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

Occupational Safety and Health Convention, 1981 (No. 155) - Mexico (Ratification: 1984)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

Follow-up to the recommendations of the tripartite committee (representation made under article 29 of the Constitution of the ILO)

The Committee notes the discussions that took place in the Conference Committee on the Application of Standards in June 2011, the conclusions of the Conference Committee, a communication from the National Union of Federal Roads and Bridges Access and Related Services of Mexico (SNTCPF) received on 2 September 2011, the Government’s report received on 11 October 2011 and its appendices, and the observations from the Government on a communication from the aforementioned union received in 2010. The Committee is following up on the recommendations made by the Governing Body in March 2009 (document GB.304/14/8) further to the accident that took place at the Pasta de Conchos coalmine in Coahuila. The Committee indicates that the discussions and conclusions of the Conference Committee on the Application of Standards also refer to the follow-up to the report and, in that context, to the application of this Convention to workers in coalmines in Coahuila. The communications from the trade union in 2010 and 2011 also refer to the same situation. In view of the fact that the Committee has before it the documents mentioned above and their numerous appendices and questions relating to the issues raised by the Governing Body, the Conference Committee and the Committee of Experts in previous years, the Committee will restructure the follow-up by combining related themes. The Committee will briefly note in its comment the main aspects of the communication of 2011 and will examine the communication in further detail in conjunction with any observations the Government sees fit to make, including with regard to allegations of child labour in the coalmines, which the Committee will examine in due course as part of its examination of the application of the Worst Forms of Child Labour Convention, 1999 (No. 182).

I. Measures to be taken in consultation with the social partners

Articles 4(1) and (2) and 7 of the Convention. National policy. Overall reviews or reviews relating to specific areas: hazardous types of work such as those performed in the coalmining sector.

(a) Register of reliable data on existing mines and of workers in these mines. In its previous comments the Committee noted a communication from the SNTCPF, to the effect that there is no register that would enable an overview of legal, illegal and clandestine mines in the coal-producing region of Coahuila, and consequently it is impossible to plan the necessary measures, to monitor their application and to inspect the mines. The Conference Committee on the Application of Standards asked the Government to indicate the number and type of mines in the coal-producing region of Coahuila, including, as far as possible, the registered and non-registered sectors. This information is essential to be able to formulate, revise and implement a national occupational safety and health (OSH) policy based on prevention. The Committee notes the Government’s statement that the Ministry of Labour and Social Security (STPS) indicates that the number of workplaces does not necessarily coincide with the number of mining concessions awarded by the Ministry of Mining. The Government indicates that the STPS has a National Directory of Enterprises and that, as at July 2011, the Directory contains 201 registered workplaces in the state of Coahuila involved in coalmining activities. It also indicates that in Coahuila there are 909 mining concessions covering a surface area of 2.5 million hectares and that there are nine large coalmines and 62 medium-sized coalmines. As regards the pocitos (small-scale mines or pits), the Government indicates that from March 2010 the GeoInfoMex satellite system was used for the location of pozos (small-scale mines or pits), a project that ended in May 2011. This resulted in the identification of the existence of 563 vertical shafts, in 297 of which activity was detected, and these will be inspected. The Committee notes that the Government distinguishes between the registration of mining concessions and the registration of workplaces and indicates that it is making progress on coordination among the various state bodies connected with mining in Coahuila. The Committee requests the Government to continue to supply up-to-date information on the number and type of mines and, recalling the request made by the Conference Committee on the Application of Standards, requests it to distinguish between registered and non-registered mines in that information. The Committee also requests the Government to indicate the estimated total number of miners in Coahuila, the number of registered miners and the estimated number of non-registered miners. The Committee understands that these are two different but complementary issues that form part of the application of the Convention at the workplace and to all the workers employed there, and requests it to take the necessary measures to obtain the fullest possible records and to provide information in this regard.

(b) Accidents in the coalmining sector. The Committee notes the Government’s statement that in the last ten years (2001–10) the Mexican Social Security Institute (IMSS) recorded 38,069 occupational accidents and diseases in the mining sector and 340 deaths. The Government indicates that, if a comparison is made between 2001 and 2010, the number of workers in the mining industry increased by 35.74 per cent and that, as regards the number of deaths, there was no significant variation (31 in 2010 and 30 in 2001). The Committee also notes that, according to the communication, from June 2010 to August 2011, 33 more miners died in occupational accidents, including 26 in Coahuila. It also states that 14 miners died on 3 May 2011 at pozo 3 of the BINSA company and that none of these 14 were registered with the IMSS, their average age was 24 years, and one 14-year-old worker survived who had left school and was on the payroll, even though the enterprise stated that he was merely accompanying his father. The Committee asks the Government to continue to provide detailed information on these issues, including on the accident in which 14 workers died. The Committee also asks the Government to continue providing statistics on accidents in coalmines and on the application of the Convention to mines in which accidents have occurred.

