Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

Convention (n° 81) sur l'inspection du travail, 1947 - Pérou (Ratification: 1960)

Further to its previous comments, the Committee notes that the Government has still not communicated any of the many documents indicated as being attached to its replies communicated to the ILO in November 2003 to the observations formulated in September 2003 by the Union of Labour Inspectors of the Ministry of Labour and Employment Promotion (SIT) on the application of the Convention. The Committee is therefore bound to recall its previous comments concerning the points raised by the SIT, which read as follows:

According to the SIT, labour inspection is not a priority for the Government and does not therefore benefit from the necessary support from the public authorities. It adds that the establishment of a trade union by labour inspectors with a view to defending the interests of the occupation has been punished by a series of intimidation measures against its leaders and members.

Functions, status, conditions of service and safety of labour inspectors. According to the SIT, over half of labour inspectors, including the leaders and members of the trade union, have been affected by transfers to other duties and unannounced evaluations which may be assimilated to direct or tacit threats of dismissal. The personal safety of labour inspectors is not guaranteed, as they are not even covered in the event of employment accidents and no measures are taken to collaborate with the forces of order in the event of obstructions to the discharge of inspection duties.

The SIT adds that the direction of the labour inspectorate has endeavoured to dissuade labour inspectors from joining the trade union by indicating tacitly, during a meeting concerning the allocation of training grants, that they would be provided to inspectors favourable to the administration, which did occur in practice.

According to the Government, transfers of labour inspectors are not a new development related to the establishment of the trade union. It indicates that they are dictated by the requirements of the service and, more recently, to respond to the training needs of the labour inspectorate, in accordance with the new policy of the Ministry. Certain inspectors, for example, have been made responsible for examining collective redundancies in state enterprises, public sector bodies and local governments. The Government states that the transfers of inspectors to which the SIT refers were prior to the establishment of the trade union and are not therefore related to it. It adds that the new duties are related to the functions for which the inspectors were recruited and do not therefore jeopardize the principle of the employment stability of inspectors. This employment stability is guaranteed by the nature of their employment relationship, which is covered by permanent contracts in the context of the General Act respecting labour inspection and the protection of workers. In the view of the Government, the dismissal of inspectors is subject to the conditions set out by the Act and is undertaken on the grounds of a grave professional fault.

The Government emphasizes the particular interest of the national directorate of labour inspection for the training of inspectors, particularly in the fields of safety and health in industrial activities, and it refers to a training project in the framework of an annual plan involving the selection of candidates on the basis of their professional qualifications and experience, to the exclusion of any other discriminatory criteria.

With regard to the personal safety of labour inspectors, the Government states that labour inspectors are protected and that the relevant criminal procedures are initiated whenever the situation so requires. In response to the allegation of the SIT that no measures have been taken to ensure the support of the police forces for inspectors in the event of difficulties in the discharge of their duties, the Government states that such support is envisaged in section 7(b) of the General Act respecting labour inspection and the protection of workers and that, in addition, the directorate of the labour inspection recently addressed the relevant communications to police stations.

Human resources, material resources, transport facilities and the reimbursement of travel expenses. The SIT indicates that the lack of support from the central government for the inspection services is reflected in the first place in the derisory nature of the budget allocated to the labour inspection services. It indicates that inspectors are obliged to cover personally their professional travel expenses, the reimbursement of which is subject to a complex and burdensome procedures, including for inspections of distant workplaces. In the view of the Government, these allegations are without foundation, as the labour inspectorate benefits from a legal status and conditions of employment that are such as to guarantee the objectivity and professionalism of its personnel, as well as measures to strengthen the human and material resources of the services, despite the budgetary restrictions and other austerity measures affecting the whole of the public sector. The Government nevertheless acknowledges that Act No. 28034 of 2003 respecting new austerity measures has imposed restrictions on the use of service vehicles, with the labour inspectorate having at its disposal a single vehicle. Nevertheless, according to the Government, it has recently decided to allocate labour inspectors a budget to cover their professional travel expenses, including their accommodation and incidental travel expenses for inspections of distant workplaces. With regard to office equipment, it indicates that it will be a case of the inspection services being allocated a monthly budget. Furthermore, in the context of a project for the modernization of the labour inspectorate, with the support of the ILO Regional Office, the purchase is envisaged of new computer equipment, vehicles and furniture, as well as training at the national and international levels for labour inspectors.

The Committee notes that the numerous documents which the Government indicated as being attached, in support of the information provided in reply to the matters raised by the Organization, have not been received by the Office. It hopes that they will be provided in the near future and that they will permit a complete examination of the situation at the Committee’s next session.

The Committee reminds the Government of the list of documents as attached to the communication of November 2003:

1.  Communications dated 11 July 2003 to several police stations in Lima.

2.  List of labour inspectors.

3.  List of labour inspectors with an indication of the method of recruitment.

4.  Copy of an employment contract between the Ministry of Labour and labour inspectors.

5.  Decision of the Secretary-General No. 059-2002-TR/SG approving Instruction No. 003-2002-TR/SG on the training programme of the labour inspectors and their temporary duties in other areas.

