Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 81) sur l'inspection du travail, 1947 - Panama (Ratification: 1958)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year (see Articles 3(1) and (2), 13, 6, 7 and 15(a) below), as well as on the basis of the information at its disposal in 2019. The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI), received on 28 September 2019 and the Government’s reply thereto, received on 27 November 2019. The Committee also notes the observations of CONUSI received on 30 September 2020. The Committee further notes the response of the Government to these observations, received on 7 December 2020. Given that this response was received too late for examination by the Committee at its current meeting, the Committee proposes to examine it in due time.

Measures adopted in the context of the COVID-19 pandemic. The Committee welcomes the efforts made by the Government to provide information on the measures it has taken during the COVID-19 pandemic. The Committee notes in particular Decision No. DM-137-2020 of 16 March 2020, reached by tripartite consensus, adopting the Protocol to preserve health and hygiene in the working environment for prevention of COVID-19 and also providing for the setting up of special health and hygiene committees in enterprises. The Committee also notes the information provided by the Government regarding the work dynamic of the National Directorate of Labour Inspection in the context of the pandemic, in particular regarding inspections carried out to verify compliance with standards for the prevention of COVID-19 in cooperation with the Ministry of Health. The Committee also notes the protection measures implemented in the context of the work of the inspection services, in both offices and vehicles used for inspections.

Article 3(1) and (2) of the Convention. Additional duties of labour inspectors. In its previous comments, the Committee requested the Government to describe how it is ensured that employers comply with their obligations relating to work carried out by migrant workers without a work permit issued by the Ministry of Labour and Employment Development (MITRADEL), particularly where such migrant workers are liable to be deported from the country. The Committee notes that the Government reiterates in its report that it is required by law to guarantee the rights arising from the employment relationship of all workers without any distinction, and that the provisions of laws on individual labour rights are explained to both the employer and to migrant workers during inspections. The Government also indicates that, in cases of work performed by migrant workers without a work permit, the Supreme Court of Justice has ruled that the fact that an employment relationship is illegal because the migrant worker does not have a work permit as required by labour law does not impair the worker’s right to receive basic employment benefits for services performed up to then (wages, paid leaves and the 13th month), but that the same does not apply to seniority bonuses and compensation. The Committee also notes the information contained in the reports of the Labour Inspection Directorate for the 2019–20 period on the number of inspections in the area of labour migration, the number of migrant workers detected without a permit, the number of applications for penalties relating to migration, and also decisions imposing penalties. The Government indicates that it does not have specific statistics on the number of cases in which the labour rights of migrant persons have been recognized.

The Committee notes the observations of CONUSI that the labour rights of many migrant workers are not respected despite the fact that they represent a significant section of the active population. CONUSI refers in particular to the fact that these workers are employed under less favourable conditions than those for Panamanian workers, they are dismissed without valid reason and are prevented from having recourse to the labour authorities to assert their rights. CONUSI also points out that the Labour Inspection Directorate does not have a work plan relating to informal employment and highlights the need to reinforce the hiring of staff with special training and with knowledge of the relevant agreements and national regulations. The Committee notes the Government’s indication, in its reply to CONUSI’s observations, that with the advent of the new administration migration-related operations have been intensified with a view to ensuring that labour standards are observed and that every employer who hires foreign workers does so within the legal framework observing the rights of migrant workers.

The Committee recalls that, in accordance with Article 3(1) and (2) of Convention No. 81, the function of the system of labour inspection is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and that any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties. In this regard, it recalls that the Committee indicates in paragraph 452 of its 2017 General Survey, Instruments concerning occupational safety and health, that workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country. The Committee requests the Government to take measures to ensure that the duties entrusted to labour inspectors do not interfere with the fundamental objective of securing the protection of workers in accordance with the primary duties set out in Article 3(1) of the Convention. It also requests the Government to indicate the manner in which labour inspectors discharge their primary duties of ensuring the enforcement of employers’ obligations in relation to any statutory right that workers in an irregular situation may have for the period of their effective employment relationship. In this respect, it requests the Government to strengthen its efforts to collect and make available data on the enforcement of the labour rights of migrant workers, and to provide this information, once available.

Articles 3(1)(a) and (b), and 13. Labour inspection in specific sectors and areas and in the field of safety and health. 1. Construction sector. With reference to its previous comments on safety and health conditions in the construction sector, particularly by means of monitoring and the provision of technical information and advice by inspectors, the Committee notes the adoption of Act No. 67 of 30 October 2015, which establishes measures in the construction industry to reduce the incidence of occupational accidents. The Government indicates that labour inspectors and safety officials are inspecting construction projects and other work sites to ensure that workers comply with the provisions of Act No. 67. The Government also indicates that it has provided day courses for employers in the construction sector, conducted training on safety topics for labour inspectors and safety officials, and held awareness-raising days within the industry. Lastly, the Committee notes the information in the annual reports of the Government on the number of inspections carried out in the construction sector, and on the number of times that work has been stopped in this sector.

