REPRESENTATION (article 24) - BRAZIL - C081 - 1966

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Report of the Committee set up to examine the representation submitted by the Association of Federal Servants of the State of Sao Paulo concerning the application of the Labour Inspection Convention, 1947 (No.81) in Brazil

Report of the Committee set up to examine the representation submitted by the Association of Federal Servants of the State of Sao Paulo concerning the application of the Labour Inspection Convention, 1947 (No.81) in Brazil

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

I. Introduction
1. By letter dated 15 June 1965, the Association of Federal Servants of the State of Sao Paulo (A.F.F.E.S.P.), referring to Articles 24 and 25 of the Constitution of the International Labour Organisation (Endnote_1), addressed to the International Labour Office a representation in the following terms, alleging non-observance of various provisions of the labour Inspection Convention, 1947 (No. 81):
"The Association of Federal Servants of the State of Sao Paulo, on behalf of its members, in virtue of Articles 24 and 25 of the Constitution of the Inter national Labour Organisation, hereby presents to that Organisation a representation for non-observance of various provisions of the Labour Inspection Conventions 1947, and especially Article:11, paragraph 2, of the said instrument, which deals with the reimbursement to labour inspeet-or'S of expenses incurred in the discharge of their duties."
2. The ratification by Brazil of Convention No 81 was registered by the Director General on 25 April 1957. The Convention came into force for Brazil on 25 April 1958.
3. The procedure for the discussion of representations is governed by Standing Orders adopted by the Governing Body on 8 April 1932 and amended on 5 February 1938. Under Article 1 of the Standing Orders, all the steps in the procedure concerning a representation received-by the Office in accordance with Article 24 of the Constitution are confidential until the matter is finally disposed of by the Governing Body, and the meetings of the Governing Body at which these- steps are discussed are to be held in private.
4. In accordance with Article 2, paragraph 1, of the Stand ing Orders, the Director-General communicated the representation to members of the Governing Body on 13 September 1965.
5. In accordance Article 2, paragraph 2, of the Standing-Orders, the Director-General further informed the Governing Body, at its 163rd Session (Geneva, November 1965)(Endnote_2)that apart from such information as appeared in the letter submitting the representation the International Labour Office possessed no information concerning the nature, size or any national or international affiliations of the association which had made the representation. The information referred to by the Director-General was that provided in the letter containing the representation, according to which the association concerned had been founded on 18 August 1951 had been declared of public interest ("declarada de utilidad publica") by Act No.1187, published in the Official Gazette of the State of Sao Paulo of 18 November 1952, and had its headquarters at No. 24, rua Jose Bonifacio, Sao Paulo.
6. Under Article 2, paragraph 3, of the Standing Orders, the Governing Body appointed at its 163rd Session, on the recommenda tion of its Officers, a Committee composed of Mr. R. AGO, Chairman, Sir George POLLOCK (Endnote_3) and Mr. J. MORI.
7. In order to obviate the need to consider itself the various purely procedural questions arising in connection with the examina tion of the representation at successive stages, the Governing Body decided to empower the above-mentioned Committee to perform all the functions entrusted by the 1932 Standing Orders to the Governing Body as a whole until it was in a position to submit to the Govern ing Body proposals as to the action, if any, to be taken on the representation, it being understood that the Committee would report to the Governing Body in due course.
8. The Director-General acknowledged receipt of the represent ation in August 1965. At the same time he communicated the text of the representation to the Brazilian Government for information, advising it that this question would be included in the agenda, of the following session of the Governing Body.
9. In reply, the Brazilian Government addressed to the Director-General on 12 November 1965 a letter containing informa tion concerning the application by Brazil of Article 11 of Conven tion No. 81. Briefly, this communication indicated that Articles 34 and 42 of the Labour Inspection Regulations, which had come into force on 15 March 1965 by virtue of Decree No.55841, were directly related to Article 11 of the Convention and that the administrative measures necessary to cover the expenses incurred in connection with labour inspection to which reference was made in Article 42 of the above-mentioned Regulations were already being applied (Endnote_4).
10. On 16 December 1965, the Director-General received from the A.P.F.E.S.P. a communication dated 10 October, to which were appended a memorandum said various documents supporting the allega tions made in the representation. The memorandum in question con tained the actual allegations of the Association; the other documents submitted in support of the allegations consisted mainly of press cuttings, texts of petitions addressed to Parliament, copies of various regulations relating to labour inspection, and tests of judicial decisions.