(i) Lulú mine. In 2010, the Committee briefly noted the information supplied by the trade union, indicating that two workers died at the Lulú mine on 6 August 2009. According to the trade union, this mine had been in operation since 2001 but had never been inspected. The union also declares that the employer, “in the manner of the region”, put pressure on the families of the workers not to coordinate with the Pasta de Conchos group of families or with the Pastoral Laboral organization, otherwise they would receive nothing. The union indicates that the families filed a complaint on 31 August and described in detail the defects in terms of safety regulations (pithead constructed with unsuitable material, lack of a fire escape, obstacles on the roadway, water lying in the mine, lack of training and no first-aid kit, etc.). It indicates that the workers were registered with the IMSS for 486.45 Mexican pesos (MXN) per week and MXN1,500 were paid for piecework, without any registration. The SNTCPF declares that, according to the Ministry of Economic Affairs, the Lulú concession was in order but the trade union maintains otherwise, and supplies detailed information to support its arguments. In its 2011 report, the Government states that it had been planned to conduct an inspection at the Lulú mine in August 2009 but that, prior to the inspection, the accident occurred on 6 August, and so an emergency inspection was conducted from 7 to 10 August, followed by another inspection on 13 and 14 August, and access was then restricted. Five inspection visits were conducted to verify that the restriction on access had not been violated, on 31 August, 2, 4 and 15 September, and 29 October 2009. Other inspections and procedures were conducted in 2010, on 2 February 2011 the mine was closed for repeated failure to implement safety measures, and on 10 February 2011 the workers were notified. The Government concludes by stating that the labour inspector, as was his duty, enforced the applicable standards and it therefore rejects the allegations from the union that the inspection activities were “acts of simulation”. The Committee notes that the union’s communication of 2011 includes as an appendix Recommendation 12/2011 of 29 March 2011 of the National Human Rights Commission (CNDH), which has constitutional rank, concerning the accident at this mine. In its examination of the case, the CNDH states that “with the omissions described above on the part of public servants of the STPS and the Ministry of Economic Affairs, operations at the abovementioned enterprise were allowed under conditions that did not guarantee the integrity and health of the workers, and they were placed in grave danger and were exposed to situations such as the one that resulted in the death of (two workers)”. It also states that this situation contravened Articles 7 and 9 of the present Convention.

(ii) Ferber pocito mine. In its communication of 2010, the union indicated that on 13 August 2009 the periodic inspection of this mine was conducted and, leaving aside the provisions that do not apply to small-scale operations, 85 breaches of the provisions were recorded and 76 corrective measures were ordered, with restriction on access. On 11 September a 23-year-old worker died. The union also indicates that the labour inspectorate only appeared on 17 September 2009 to conduct the inspection. It claims that the Ferber construction company’s arrangements for severance of the workers’ employment were illegal and that the employer abandoned the scene of the accident without securing or signposting the entrance. The union concludes by stating that there was negligence on the part of the STPS of Coahuila, inasmuch as the latter seemed to consider it sufficient to complete the inspection forms, and that these “acts of simulation” leave the miners and their families in a state of helplessness. In its 2011 report, the Government corroborates the inspection of 13 August, explaining that a second inspection was made on 17 September because the employer failed to meet his obligation to notify the accident; subsequent inspections were conducted on 21 September, when the restriction on access to the mine was reiterated. The labour authority has established physically that the Ferber pocito mine no longer exists, but the prosecution proceedings are continuing and the authority has offered support to the family of the worker who died. The Committee notes that, during the examination of the case conducted by the CNDH (Recommendation No. 85/2010 of 21 December 2010), the CNDH affirmed in similar terms that the provisions of the present Convention have been breached.