The Committee notes the observations of CONUSI that there are no data on penalties imposed on enterprises for failing to observe safety, health and hygiene measures, especially in construction work, where a large number of accidents are the result of non-compliance with safety measures and a significant percentage of them have resulted in the death of workers. CONUSI also points out that the statistics presented by the Government do not indicate the number of work projects that have been subject to stoppages for these reasons. CONUSI further alleges non-compliance with requirements that construction projects of a certain size must have a duly approved safety plan and a designated safety official with the aim of preventing accidents at work, as indicated by reports of the Single National Union of Construction Industry and Allied Workers (SUNTRACS). The Committee notes that the Government, in its reply to the observations of CONUSI, indicates the number of penalties sought for non-compliance with safety, health and hygiene measures (339 in 2017, 244 in 2018 and 60 in 2019), the number of work suspensions at national level (116 in 2017, 105 in 2018 and 63 in 2019), and also the number of approvals of safety plans (196 in 2017, 225 in 2018 and 122 in 2019). Moreover, the Government indicates in its reply that there are 394 active construction projects at the national level which have paid into the safety fund, through which 145 safety officials are given responsibility for safety, health and hygiene. The Committee requests the Government to continue providing information on any measures adopted to strengthen safety and health conditions in the construction sector. In this regard, it requests the Government to continue providing specific information on the number of labour inspections carried out in the construction sector, the number of violations detected and penalties imposed, and the results of those inspections (including the number of total or partial suspensions of construction work).

2. Work in mining and other sectors with a high incidence of occupational risk. In its previous comments, the Committee requested the Government to provide information on the impact of the creation of the Special Regional Directorate of MITRADEL on compliance with employers’ obligations, and particularly on the safety and health of miners in areas where work is being carried out for the Cobre Panama mining project. The Committee notes the Government’s indication that 116 inspections relating to labour, labour migration and safety (44 scheduled, 16 following complaints and 54 follow-up inspections) were conducted in 2016 in that area. The Government also indicates that safety officials are present on the project from Monday to Sunday to ensure the enforcement of safety standards. The Committee also notes the Government’s indication that, in 2016, safety officials issued 254 safety notices to the various enterprises involved with the project, of which 98 per cent were addressed and corrected. Lastly, the Committee notes the information provided by the Government on the strategies implemented to ensure safety and health.

The Committee notes the allegations of CONUSI regarding the existence of forced labour involving migrant workers and also the lack of information and statistics from the Labour Inspection Directorate regarding this situation. The Committee notes the Government’s indication, in its reply to CONUSI’s observations, that nine safety officials carry out daily visits to the Cobre Panama mining project in order to supervise construction work and check compliance with safety standards. The Government indicates that in 2019 three inspections relating to labour migration were carried out in the area of the aforementioned project, resulting in three applications for fines and three convictions, with fines imposed on three enterprises. The Committee requests the Government to continue providing statistical information on the labour inspection services in relation to the safety and health of miners in areas where work is being carried out for the Cobre Panama mining project (including the number of violations identified and the penalties imposed and of occupational accidents and diseases). The Committee also requests the Government to continue providing information on the measures adopted to strengthen safety and health in sectors with a high incidence of occupational hazards. Lastly, with regard to the allegations of CONUSI on the situation of foreign workers subjected to conditions of forced labour, the Committee refers to its comments made on the application of the Forced Labour Convention, 1930 (No. 29).

3. Panama Canal Zone. The Committee notes the observations of CONUSI that the Panama Canal Authority does not recognize being under the supervision of the Inspection Directorate of the Ministry of Labour. The Committee requests the Government to provide information in this regard, and also on labour inspection activities in the Panama Canal Zone, including information on the relationship between the inspectorate in this zone and the central inspection authority, the number of inspectors assigned to this zone, the number of inspections carried out and the number of violations detected.

Articles 6, 7 and 15(a). Recruitment and training of labour inspectors and independence and impartiality of inspectors. With reference to its previous comments, the Committee notes the adoption of Act No. 23 of 12 May 2017 amending Act No. 9 of 1994, which establishes and regulates the regime of administrative careers. The Committee also notes the Government’s indication in its report that, as from 2 July 2018, all permanent appointments of new public servants, including labour inspectors, will be made through a public call for applications (competition), in accordance with the requirements of the occupational classification manual of the Ministry of Labour and Labour Development (which include one year of work experience in basic labour inspection, a secondary school diploma, specialized courses or seminars on the subject and knowledge of the Labour Code and other laws). It also notes the Government’s indication that the recruitment of labour inspectors is conducted according to the procedure established for entrance competitions, which includes among its requirements the completion of a psychological and employment-related test and a personal interview to evaluate professional skills and capacities for the post. The Committee also notes the increase in the monthly salary from 600 to 800 Panamanian balboas (PAB) (approximately US$600–800) and the information concerning the training provided to inspection staff. Lastly, the Government indicates that it is making arrangements to implement a pilot plan for the polyvalent training of inspectors, and is considering adjusting the hours of work (Monday to Friday from 8 a.m. to 4 p.m.), including the granting of compensatory time off.

