Observación (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Colombia (Ratificación : 1967)

The Committee notes the comments from: the National Employers’ Association of Colombia (ANDI), dated 31 August 2011 and 5 September 2012, supported by the International Organisation of Employers (IOE); the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC), dated 30 August 2011 and 31 August 2012; the General Confederation of Labour (CGT), dated 1 September 2011; and the Government’s reply to the observations from the trade union organizations. It also notes the conclusions of the report of the ILO high-level tripartite mission to the country from 14 to 18 February 2011, in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Technical cooperation project on international labour standards

The Committee notes with interest the launching, in August 2012, of the project to promote compliance with international labour standards in Colombia, financed by the Government of the United States. The objectives of the project are: (1) to strengthen the institutional capacity of the Ministry of Labour, and particularly of the labour inspection services; (2) to strengthen existing social dialogue bodies and the social partners who participate in them; and (3) to strengthen the institutional capacity of the Government of Colombia to improve measures for the protection of trade union leaders, members, activists and organizers and to combat the impunity of perpetrators of acts of violence against them. The Committee also notes that the project envisages providing the necessary technical assistance as a priority to the units of the new Ministry of Labour responsible for combating the abuse of employment mediation (agencies) and other forms of contracting which are in violation of workers’ rights (such as associated work cooperatives, simplified limited liability companies and temporary service enterprises) and to guarantee that collective accords are not used to undermine the position of trade unions or to prevent the conclusion of collective agreements. The Committee requests the Government to provide information on the implementation of the project and its impact on strengthening the labour inspection services.

Articles 2, 4 and 10 of the Convention. Coordination of the inspection system and numbers of inspectors. The Committee notes that Act No. 1444 of 4 May 2011 re-established the Ministry of Labour through a restructuring of the Ministry of Social Protection and that Decree No. 4108 of 2 November 2011 determined the objectives, functions and structure of the Ministry of Labour, including with regard to labour inspection.

The Committee notes that the CUT and CTC welcome the creation of the Ministry of Labour but consider that the labour inspectorates of the departmental territorial directorates are uncoordinated in their action and that there is no labour inspection in rural localities, especially those where there are mining operations. The CUT, CTC and CGT continue to deplore the inadequate numbers of labour inspectors, despite the labour agreement concluded in 2011 with a view to updating the tripartite agreement signed in 2006, which contains the recommendations of the high-level mission including with regard to the importance and urgency of strengthening the labour inspectorate by increasing the number of inspectors. The CTC declares that although the total number of labour inspectors increased by 100, resulting in a new total of 524, the new inspectors have not yet taken up their duties. The CGT considers that assigning 100 out of the 480 extra labour inspectors at the Government’s disposal in 2014 to supervise and monitor the sectors of horticulture, palm oil production, sugar production, dock work and mining is insufficient for these five sectors, where the greatest number of violations of workers’ rights occur. According to the information from the CGT, there are 15,000 miners who, according to a recent report from the Ombudsman’s Office, earn a living from some 3,600 illegal mines and many workers are subcontracted or outsourced in the major coal mining and petroleum companies. The CUT and CTC also allege that the country only has 16 safety inspectors for a total of 3,000 active mines and, according to the latter, the lack of inspection is visible in the increase in child labour, which is now said to involve 1,465,000 children in the country.

The ANDI, for its part, considers that the measures adopted by the Government and Congress (including the creation of new labour inspector posts and the implementation of the inspection plan for the key sectors) are proof of the country’s commitment to observing the labour rights established by Convention No. 81. Of these measures, it highlights the budget allocations by the Government to recruit 480 new labour inspectors over a four-year period.