The Committee notes the Government’s statement that the Lulú mine and the Ferber pocito mine are not covered by the recommendations adopted by the Governing Body in its report on the representation but that it is providing information with a view to clarifying such matters. The Committee draws the Government’s attention to the fact that information on accidents in these mines actually forms part of the follow-up to the recommendations made by the Governing Body since the recommendation in paragraph 99(b)(i) of the report refers to ensuring the application of Articles 4 and 7 of the Convention with particular emphasis on coalmines, and the recommendation in paragraph 99(b)(iii) of the report refers to ensuring the affiliation of Article 9 of the Convention “in order to reduce the risk that accidents such as the accident in Pasta de Conchos occur in the future”. The Committee therefore indicates that information on accidents in the coalmines of Coahuila and the analysis of their causes contribute towards determining the real impact of the measures adopted and understanding whether everything was done that reasonably could have been expected to be done to avoid or reduce as far as possible the causes of the hazards inherent to the working environment. The Committee notes the dissemination activities of NOM 032-STPS-2008 and other promotional activities indicated by the Government, and notes that methods for the evaluation of hazards are based on this standard. Nevertheless, it draws the Government’s attention to the fact that the repetition of accidents in mines which have manifestly failed to adopt the requisite OSH measures highlights the necessity of reinforcing government action to ensure the application of the Convention in practice. The Committee therefore urges the Government to undertake, in conformity with Articles 4 and 7 of the Convention and in consultation with the social partners, the periodic examination of the situation relating to the health and safety of workers and the working environment in the coalmines in Coahuila, including the pocito mines, in order to identify the principal problems, draw up effective measures to resolve them, define the order of priority of the measures to be taken and evaluate their results. The Government is also requested to provide detailed information in this regard, including on the consultations undertaken.

Article 9. Adequate system of inspection. The Committee notes the Government’s statement that a draft reform of the Federal Labour Act is awaiting analysis and opinion in Congress, and this draft proposes in particular that inspectors shall be able to restrict access or limit operations in areas where risks are detected to the lives, health or integrity of the workers and conduct a more streamlined procedure for total or partial closure. It also notes the Government’s indication that the labour and mining authorities have developed a joint strategy for preventing a workplace from continuing to operate when, during any inspection and without the need to exhaust the procedures laid down in section 512-D of the Federal Labour Act, imminent risks of violation of the regulations relating to OSH have been identified. The Government declares that, under this strategy, once the labour inspector has issued an order for access to be restricted, this is immediately brought to the attention of the National Directorate of Mines at the Ministry of Economic Affairs so that this department can issue an order for the provisional suspension of work at the mine. If the risks continue after the inspection visit, the mining authority is requested to order the permanent suspension of work. The Government states that the National Directorate of Mines was thus notified by the STPS of 14 restrictions on access on account of imminent danger, and suspension was notified on ten sites. It also indicates that improvements were made to the procedures for enforcing closure as envisaged in section 512-D of the Federal Labour Act and, accordingly, the Lulú mine was closed on 10 February 2011. The Committee also notes that the Government has supplied a CD and a folder of labour inspection documents relating to the coalmines of Coahuila. The Committee draws the Government’s attention to the fact that, for this information to be useful to the Government and the social partners and also to the Committee, the Government needs to undertake an analysis of the information, identifying trends regarding the cases of non-compliance detected, the effectiveness or otherwise of the measures taken by, or available to the labour inspectorate for remedying cases of non-compliance, especially in cases of serious and imminent danger, including its own evaluation in conjunction with the social partners of whether the system and the legal remedies available are appropriate and sufficient. The Committee refers to its previous paragraphs in which it noted the cases of the Ferber and Lulú mines as providing an illustration of the application and monitoring of OSH regulations. The Committee notes with concern that the Lulú mine which the Government closed on 10 February 2011 had its first inspection on 7 August 2009, the day following the death of two workers, that numerous irregularities relating to OSH were reported, and that in spite of this the closure of the mine took 17 months. In the case of the Ferber mine, the proprietor undertook the closure. The Committee notes the Government’s statement that the inspectors enforced the existing regulations. In that case, those regulations do not appear to constitute a framework that ensures an appropriate and adequate inspection system for safeguarding the lives, safety and health of workers in underground coalmines. Furthermore, the Committee reminds the Government that in its recommendations the Governing Body asked the Government to ensure, by all necessary means, the effective monitoring of the application in practice of laws and regulations on occupational safety and health and the working environment, in consultation with the social partners. The Committee therefore requests the Government to examine, as part of the review required by the Committee pursuant to Article 7, the manner in which the labour inspectorate can be strengthened, particularly in cases of imminent danger, and to provide information on this matter and also on the measures for immediate enforcement currently at the disposal of the labour inspectorate, including closure in the event of imminent danger to the health and safety of the workers. It also requests the Government to undertake an analysis of the inspections conducted of which it informed the Committee in order to identify the principal problems with a view to achieving greater effectiveness in inspection work in coalmines and also provide information on the measures proposed for tackling these problems.

Pending the abovementioned reviews, the Committee urges the Government to take the necessary measures in the very near future to safeguard the lives and safety of the workers and to send information in this regard.

With regard to the Occupational Safety and Health Self-Management Programme, the Committee asks the Government to provide detailed information on its operation, including details of the requirements for joining the Programme, the manner in which the labour inspection services monitor activities implemented under the Programme and its impact on safety and health in mines and in the “pocitos” where coal is extracted.

