Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

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

Autre commentaire sur C081

Observation

Demande directe

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The Committee notes with regret that the Government’s report has not been received and that the Government has not provided any response in reply to its Direct Requests of 2008 and 2009.

The Committee notes the comments made by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) on the application of the Convention, dated 25 August 2011, as well as the Government’s reply dated 8 November 2011.

Articles 3(1), 6, 7, 10, 15(a), 16, 17 and 18 of the Convention. Comments of trade union organizations. According to the FENASEP, labour inspectors do not enjoy the stability or independence, which they should be assured of under the Convention in accordance with Article 6 of the Convention, as they are employees which are subject to free appointment and removal from office. The trade union indicates that, in view of their status, the Labour Ministry has dismissed more than 90 per cent of the labour inspectors appointed by the previous Government without providing any reasons, while the previous Government had in turn dismissed the labour inspectors appointed by the former Government. The FENASEP also alleges that the new labour inspectors were appointed on the basis of political affiliation and not for their competency or merit and that they do not have the required knowledge for the performance of their duties, but that they nevertheless receive higher wages than their predecessors. Furthermore, according to the FENASEP, labour inspectors do not receive adequate training and, although their number has been recently increased, they are not sufficient, in view of the number of complaints received and the number of enterprises registered. The trade union also reports the absence of manuals on inspection procedures and protocols and alleges that labour inspectors engage in practices that are not in line with ethical standards. In addition, the FENASEP indicates that higher authorities in the Ministry have the discretion to decide in each case on who will be inspected, warned or punished.

The Government, in reply to these allegations, indicates that the 134 inspectors currently working at the Ministry of Labour and Employment Development (MITRADEL) are all civil servants and that 25 per cent of them were appointed under past administrations. The grounds for termination of the staff is that 70 per cent of them did not meet expectations set for the performance of their functions, 5 per cent were dismissed for breach of internal rules or misconduct, whereas 20 per cent resigned and 5 per cent left office without justification. The Government adds that the selection of inspectors is carried out in conformity with the requirements prescribed in the handbook of procedures of the Ministry, denies that the new inspectors have higher wages than the previous ones and explains that the new appointments were made to fill vacant posts with the same wages. It also states that the Institutional Human Resources Office and the National Directorate of the Labour Inspectorate have carried out jointly national training days for their staff on topics such as drawing up of technical reports, the discharge of their duties, the organization of the public sector, alternative means of conflict resolution, reports intended for inspectors and security officers, among others. In addition, the National Directorate of the Labour Inspectorate, received technical assistance from specialists of the Spanish Labour Ministry with the support of the Programme for the Strengthening of Labour Institutions (FOIL) and the Spanish Cooperation Agency. According to the Government, the National Directorate of the Labour Inspectorate developed, in coordination with the Institutional Planning Office of the MITRADEL, a handbook on procedures, which describes the functions of the departments of the labour inspection services and the different steps to be followed for routine and scheduled inspections. In addition, labour inspectors, prior to taking up their functions, receive training on questions relating to ethical conduct in the public sector and the sanctions applicable for serious misconduct.

The Committee recalls that, in conformity with Article 6 of the Convention, the inspection staff shall be composed of civil servants whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. It draws the Government’s attention to paragraphs 202 to 204 of its 2006 General Survey on labour inspection, where it emphasized that labour inspectors cannot act in full independence, as required by their functions, if their service or their career prospects depend on political considerations and that it is vital that the levels of remuneration and career prospects of inspectors are such that high quality staff are attracted, retained and protected from any improper influence. It has emphasized, that as public servants, labour inspectors are generally appointed on a permanent basis and can only be dismissed for serious professional misconduct, which should be defined in terms that are as precise as possible to avoid arbitrary or improper interpretations. Therefore, a decision to dismiss an inspector, like any other decision to apply a sanction with serious consequences, should be taken, or confirmed, by a body offering the necessary guarantees of independence or autonomy with respect to the hierarchical authority and in accordance with a procedure guaranteeing the right of defence and appeal.

The Committee further draws the Government’s attention to the fact that, in conformity with the requirements of Article 7 of the Convention, labour inspectors should be recruited with sole regard to their qualifications and should be adequately trained for the performance of their duties and that Article 15(a) of the Convention provides that labour inspectors are prohibited from having any direct or indirect interest in the enterprises under their supervision.

The Committee therefore requests the Government to provide clarifications on the reasons for the removal of 70 per cent of the civil servants, who were considered not to meet the performance expectations, and those 5 per cent, who were dismissed for breach of internal rules or misconduct, and to indicate the relevant legal provisions, whether any appeals have been lodged in this framework and their outcome.

The Committee would also be grateful if the Government would provide clarifications on the possible reasons for the resignation or departure of 25 per cent of labour inspection staff as well as on the measures taken or envisaged to retain qualified and experienced staff, (improvement of career prospects and their wage scales, notably in relation to other comparable categories of public officials) and on the safeguards of independence of labour inspectors.

The Committee also requests the Government to transmit the Code of conduct to be observed by inspectors in the discharge of their functions and the texts applicable in the event of non-compliance with this Code, and to indicate the relevant sanctions.

The Committee would also be grateful if the Government would provide information on the conditions and procedures for the recruitment of labour inspectors as well as the measures taken or envisaged in order to ensure that they are adequately trained on a regular basis, both when they enter the service as well as in the course of their employment, to enable them to perform their duties effectively (Article 7).

The Committee further requests the Government to communicate the text of the handbook on procedures developed by the National Directorate of the Labour Inspectorate in coordination with the Institutional Planning Office of the MITRADEL as well as to provide data on inspections (routine inspections and inspections as a result of a complaint, frequency of inspections performed in the same undertaking, scope of inspections), the violations detected by inspectors (and the legal provisions to which they relate) and the sanctions imposed, as well as the number of workplaces liable to inspection and the number of workers employed therein.

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