Caso individual (CAS) - Discusión: 2011, Publicación: 100ª reunión CIT (2011)

Convenio sobre seguridad y salud de los trabajadores, 1981 (núm. 155) - México (Ratificación : 1984)

A Government representative stressed the importance of this issue for the Government. He described the Government’s efforts to locate the workplaces known as coal pits (pozos). It was very difficult to identify these pits, as those who exploited them had no legal obligation to report them and because they were scattered over large areas. Despite these difficulties, in 2011, the Government had implemented a system using satellites to identify the pits in operation. A total of 2.5 million acres had been examined and 563 coal pits had been discovered, of which 297 were identified as active. In a second phase, it was expected that inspections would be carried out in the active pits. He indicated that the number of cases in which measures had not been verified in the operation of underground coalmines at the end of 2010, was 219 and not 899. The discrepancy had arisen because the report submitted by the Government in which that figure appeared corresponded to action taken until June 2010 when many of the verification inspections still had to be carried out. Likewise, the 219 measures which had not been verified related to cases in which workplaces were closed because of weather conditions. With regard to the compensation of the families of the victims of the Pasta de Conchos mine, he reported that the compensation payments had been made, which exceeded the amounts provided for by the labour law. In 2010 the number of miners had increased, while the rate of accidents had decreased, which demonstrated an improvement. He also provided information on the various measures being undertaken by the Government, including the establishment of a subcommittee to develop the National Information System on Occupational Hazards, the electronic register of occupational accidents and diseases, and the multimedia courses on safety in underground coalmining. The labour and mining authorities had also implemented a new system which, when a mine was found not to be in compliance with labour regulations, notified the authorities for the suspension of mining activities. Under this new strategy, 14 cases of mines that posed a risk for workers had already been notified to the mining authorities. Moreover, the federal Government had recently agreed with the Government of the State of Coahuila to undertake various actions, including a joint inspection programme of underground coalmines and a programme for the purchase of clean coal, through which the Federal Electricity Commission (CFE) would only purchase coal from companies that met safety standards.

The Employer members thanked the Government for the information provided. The case had already been discussed twice by the Committee and had been subject to a representation made under article 24 of the ILO Constitution in 2009. Last year’s discussion of the case had resulted in significant progress as regards the entry into force of a new act on worker and health protection in the coalmining industry and measures taken by the Government in cooperation with the social partners. The Employer members asked the Government to reply to the allegations presented, inter alia, by the National Union of Federal Roads and Bridges Access and Related Services of Mexico (SNTCPF), in particular as regards the measures taken to follow up on the recommendations made by the Tripartite Committee. The Employer members referred to a number of specific follow-up measures already undertaken by the Government in this respect. As a result of all the measures reported by the Government, they considered this to be a case of progress. However, the Committee of Experts seemed to have expressed certain doubts as to the effectiveness of the measures taken, which was nourished by the allegations of the unions. The Government was yet to reply with detailed information. In the view of the Employer members, the doubts of the Committee of Experts had gone too far in respect of certain points. For example, the recently adopted Official Mexican Standard NOM032STPS2008 was being used to urge the Government to ratify the Safety and Health in Mines Convention, 1995 (No. 176). The Government noted that its national legislation was not in conformity with Article 13 of Convention No. 176, constituting an obstacle to ratification. The discussion on the General Survey in 2009 had already pointed out the difficulty of the question to what extent workers could withdraw in the event of imminent danger. The Employer members affirmed that the right to cease work could not be a general right. The size and internal organization of the enterprise and the capacity of the workers had to be taken into account. In companies with complex activities, only technical experts could establish whether this right was appropriately exercised. The principle of good faith had to play an important role in this context and the abuse of this right, which could lead to significant damage for the enterprise and other workers, should be prevented. The Employer members welcomed the entry into force of NOM-032-STPS-2008 and, while appreciating the fact that it achieved compliance with numerous provisions of Convention No. 176, it was not the role of the Committee of Experts to urge the ratification of Convention No. 176 when discussing the application of Convention No. 155. They encouraged the continuation of the Government’s progress on the different measures to improve the protection of workers and their health in consultation with the social partners. The Government was asked to reply to the numerous questions of the Committee of Experts and continue its cooperation with the ILO in this regard.