11. In view of the scant information which the Office possessed with regard to the association concerned, the Committee authorised the Director-General in January 1966 to request the Association to provide, for the Committee's benefit, information relating in particular to its objectives, its activities and its national and international affiliations, if any. The Director- General addressed a request to that effect to the Association on 26 January 1966. On 18 April 1966, the A.F.F.E.S.P. forwarded to the Director-General various particulars in this respect.
II. Procedure followed by the Committee for examination of the representation
12. The Committee held its first meeting in Geneva on 23 February 1966. It first considered the question of the receivability of the representation and formed the opinion that it fulfilled the conditions required as regards form to permit of its examination as regards substance (Endnote_5).
13. The Committee then decided to ask the Brazilian Government to submit such statement as it might think fit on the subject of the representation; it further decided to put to the Government various questions concerning particular points which had been raised in the representation and which related to the application of Convention No. 81. The Committee requested the Government to forward its reply before 1 May 1966; this time limit was subsequently extended until 1 July 1966 at the Government's request. On 22 July 1966, the Government forwarded to the International Labour Office certain observations concerning the representation.
14. On 11 November 1966, the Committee held a second meeting at which it considered the Government's reply and re-examined the allegations made in the representation in the light of that reply. The present report to the Governing Body was adopted by the Com mittee at that meeting.
15. In preparing its proposals to the Governing Body concerning the action, if any, to be taken on the representation, the Committee considered the two following questions:
A. - Is the representation receivable?
B. - Is the representation well founded?
A. Is the representation is recevable?
16. In accordance with Article 3 of the Standing Orders the receivability of a representation is subject to the various conditions set out in subparagraphs (a) to (f) of paragraph 2 of that article, which read as follows:
(a) it must be communicated to the International Labour Office in writing; See below, paragraphs 1.6-18.
(b) it must emanate from an industrial association of employers or workers;
(c) it must make specific reference to Article 24 of the Constitution of the Organisation;
(d) it must concern a Member of the International Labour Organisation;
(e) it must refer to a Convention ratified by the Member against which it is made; and
(f) it must allege that the Member' against which it is made has failed to secure in some respect the effective observance within its jurisdiction of the said Convention.
The representation made by the Association of Federal Servants of the State of Sao Paulo had to fulfil each of these conditions in order to be receivable, i.e., in order that it might be examined by the Committee as regards substance.
17. The Committee noted that the conditions as regards form laid down in subparagraphs (a), (b), (c) (d),(e) and (f) of paragraph 2 of Article 3 were fulfilled. The representation was addressed to the International Labour Office; it emanated from an industrial association; it was presented specifically as a representation; it concerned a Member of the Organisation; it referred to a Convention ratified by the Member against which it was made; it alleged that the Member against which it was made had failed to secure in some respect the effective observance within its jurisdiction of the said Convention.
18. The Committee therefore considered that the representa tion was receivable as regards form.
B. Is the representation well founded?
19. The purpose of the examination, as regards substance, of the representation made by the Association of Federal Servants of the State of Sao Paulo was, under Article 24 of the I.L.O. Constitution, to determine whether Brazil had failed to secure in any respect - in law and in fact - the effective observance within its jurisdiction of a Convention to which it was a party. The examination related to the obligations undertaken by Brazil by reason of its ratification of the Labour Inspection Convention, 1947 (No, 81). For this purpose, the Committee was called upon first to decide, in accordance with Article 45 paragraph 2 of the Standing Orders:
"(a) to declare that the representation was not well founded; or
(b) to communicate the representation to the Brazilian Government without inviting it to make any statement in reply; or
(c) to obtain further information; or
(d) to communicate the. representation to the Government and to invite the latter to make such statement on the subject as it might think fit."
In any case the International Labour. Office would be required, under Article 4 paragraph 3, of the Standing Orders, to inform the industrial association which had made the representation of the decision taken. In cases (a) and (b).the Committee would be called upon to recommend the Governing Body to declare the procedure closed. In case (c) the decision would have to be postponed until such further information had been received. In case (d) Article 24 in fine of the Constitution and Article 5 (Endnote_6) of the Standing Orders, which relates to further steps in the procedure, would have to be applied.
