Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

Follow-up to the discussion in the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee notes the discussions in the Conference Committee on the Application of Standards (CAS) on the application of the Convention concerning: the necessary legislative measures to give effect to the requirements of the Convention; the strengthening of the labour inspection system; enforcement mechanisms for labour law violations and sufficiently dissuasive sanctions; and the publication and communication to the Office of annual labour inspection reports. In this regard, the Committee welcomes the information provided by the Government to the CAS on the progress made in the application of the Convention, and its commitment to address all the pending issues raised by the CAS and this Committee.

The Committee notes the report and additional information provided by the Government, received on 20 September and 7 November 2014, respectively. It also notes the observations made by the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC), and the Single Confederation of Workers of Colombia (CUT), received on 4 June and 1 September 2014, 29 August 2014, and 31 August 2014, respectively. The Committee notes that the CTC and CGT acknowledge the measures taken by the Government to strengthen the labour inspection system, but indicate that they are still insufficient to achieve the effective application of the Convention. The Committee asks the Government to provide its comments in this respect.

The Committee further notes that the CUT indicates that regulations have not yet been issued under Act No. 1610 regulating certain aspects of labour inspection and certain decisions on the formalization of employment. This is so notwithstanding that the Act foresees a time frame of six months for their adoption in a tripartite manner and despite the fact that relevant submissions and petitions by the representatives of the employers’ and workers’ organizations have been made. In this respect, the Committee notes the Government’s indications that, in the application of section 19 of Act No. 1610, a subcommittee (composed of representatives of workers’ and employers’ organizations and the Ministry of Labour) was established for the regulation of this Act, and has elaborated a draft Decree on the criteria to be applied when imposing fines and the procedure to be followed when ordering measures with immediate executory force. The Committee requests the Government to provide information on any developments in this regard.

The Committee further notes the joint comments made by the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI), received on 29 August 2014, highlighting the progress made in the application of the Convention, and the measures taken by the Government in this regard.

Technical cooperation project on international labour standards and technical cooperation programme on workplace compliance. The Committee welcomes the Government’s request to continue to benefit from ILO technical assistance in the framework of: the technical cooperation project “Promoting compliance with International Labour Standards”; and the programme in the ILO’s area of critical importance “Strengthening Workplace Compliance through Labour Inspection” (ACI 7), for which Colombia has been selected as one of the three pilot countries to develop model strategies for workplace compliance, in accordance with the principles of the labour inspection Conventions.

Articles 10 and 16 of the Convention. Number of labour inspectors exercising functions within the meaning of the Convention. Having previously noted the reiterated indications by the CUT and the CTC concerning the insufficient number of labour inspectors, the Committee notes with interest the Government’s indications that the number of approved labour inspection posts has increased from 424 in 2010 to 904 in 2014 (633 labour inspectors specialized in legal matters and 271 in medicine, engineering, management and economics) and that the number of labour inspectors appointed increased from 530 in August 2013 to 715 in November 2014. According to the observations made by the CUT and CGT, the current number of labour inspectors is still inadequate in relation to the number of workers and for the effective enforcement of the respective legal provisions, including in the areas of freedom of association, collective bargaining and prohibited forms of labour intermediation. In this regard, the CUT also indicates that the labour inspection system is inefficient and that despite the increase in the number of labour inspectors, the number of labour inspections has decreased considerably. According to the CTC, labour inspections need to be intensified in particular in agriculture, mining and ports. The Committee trusts that the approved posts will soon be filled and asks the Government to provide information on the progress made in this regard, including information on the number of inspections made each year since 2013 and the training provided.

Article 11. Material means, including transport facilities. In its previous observations, the Committee requested the Government to take the necessary steps to ensure that resources assigned to labour inspectors are determined in accordance with the essentially mobile nature of their duties. In this regard, the Committee notes that the Government affirms its commitment to improving the financial resources of the labour inspectorate, and indicates that a special budget in the amount of 539,657,906 Colombian pesos (COP), approximately US$259,613, has been assigned for transport facilities and travel expenses. The Government further indicates that a draft Decree under section of Act No. 1610 concerning the administrative procedure for the granting of logistical support and transport for labour inspectors was elaborated, and is currently being reviewed. The Committee further welcomes the Government’s indication that considerable financial resources have been invested in upgrading, financing and modernizing the labour inspectorate’s physical infrastructure (COP29,000,000,000, approximately $15 million). The Committee also notes the observations of the CTC that labour inspectors lack adequate means for the discharge of their duties. According to the observations of the CUT, labour inspection remains focused on urban areas. The Committee asks the Government to continue to provide information on the measures taken to improve the transport facilities of the labour inspection services, and the reimbursement of the travel costs incurred.

Articles 11(1)(b) and 15(a). Transport facilities and the principle of the independence and impartiality of labour inspectors. The Committee previously observed that section 3(2) of Act No. 1610 of 2013, which enables labour inspectors to seek logistical assistance from employers or workers to gain access to workplaces liable to inspection, where conditions on the ground so require, is inconsistent with the provisions of the Convention, and contrary to the impartiality and authority that are necessary for inspectors in their relations with employers and workers.

In this regard, the Committee notes the Government’s explanations that: (i) this provision was introduced because it is difficult to gain access to certain isolated areas, for example in the mining and petroleum sectors, which can only be reached by using transport made available by the company or trade union; (ii) this provision was also designed for the safety of labour inspectors in light of public order issues in some regions; and (iii) this provision has only been applied in exceptional cases and only after common agreement between the employers and workers. The Committee further notes that the Government affirms its commitment to take the necessary steps to follow up on the request of the Committee, including the amending of section 3(2) of Act No. 1610, if this is considered by the Committee to be necessary. In this regard, the Government proposes, as an immediate solution, to issue a Decree under Act No. 1610, which would allow for public sector entities to enter into inter-institutional agreements to facilitate the transport of labour inspectors where necessary and exclude the possibility of entering into agreements with employers or workers in this respect. The Committee trusts that the abovementioned Decree will soon be issued. It asks the Government to communicate a copy of the abovementioned Decree, once it has been issued, and to provide information on its application in practice. While the Committee welcomes the steps taken by the Government to bring the national legislation and practice into conformity with the abovementioned Articles of the Convention by means of a Decree under Act No. 1610, it encourages the Government, for the purpose of legal certainty, to also consider amending section 3(2) of Act No. 1610.

Articles 12(1)(c) and 15(c). Principle of confidentiality regarding the source of complaints. In its previous comments, the Committee requested the Government to take 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 reprisals from employers or their representatives. In this respect, the Committee notes with satisfaction the issuing of Ministerial Decision No. 1867 of 13 May 2014, imposing an obligation on labour inspectors to treat as confidential the source of all complaints, and making them liable to disciplinary procedures in the event of non-compliance with this obligation.

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