Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Labour Inspection Convention, 1947 (No. 81) - Argentina (Ratification: 1955)

Other comments on C081

Observation

Direct Request

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The Committee notes the Government’s report received on 12 October 2010 and the attached documentation. It also notes the comments by the Confederation of Workers of Argentina (CTA) dated 31 August 2010 and 1 September 2011. The Committee also notes the comments of the General Confederation of Labour (CGT RA) dated 29 October 2010. The Committee requests the Government to communicate any comment or information it deems relevant with regard to the comments by the CTA dated 1 September 2011.

Cooperation in the context of MERCOSUR. The Committee notes with interest that according to the Government’s report, the joint inspection operations in the context of MERCOSUR have continued and have been well received among the social partners in the region. Observing that the trade unions in Argentina asked for the inclusion of controls in relation to occupational safety and health and the work environment in the context of the MERCOSUR Regional Labour Inspection Plan (PRIM) and that the proposal was well received by the representatives of other countries, the Committee requests the Government to continue to supply information on the joint activities carried out in the framework of this plan and especially on their impact on the national labour inspection system. The Committee also requests the Government to supply information on any progress made in the formulation and implementation of the training plan for labour inspectors in the context of the PRIM.

Articles 3(1)(a), 4 and 10 of the Convention. Supervision and control of labour inspection by a central authority and labour inspection staff. According to the CTA, uniform criteria have not been established throughout the country for labour inspection, nor has appropriate legislation been adopted with a view to carrying out effective uniform controls throughout the national territory. Despite the fact that Act No. 25877 establishing the Integrated Labour Inspection and Social Security System (SIDITYSS) authorizes the central Government to exercise functions shared with the provinces with respect to labour inspection, this has not had any significant effect in practice and the Ministry has been relegated to a secondary position of supervision, support and assistance. According to the trade union, the inefficiency of labour inspection is due to exclusive powers being conferred on the provinces, in addition to the scarce material resources assigned to the provincial offices and the inadequate number of inspection staff employed there. According to the CTA, the lack of effective public policies in labour inspection is due to the enormous pressure exerted by local economic influences and the major national or multinational enterprises, which allows them to operate in an “exclusion zone” inside their establishments and carry out their own inspection and supervision of working conditions. The CTA also indicates that the persistently high number of industrial accidents and cases of occupational disease are evidence of the breakdown of enforcement of the standards relating to risk prevention and health protection in the workplace.

The CGT, for its part, points out that the inspection system in Argentina continues to experience major difficulties since it lacks a central authority and despite the fact that Act No. 25877 established a system of cooperation between the provinces and the federal State, the effectiveness of inspection activities is showing no sign of improvement, in a country with an informal employment rate of 37 per cent. The union also indicates that the effectiveness of controls varies enormously between provinces since many of them have an insufficient number of labour inspectors and some even have only one inspector.

With reference to its previous comments, the Committee notes that each of the 23 provinces and the autonomous city of Buenos Aires has an administrative body dependent on the provincial executive which is responsible for labour inspection within its jurisdiction. The provincial authorities have competence for monitoring general working conditions and for enforcing occupational safety and health (OSH) standards and the terms of collective labour agreements. The Ministry of Labour and Social Security (MTEYSS) is responsible for supervising activities within the remit of the federal authority (ports, airports, multinational enterprises), activities comprising tasks spanning various jurisdictions, such as inter-provincial passenger and cargo traffic, and river, maritime and land transport. The Ministry also has competence for controls relating to social security contributions. Responsibility for OSH at national level lies with the Supervisory Authority for Occupational Risks (SRT), which also secures the enforcement of the obligations of the occupational hazard insurance companies. According to the Government, the Federal Labour Council drives general inspection policies according to the principles of coordination, cooperation, shared participation and shared responsibility. With regard to the number of inspection staff, the Government indicates that the number of inspectors currently stands at 320 and that the SRT has 67 inspectors, not including the staff specifically assigned to each province and the autonomous city of Buenos Aires. It adds that through Decision No. 670/10, the Ministry of Labour launched a competition in 2010 with a view to filling 300 vacancies.