20. At its first meeting the Committee made an initial examination of the allegations of the association concerned. The Office placed at the disposal of the Committee the information available under the regular supervision procedure, i.e. the text of the reports submitted by the Government under Article 22 of the Constitution and the text of the direct requests and observations addressed to Brazil by the Committee of Experts regarding the application of Convention No. 81. In the light of this examination the Committee decided to communicate the text of the representation to the Brazilian Government and to invite it to.make such statement on the subject as it might think fit.
III. Analysis of the Allegations
21. The allegations contained in the memorandum submitted in support of the representation - the latter being extremely succinct - relate partly to events which.took place prior to the corning into force of Convention No. 81 in Brazil in 1953, and, moreover, to facts which are apparently not directly related to the application of the Convention. All these allegations are nevertheless taken up in the following summary, in order to give as complete a picture as possible of the situation.
22. The complainants assert, first, that labour inspection duties were originally entrusted to persons enjoying the confidence of the political regime in power and that, in view of the recruit ment methods used, most officials did not possess the qualifications and training required. They add that the independence of the inspection services in their relations with undertakings was not guaranteed.
23. In 19545 the complainants continue, the first and only public competitive examination held for the recruitment of labour inspectors was organised by the administrative department of the public service. An improvement was subsequently observed in the quality of labour inspection in Brazil. It is alleged, however, that by means of various legal provisions former inspectors who had been appointed provisionally and subsequently dismissed and replaced by officials who had passed the competitive examination gradually succeeded in regaining their posts. Moreover, it is alleged that the senior posts in the labour administration, including the labour inspectorate, were, as in the past, given to persons with inadequate knowledge of labour inspection.
24. Turning to the period which began with the coming into force of Convention No. 81, the complainants allege that the senior administrative posts in the Ministry of Labour continued to be given "to persons put forward by circles in favour with the authorities or by groups or politicians whose choice is guided sole ly by ideological affinities", without regard to such criteria as cultural standards, records of service and technical training.As regards the entry of unqualified persons into the corps of labour inspectors, this has allegedly continued on the basis of legislative texts tinder which officials may ask to be reclassified as labour inspectors, and by other methods. The complainants feel impelled to make a "particularly strong" protest to the I.L.O, because such practices constitute a violation of Convention No. 81.
25. The complainants add that, in addition to the above-mentioned inadequate qualifications of labour inspection staff, there is the fact that the financial ressources available are still inadequate. This is alleged to have had various consequences. First, there is alleged to be no statistical record of the work of officials and no efficient census, of the undertakings subject to inspection. The position as regards the supply of material needed by inspectors in the performance of their work is allegedly unsatisfactory. Moreover, the amount of the fines imposed on undertakings is said not to have changed, even though in recent years the rise in prices due to inflation has exceeded 2,000 per cent. In consequence, the complainants allege that the penalties imposed have ceased to have an effect, and that inspectors have suffered a loss of authority in their relations with undertakings. The complainants add that, notwithstanding the high qualifications required by their profession, labour inspectors do not receive from the Government "the treatment to which the importance of their duties entitles them". For example, the Government in power since April 1964 "has seen fit to lower the status of labour inspectors by ceasing to grant them salary conditions in keeping with the undertakings freely entered into by-Brazil with the I.L.O.". The specific points made by the complainants in this respect are indicated below in connection with the examination of the allegations relating to the labour Inspection Regulations adopted in 1965.
26. As regards the regulations now applying to labour inspec tion, the complainants first point out that Labour Inspection Regulations were adopted by the Government on 15 March 1965. They complain, in the first place, that the authorities did not consult the persons primarily concerned, i.e. the labour inspectors, when these regulations were drawn up, "with the obvious intent of preventing contestation on certain points contrary to the spirit of the legislation".
27. The complainants further assert that certain provisions of these regulations - which, in their view, constitute on the whole a step forward - are not applied (in particular the provisions relating to the payment of travel and subsistence allowances to inspectors) or only partially applied (e.g. the provisions relating to the establishment of local offices). In the view of the complainants, these shortcomings in the application of the Regulations are due mainly to lack of funds; they add that inspectors are sometimes obliged to spend their own money to meet expenses connected with their work because requests for reimbursement result "at best, in waste of time".
28. The complainants then enumerate the provisions of the Regulations which seem to them to be contrary to Convention No. 81, beginning with those which lay down that persons who, in their view, do not meet the necessary requirements, such as female welfare workers, belong to the federal corps of labour inspection officials.
