines imposed from that date are collected by the debt enforcement group of the legal advisory office of the Ministry of Labour and allocated to the Labour and Social Security Inspection, Monitoring and Control Strengthening Fund (FIVICOT), established in 2019 under section 201 of Law No. 1955 of 2019 (approving the National Development Plan 2018–2022), as a special State account, without legal personality, attached to the aforementioned Ministry. FIVICOT resources will be used to strengthen labour and social security inspection, monitoring and control functions.

Further to its previous comments on progress made in the effective collection of fines imposed, the Committee notes the Government’s indication concerning activities carried out between 2015 and 2018 to improve the collection of fines allocated to the SENA, including the use of precautionary measures in collection procedures, the submission by the SENA of monthly reports to the Ministry of Labour on the management of fine collection at the national level and the introduction of a process linking the Ministry of Labour’s Inspection, Monitoring and Control System (SISINFO) and the SENA’s Information, Collection, Budget and Recovery System (SIREC), which will allow enforced penalties to be transferred directly to the SENA.

In their observations, the CTC and CUT indicate that there are consistently more unenforced than enforced penalties, that there are delays in the resolution of administrative sanctioning proceedings, that the Ministry of Labour forwards the decisions handed down in these proceedings to the SENA with unjustified delay and that the effectiveness of the SENA in the collection of fines is low. The Government indicates in this regard that: (i) unenforced penalties are not payable pending appeals against them, but will be collected once the appeals are resolved and the penalties become final; (ii) in order to comply with the terms of the resolution procedures for which the labour inspectorate has responsibility, these procedures have been clearly defined, a manual on the functions and competencies of inspectors was adopted in 2018, and inspectors have received training on compliance with the procedural terms; and (iii) the effectiveness of the SENA with regard to the collection of fines increased from 32 per cent in 2013 and 56 per cent in 2015 to 77 per cent in 2017.

Further to its previous comments on statistics relating to violations detected, penalties imposed and the collection of penalties, the Committee notes the information provided by the Government for the period 2018–2021 in connection with: (i) the number of administrative investigations launched by the labour inspectorate; (3,056 in 2018, 2,584 in 2019, 1,376 in 2020 and 2,006 in 2021); (ii) the number of penalties (enforced and unenforced) imposed in all economic sectors (3,334 in 2018, 3,341 in 2019, 1,639 in 2020 and 3,432 in 2021), including in the agricultural sector (94 in 2018, 107 in 2019, 49 in 2020 and 135 in 2021), with disaggregated information on sugar cane, palm and flower industries; (iii) the total value of the aforementioned fines (124,458,958,537 Colombian pesos (COP) in 2018 and COP67,071,024,937 in 2021), including in the agricultural sector (COP5,305,600,134 in 2018 and COP2,210,211,035 in 2021), as well as with disaggregated information on the aforementioned industries; and (iv) the amount of the fines collected (COP15,157,812,093 in 2018 – collected by the SENA – and a total of COP6,561,296,813 in 2021 – collected by the SENA for FIVICOT). The Committee notes that the Government has not provided the statistics requested on either the number or the nature of the violations giving rise to all of the penalties imposed.

Furthermore, on the basis of the above information, the Committee notes that during the period 2018–21, while the total number of penalties increased in 2021 (after having decreased between 2018 and 2020 by approximately 50 per cent), the number of administrative investigations launched decreased by approximately 34 per cent, the amount of fines imposed decreased by approximately 45 per cent, and the amount of fines collected decreased by approximately 55 per cent; and that the proportion of fines collected to fines imposed was approximately 12 per cent in 2018 and approximately 10 per cent in 2021. In this respect, the Committee notes the indication in Chapter 3 of OECD Reviews of Labour Market and Social Policies: Colombia 2022 that the decrease in sanctioning procedures and the consequent reduction in the number of penalties imposed by the labour inspectorate are the result of its shift in focus from reactive to preventive visits, which currently account for roughly 80 per cent of all inspections. The Committee requests the Government to provide detailed information on the reasons for the decrease in the number of administrative investigations launched, and the numbers and amounts of penalties imposed, as well as information on the low proportion of fines collected in relation to fines imposed.

The Committee also requests the Government to provide updated information on the number and nature of violations detected, as well as on the penalties imposed and the matters concerned, including the size of the fines applied and collected, disaggregated by sector. Furthermore, the Committee requests the Government to continue providing information on the steps taken in order to improve the effective collection of fines, both with regard to the SENA and FIVICOT, including information on the state of progress of the interlinkage between SISINFO and SIREC and its impact on the collection of fines.