The Government in turn indicates that 100 new labour and social security inspector posts were created through Decree No. 1228 of 15 April 2011 and another 100 through Decree No. 1732 of 16 August 2012, thereby increasing the total number of inspectors, which stood at 424 in 2010, to 624 at the end of August 2012. Of this total, 451 had commenced their duties by the end of July 2012. It also indicates in its reports on the present Convention and Convention No. 129 that, by means of the restructuring, labour inspection services were created in the municipalities of Puerto Gaitán (Meta) and Orito (Putumayo) in addition to those that had already been set up in the municipalities of El Bagre (Antioquia) and Jagua de Ibirico (César). The Committee also notes with interest that, in this context, an analysis of the structure, human resources, and location of all the territorial directorates, with regard to their central offices and to the labour inspectorates, was under way at the end of August 2012. The Committee requests the Government to provide information on the results of this analysis and its recommendations, and on any follow-up measures taken or contemplated and on any other measures taken with a view to extending or strengthening the coverage of the labour inspection system, particularly in remote rural localities.

The Committee also requests the Government to supply information on the manner in which the central labour inspection authority ensures effective coordination among the inspection services of the various territorial directorates and to send the updated organizational chart of the labour inspectorate and its structure at central, regional and municipal levels. Lastly, the Committee requests the Government to state the number of inspectors currently in active service and their geographical distribution in relation to the number and location of workplaces liable to inspection and the number of workers employed therein.

Articles 3(1)(b) and 17. Implementation of a preventive approach to labour inspection. The CUT and CTC state that the “preventive inspection system” established by Decrees Nos 1293 and 1294 of 2009 and Decision No. 2605/09 has in practice turned into tolerance of violations of workers’ rights.

According to the ANDI, the purpose of the “preventive inspection system” is to strengthen the monitoring function within enterprises. The lines of action of this system are to: raise awareness of and commitment towards the development of a culture of compliance; provide information on risks, disputes and non-compliance with labour obligations; streamline procedures; establish technologies and communications; ensure the participation of public and private enterprises and institutions; and reinforce the staff of the Ministry of Labour, with the focus on catering for users. The ANDI considers that the implementation of this system has promoted improvements in labour inspection in the country and has enabled the creation of forums for dialogue among the social partners and with the Ministry, the abolition of unnecessary procedures, the strengthening of the human resources of the Ministry and their qualifications, and producing changes in user behaviour.

According to the Government, this inspection model was presented to the Commission on Labour and Wage Policies, of which the CUT, CGT and CTC form a part. “Preventive inspections” were initially conducted in the formal sector and are not subject to authorization by the employer. Since the initial goal is the prevention and improvements to working conditions without having recourse to the imposition of penalties, communication is established with the enterprise to announce the presence of the inspector and explain his reasons for being there. “Improvement agreements” are concluded between the employer and the workers and in the event of non-compliance the inspector initiates a “reactive inspection” with a view to imposing penalties. Checks are carried out on the plant at the enterprise and, if documentation is involved, the employer may be requested to bring it to the inspection offices. Should the inspector detect infringements in the course of these checks, the relevant investigation must be conducted and the applicable penalties imposed.

The Committee reminds the Government, in the terms of the 2006 General Survey on labour inspection, paragraphs 279 and 282, that the advice and information provided for in Article 3(1)(b) of the Convention can only encourage compliance with legal provisions but should nonetheless be accompanied by an enforcement mechanism enabling those guilty of violations reported by labour inspectors to be prosecuted. The functions of enforcement and advice are inseparable in practice. This discretion provided for in Article 17(2) 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 explain how, as far as “preventive inspections” are concerned, Article 17(2) is applied, under which it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings.

The Committee also requests the Government to supply information and data for the period covered by the next report concerning the criteria for the planning of different types of inspections, the proportion of “preventive inspections” in relation to inspections of a general and “reactive” nature, the observations made by inspectors in the context of “preventive inspections”, the period and manner in which inspectors check the implementation of “improvement agreements” and what action they take if the results are unsatisfactory. The Committee also requests the Government to provide information on any preventive measures which labour inspectors order or ensure are ordered, including immediately enforceable measures (Article 13(b)), when they identify defects in plant, equipment or working methods which may represent a danger to the health or safety of workers.

Lastly, the Committee requests the Government to state whether it has adopted measures to evaluate, with the participation of the social partners, the impact of the “preventive inspection system” on the effective application of the legislation relating to conditions of work and the protection of workers.