The Worker members recalled that the Committee, once again, had before it the consequences of the serious accident in the Pasta de Conchos mine in 2006 which had cost the lives of 65 miners. In March 2009, the Governing Body had approved a report following a representation concerning the violation of several occupational safety and health Conventions. The Governing Body had made a series of recommendations and entrusted their follow-up to the Committee of Experts and the Conference Committee. Among the recommendations, the Government was called upon to take measures in consultation with the social partners, including the formulation of new safety and health regulations in the coalmining industry in accordance with ILO standards. A new Official Standard was adopted in 2008 with this objective. However, they emphasized that the Standard had not changed anything in the coalmining region of Coahuila. Indeed, mortality had increased by 200 per cent in 2009. There was no register of mines in the region and the new Standard was not respected by employers, and inspections were inadequate. The Worker members noted that a periodic examination had been undertaken of the health situation targeting coalmining. For that purpose, advisory commissions were operating and the National Advisory Committee on Occupational Safety and Health was endeavouring to identify new projects. Other series of measures would be needed for the effective supervision of the effect given to the regulations through adequate and effective inspection. They recalled that the accident at Pasta de Conchos had not been a sudden and unforeseeable tragedy. It had been the consequence of negligence in complying with the safety and health standards. The Mexican labour inspection services had identified failings in relation to safety and health, but no solution had been proposed to resolve the problems. They observed that, according to the Government, measures had been taken in the context of the sectoral objective of promoting and supervising compliance with labour standards, but that the objective only concerned large- and medium-sized mines. The figures provided by the Government could not be used to gain an idea of the extent to which effect was given to the legislation, as 60 per cent of miners were engaged in the informal economy, and the figures did not include undeclared workers. Finally, the Worker members emphasized that the Governing Body had called for appropriate compensation for the 65 families affected and appropriate penalties for those responsible for the accident.

The Employer member of Mexico considered that the present case had its origins in a problem relating to the leader of the miners’ union, who had for some time been involved in a court case, which had resulted in him seeking the support of various persons and organizations. It was for that reason that the union presenting the representation was from a branch not involved in mining. The tragic events at the Pasta de Conchos mine were fortunately an isolated case that had not been repeated. He considered that the case had already been examined in-depth and resolved by the ILO Governing Body in May 2009. In 2010, the Committee of Experts had noted with satisfaction the elaboration, in consultation with the social partners, of Standard NOM-032-STPS-2008 concerning safety in underground coalmines. The report of the Committee of Experts also indicated that the reports requested from the Government had been submitted in full and in due time. Information had been provided on the payment of compensation to the family members of the victims of the Pasta de Conchos mine, which was a matter that did not fall within the scope of the Convention. He added that Mexican legislation not only established mechanisms through which work could be interrupted in areas of imminent danger (sections 14, 23 and 24 of the General Regulations on inspection and the application of sanctions for violations of the labour legislation), but also that failure to adopt safety measures at the workplace constituted grounds for workers to terminate their employment contract for reasons attributable to the employer. He considered that occupational safety was a matter that required constant review, and for that reason it was important to maintain dialogue with the social partners through the National Advisory Committee on Occupational Safety and Health.

A Worker member of Mexico indicated that, since 2006, there had been 124 deaths in the mining sector and that since the previous Conference in June 2010 until today, another 32 miners had died. In Pasta de Conchos, the remains of 63 workers were still trapped in the mine. The Government had opposed the rescue of the remains of the miners, and did not know the number of deaths or of active mining centres in Mexico. In 2010 there were 13 fatalities and as concerns 2011, 22. There were insufficient inspectors and they lacked training and adequate salaries. Labour inspection carried out by the Government itself indicated a worsening of the situation from 2009 to 2010, especially in the prevention of methane gas explosions. Only the employers and the Government had access to labour inspections of the labour authority without the participation of workers. The speaker requested that inspection records be made public and carried out with the participation of workers. According to the Government’s inspections, the situation deteriorated from 2009 to 2010. The speaker condemned the Government’s authorization of the operation of the small mines (pocitos), which had no emergency exits and where 80 per cent of deaths of miners occurred. Most workers in the pocitos had no social security. Pensions for widows of dead miners were very low because they represented only a third of the wages paid to miners. Miners were still not allowed to cease work in the event of danger. Of 25 mines, only one had a collective agreement. Unions were almost non-existent and those existing were manipulated by employers. Mining concessions were granted without control and intermediaries in the mining sector caused fraud and the evasion of social security contributions. In May 2011, an additional 14 miners died. He requested that the ILO should call upon the Government to rescue the bodies of the miners and urgently undertake a direct contacts mission.

Another Worker member of Mexico referring to the Pasta de Conchos mine disaster, stated that 35 of the 65 miners who died had been subcontracted through another company and were therefore not covered by the collective agreement with Industrial Minera México. Their wages and benefits were far below those provided for in the collective agreement and their rights to occupational safety and health and to social security were gravely violated. Such was the situation that had come to light when the disaster had occurred, thereby illustrating the perverse effects of outsourcing. Under another fraudulent scheme of “under-registered” employees (sub-registrados), the subcontracted workers were affiliated to the Mexican Social Security Institute (IMSS), with a daily wage of 110 Mexican pesos (MXN), much lower than the MXN300 earned by unionized workers. As a result, the pensions that the families of the subcontracted workers received were derisory, between MXN2,600 and MXN3,200 per family. According to the Pasta de Conchos families association, there were 277 mining concessions in the state of Coahuila, of which only 24 were registered with the IMSS prior to the third quarter of 2010. That meant that the companies holding the concessions contracted out the work; most of the mines being rented out and exploited or over-exploited as boreholes (pocitos). Many more deaths had resulted from the disaster because of the illegal and systemic outsourcing which was prevalent in Mexico’s mining industry. The speaker urged that the necessary steps be taken to come to the aid of the victims of the Pasta de Conchos disaster and requested that there be an ILO direct contacts mission.