2. Discretion of labour inspectors to give warning or advice. The Committee notes that the Government reports the adoption of Decision No. 772 of 2021, which establishes guidelines for the exercise of the preventive function in the form of prior notice, with a view to further developing this function entrusted to labour inspectors under section 3(1) of Law No. 1610 of 2013. The Committee notes that, according to the information provided by the Government, this preventive function: (i) requires inspectors to carry out more information and awareness-raising work in relation to workers and employers; (ii) empowers inspectors to take steps to ensure compliance with workers’ rights and avoid possible disputes between workers and employers, such as, for example, by the promotion and approval of a compliance and improvement plan with corrective and preventive measures agreed by the employer and the workers; (iii) is performed by inspectors automatically or in response to a complaint about an alleged violation of workers’ rights and before carrying out preliminary inquiries or initiating administrative sanctioning proceedings, without being a prior stage for these; (iv) does not seek to establish whether a violation has been committed (feasible only under administrative penalty proceedings), which is why the worker and employer concerned are not deemed parties; and (v) ceases to be exercised when the case is transferred to the competent authority, is archived having been expressly withdrawn by the complainants or when a preliminary investigation or administrative sanctioning proceedings are instituted when the inspectors deem that the events at issue in the proceedings have not been resolved and constitute a violation of labour standards. The Government indicates that the exercise of the preventive function under the above conditions aims to provide a prompt and timely response to claims of labour rights violations, as well as to rationalize the use of resources by avoiding the precipitous launch of preliminary inquiries or institution of administrative sanctioning proceedings.

In their observations, while the CTC, CUT and CGT express the wish that the activities of the labour inspectorate should centre on education and prevention, they also refer to the lack of information from the Government on the number of preventive actions taken, as well as the impact of such actions on reducing labour rights violations or promoting labour rights. In this regard, the Committee notes that section 11 of Decision No. 772 provides that actions taken in performance of the preventive function must be recorded on a digital platform in order to facilitate their monitoring and control.

In connection with the discretion of labour inspectors to give warning or advice, the Committee deems it useful to recall that the discretion provided for in this regard in Article 17(2) of Convention No. 81 and Article 22(2) of Convention No. 129 implies that inspection staff have the necessary capacity for judgement to be able to distinguish between serious or repeated wilful non-compliance, culpable negligence or flagrant ill-will, which call for a penalty, and an involuntary or minor violation, which may lead to a mere warning. The Committee requests the Government to provide information on the application in practice of the preventive powers of labour inspectors provided for in Decision No. 772 of 2021, specifying the cases in which labour inspectors may take such actions and the number of actions taken (as a percentage of total inspection activities). In addition, the Committee requests the Government to indicate the measures taken to monitor and control these preventive actions, as well as their outcomes.

3. Suspension or termination of administrative sanctioning proceedings. The Committee notes that section 200 of Law No. 1955 of 2019 empowers the Ministry of Labour to suspend or terminate administrative sanctioning proceedings for violation of labour standards, other than those relating to the formalization of labour, by means of an agreement with the employers under investigation, provided that they recognize their failure to comply with the relevant labour standards and undertake to implement corrective measures within one year through an improvement plan which must be approved by the Ministry of Labour. Once the improvement plan is fully implemented, the administrative sanctioning procedure is terminated. With regard to the imposition of penalties, the provision in question stipulates that: (i) if the agreement between the Ministry of Labour and the employers concerned is concluded at the preliminary inquiries stage, no penalty shall be applied; (ii) if it is concluded between the filing of charges and the presentation of pleadings, the penalty shall be reduced by half; (iii) if it is concluded between the evidentiary stage and the submission of allegations, the penalty shall be reduced by one third; (iv) the penalty shall not be reduced in the event that the employer repeats the violations; and (v) if the improvement plan is not complied with, the suspension shall be lifted and the remaining stages of the procedure shall continue, without any reduction of the penalty. The Committee requests the Government to provide information on the application in practice of the power provided for in section 200 of Law No. 1955 of 2019, to specify the officers authorized to exercise it and the circumstances under which they may do so and to indicate the number of administrative sanctioning proceedings suspended or terminated pursuant to the exercise of that power (as a percentage of total current sanctioning proceedings). The Committee also requests the Government to provide a copy of any supplementary regulations adopted by the Ministry of Labour pursuant to the aforementioned provision.

In addition, the Committee notes that, in their observations, the CTC, CUT and CGT contend that the aforementioned provision does not provide for: (i) the participation of the workers or workers’ organizations concerned in the conclusion, implementation and monitoring of agreements to suspend sanctioning proceedings or in the associated improvement plans; or (ii) redress for harm caused to workers or their representatives by the conduct under investigation. These workers’ organizations consider that this situation poses a risk of impunity and the possibility of concluding agreements that do not adequately protect the rights of workers who have filed complaints the investigation of which may eventually be suspended or terminated. The Committee requests the Government to provide its comments in this respect.

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

[The Government is asked to reply in full to the present comments in 2023.]