Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 81) sur l'inspection du travail, 1947 - Paraguay (Ratification: 1967)

Autre commentaire sur C081

Observation

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The Committee takes note of the observations of the National Confederation of Workers (CNT) and the Confederation of Workers Authentic (CUT-A), received in 2019.

Articles 6, 7, 10 and 11 of the Convention. Labour inspectors. Status and conditions of service, recruitment, training, number and material conditions of work. In relation to its earlier comments, the Committee notes from the Government’s report that the establishment of the Ministry of Labour, Employment and Social Security (MTESS) by Act No. 5115 of 2013 has improved labour inspectors’ working conditions. The Committee notes in particular the information provided by the Government to the effect that: (i) their remuneration is higher than that under the former Ministry of Justice and Labour; (ii) open competitions have been held for the recruitment of new inspectors to the public service: the MTESS employed 31 inspectors in 2015 and 25 inspectors in 2019; (iii) the new inspectors have received training through the training plan put in place by the ILO Country Office for the Southern Cone of Latin America, and continuous training was given to inspectors from 2015 to 2019 in areas including forced labour, child labour, and occupational safety and health; and (iv) new office space has been allocated to the Directorate for Labour Inspection and Monitoring (DGIF), and the inspectors are provided with all office supplies.

The Committee notes in its observations that the CUT-A remains concerned that: (i) the number of inspectors (fewer than 30 in all), is insufficient to cover the entire national territory; (ii) there is a lack of initial and continuous training for inspectors and no profile whereby to determine the requirements for their posts; (iii) there is a lack of inspectors holding public servant status. Instead, inspectors are contracted employees, which prevents them from performing their functions fully; and (v) inspectors are poorly remunerated. The Committee also notes from the CNT’s observations with regard to public sector workers that the contracted employees do not enjoy the same employment conditions as appointed public servants, for example, the right to a retirement pension, healthcare or cover against occupational risks, occupational accidents and diseases.

The Committee notes from the information provided by the Government that all inspectors who entered the service in 2015 did so through a merit-based competition and enjoyed the status of temporary public servants, while 22 of the 25 inspectors employed in 2019 held the status of temporary public servants, while three inspectors held the status of permanent public servants. In that connection, the Committee notes the Government’s indication that inspectors obtain their posts through open competition in conformity with sections 15 and 35 of Act No. 1626 of 2000 on the Public Service, and Decree No 3857 of 2015, which approves the general regulations governing selection for entry and promotion in the public service for permanent and temporary posts. Section 8 of the Decree cited establishes merit-based competition as the technical mechanism of selection for the recruitment of persons to the public administration, applicable, inter alia, to technical, daily wage or professional posts.

The Committee recalls in respect of the temporary recruitment of labour inspectors, apparently the case for the large majority of inspectors, that that form of recruitment is not in conformity with Article 6 of the Convention, which provides that the status and conditions of service of the inspection staff must be such that they are assured of stability of employment and are independent of changes of government and of improper influences. The Committee urges the Government to take the necessary measures to ensure that the status and conditions of service of labour inspectors comply with the requirements of Article 6 of the Convention. In that respect, it also requests the Government to provide additional information of the salary structure and benefits applicable to labour inspectors and to public servants who perform similar functions in other government services (such as tax inspectors or the police). The Committee also requests the Government to indicate the measures taken or envisaged to increase the number of labour inspectors. The Committee further requests the Government to continue providing information on the number of inspectors and their distribution by region, their status and conditions of service, giving details of the method employed for their recruitment and of their remuneration. The Committee also requests the Government to provide information on the number of suitably equipped local offices, as well as on availability of transport facilities necessary for the performance of labour inspectors’ duties, in accordance with Article 11 of the Convention.

Articles 11, 12, 16 and 18. Application in the Chaco region. Further to its earlier comments on the creation of labour law enforcement units in the Chaco region, the Committee notes that CUT-A indicates deep concerns in its observations at the shortcomings in labour inspection in that region, and that although the Government has opened an MTESS office there, the office has neither the means nor the independence to monitor possible irregularities in situ, and that the inspectors are only able to enter rural properties under court order. Moreover, CUT-A points out that not only do workers have to go to the MTESS office to register their complaint, but they must also deliver the official notice to their employer summoning the employer to clarify the situation. The Committee requests the Government to communicate its comments in respect of the CUT-A’s observations. With reference to its comments under the Forced Labour Convention, 1930 (No. 29), the Committee requests the Government to provide information on the functioning of the MTESS office established in the Chaco region and its impact on the application of the legislation on the working conditions and protection of workers in that region, including information on the number of inspection visits undertaken, the violations detected and the penalties imposed. The Committee also requests the Government to provide information on the number of labour inspectors at work in the region.

