Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Costa Rica

Convenio sobre la inspección del trabajo, 1947 (núm. 81) (Ratificación : 1960)
Convenio sobre la inspección del trabajo (agricultura), 1969 (núm. 129) (Ratificación : 1972)

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 Costa Rican Confederation of Democratic Workers (CCTD) of 2018 on the application of Convention No. 81, forwarded together with the Government's report, as well as the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) with the support of the International Organisation of Employers (IOE), received on 1 September 2018 on the application of Conventions Nos 81 and 129, and the Government's reply to these observations. The Committee also notes the observations of the UCCAEP of 2022 forwarded together with the Government's report on the application of Convention No. 81. The Committee also notes the joint observations of the Confederation of Workers Rerum Novarum (CTRN), the Costa Rican Workers' Movement Central (CMTC) and the Juanito Mora Porras Trade Union Federation (CSJMP), received on 5 September 2018, on the application of Conventions Nos 81 and 129, and the Government's reply to these observations, as well as the joint observations of the CTRN, the CMTC, the General Confederation of Workers (CGT) and the Workers' Unitary Confederation (CUT), received on 31 August 2022, concerning Convention No. 129.

Legislation. The Committee notes the Bill on the strengthening of the General Labour Inspectorate (file No. 21.706). The Committee also notes that, in their observations, the CTRN, CMTC, CGT and CUT refer to the Bill and forward a legal report prepared by the Studies, References and Technical Services Department of the Legislative Assembly, which analyses the Bill. According to the report, the Bill proposes reforms to the Organic Law of the Ministry of Labour and Social Security (MTSS), the Labour Code and the Childhood and Adolescence Code, in order to provide the General Labour Inspectorate with sufficient powers to enforce labour legislation, order corrective measures and even impose administrative penalties. The Committee requests the Government to provide an indication of any progress made in the adoption of the Bill.The Committee also requests the Government to take the necessary measures to ensure that any new legislation on labour inspection is in full conformity with the provisions of the Conventions.The Committee reminds the Government that, if it deems it necessary, it may avail itself of the technical assistance of the Office within the framework of this legislative process.

Article 3 of Convention No. 81 and Article 6 of Convention No. 129. Duties of labour inspectors in the area of dispute resolution. The Committee notes the Government's indication that, with the implementation of the Labour Procedures Reform Act of 2017, significant changes were made to the structure and functions of certain departments of the Ministry of Labour and Social Security. In particular, the Government indicates that, with the adoption of Decree No. 41059-MTSS, published in Official Gazette No. 81 of 10 May 2018, a new organizational structure was established through which the Labour Relations Department of the Labour Affairs Department (DAL) has been subdivided into eight regional alternative dispute resolution units, which operate independently from the labour inspectorates in each region. The Government indicates that while conciliation activities used to be included among the duties of labour inspectors in regional offices, this practice no longer takes place. It also indicates that, while there are specific situations in the regional offices where inspectors assist in conciliation and administrative activities, inspection activities take priority. With the creation of this new structure, the Government also indicates that a recruitment and selection process was carried out to fill the 40 new positions for arbitrators, conciliators, notifiers, legal advisers and support staff. The Committee notes that, in order to implement the Labour Procedures Reform, Regulation No. 40875-MTSS-JP on the resolution of legal labour disputes was published, which grants the MTSS the competence to compile a list of arbitrators to attend arbitration proceedings, and the power to regulate the functioning of the alternative dispute resolution centres.

The Committee also notes that in their observations, the CTRN, CMTC, CGT and CUT indicate that inspectors perform other activities including conciliation and office work, making it inconceivable that labour and social rights could be protected. The Committee takes note of Decree No. 41059-MTSS of 2018 and requests the Government to ensure that in the application of this Decree, labour inspectors will not assume tasks that hinder the effective performance of their main functions or impair in any way the effective performance of the latter.