29. As regards salary, the complainants deplore the fact that the new Regulations provide only for a "budgetary allowance" -which they consider uncertain, having regard to current administrative practice - instead of allowances for representation expenses and university education, and advantages for full-time service, all of which allegedly form part of the remuneration granted by legislation to other federal officials who discharge highly responsible functions or are called upon to devote all their time to their work.
30. The complainants refer to forthcoming upheavals in the labour inspection services and allege that the Central Governments "acting in accordance with directives whose source it has not been possible to determine", has established a committee which is to study the question of an agreement to be concluded between the Central Government and the constituent states for the purpose of entrusting officials appointed by the latter with the task of supervising the application of occupational health and safety standards. It is alleged that this committee is pursuing its work despite the protests made by the Association of Federal Labour Inspection Officials and in violation of the rules which prohibit the delegation of functions directly related to labour supervision to persons outside the federal inspection system.
31. It is claimed that, whereas labour inspectors are now deprived of advantages formerly granted to them by reason of their duties, they are being given new responsibilities in connection with the application of the social and fiscal measures taken following the revision of the economic action plan. The complainants assert, lastly, that many labour inspectors were ill- treated during the civil disturbances which led to the deposition of the previous government. They allege that some were arbitrarily arrested on the pretext of repression of subversive activities and that others were dismissed without being able to defend themselves.
IV. Reply of the Government to the Questions Put to it by the Committee
32 This section of the report contains the text of the provisions of Convention No. 81 in respect of which, on the basis of the allegations made, the Committee addressed to the Government a request relating to particular points; it also contains the actual text of that request and of the reply received in regard to each of these provisions of the Convention.
33. Article 3, paragraph 2
"2. Any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relation with employers and workers."
34. In its request, the Committee mentioned the complainants' allegation that "whereas the steps taken by the Government tend to deprive federal inspection officials of all the advantages which they enjoyed "by reason of their important duties, they are being given new responsibilities as a result of the revision of the Government's economic action plan. They are responsible for supervising the application of the social and fiscal measures taken under the plan". The Committee requested the Government to indicate, first, the relative importance, in practice, of, the various duties of federal labour inspectors and, secondly to describe any other duties which might be entrusted to federal labour inspectors, in addition to those set out in the Labour Inspection Regulations of 15 March 1965.
35. In reply, the Government stated that it was not a fact that it had entrusted new responsibilities to federal inspection officials in addition to those assigned to them by the Labour Inspection Regulations of 15 March 1965. It added that it could not accept the statements made in the representation with respect to this point, because these statements were, in its view, based on subjective considerations. The publication from which they appeared to have been taken was, moreover, not an official publication; it had a very small circulation and had no standing in specialised circles.
36 . Article 4
"1. So far as is compatible with the administrative practice of the Member, labour inspection shall be placed under the supervision and control of a central authority.
2. In the case of a federal State, the term 'central authority' may mean either a federal authority or a central authority of a federated unit."
37. In its request, the Committee drew attention to the complainants' allegation that inspection duties were henceforth to be entrusted to officials responsible not, as at present, to the Federal Ministry of Labour but to the administrations of the constituent states of the Union. While recognising that Article 4 of Convention No. 81 specifies that "in the case of a federal State the term "central authority" may mean either a federal authority or a central authority of a federated unit", the Committee requested the Government to indicate whether any measures were contemplated in this respect and, if so, to provide details of such measures.
38. In its reply, the Government stated that it was not a fact that duties of labour inspectors were to be entrusted to officials responsible to the administrations of constituent states. The Brazilian would indeed be unable to take such a step because the Federal Constitution (Article 5, XV) assigns full competence in the field of labour legislation to the Union. Only federal officials responsible to the federal Ministry of Labour may be given inspection duties relating to the application of labour standards.
39. Article 6
"The inspection staff shall be composed of public officials 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."
40. The complainants' allegations implied that labour inspectors were at a financial disadvantage by comparison with other federal officials and that the inspectorate did not enjoy the independence required for the discharge of its duties. The Committee requested the Government to forward its observations on these allegations and, in particular, to inform the Committee whether there were any special measures relating to the remunera tion of labour inspectors which created a difference between them and other federal officials.