Article 3(1)(c). Associated work cooperatives and pre-cooperatives. In the comments which it had been addressing to the Government since 2008, the Committee has urged the Government to take steps to give effect in the context of associated work cooperatives to this provision of the Convention, which requires the labour inspection system to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions. The Committee notes that although the CTC recognizes that the Government has adopted a number of important measures such as legislation to monitor the job placement role performed by associated work cooperatives, it considers that these measures have not succeeded in putting a stop to informal or precarious employment or to anti-union practices. The Government indicates that on several occasions it has expressed its concern regarding the distortion of the role of associated work cooperatives and that many aspects of the situation have been rectified through legal instruments which have established regulations for associated labour, stating its nature and fixing the rules for its structure and operation, and have also established an inspection programme targeting the sector.

The Committee previously welcomed the provisions of Act No. 1233 of 2008, which prevented associated work cooperatives from acting as a means of evading the application of labour legislation, including with regard to trade union rights. The Committee points out that section 63 of Act No. 1429 of 29 December 2010 again permits associated work cooperatives to act as intermediary enterprises for the recruitment of staff for activities not considered to be “permanent assignments”. However, the Committee observes with interest that section 1 of Decree No. 2021 of 8 June 2011, which partially implements Act No. 1233 of 2008 and section 63 of the abovementioned Act No. 1429, stipulates that the placement of labour is a function that belongs to temporary employment agencies and is not permitted for associated work cooperatives. Under the same provision, “permanent assignment” means an activity or function directly related to the production of goods or the provision of services which are characteristic of the enterprise. The Committee notes that sections 4 and 9 of the abovementioned Decree establish penalties for violations of this legislation, consisting of fines and/or dissolution and liquidation of the cooperative. Section 10 of the same Decree provides for a reduction of the penalty in cases when a subcontracted worker is entrusted with prohibited permanent operations or assignments if an indefinite employment relationship is formalized by means of a written contract.

The Committee also notes with interest the information highlighted by the ANDI concerning the setting up for public use of an anonymous complaints system regarding violations of labour rights, the implementation of an exclusive telephone helpline for dealing with complaints relating to associated work cooperatives, the creation of a link to the Ministry’s website for making complaints or suggestions, and the preparation of a handbook for the conduct of inspections in relation to the placement of labour.

The Committee further notes that the 2011 programme for prevention, supervision and monitoring in relation to associated work cooperatives and associated work pre-cooperatives, which contains guidelines to be followed by the territorial directorates of the Ministry to prevent misuse of associated work cooperatives, includes: (i) exchange of information between the territorial directorates and the relevant bodies; (ii) training for labour inspectors; (iii) training actions targeting associated work cooperatives; (iv) improvement agreements; and (v) monitoring in its own right, giving priority to entities accounting for the largest number of complaints and investigations, those which have been penalized, those that have associated workers who provide services in high-risk sectors, and those which have contracts in the mining, horticulture, health-care and sugar cane harvesting sectors.

The Committee also notes with interest that the Government has assigned 100 labour inspectors exclusively to monitoring the improper use of associated work cooperatives for the purpose of flouting workers’ rights, and also the statistical information regarding penalties imposed on them in 2010 and the first four months of 2011 and the schedule of inspections that were due in associated work cooperatives in 2011. The Committee requests the Government to provide information on: (i) inspections conducted in associated work cooperatives (indicating their respective sectors and regions), infringements recorded (indicating the relevant legal provisions) and penalties imposed (fines, suspension and/or withdrawal of recognized legal status); (ii) the reduced penalties laid down under section 10 of the abovementioned Decree No. 2021 of 2011; (iii) any measures taken or contemplated to ensure that labour inspectors inspect both registered and non-registered associated work cooperatives premises and exercise all their powers, not just those of checking documents, as previously called for by the CUT and CTC; and (iv) the number of “improvement agreements” concluded under the programme for supervision and monitoring of associated work cooperatives and their impact on the objectives of the Convention.

