Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Labour Inspection Convention, 1947 (No. 81) - Colombia (Ratification: 1967)

The Committee notes the Government’s report received on 31 August 2013 and the attached documents. It also notes the observations of 27 August 2013 by the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI) and the Government’s reply of 18 October 2013 to these comments. It further notes the observations of 29 August 2013 by the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC), which were forwarded to the Government on 16 September 2013. The comments refer for the most part to issues the Committee is already examining, and particularly: the conciliation function; the conditions of service of labour inspectors; the need for suitable continuous training for labour inspectors; the insufficient number of inspectors and the inadequacy of the resources available to inspectors for the performance of their duties; and the ratification of Part II of the Convention. The comments by the IOE and the ANDI focus on the efforts made by the Government to formalize employment in several sectors, particularly the sugar sector, the adoption of Act No. 1610 of 2 January 2013 regulating certain aspects of labour inspection and the employment formalization agreements, and the progress made in the technical cooperation project on international labour standards, in relation to the strengthening of labour inspection.

Technical cooperation project on international labour standards. The Government reports that four handbooks and other teaching material have been prepared on: (a) criteria for the graduation of penalties; (b) conduct of administrative sanction procedures; (c) the conduct of the administrative sanctioning procedure as it relates to breaches of the right to organize; (d) the conduct of an administrative sanction procedure for improper use of labour intermediation and other forms of intermediation that infringe the rights of workers. Furthermore, a training programme was implemented on administrative labour procedure, the formalization of employment and labour intermediation, with a focus on critical sectors such as mining, dock work and sugar, palm and flower production; collective rights and dispute settlement and the functions pertaining to inspection, supervision and control. The Committee requests the Government to send information, with supporting figures, on the impact of the project’s implementation on the performance of labour inspection duties, as provided for in Article 3(1)(a) and (b) of the Convention; the action taken on infringements of the labour legislation and the enforcement of adequate sanctions, in accordance with Articles 17 and 18 (indicating the provision of the law in question), including in respect of trade union rights.

The Committee welcomes the information that a baseline is being devised for the development of a computerized system to record and analyse labour inspection data. The Committee hopes that, thanks to progress made in implementing the computerized data entry and analysis system for information on labour inspection in the context of the abovementioned project the Government will soon be in a position to send an annual report on the work of the labour inspection services containing information on the subjects set forth in Article 21(a)–(g) and to ensure that a copy is sent regularly to the ILO within the time limits prescribed in Article 20.

Articles 3(1)(b), 17 and 18 of the Convention. Implementation of a preventive approach to labour inspection; prosecution and punishment of offences. In its previous comments, the Committee noted that, according to the CUT and the CTC, the system of “preventive” inspections established by Decrees Nos 1293 and 1294 of 2009, and Resolution No. 2605/09, had in practice turned into a system of tolerance of violations of workers’ rights.

As to the criteria for planning the different types of inspections, the Government states that in the territorial directorates, in some cases visits are triggered by a complaint from a worker, in which event the appropriate inquiry is launched, and in other cases, they are conducted automatically. Working conditions are analysed at the territorial level and workplace inspections are carried out in critical sectors, such as transport, mining, flower growing and the sugar sector. The Government reiterates that, pursuant to section 91 of Decree No. 1295 of 1994, the territorial director may impose a fine and also order activities to be suspended for up to six months in the event of imminent risk, without the need for a specific risk prevention order from the Ministry’s Occupational Risk Directorate. In reply to its previous comments, the Government indicated that the Ministry of Labour, although it does not have a system of information on judicial proceedings, addressed a memorandum to the territorial directorates pointing out that their officials are required to forward any complaints they receive for violation of the right of association. Noting that the Government has not provided the information requested in this regard, the Committee again requests the Government to provide information on the measures taken to ensure the deterrent effect of sanctions and to secure their enforcement. Furthermore, the Committee draws the Government’s attention to its general observation of 2007, and encourages it to take measures to ensure effective cooperation between the labour inspection system and the justice system, and provide the labour inspectorate with access to a register of judicial decisions.

Furthermore, observing that the Government has not replied to its comments on this matter, the Committee again requests it to specify whether, in the case of “preventive” visits, inspectors have the discretion to give warning and advice instead of instituting or recommending procedures, in accordance with Article 17(2) of the Convention.

The Committee also requests the Government to supply disaggregated information on the number of “preventive” visits, namely inspections conducted primarily for prevention and to improve working conditions, without recourse to any enforcement mechanisms, compared with general inspections and those conducted in response to complaints, the findings of inspectors in “preventive” visits and other types of inspections; the period and manner in which inspectors monitor the implementation of “improvement agreements” and the action they take if the results are unsatisfactory. Lastly, the Committee asks the Government to state whether measures have been taken to evaluate, with the participation of the social partners, and particularly the Labour and Wage Policy Commission, the impact of the “preventive” inspection model on the effective application of the legislation relating to conditions of work and the protection of workers.