41. The Government replied that it could not be stated that labour inspectors were at a financial disadvantage by comparison with other federal officials. Their duties were classified at levels 17 and 18, which meant that they were among the public officials with the highest remuneration. Nor could it be claimed that they did not enjoy the independence required for the dis charge of their duties.
42. Article 7
"1. Subject to any conditions for recruitment to the public service which may be prescribed by national law or regulations,labour inspectors shall be recruited with sole regard to their qualifications for the performance of their duties.
2. The means of ascertaining such qualifications shall be determined by the competent authority.
3. Labour inspectors shall be adequately trained for the performance of their duties."
43. Having noted that various allegations related to the methods used to recruit labour inspectors, the Committee requested the Government to furnish details of the manner in which this article of the Convention had been applied since 1958 - when the Convention came into force in Brazil - as regards the recruitment of new inspectors, and to indicate whether, and in what manner, competitive or other examinations had been organised. It noted, Jiand, that the complainants alleged that no competitive entrance examination had "been organised since 1954 and, on the other hand, that the labour inspection regulations contained no provisions relating to this matter.
44. The Government replied that under Article 186 of the Constitution, whose provisions were reflected in various legislative texts, in particular the regulations relating to federal public officials, it was not possible to enter public service in Brazil otherwise than by means of a competitive examination. In consequence, labour inspectors, like other officials of the Union, were recruited, with sole regard to their qualifications for the performance of their duties. If should be noted, furthermore, that the legality of administrative acts was subject to the control of the national judicial authority.
45. Articles 8 and 9
"Both men and women shall be eligible for appointment to the inspection staff; where necessary, special duties may be assigned to men and women inspectors."
"Each Member shall take the necessary measures to ensure that duly qualified technical experts and specialists, including specialists in medicine, engineering, electricity and chemistrys. are associated in the work of inspection, in such manner as may be deemed most appropriate under national conditions, for the purpose of securing the enforcement of the legal provisions relating to the protection of the health and safety of workers while engaged in their work and of investigating the effects of processes, materials and methods of work on the health and safety of workers."
46. As regards the allegations that female welfare workers belonged to the labour inspection corps although they did not meet the necessary requirements, the Committee asked what qualifications such workers were required to possess in order to carry out labour inspection duties.
47. The Government stated that under Article 2 of Decree No. 55.841 of 15 March 1965. approving the Labour Inspection Regulations, labour inspection duties were to be carried out by:
(a) labour inspectors;
(b) industrial physicians, as regards inspection of occupational health;
(c) engineers, as regards inspection of occupational safety;
(d) female welfare workers, as regards inspection of the work of women and minors.
Thus, the Government added, the duties of female welfare workers were to supervise, in particular cases, the work of women and minors; their profession, which was governed by regulations, was of university standard.
48. Article 10
"The number of labour inspectors shall be sufficient to secure the effective discharge of the duties of the inspectorate and shall be determined with due regard for:
a) the importance of the duties which inspectors have to perform, in particular;
(i) the number, nature, size and situation of the workplaces liable to inspection;
(ii) the number and classes, of workers employed in such workplaces; and
(iii) the number and complexity of the legal provisions to be enforced;
(b) the material means placed at the disposal of the inspectors; and
(c) the practical conditions under which visits of inspection must be carried out in order to be effective."
49. As regards the allegations relating to the lack of effectiveness of the inspection service, the Committee requested the Government to furnish details regarding the staffing of the inspection corps and the practical conditions under which visits of inspection were carried out (Article 10(c)) and any other information, especially statistical information, which the Govern ment might be able to provide on this subject.
50. The Government did not reply to the question put to it by the Coromittee on this point.
51. Article 11
"1. The competent authority shall make the necessary arrangements to furnish labour inspectors with:
(a) local offices, suitably equipped in accordance with the requirements of the service, and accessible to all persons concerned;
(b) the transport facilities necessary for the performance of their duties in cases where suitable public facilities do not exist.
2. The competent authority shall make the necessary arrangements to reimburse to labour inspectors any travelling and incidental expenses which may be necessary for the performance of their duties."
52. In view of the various allegations made - lack of premises or inadequate premises, non-reimbursement of travel and subsistence expenses away from the duty station - with regard to the application of this article, and having regard to the informa tion already furnished by the Government in its letter of 12 November 1965 to the Director-General of the International Labour Office concerning the legislative measures taken in this respect by means of the adoption of the Labour Inspection Regulations of March 1965,the Committee requested the Government to furnish details, especially numerical details, relating to the practical application of the provisions of Article 11 as regards the provision of local offices and transport facilities and the reimbursement of travel and incidental expenses incurred by inspectors in the performance of their duties.