Article 3(2). Removal of labour inspectors’ additional duties to ensure the effective discharge of their primary duties. As regards additional duties in labour inspection, the CGT alleges that labour inspectors continue to perform many duties, including conciliation, which undermines their impartiality and also reduces the time that they can devote to the discharge of their primary duties. Although the CUT recognizes that labour inspectors were relieved of certain tasks, it considers that they have still have an excessive workload, since new tasks have been added, others were merged and the conciliation role persists, and this prevents them from conducting in situ inspections.

The ANDI refers in this respect to the removal of tasks from the inspectors’ workload relating to: the approval of internal work regulations; monetary compensation for holidays; the authorization of loans, advances, various deductions or compensation for wages and those related to the registration of retirees, by means of Act No. 1429 of 2010.

The Committee notes with interest the Government’s indications that Act No. 1429 of 2010 abolished 13 tasks that previously had to be performed by labour inspectors and Decision No. 1286 of 20 April 2011 relieved inspectors of the task of processing authorizations for severance payments and for the registration of retirees. The Government states that, under the terms of the abovementioned Decision No. 2605/09, the role of conciliation between the parties was assigned to a specific group of inspectors and inspection and monitoring were assigned to another group.

The Committee recalls that the issue of relieving the labour inspectorate of tasks not provided for in Article 3(1) of the Convention and in particular those performed in the context of dispute resolution has been the subject of comments since 2000. The Committee requests the Government to send a copy of Decision No. 2605/09 and to state how it is applied in practice with regard to the distribution of conciliation and inspection tasks for labour inspectors, at the central office and in territorial and municipal offices. It also requests the Government to provide information on the number of inspectors who perform conciliation duties and whether they are included in budget allocations for the labour inspectorate.

Articles 5(a), 17, 18 and 21(e). Effective cooperation between the labour inspection services and the judicial authorities. Adequate penalties and effective enforcement. The Committee notes that the high-level mission emphasized in its conclusions the crucial nature of strengthening enforcement of the legislation and of effective penalties with a view to ensuring that acts of anti-union discrimination, including dismissal and intimidation, can be prevented, remedied and penalized by means of rapid, accessible and effective procedures.

The Committee notes that the Government does not provide the information which it requested on the role of labour inspectors in legal proceedings against employers who infringe the labour legislation, including in associated work cooperatives (Article 17), and on the level of penalties so that they have a deterrent effect (Article 18). It draws the Government’s attention to paragraphs 291–306 of the 2006 General Survey on labour inspection and emphasizes that it is essential for the credibility and effectiveness of the labour inspection system for violations to be identified by national legislation and for the proceedings instituted or recommended by labour inspectors against employers guilty of violations to be sufficiently dissuasive and to make employers in general aware of the risks they run if they fail to meet their obligations. The Committee requests the Government to send information on the measures taken to ensure the deterrent effect of penalties for violations of the legal provisions – including those relating to anti-union discrimination (dismissal and intimidation) – which are enforced by labour inspectors, and for obstruction of the latter in the performance of their duties, and to ensure that the aforementioned penalties are effectively enforced. The Committee also requests the Government to send statistics of infringements detected by labour inspectors indicating the legal provisions concerned, the penalties imposed and, if applicable, the judicial action taken.

The Committee further requests the Government to indicate all the measures taken or contemplated to promote effective cooperation between the labour inspection services and the justice system, with a view to encouraging due diligence and thoroughness in the treatment by judicial bodies of infringements reported to them by the labour inspectorate, and also disputes in the same sphere referred to them directly by workers or their organizations. In this regard the Committee considers that a system for the registration of judicial decisions to which the labour inspectorate has access will enable the central authority to make good use of such data with respect to its objectives and include them in its annual report, as provided for in Article 21(e). The Committee requests the Government to send information on the measures taken or contemplated with regard to establishing a register of judicial decisions accessible to the labour inspectorate.