Article 12(1)(a). Restrictions on labour inspectors freely to enter workplaces liable to inspection. In its previous comments the Committee once again requested the Government to take the necessary measures, including through the amendment of Resolution No. 1278 of 2011 (which provides technical and legal guidance on aspects of the inspection and monitoring services and summary inspection procedures), to ensure that labour inspectors are empowered to enter freely any place liable to inspection. In that connection, the Committee notes the information provided by the Government to the effect that Resolution No. 47 of 2016 approved the general inspection procedure for monitoring labour, social security and occupational safety and health legislation, and repealed sections 1.1 and 1.19, on inspection processes, of Resolution No. 1278.

The Committee notes that article 3 of Resolution No. 47 provides that: (i) the general inspection procedure may be initiated ex officio, or by inspection order signed by the Minister or Vice-Minister of Labour, or at the request of a party. Once initiated, the DGIF will submit the complaints and/or requests for inspection to the legal counsel of the Vice-Minister of Labour, for a ruling on whether or not to proceed with an inspection (section 1.1.); (ii) in order to carry out inspections in response to complaints or requests, the respective inspection orders must be issued. Where the legal counsel of the Vice-Minister of Labour deems the orders inappropriate, they will be dismissed and filed (section 1.1.); (iii) in the case of an ex officio inspection or inspection at the request of a party (following acceptance of the request or complaint), the Director-General of Labour Inspection and Monitoring will submit a draft inspection order to the Minister or Vice-Minister of Labour for consideration (section 1.2.); (iv) the inspection orders must, among other requirements, be signed by the Minister or Vice-Minister; they are otherwise void (section 1.2.); (v) inspectors holding an inspection order are empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection and to remain there for the time required; and, (vi) to broaden the scope of the inspection (to monitor aspects not included under the inspection order), the inspectors must inform the Director-General of Labour Inspection and Monitoring, so that the Director-General may propose the consequent broadening of the inspection order to the Minister or Vice-Minister, including in the event of detection of imminent danger to the lives, physical integrity, safety and health of the workers (section 1.2.).

The Committee notes that Resolution No. 56 of 2017 amplifies Resolution No. 47 and approves the regulations governing the procedures for ensuring compliance with labour, social security, and occupational safety and health standards, and those for addressing non-compliance. Those regulations provide that: (i) the inspector dealing with the complaint alleging non-compliance and/or request for inspection shall submit the complaint to the Director-General of the DGIF for consideration (section 1); (ii) on receipt of the complaint and/or the request for inspection, the Director shall forward it to the Chief Legal Counsel of the Vice-Ministry of Labour, who shall decide whether or not an inspection is appropriate; if so, the DGIF shall submit the draft inspection order to the Minister or Vice-Minister of Labour (section 2); (iii) where the action is ex officio, the DGIF shall submit the draft inspection order for signature by the Minister or Vice-Minister (section 3); and (iv) Following endorsement by the Minister or Vice-Minister, the order shall be forwarded to the DGIF (section 4).

The Committee notes that by virtue of Resolutions Nos 47 and 56, only inspectors in possession of an inspection order signed by a higher competent authority (the Minister or Vice-Minister of Labour) may enter freely, at any hour of the day or night any workplace liable to inspection. The Committee recalls that Article 12 of the Convention provides that labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee also recalls that the requirement to obtain prior authorization before an inspection constitutes a restriction on the freedom of inspectors to conduct inspections, especially if they have reason to believe that an enterprise is violating compulsory legal provisions. The Committee therefore urges the Government to adopt without delay the necessary measures to amend MTESS Resolutions No. 47 of 2016 and 56 of 2017, on inspection procedure, to ensure compliance with labour, social security and safety and health standards, so as to guarantee that inspectors provided with proper credentials are able to enter freely any workplace liable to inspection, in accordance with Article 12(1)(a) of the Convention, without the need to obtain previous higher authorization.

Article 16. Frequency and thoroughness of labour inspections. The Committee notes that section 3(2.1) of Resolution No. 47 provides that: (i) more than one inspection visit may be made under one inspection order wherever the first visit has not made possible collection of all relevant data; and (ii) in no case may more than two visits be made under one inspection order.

In addition, the Committee notes from the observations of the CNT that for the period between 16 August and 1 November 2019 (slightly over two months) 98 enterprises where allegations of non-compliance with labour standards had been registered received inspection visits. The CNT points out, however, that while that figure represents a twofold increase in the number of monthly visits (about 40 visits) compared to the monthly average in 2017 and part of 2018, it is not even equivalent to one per cent of all enterprises listed, as at June 2019, by the Directorate for the Registration of Employers and Workers (59,567 enterprises nationwide). Consequently, the CNT indicates that the labour inspection is not fulfilling its fundamental role of ensuring compliance with the labour laws. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that workplaces are inspected as frequently and as thoroughly as is necessary to guarantee the effective application of the relevant legal provisions, in conformity with Article 16 of the Convention.

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