53. The Government replied that, as regards the financial advantages offered to inspectors. Decree No. 55.841 of 15 March 1965 approving the Labour Inspection Regulations entitled them to reimbursement of the travel and incidental expenses necessary for the performance of their duties. The Government further stated that the Ministry of Labour had just submitted to the Presidency of the Republic a Bill fixing the allowance payable to labour inspection officials at one-third of their salary, the aim of this action by the executive authority being to counteract the effects of an earlier Act which had abolished the payment formerly made for representation expenses. As regards the provision of local offices suited to the requirements of the inspection services, all the regional labour offices had a special service for labour inspection; this service was accommodated in such a way as to facilitate the work of inspectors and was accessible to all concerned.
54. Article 16
"Workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant 1egal provision."
55. Having regard to the general allegations of the complainants concerning the ineffectiveness of the inspection services, the Committee asked the Government to indicate how this provision was applied in practice.
56. The Governement replied that there were periodical visits to workplaces in all the states of the federation; the inspectors were designated in accordance with a, rota; the workplaces were classified according to area. Although, the Brazilian legislation laid down the principle of a follow-up visit, hundreds of reports relating to infringements were drawn up each month for the country as a whole.
57. Article 18
"Adequate penalties for violation of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties shall be provided for by national laws or regulations and effectively enforced."
58. The complainants alleged that they had suffered a loss of authority because the amount of the fines which could be imposed by labour inspectors was negligible. The Committee there fore requested the Government to specify the nature of the penalties imposed, and in particular the amount of the fines for violation of the legal provisions whose application was subject to inspection.
59 The Government replied in the following terms:
"As regards the effectiveness of the work of the inspection service, there has been a marked improvement since the approval of Act No. 4.357 of 16 July 1964. This Act established a fixed relationship between the amount of the fines for infringement of labour legislation and the minimum wage, thereby counteracting the effects of the devaluation caused by inflation.
The fines laid down by the 1943 Compilation of Labour Laws no longer constituted an effective penalty because of the depreciation of the currency. The situation has now changed considerably because the amount of fines depends on the value of the minimum wage, which is constantly revised in accordance with the development of the national economic situation. There are consequently heavier penalties for infringements and the result of the work of labour inspectors has become appreciable in financial terms."
60. Articles 19 to 21
"1. Labour inspectors or local inspection offices, as the case may be, shall be required to submit to the central inspection authority periodical reports on the results of their inspection activities.
2. These reports shall be drawn up in such manner and deal with such subjects as may from time to time be prescribed by the central authority; they shall be submitted at least as frequently as may be prescribed by that authority and in any case not less frequently than once a year.
"1 The central inspection authority shall publish an annual eneral report on the work of the inspection services under its control.
2. Such annual reports shall be published within a reasonable time after the end of the year to which they relate and in any case within twelve months.
3. Copies of the annual report shall be transmitted to the Director-General of the International labour Office within a reasonable period after their publication and in any case within three months."
"The annual report published by the central inspection authority shall deal with the following and other relevant subjects so far as they are under the control of the said authority:
a) laws and regulations relevant to the work of the inspection service;
b) staff of the labour inspection services
c) statistics of workplaces liable to inspection and the number of workers employed therein;
d) statistics of inspection visits;
e) statistics of violations and penalties imposed;
f) statistics of industrial accidents;
g) statistics of occupational diseases."
61. The Committee, noting that the complainants alleged that there were various gaps in the preparation of the reports required under these provisions and that the International Labour Office had not up to that time received any report of the type mentioned a Article 20, requested the Government to furnish information concerning the practical application of these provisions.
62. The Government replied that Decree No. 55.841 of 5 March 1965, which provides for the application of the Labour inspection Regulations, dealt in detail with the preparation of the reports on the work of the labour inspectorate, in order to permit full compliance with Articles 20 and 21 of the international instrument. The most recent information forwarded to the I.L.O. a this subject related to 1964 (Endnote_7). The information relating to 1965 was currently being brought up to date and classified, and the report provided for would, the Government stated, shortly be communicated to the I.L.O.