Articles 6 and 15(a). Status, conditions of service and independence of labour inspectors. The Committee notes with interest that under Decree No. 1227 of 15 April 2012 the pay conditions of labour inspectors were improved, since there was a harmonization of grades which resulted in a pay increase of three steps. However, the Committee also notes that the CUT and CTC allege that more inspectors with temporary status are being appointed and the CGT claims that a large number of inspectors do not have any job security, which is contrary to the terms of the Convention and constitutes an obstacle to the effectiveness of labour inspection. According to the ANDI, labour inspector posts belong to the administrative career category and so selection and promotion of employees is undertaken on the basis of suitability, ability and merit. Moreover, in accordance with Decision No. 2180 of 2008, inspectors come from diverse professional backgrounds: lawyers, engineers, economists, etc. The ANDI adds that the harmonization of grades for inspectors carried out in 2011 has also resulted in an increase in salary.

The Government reiterates that labour inspector posts are administrative career posts. When new posts are created or vacant posts are filled, appointments are made on a provisional basis while the National Civil Service Commission holds the relevant competition.

The Committee requests the Government to indicate: (i) the current number of inspectors appointed on a provisional basis, compared with the number of inspectors who belong to 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) in what manner it is ensured that they are independent of changes of government and of improper external influences, as prescribed by Article 6 of the Convention.

Article 7(3). 1. Training of labour inspectors. As regards the allegations from the CUT and CTC that inspectors lack adequate and proper training and their competencies are not evaluated in the course of their duties, the Committee observes with interest that Decision No. 2180 of 2008 stipulates that one of the requirements for the post of labour inspector is to hold professional qualifications in law, medicine, industrial engineering, business administration or economics. As regards the recommendations of the high-level mission referred to above, concerning the implementation of an induction and training programme for labour inspectors, the Committee also notes with interest the information supplied by the Government to the effect that a specific training programme for labour inspectors has been implemented and it is planned to give them training en masse regarding analysis of labour hazards, the law of evidence and the updating of standards. The Committee requests the Government to provide detailed information on the specific programme implemented for the training of labour inspectors, stating: (i) its duration, with regard to both initial and further training; (ii) the number of inspectors who will benefit from this programme; (iii) the subjects covered, differentiating between initial and further training; and (iv) the training body. The Committee requests the Government to indicate the measures planned or adopted with a view to ensuring the durability of both initial and further training for labour inspectors. The Committee also requests the Government to provide information on the manner in which labour inspectors are evaluated in the course of their duties.

2. Training in the area of freedom of association. The Committee observes that during the ILO high-level mission to the country from 14 to 18 February 2011, in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), various trade union representatives highlighted the inadequacy or complete absence of replies from the labour inspectorate in relation to certain cases relating to freedom of association and collective bargaining, including anti-union conduct from certain inspection officials. They also emphasized that any initiative designed to strengthen labour inspection should include a component relating to freedom of association and collective bargaining. The Committee requests the Government to indicate the measures taken or planned to ensure that programmes of initial and further training for labour inspectors include a specific module of awareness-raising and training with respect to freedom of association.

Articles 11, 12 and 15(a). Material means placed at the disposal of the labour inspectorate, and principles of freedom of entry and independence on the part of inspectors. The Committee notes with interest the information provided by the Government regarding adjustments to posts in 28 territorial directorates in 2009 and 2010, with investment in the form of 230 computers, printers, communication networks and Internet access. It also notes the documents cited by the Government containing statistical information on budget implementation by the territorial directorates of the Ministry, including budget items for transport costs and expense allowances.

With regard to means of transport, the Committee notes the CGT’s statement that the cost of many inspections is borne by the trade unions or the employer. The CUT and CTC also emphasize the lack of material resources for travel, especially in rural areas. According to the CUT, Bill No. 139 which is before the Congress of the Republic leaves the possibility open for inspectors to receive assistance from employers with regard to their travel to remote areas, and this could undermine their impartiality.

The Committee recalls that in its comments in 2004 (92nd Session) and in paragraph 253 of the 2006 General Survey, it welcomed the fact that labour inspection staff in Colombia were forbidden, via a circular from the Ministry of Labour and Social Security, to use for professional purposes vehicles made available to them directly or indirectly by employers, trade unions or workers. It also recalls that, in accordance with paragraph 225 of the 2006 General Survey, the prohibition on labour inspectors having any interest whatsoever in the enterprises under their supervision applies to considerations or services offered by employers or workers.