The Committee reminds the Government that the objective of the Convention is to ensure the functioning of a coordinated and effective labour inspection system throughout the territory, under the supervision and control of a central authority. Where legislation provides for the distribution of inspection powers between a federal or central authority and provincial authorities, it is necessary to guarantee the establishment of an inspection system in each province or one covering more extensive jurisdictions or regions and to ensure the necessary resources for the functioning of such structures (see Article 4(2) of the Convention and paragraph 140 of the 2006 General Survey on labour inspection). The Committee requests the Government to supply further information on the manner in which effect is given to Article 4 of the Convention with respect to the structure and operation in practice of the labour inspection system, especially on the steps taken to ensure coordination between the federal and provincial inspection authorities. The Committee also requests the Government to supply information on the impact of the launching of a competition in 2010 by the MTEYSS on the number of inspection staff and their geographical distribution in the various provinces.

The Committee would be grateful if the Government would also provide information on the manner in which labour inspectors verify the information contained in reports relating to self-inspections undertaken by enterprises.

Articles 3(1)(a), 16, 18 and 24. Supervisory function of labour inspectors; frequency and scope of inspections; penalties. The CTA deplores the fact that the national, provincial and municipal authorities have not taken the necessary steps to stop the illegal practices of unregistered work (whereby employers leave substantial numbers of workers devoid of any protection in terms of social benefits). The union emphasizes the fact that the legal framework provided for by Act No. 24013 of 1999 (Employment Act) – one of the objectives of which is to put a stop to these practices through the establishment of an incentive scheme for employers who are willing to make amends and rectify their practices in this respect and the imposition of harsher penalties for uncooperative employers is insufficient inasmuch as it has not been accompanied by inspections undertaken with the care and frequency required by the Convention.

With reference to its previous comments on Article 18 of the Convention, the Committee notes with interest the information supplied by the Government in relation to the increase in the amounts of fines imposed for infringements of social security standards, with a reduction in the amount of penalties if the situation is rectified within a specific period and with subsidies for employer contributions for employers who create new jobs that are duly registered. It also notes with interest the various agreements signed between the MTEYSS and trade unions for combating undeclared work and ensuring effective inspection of working conditions and child labour, in the context of the “Integrated employment promotion plan: More and better work” and the “National plan for the regularization of work” (PNRT). The Committee requests the Government to supply information on the frequency and scope of inspections undertaken, including in cases where one single establishment is concerned. It also requests information on the impact of these measures on the implementation of legislation concerning conditions of work and the protection of workers, including undeclared workers and statistics on infringements of labour legislation detected by labour inspectors, specifying the relevant provisions and the penalties imposed.

Article 5. Cooperation between the inspection services and other institutions and collaboration with employers and workers. With reference to its previous comments, the Committee notes that, in the context of the “National plan for the regularization of work” (PNRT), Ministry of Labour officials visited the federal courts in the interior of the country to explain the workings of the Ministry, and the judicial authorities empowered ministry officials to act as ad hoc judicial officers in the execution of judicial tasks. It also notes that, according to the CGT RA, cooperation between the judicial system and the administration has improved as regards the collection of fines imposed for infringements of labour legislation. The Committee would be grateful if the Government would continue to send information on the steps taken or contemplated to promote cooperation between the labour inspectorate and the judiciary.

The Committee also notes that the SRT has been signing agreements with the provinces and with the autonomous city of Buenos Aires, with a view to conducting joint inspections and providing economic resources for the reinforcement of local labour inspection. The SRT has also signed agreements with the trade unions, with a view to providing economic resources for the training of union leaders and workers, and to developing projects and actions aimed at improving working conditions and the working environment. The Committee requests the Government to supply detailed information on the inspections carried out jointly by the SRT and the autonomous city of Buenos Aires, and by the latter and the provincial delegations pursuant to the abovementioned agreements, and also on the impact of such collaboration with regard to the objective pursued by these agreements. It also requests the Government to provide information on any projects launched in the context of collaboration between the SRT and the trade unions, and on the results thereof.