63. Following its examination of the Government's reply the Committee noted the following facts.
64. It may be inferred from the reply furnished by the Government that the allegations of the complainants are unfounded in the case of Articles 4, 6 (as regards the remuneration of inspectors), 8 and 9.
65. As a result of the Government's reply regarding Article 18, the complainants' allegations, which might have some founda tion in so far as they relate to the period before 1964, may be considered as no longer valid with respect to the period follow ing that date.
66. On the other hand, the Government, while rejecting, either expressly or implicitly, the allegations concerning the application of Article 3, paragraph 2, Article 6 (as regards the independence of inspectors) and Articles 11, 16 and 19 to 21, does not provide, in respect of these articles, such clarification as would make it possible to infer that the complainants' allegations are unfounded.
67. Lastly, the Government does not appear to contest the allegation relating to Article 7, according to which no competi tive entrance examination for the inspection corps has been held since 1954, although it states that "it is not possible to enter public service in Brazil otherwise than by means of a competitive examination"; nor has it furnished any reply in respect of Article 10.
68. The Committee therefore considered that, while the manner in which certain provisions of Convention No. 81 were applied had been explained satisfactorily and there was con sequently no need for further examination of these points, there remained some doubt as regards other articles, either because there been no reply to allegations or because the replies, received could not be considered fully satisfactory.
69. With respect to the effect to be given in particular Article 11 of Convention No. 81, the Committee would like to draw the Government's attention to the importance of having sufficient credits available at all times for the reimbursement of expenses provided for and to the importance of making administra te arrangements to ensure that payment is effectively and promptly made.
70. With, regard to Articles 19 to 21, since the preparation of periodical reports on the activities of the inspection service of fundamental importance for the practical effectiveness of inspection, the Committee considers it essential that the Governant should examine the matter closely and make available regularly these reports the information required by the Convention.
V. Procedure adopted by the Committee following the receipt of the reply of the government
71. After receiving the reply of the Government concerned the questions put to it, the Committee was called upon to decide either that:
1) it considered the reply to be satisfactory and consequently felt able to recommend that the Governing Body should close the procedure (Article 7) (Endnote_8) or that;
2) it did not consider the reply satisfactory (Article 8)(Endnote_9) , in which case it would decide either:
(i) to ask for further information; or
(ii)to open the discussion on the application of Article 25 of the Constitution, in which a representative of the Government could be invited to take part.
72. After the discussion in question, the Committee could (a) recommend the Governing Body to declare the whole procedure closed, (b) ask for further information, or (c) recommend the Governing Body to consider the representation as well founded and possibly to publish the representation and, if it is so desired, the Government's reply (Article 11) (Endnote_10).
73. The facts noted by the Committee following its examina tion of the case have led it to submit to the Governing Body recommendations relating simultaneously to the closure of the procedure and the further examination of the case by I.L.O. bodies.
74. It is indeed the view of the Committee, as indicated above, that some points may be considered as having been clarified as a result of the replies furnished by the Government, whereas further questions have remained unanswered or raise problems to which no satisfactory solution has been found.
75. In these circumstances, it did not seem appropriate for the procedure to be purely and simply closed. The Committee could of course have decided to ask for further information, as authorised by the Standing Orders applicable; it decided not to do so, having regard both to the time which had already elapsed since the submission of the representation in June 1965 and to the information at present at its disposal.
76. Bearing in mind the existence of permanent machinery for supervising the application of ratified Conventions, the Committee considered that the most appropriate way of providing for further examination of the questions raised by the representation submitted to it would be to communicate to the Committee of Experts on the application of Conventions and Recommendations this report and all the information at its disposal. That would enable the Committee of Experts to consider the points calling for more detailed study, and the proceedings in the Committee appointed to examine the representation would accordingly be concluded. The Committee of experts, which is already seized of the question of the application of the Convention by Brazil, and in particular of certain questions related to the points still in abeyance, could continue the examination of those points.