6.  Instruction No. 003-2002-TR/SG referred to above.

7.  List of training activities carried out in 2002-03 and participants in these activities.

8.  Copy of order forms for the purchase of equipment necessary for labour inspectors.

9.  Copy of mission authorizations indicating the corresponding financial allowances.

10.  Copies of memos authorizing staff travel.

11.  Copy of the 2003 annual public sector budget Act (No. 27829).

12.  Copy of Act No. 28034 of 22 July 2003 adopting additional austerity measures to rationalize public expenditure.

13.  Copy of Ministerial Decision No. 241-2003-TR dated 26 September 2003, authorizing the public prosecutor, on behalf of the Ministry of Labour, to initiate legal proceedings against the aggressors of a female inspector.

Article 12 of the Convention. Right of inspectors to enter workplaces freely. Referring to its previous comments on the implementation of the provisions of this Article, the Committee notes the adoption on 20 July 2004 of Act No. 28292 amending the General Labour Inspection and Worker Protection Act and Presidential Decree No. 010-2004-TR amending the regulations implementing the above Act.

In particular, it notes with interest that section 7 of the General Labour Inspection and Worker Protection Act and section 11 of these Regulations have been amended with a view to extending the period during which inspectors are authorized to carry out, freely and without prior notice, inspections of workplaces. This period now not only comprises normal working hours day and night in workplaces, but also at night outside normal night working hours, to allow controls relating to clandestine work, the technical inspection of machines and equipment which cannot be carried out while they are operating and inspections that are necessary in the case of imminent danger to the safety and health of workers.

The Committee notes, however, that certain legal provisions of the above Act and regulations, as amended, are in contradiction not only with the principle of the right of inspectors to enter workplaces freely, as set out in the new legislation, but also with the relevant provisions of Article 12 of the Convention.

Indeed, section 9(c) of the Act and section 39(A) of the Regulations drastically restrict the right of inspectors to initiate inspections by providing that (except in cases of risks to the safety and health of workers), all inspections are subject to prior written authorization by the administrative labour authority (AAT). Moreover, pursuant to section 37.1 of the Regulations, such authorization should define and limit the scope of the investigations authorized following a complaint.

Section 40(b) of the Regulations prescribes that the presence of the employer or her or his representative at the workplace is imperative for an inspection to be carried out, without which the inspector is obliged to postpone the inspection and notify the employer of its date. Moreover, section 40(f) of the Regulations requires the inspector to be accompanied by the employer and workers during the whole inspection, except during interrogations.

The Committee draws the Government’s attention to the comments that it made in its General Survey of 1985 on labour inspection (paragraph 168 et seq.) on the importance which should be attached to the inspectors’ right of free access to workplaces and their right to free control during the visits. While acknowledging the value of the planning and targeting of inspections by the central inspection authority, depending on the means available, the economic background and the priorities selected based on the assessment of the needs (paragraph 243 of the Survey), the Committee nevertheless pointed out that excessive bureaucracy, such as the requirement of special permits for each inspection, could prejudice the efficiency of inspections. With regard to the written authorization required from the AAT to carry out inspections based on complaints, the Committee considers that this requirement is in any case contrary to the principle set out in Article 15(c) of the Convention under which labour inspectors should be prohibited from revealing to the employer the reason for the visit.

With regard to the obligation for inspectors to be accompanied during inspections by the employer and workers, this is bound to limit the freedom of expression and spontaneity of workers, thereby jeopardizing the effectiveness of the inspection. The Convention is explicit on this point, since Article 12, paragraph 2, establishes the right of the inspectors to derogate from their duty to notify the employer or her or his representative of their presence during inspections where they consider that such notification might be prejudicial to the effectiveness of the inspection.

The Committee therefore urges the Government to continue its efforts to extend the scope of the right of inspectors to enter and inspect workplaces liable to inspection freely, in accordance with the letter and the spirit of the Convention; and to take appropriate measures to remove any obstacles to the exercise of these rights established by laws and regulations, namely: the requirement of prior authorization from the central labour inspection authority to carry out any inspection for any reason whatsoever; the obligation to postpone an inspection in the event of the absence of the employer or her or his representative; and the obligation for inspectors to be accompanied by the employer and workers during inspections. The Committee hopes that relevant information will be provided to the ILO.

2. Cooperation for the establishment of an effective inspection system. The Committee notes, according to the information available to the ILO, the action taken in the context of the regional multilateral ILO technical cooperation project, FORSAT, financed by the Ministry of Labour and Social Affairs of Spain for the strengthening of labour administration services. In particular, the Committee notes with interest that the strengthening of labour inspection is an important component of the project and that it involves vocational training for inspection staff and working methods and procedures. Expressing the hope that the measures taken through the FORSAT project will facilitate the production of an annual labour inspection report, in line with Articles 20 and 21 of the Convention, the Committee would be grateful if the Government would provide information on the implementation of the project and its impact on the operation of the labour inspection system in the light of the provisions of the Convention and the points raised in the Committee’s previous comments.

The Committee is addressing a request directly to the Government on other points.