An observer representing the International Trade Union Confederation (ITUC) considered that industrial accidents were avoidable. In Mexico, according to the National Chamber of Transformation Industries (CANACINTRA), one of the country’s enterprise organizations, only three out of ten enterprises provided their workers with appropriate safety equipment. The IMSS recorded approximately 1,400 fatalities nationally as a result of occupational hazards, of which an average of 1,200 were the result of industrial accidents, without taking account of deaths in the informal sector for which no reliable statistics existed. In the last five years, the Pasta de Conchos families association had recorded 124 deaths among miners. The number had increased by more than 100 per cent between 2010 and 2011. The Government recognized, in its fourth report of the Department of Labour and Social Security, that both the number of labour inspections at federal level and the number of joint safety and health committees had fallen. In a country like Mexico, with 112 million inhabitants and an economically active population of 44 million, only one mine exploitation had been closed in the last five years. He recalled that the Governing Body, in the context of the representation on Mexico, had requested the Government to consider ratifying Convention No. 176, but that had not yet occurred. He requested a direct contacts mission to identify and remedy the violations of Convention No. 155.

The Worker member of the United States indicated that, while health and safety conditions were poor in the mining sector in general, the situation in Mexico was far worse in its numerous small mines or “pocitos”, a type of mine exploitation which had long been prohibited elsewhere; they were highly risky, contaminating and inefficient. Though they did not comply with NOM-032-STPS-2008 as they lacked basic safety features, the authorities continued to permit in practice so-called “artisanal mining” in these pocitos, based on an argument that these mines generated employment needed in the region. This kind of employment, however, was highly unsafe, unhealthy and insecure. He indicated that workers in these mines rarely had employment contracts, received little training and were not regularly provided with basic safety equipment. Their working hours could be excessive with little rest. The workforce of these mines was frequently not accurately registered in the IMSS, and the IMSS did little to audit these mines. As a result, in some cases, less than half of the workers were registered and, as a result, workers did not have access to urgent and necessary care in case of accidents. These mines were rarely inspected. He referred in this connection to the 2011 report of the National Human Rights Commission which dealt with the situation of the Lulú mine, at which workers had died in 2009. He was of the view that much remained to be done and that an ILO direct contacts mission would be the appropriate measure at this time to assist the Government in order to enhance health and safety.

The Government member of Argentina, speaking on behalf of the Government members of the Committee, and members of the Group of Latin American and Caribbean countries (GRULAC), emphasized that the Government had duly met its obligation to submit the reports requested for 2010. He stressed that the report of the Committee of Experts showed that the Government had followed up, and provided information on the application of the Convention and had supplied plenty of detailed information on the accident which had occurred at the Pasta de Conchos mine. GRULAC appreciated that the Committee of Experts had reported on what the Government had done and was not particularly concerned as regards compliance with the Convention. GRULAC considered that the progress referred to in the Committee of Experts’ report should be taken into consideration and hoped that the conclusions would take account of the new data and information presented by the Government.

The Government representative acknowledged that the Government had problems with registration in the mining sector, for which reason labour inspections were being carried out in conjunction with other government departments. The Government undertook to provide copies of records of inspections carried out with its next reports, so that they could be analysed by the Committee of Experts. He underlined the effectiveness of the strategy being implemented jointly with the mining authority and the CFE. In the case of subcontracting, the subcontractor would suffer the consequences, as, if the enterprise did not confirm that it was complying with labour standards, it would not be able to sell coal. He stated that, since 2007, the number of inspections at mines had been on the increase. With regard to fatalities, the situation must be seen in context. According to figures from IMSS, in one decade there had been 340 deaths in the mining sector, and 216 in the construction sector in just one year. The speaker expressed the Government’s full readiness to continue submitting information.

The Employer members underlined the importance of reducing and preventing occupational accidents and diseases. Employers had the overall responsibility for occupational safety and health. An approach which encouraged Governments and workers to work together with employers and support their efforts to create a culture of safety and health was the key to success. They encouraged the Government to provide detailed information in order to evaluate the conflicting data presented today. An increase in the number of deaths due to occupational accidents did not necessarily mean a worsening of the situation, but could also indicate increased transparency and improved data collection. The numerous efforts of the Government to improve occupational safety and health had to be continued in cooperation with the social partners. Follow-up measures had to be reported in order to assist the Committee of Experts to provide an even more accurate picture of the situation in practice.