Articles 10, 16 and 21(b) and (c). Numbers and geographical distribution of labour inspectors. Statistics of workplaces liable to inspection and number of workers employed therein. The Committee notes that the CUT and the CTC reiterate that the number of labour inspectors is too low for an economically active population of 20,696,000, according to the 2012 figures of the National Statistics Department (DANE), which is reflected in the fact that there have been only 165 enforceable decisions in four years.

The Committee notes the geographical distribution among the territorial directorates of the Ministry of Labour of the 624 labour inspectorate posts existing at the end of August 2012. It further notes that, according to the Government’s report, in April 2013 there were 501 serving labour inspectors and that by the end of August 2013 there was a total of 530 inspectors and 94 labour inspector posts were vacant. The Committee requests the Government to provide statistics on the workplaces liable to inspection, and the number of workers employed therein. By virtue of Article 10 of the Convention, the number of labour inspectors shall be determined with due regard for, inter alia, the number, nature, size and situation of the workplaces liable to inspection and the number and classes of workers employed in such workplaces. The Committee would also be grateful if the Government would specify the current number of inspectors in the various categories in practice, indicating which of them conduct inspections of workplaces. It also once again asks the Government to provide information on the results of the diagnosis which was under way in August 2012, on the structure, human and technological resources and location of all the territorial directorates, indicating their offices and the inspections they carry out, as well as eventual recommendations made within this framework and any measures taken or envisaged in order to ensure monitoring.

Articles 11(1)(b) and (2), 12(1)(a) and 15(a). Transport facilities available to labour inspectors and the principle of inspectors’ independence and impartiality. Referring to the observations made in 2012 in this regard by the CGT, the CUT and the CTC, the Committee notes that according to section 3(2) of Act No. 1610 of 2 January 2013 regulating certain aspects of labour inspection and certain decisions on the formalization of employment, labour inspectors may, subject to authorization from the territorial directorate, seek logistical assistance from the employer, worker, trade union organization or applicant for trade union status, where conditions on the ground so require, to gain access to the site where the inspection, monitoring and control are to be carried out. The Committee points out that this provision is inconsistent with the provisions of the Convention, and particularly Article 11(1)(b), which places an obligation on the competent authority to make arrangements to furnish labour inspectors with the transport facilities necessary to the performance of their duties where suitable public facilities do not exist. The Committee stresses that the abovementioned provision is contrary to the impartiality and authority that inspectors need in their relations with employers and workers. Consequently, the Committee requests the Government to take the necessary measures without delay to amend the legislation so as to align it with the Convention on this essential point, and to keep the Office informed in this regard.

In its previous comments, the Committee also pointed out that labour inspectors’ travel expenses were refunded only up to an amount of 4,000 Columbian pesos (COP), so any amounts in excess have to be borne by the labour inspectors themselves, and that according to the CUT and the CTC, in practice travel expenses are not refunded when inspections are carried out without prior authorization from the territorial directorate, and unforeseen expenses are not repaid either. The Committee notes in this connection the information from the Government to the effect that the Ministry, through its administrative and financial subdirectorate, assigns annual budgets to each of the territorial directorates, which include appropriations for commissions and travel expenses. The Committee would be grateful if the Government would take the necessary steps to ensure that resources assigned to labour inspectors are determined in accordance with the essentially mobile nature of their duties, so that labour inspectors are provided with transport facilities that are appropriate to the performance of their work, particularly in the territorial directorates and inspection offices which are the furthest removed from urban centres, and that they are refunded any unforeseen expenses, and any transport costs. Furthermore, the Committee again asks the Government to provide information on the application in practice of the right of labour inspectors to enter workplaces liable to inspection freely, without prior authorization (Article 12(1)(a)).

Article 12(1)(c) and 15(c). Principle of confidentiality regarding the source of complaints. With reference to the comments that the Committee has been making for several years on the adoption of measures to establish a legal basis to ensure that labour inspectors respect the principle of the confidentiality of complaints so as to protect workers from any reprisals from the employer or his representative, the Government indicates that the Ministry of Labour issued an internal memorandum reminding officials of the obligation to keep complaints confidential in so far as the workers so request. Highlighting, once again, the importance of the principle of confidentiality regarding the source of complaints, prescribed by Article 15(c) of the Convention, the Committee emphasizes that labour inspectors must as a rule respect this principle, as provided in this provision of the Convention, and must refrain from intimating to the employer or his representative that an inspection was made pursuant to a complaint. In this regard, the Committee invites the Government to refer to paragraphs 236 and 237 of its 2006 General Survey on labour inspection, as well as to paragraph 275 of the same survey which indicates that labour inspectors should conduct interviews in the manner they deem most appropriate. The Committee accordingly once again requests the Government to take appropriate measures to ensure, on a legal basis, the protection of workers against possible reprisals by employers and to ensure that fear of disclosure of their identity is not an obstacle to their cooperation with labour inspectors.

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

[The Government is requested to reply in detail to the present comments in 2014.]