Articles 10, 11 and 16 of Convention No. 81 and Articles 14, 15 and 21 of Convention No. 129. Adequacy of the number of labour inspectors and measures necessary for inspection. The Government indicates that, as a consequence of the implementation of the Labour Procedures Reform, the human resources and budget of the National Labour Inspectorate (DNI) have been strengthened, thus increasing its staff by 40 per cent and its budget by almost 20 per cent. The Committee also notes that, according to the observations of the CTRN, CMTC, CGT and CUT, the number of labour inspectors in 2021 was 115, compared with 98 in 2015. The Government also indicates that in December 2021 the Ministry of Labour and Social Security initiated an internal competitions process enabling dozens of interim workers to become permanent in their posts, including in the labour inspectorate. The Government indicates that, while the Labour Procedures Reform Act doubtless involved the strengthening of human resources at the National Labour Inspectorate, over the last two years, due to the national fiscal context and the policy of reining in public spending, certain positions that were vacant due to retirement or transfers were frozen and subsequently cut. Additionally, a significant number of persons have retired over the last two years. Measures have also been implemented in the regional offices to improve the performance of inspection activities, including improvements in infrastructure, such as inspection rooms and rooms for alternative dispute resolution, audio and video equipment, as well as protective equipment and special accessories for the field work carried out by inspection staff. The Committee notes the Government's indication that on 13 January 2017, the National Insurance Institute (INS) and MTSS signed a vehicle loan agreement, thereby facilitating logistical support for workplace inspections.

In this regard, the Committee notes the indication by the CTRN, CMTC and CSJMP that: (i) inspectors do not have the materials, working tools or transport facilities necessary for the performance of their inspection duties; (ii) the number of inspectors is still insufficient given the new duties taken on by the National Labour Inspectorate following the Labour Procedures Reform, including involvement in the processing, monitoring and protection of workers affected by acts of discrimination. They also indicate that, despite the fact that the Ministry of Labour and Social Security appointed 30 new inspectors since the entry into force of the Reform up to the beginning of September 2018, approximately the same number of inspectors retired. In light of the low number of inspectors, they indicate that it is materially impossible for them to monitor compliance in workplaces with regard to non-discrimination in wages between men and women, occupational safety and hygiene standards to prevent occupational accidents and diseases, and the payment of the minimum wage by employers, among other labour guarantees.

The Committee also notes that, according to the 2021 statistical yearbook of the Ministry of Labour and Social Security, the coverage rate of workers was 22.1 per cent in 2018, 30.1 per cent in 2019, 8.9 per cent in 2020, and 10.9 per cent in 2021.

The Committee notes that, in response to its previous comments concerning Convention No. 129 on the scheduling of inspection visits to undertakings with seasonal production, the Government indicates that the regional offices schedule inspections according to the harvesting and sowing season. The Committee requests the Government to take the necessary measures to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspectorate, including in the agricultural sector, and that workplaces are inspected as often and as thoroughly as is necessary to ensure the effective application of the provisions of these Conventions. The Committee also requests the Government to continue providing information on the number of inspections carried out, the number of employers and workers covered by inspections, and the material means placed at the disposal of labour inspectors for the discharge of their duties.

Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129. Free access of labour inspectors to workplaces. The Committee once again notes that the right to enter freely at night workplaces liable to inspection is restricted by section 89 of the Organic Act of the Ministry of Labour and Social Security to workplaces in which night work is carried out. The Committee recalls that in accordance with Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee urges the Government to ensure that appropriate measures are taken without further delay to bring national legislation into conformity with the requirements of the Conventions in this regard, in order that labour inspectors are empowered to enter at night all workplaces liable to inspection, regardless of the working hours of those workplaces. The Committee requests the Government to keep the ILO informed of any progress made in this regard, including in the context of the Bill on strengthening the labour inspectorate.

Articles 12(2) and 15(c) of Convention No. 81 and Articles 16(3) and 20(c) of Convention No. 129. Notification of the inspector’s presence to the employer when carrying out an inspection and the principle of confidentiality. With regard to the notification of the labour inspector’s presence to the employer when carrying out a visit, the Committee notes the Government's indication that within the MTSS a committee led by the Deputy Minister for Labour is updating the Manual of Legal Procedures of the Labour Inspectorate (Directive DMT-014-2014). The Committee once again requests the Government to take the necessary measures to update the Manual of Legal Procedures of the Labour Inspectorate in accordance with Conventions Nos 81 and 129 and to give an indication of the progress made in this respect.

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