The Worker members recalled that the Government needed to provide information on the number and nature of accidents in the mining sector, both formal and informal, the methods of evaluating risks in the sector, the compensation actually provided, and which ought to have been paid to survivors and to the families of victims, and on the benefits offered to the families of miners without social protection. They emphasized that the issue of compensation was a specific request made by the Governing Body. They considered that the information provided by the Government in the context of the present discussion was inadequate. The following points required answers from the Government: in the case of the Lulú mine and the Ferber mine, a special report needed to be ordered to determine responsibility for the deaths of the miners; the Government had to pay all the workers exposed in those mines the compensation set out in law; all payments to miners for which there were no social security contributions needed to be included in the base for the calculation of contributions for the pensions due to the deceased miners; the Government needed to provide information on the number of under-age workers in coalmines and on the health programme for children; it also needed to provide information on the penalties adopted and the policy concerning fines in the event of the violation of safety rules; it needed to provide a report on the capacity of the IMSS to respond to health problems in coalmines, including the reason for the absence of hospitals specializing in respiratory diseases in the region; and, finally, the Government needed to explain the use that was made of the funds resulting from the payment of fines and how they benefited the population in the coalmining region.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and of the discussions that followed.

The Committee indicated that the observation of the Committee of Experts essentially dealt with the follow-up to the recommendations made by the Governing Body in March 2009 concerning the representation made under article 24 in relation to the accident which occurred at the Pasta de Conchos mine in 2006. In that context, the Committee of Experts referred to the conclusions of the Conference Committee which had examined the case in 2010.

The Committee specifically noted the information provided by the Government on new measures adopted concerning an increase in the Government’s capacity to monitor all types of mines through the introduction of a satellite identification system. This had enabled the identification of 563 pozos (pits), 297 of which were operational and would be inspected. It also noted the information provided concerning the increase in the powers of the labour inspectorate including its ability to order a definitive suspension of activities if the measures ordered in the event of imminent danger were not complied with. In this regard, the Government stated that a reform of the Federal Labour Act (LFT) was pending, which envisaged: compulsory verification of measures ordered by the labour inspectorate for high-risk activities; an increase in the amount of financial penalties; and the designation as a crime the employment of young persons under 14 years of age. The Government also indicated that the labour inspectorate undertook follow-up measures throughout 2010. It also referred to an agreement of 9 May 2011 between the Federal Government and the Government of the State of Coahuila to only buy “clean coal”, i.e. from enterprises which complied with NOM-032-STPS-2008. Acknowledging monitoring problems related to unregistered mines and miners, the Government referred to improved coordination through joint inspections and to the adoption in 2010 of a computerized and coordinated system as part of the National Information System on Occupational Hazards. The Government stated that the number of occupational accidents and diseases had decreased between 2001 and 2010. With regard to the compensation to the families of the victims of the accident in Pasta de Conchos, the Government stated that it was calculated on the basis of fixed parameters and that a sum greater than the one provided for under the LFT had been given as humanitarian assistance to 42 families. The Government indicated that the Director of the Labour Inspectorate had also met the families of the victims and that it would give support to the families until all the cases had been settled.

While noting the steps taken by the Government, the Committee observed that certain problems appeared to persist with regard to the effective implementation of the occupational safety and health legislation, including in small-scale mines (pocitos) and unregistered mines. The Committee requested the Government to provide information on the circumstances in which workers can remove themselves from work in the event of imminent and serious danger to their lives. It noted the discrepancy in the data provided concerning the number of occupational accidents and diseases and in particular the allegation that the mortality rate had significantly increased in 2009. The Committee expressed its concern that occupational safety and health conditions in small-scale and unregistered mines, where the highest rates of fatalities appeared to occur, continued to be below the required standards.

The Committee requested the Government to provide further information on measures taken with a view to addressing all the issues raised in the discussion. This information should include: the number and type of mines in the coal-producing region of Coahuila; the number and nature of accidents in the mining industry, covering the registered and unregistered mines; as well as information on the other issues raised by the Committee of Experts in its latest comments. The Committee again requested the Government to take all possible steps to ensure that the families of the victims of the Pasta de Conchos accident – including families of miners without social protection – received all compensation and benefits due and that their personal safety and dignity be respected. The Committee urged the Government to ensure that all relevant actions and measures would be implemented in close collaboration with the social partners. The Committee asked the Government to send full details to the Committee of Experts for its examination at its next session in November–December 2011. The Committee asked the Government to continue the close cooperation with the ILO and invites it to avail itself of the ILO technical assistance.