Article 6. Stability of employment and conditions of service of labour inspectors. In reply to the Committee’s previous observation concerning the remuneration and prospects for career advancement of labour inspectors as compared to those of other public servants with similar duties, the Government reiterates that inspectors and controllers are covered by Act No. 25164 of 1999 on public employment at national level. It also indicates that the inspectors, perceive an average salary of 4,862.44 pesos (ARS) (about US$1,206.55). The Government adds that under Decision No. 670/10, mentioned above, the profiles for the posts of labour and social security inspector and territorial planning analyst were established, and their tasks, requisite qualifications and conditions of promotion were specified.

The CTA alleges that in the city of Buenos Aires labour inspectors do not enjoy the guarantees needed to perform their duties. It indicates that this situation has been affirmed by various court decisions and refers to the case of a labour inspector recruited under a service provider scheme who was dismissed and lodged an appeal for reinstatement and definitive incorporation into the permanent staff of the local public administration. According to the CGT RA, however, progress has been made in this sphere since the passing of MTEYSS Decision No. 670/10 marks the start of a selection procedure for labour inspectors, the goal of which is to ensure stability of employment.

The Committee requests the Government to send to the ILO a copy of Ministry of Labour Decision No. 670/10 and to supply information on the steps taken to ensure that labour inspectors benefit from working conditions in accordance with the principles of stability and independence laid down by Article 6 of the Convention.

Articles 7(3), 11(a) and 18. Resources allocated to the inspection services and in-service training for labour inspectors. According to the Government, the MTEYSS provides its staff with an induction/re-induction course and another series of courses designed to improve their qualifications. The Committee observes that the Government’s report contains information on the courses given to Ministry of Labour staff, in particular training on the supervision of cargo and passenger transport and the maritime, river, lake and port sectors. The Government further indicates that the SRT also provides its inspectors with refresher workshops.

In its previous comments the Committee noted that, according to section 34 of Act No. 25877 of 2004, the MTEYSS is required to allocate all proceeds from fines imposed for breach of the labour legislation to improvement of the labour inspection service and asked the Government to indicate the expenditure items of the labour inspectorate to which these resources are assigned. The Committee notes that according to the information supplied by the Government, the budget headings of the labour inspectorate which benefit from the allocation of fines collected for infringements of the labour legislation are those which ensure its ordinary operation (e.g. consumer goods (including paper, spare parts and fuel), technical and professional services, tickets and travel allowances, machinery and equipment etc.).

The Committee notes that according to the CTA, the lack of training of inspection staff combined with the inadequacy of the material resources allocated to the regional offices constitute one of the obstacles to the establishment of effective labour inspection. The CGT RA also stresses the importance of giving specific training to inspectors and equipping the inspection services with computing equipment in order to achieve a better level of performance.

With reference also to its comments under Articles 3(1)(a), 4 and 10 of the Convention, the Committee requests the Government to provide information on the distribution of the budgetary resources of the labour inspection services throughout the central and provincial structures and the material means at their disposal including transport facilities.

The Committee would also be grateful if the Government would provide detailed information on the training courses given to labour inspectors performing their duties in the various provinces, including the frequency, number of participants, subjects covered and duration.

Article 9. Collaboration of technical experts and specialists in some inspections falling within the remit of labour inspectors. In relation to its previous comments, the Committee notes that the Government’s report contains a list of staff of the Department of Inspections and Preventive Programmes at the SRT, including architects, graduates in OSH, chemical engineers and mechanical engineers. The Committee requests the Government to describe the modalities for collaboration with technical experts and specialists at the level of the provinces and any cooperation with the SRT in this respect.

Article 14. Notification of the inspectorate regarding industrial accidents and cases of occupational disease. In reply to the request for information on the manner in which effect is given to the present Article of the Convention, the Government indicates that the corresponding statistics are being compiled on the basis of notifications made and can be consulted on the SRT website at: http://www.srt.gov.ar/data/fdata.htm.

Articles 20 and 21. Obligation to publish and send an annual report. The Committee draws the Government’s attention to its general observation of 2011 on the importance of drawing up and publishing an annual report on the work of the labour inspectorate. It reminds the Government of the central inspection authority’s obligation to publish and send to the ILO, in accordance with Article 20 of the Convention, an annual general report containing the information required in each clause of Article 21(a)–(g) and the possibility, if necessary, of seeking technical assistance from the ILO for this purpose. The Committee requests the Government to keep the ILO informed of progress made in this field.

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