Request for information on any developments concerning the possible ratification of the Safety and Health in Mines Convention, 1995 (No. 176), based on Mexican Official Standard NOM-032-STPS-2008 concerning safety in underground coalmines. The Committee notes the Government’s statement that on 18 July 2011 consultations were held, with a view to evaluating whether ratification should occur, with various state bodies, plus the Confederation of Chambers of Industry (CONCAMIN), the Employers’ Confederation of the Republic of Mexico (COPARMEX), the Confederation of Workers of Mexico (CTM) and the Mining and Metallurgy Union. The Government states that at the time of sending its report (October 2011) it was awaiting the requested information. The Committee requests the Government to supply information on the results of these consultations with the social partners.

II. Other measures

Compensation, pensions. The Committee notes the union’s indication in its communication of 2010 that death certificates were issued, which would supposedly speed up procedures, but in fact this only resulted in the calculation of pensions and compensation amounting to a starvation wage for the families owing to the fact that, when the time and date of the miners’ deaths were indicated, the payment of a “triple wage” to the families which should have been made by the company in the following days was cancelled (despite the company’s obligation to maintain this commitment until the handing over of the mortal remains) and was suspended in March 2007. This triple wage meant that the deceased workers’ contributions to the IMSS were maintained for more than one year, as though they were still alive, but this sum of money was not given to the families. The union maintains that, in the cases represented by Office of the Federal Attorney for the Defence of Labour (PROFEDET), the wages were not increased and that, in cases involving private lawyers who requested this, the requests were refused because the death certificates were contested and rejected. It also indicates that the enterprise gave humanitarian aid of MXN830,000, which did not represent compensation but was a response to the fact that the awards had been contested. It indicates that the amounts of compensation ranged from MXN66,200 to MXN117,000. The Committee also notes the Government’s statement that, as regards the 57 demands for compensation filed by the families of the miners who died at the Pasta de Conchos mine, a judgment was issued ordering the Industrial de México and General de Hulla companies to pay the beneficiaries the legal contractual benefits for death in an industrial accident, funeral expenses, seniority bonus, vacation allowance and bonus, the extra month’s wage, life insurance savings fund payments, and compensation. The Government also indicates that all the awards were appealed against by the parties. As regards pensions, the Government states in reply to the communication of 2010 that these were not calculated incorrectly but were based on the wages registered with the IMSS. The Government also indicates the rulings handed down by the courts with regard to the appeals against the awards. The Committee requests the Government to indicate which issues are still pending with regard to compensation and pensions for the families of the deceased workers.

State and social benefits. The Committee notes the detailed information provided by the Government but notes that this does not enable the number of beneficiaries among the widows and children of the deceased workers to be identified. Noting that housing and scholarships were promised and that the communication refers to 106 children whose fathers died at Pasta de Conchos, the Committee requests the Government to indicate how many of the children whose fathers died are receiving scholarships and how many of the 65 families have received assistance with housing.

Dialogue with the Pasta de Conchos families. The Committee notes the Government’s statement that the Government held various meetings in 2007 and 2011 with the Pasta de Conchos Families’ Organization and the families of the miners with a view to ensuring the observance and full exercise of their rights, including an analysis and discussion of a possible recovery of the bodies. The Committee also notes that the 2011 communication continues to make allegations of harassment of the defenders of the Pasta de Conchos Families’ Organization by means of defamatory public statements that include accusations of opportunism and making money out of the tragedy. The Committee considers that the families of the victims of the Pasta de Conchos accident, including the 106 children who lost their fathers, deserve special care and attention from the Government. The Committee requests the Government to continue the dialogue with the organization and the families in order to find an appropriate solution to the complaints made by the families of the victims of the Pasta de Conchos accident, including with regard to the possibility referred to by the Government of recovering the bodies of the miners, and requests the Government to continue to provide information on the ongoing dialogue.

III. Technical assistance

In its previous comments the Committee invited the Government to avail itself of technical assistance from the Office in relation to the possible ratification of Convention No. 176. It also notes that the Conference Committee on the Application of Standards, in its 2011 conclusions, also invited the Government to avail itself of technical assistance from the Office. The Committee notes the Government’s indication that the Director-General of Labour Inspection appointed a person to forward the necessary information to the Office but notes that it has not received any information concerning the Government’s decision to accept the request of the Committee and the Conference Committee. In view of the difficulties relating to application that persist in the coalmining sector, the Committee again requests the Government to avail itself of technical assistance from the Office in order to tackle these problems and requests it to notify the Office of its decision in this regard.

The Committee also draws the Government’s attention to its comments on the application of the Labour Administration Convention, 1978 (No. 150).

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

[The Government is asked to reply in detail to the present comments in 2012.]