The Committee notes the observations of CONUSI received in 2019, according to which the Inspection Directorate requires strengthening of its internal inspection mechanism, since there are many complaints of bribery of inspectors. CONUSI also alleges, in its observations received in 2020, that a significant number of inspectors have been dismissed without justification or their contracts were not renewed or, in a very small number of cases, their contracts were renewed for just one year, which does not meet the requisite criteria of independence and stability. The Committee notes the Government’s indication that the dismissals at the Inspection Directorate are the result of investigations into ethical and moral misconduct. The Government also indicates that a process to improve the inspection system at the national level is under way, involving the training of inspectors and safety officials. In this regard, the Committee notes the supplementary information provided by the Government on training given to labour inspectors and safety officials. The Committee requests the Government to provide information on the planned adjustments to labour inspectors’ hours of work. It also requests the Government to continue its efforts to ensure that labour inspectors receive adequate training for the discharge of their duties, and to provide information on the implementation of the pilot plan for the polyvalent training of inspectors, indicating the duration of the training courses for labour inspectors, the number of participants and the subjects covered. It also requests the Government to indicate the salary scale of labour inspectors in relation to those of other comparable categories of public officials, and to provide statistics on the turnover of inspectors. The Committee further requests the Government to indicate the percentage of active labour inspectors with permanent appointments and to provide detailed information on the procedure established for the entrance competition and the procedure for the dismissal of labour inspectors. Lastly, the Committee requests the Government to provide information on the measures taken to ensure that labour inspectors have no conflict of interest, whether direct or indirect, in the undertakings under their supervision, in accordance with Article 15(a).

Article 11(1)(b) and (2). Transport facilities available to the labour inspectors and reimbursement of unforeseen and necessary transport costs. With reference to its previous comments, the Committee notes the Government’s indication that the Inspection Directorate has a petty cash fund to cover daily transport costs for inspections located in areas where buses or taxis are available, and to pay daily expenses for inspections conducted at night. It also notes that labour inspectors have at their disposal for the discharge of their duties ten vehicles at headquarters and 14 vehicles shared among the 13 regional branches. The Committee requests the Government to continue providing information on any measures envisaged or adopted to strengthen the transport facilities available to inspectors, particularly in regions where public transport facilities are scarce.

Articles 14 and 21(f) and (g). Prevention in relation to safety and health; notification of industrial accidents and cases of occupational disease. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the labour inspectorate is notified of industrial accidents and cases of occupational disease. The Committee notes the Government’s indication that there have been no developments in this regard, but that it reiterates its commitment to continue coordination with the relevant bodies. The Committee notes the information provided by the Government on the number of benefits paid for occupational disease (201 in 2013, 104 in 2014 and 104 in 2015 – preliminary figures). The Committee requests the Government to take the necessary legal and practical measures to ensure that the labour inspectorate is notified of industrial accidents and cases of occupational disease, in accordance with Article 14 of the Convention, and that such information is included in the annual inspection reports. It requests the Government to provide information on any developments in this regard.

Articles 20 and 21. Annual inspection report. With reference to its previous comments, the Committee notes the reports of the Labour Inspection Directorate provided by the Government. However, the Committee notes that these reports do not contain statistical information on the workplaces liable to inspection and the number of workers employed therein, nor the violations reported. It also notes that the Government’s report includes statistics on occupational diseases. The Committee also notes that MITRADEL commissioned a comprehensive technical assessment in 2016 with a view to developing a diagnostic of labour inspection in the country. The Government indicates that the aim of this diagnostic is to improve the functions and services provided by the Labour Inspectorate of the Labour Inspection Directorate and to develop a platform that enables it to strengthen its organizational and operational structures. In this regard, the Committee also notes the Government’s indication that, since 2018, MITRADEL has been implementing the Unified Labour Inspection System within the Labour Inspection Directorate, a new technological platform that will systematize the entire inspection process by consolidating the information and data collected during the inspections carried out by the service. The Committee requests the Government to provide additional information on the results of this diagnostic, including the measures adopted to implement its recommendations. The Committee also requests the Government to provide information on any progress made with regard to the implementation of the Unified Labour Inspection System. Lastly, the Committee requests the Government to make every effort to ensure that the annual inspection reports are published and transmitted to the ILO in accordance with Articles 20(3) and 21 of the Convention.