In its previous comments the Committee stressed the fact that the travel expenses of labour inspectors are only reimbursed up to an amount of 4,000 Colombia pesos (COP) and so higher costs have to be borne by labour inspectors themselves, and it referred to the claim by the CUT and CTC that, in practice, travel expenses are not reimbursed when inspections are carried out without prior authorization from the director of the territorial directorate, which can take up to one week or more despite the urgent nature of certain situations. In their latest comments the CUT and CTC add that unforeseen expenses are not repaid either. With reference to paragraphs 265–266 of the 2006 General Survey, the Committee recalls the principle of inspectors’ freedom to enter workplaces laid down by Article 12 of the Convention, which implies that certain obstacles to or restrictions on inspectors’ free initiative, including prior authorization, may be contrary to the Convention.

The Committee requests the Government to take the necessary steps to provide labour inspectors with adequate transport facilities for the performance of their duties, both in the central office at the Ministry and in the various territorial directorates and the labour inspectorates furthest removed from urban centres, and to reimburse labour inspectors for any unforeseen costs and any travel expenses necessary for the performance of their duties. The Committee requests the Government to keep the ILO informed of any progress made in this regard. The Committee also requests the Government once again to provide information on the application in practice of labour inspectors’ right to enter freely, without prior authorization, workplaces liable to inspection (Article 12(1)(a)).

Article 15(c). Principle of confidentiality regarding the source of complaints. For a number of years the Committee has been urging the Government to take steps to establish the necessary legal basis to ensure that labour inspectors respect the confidentiality of complaints so as to protect workers from any reprisals from the employer or his representative. The Government indicates that it has been the usual practice of the Ministry to keep a record of the name of the complainant when the information is obtained verbally. It adds, however, that the Ministry will issue an administrative notice giving instructions regarding the discretion to be maintained by labour inspectors in accordance with this provision of the Convention and that the text of the draft notice will be forwarded to the Office. The Committee requests the Government to ensure that the necessary measures are taken without further delay to secure to workers the protection prescribed by this provision of the Convention and requests it to send a copy of any relevant legislative text which is adopted.

Articles 20 and 21. Annual report on the work of the inspection services. The Government indicates that through the Under-Ministry of Labour Relations, the Ministry of Labour issues a monthly bulletin containing information on inspection activities. The Government also declares that it will have available a computerized system for the registration and analysis of data on labour inspection, enabling access to and use of such information, which will consolidate and update all existing databases on labour inspection and be accessible to the user. The Committee notes with interest the statistical information sent by the Government on inspections carried out in 2010, 2011 and the first half of 2012, administrative investigations launched and penalties imposed during the same periods, and industrial accidents and cases of occupational disease that occurred in 2009, 2010, 2011 and the first half of 2012. The Committee draws the Government’s attention to the guidance contained in Part IV of the Labour Inspection Recommendation, 1947 (No. 81), concerning the form in which the information required by Article 21 may be presented. However, observing that no statistics have been provided of workplaces liable to inspection or the number of workers employed therein (Article 21(c)), the Committee reminds the Government that these data are essential to enable the central inspection authority to evaluate the rate of coverage provided by the labour inspection system and its needs in terms of human and material resources and to take account of these when approving the budget. The Committee invites the Government to refer to its general observation of 2009 with regard to the desirability of inter-institutional cooperation in relation to the establishment, improvement or updating of a register of workplaces liable to inspection. The Committee hopes that the Government will send in the near future an annual inspection report which meets the requirements of form and substance prescribed in Articles 20 and 21 of the Convention.

Article 22 et seq. Part II of the Convention. Labour inspection in commercial workplaces. The Committee requests the Government to send any information relating to examination, in consultation with the employers and workers, of a possible extension of the ratification of the Convention to commercial workplaces.

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

[The Government is asked to reply in detail to the present comments in 2013.]