77. The Committee accordingly recommends the Governing Body:
a) to take note of the present report;
b) to declare the closure of the procedure initiated in the Governing Body following the representation submitted by the Association of Federal Servants of the State of Sao Paulo concerning the application of the labour Inspection Convention, 1947 (No. 81) in Brazil;
c) to communicate to the Committee of Experts on the Applica tion of Conventions and Recommendations this report and all the information received, by the Committee appointed to examine the representation and to request the Committee of Experts to pursue, under the arrangements for supervision of the application of ratified Conventions on the basis of the reports provided for in Article 22 of the Constitution, the examination of such questions raised by the representation as are still in abeyance;
(d) to request the Brazilian Government to be good enough to communicate to the Director-General, for consideration by the Committee of Experts on the Application of Conventions and Recommendations, any further information regarding The application of Convention No. 81 which it may deem appro priate, with particular reference to the various points mentioned in this report;
(e) to request the Director-General to inform the Brazilian Government and the association which made the representation of the decisions taken.
Geneva, 11 November 1966
Roberto Ago
Chairman
Endnote 1
These articles read as follows:
"Article 24: In the event of any representation being made to the International Labour Office by an industrial association- of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
"Article 25: If no statement is received within a reasonable timef from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it."
Endnote 2
See G.B. 163/17/33
Endnote 3
Since Mr. C. KUFTSCHEN, who was nominated by the Employers as a member of the Committee, ceased to participate in the work of the Governing Body as from its 166th Session,, he was replaced as a member of the Committee as from that session.
Endnote 4
The provisions in question read as follows:
"Article 34 : On the requisition of the head of the competent service, transport undertakings, including those operated by the Union, the states, the territories and the municipalities, shall grant a free travel vouchers to official of the labour inspectorate within the territories where they carry out their duties. (Article 630, sole paragraph, of the labour laws).
"Article 42: On days when they have carried out field duties attested to by the report mentioned in Article 8, subparagraph "o", officials of the labour inspectorate shall be entitled to indemnification for transport expenses not covered by the free travel voucher referred to in Article 34 and for incidental expenses incurred in the course of those duties (Article 11, paragraph 2, of Convention No. 81) in accordance with the classification laid down by ministerial order; the indemnification shall be paid monthly by debiting the appropriate budgetary account.
Paragraph 1: The indemnification referred to in this Article shall not exceed one-third of one day's salary of the official of the labour inspectorate concerned.
Paragraph 2: For the purposes of this Article, the following headings "02.12 - Special Expenditure of the Labour Inspectorate" (I.L.Q. Convention No. 81, Art. 11, paragraph 2), shall be included in the draft budget of the Union, in the section relating to civilian staff (Ministry of Labour and Social Welfare).
Paragraph 3: The payment of the indemnification referred to in this Article cannot prejudice the daily allowance to which the official is entitled, nor other rights and advantages provided for in the Regulations applying to civilian public servants of the and the relevant supplementary legislation."
Endnote 5
See below, paragraphs 1.6-18.
Endnote 6
Article 5 reads as follows:
"1. If the Governing Body decides to communicate the representation to the Government against which it is made and to invite that Government to make the statement provided for in Article 24 of the Constitution, it shall fix a reasonable time limit within the meaning of Article 25.
"2. If the Government against which the representation is made has any observations to make on the subject of the length of the time, it may ask to appoint a representative who shall be heard by the Governing Body on the particular point in question at the earliest possible moment."
Endnote 7
In September 1966, the Government communicated to the Comittee certain statistics which had previously been submitted to Retrommendations and which related to recorded infractions, formal orders, notices, inspection visits and other steps taken in 1964 in the various constituent states of the Union.
Endnote 8
Article 7 reads as follows:
"1. If the Governing Body receives a statement which, after considering the report of the Committee provided for in paragraph of Article 2 above, it considers to be satisfactory it shall declare the whole procedure closed.
"2. The International Labour Office shall, in writing, inform the Government against which the representation was made and the industrial association which made the representation of the decision taken."
Endnote 9
Article 8 reads as follows:
"If the Governing Body receives a statement which, after considering the report of the Committee provided for in paragraph 3:
(a) ask for further information, in which case the decision shall be adjourned until such information shall be received; or
(b) decide to open the discussion on the application of Article 25 of the Constitution."
Endnote 10
Article 11 reads as follows:
"1. When the Governing Body has discussed the question in the light of the report of the Committee provided for in paragraph 3 of Article 2 above, it may:
(a) declare the whole procedure to be closed, or
(b) ask for further information, in which case a final decision shall be adjourned until such information shall have been received; or
(c) declare that the representation is well founded and decide to publish it as well as the statement, if any, made in reply to it.
2. In any event, the International Labour Office shall, in writing, inform the Government against which the representation has been made and the industrial association which made the representa- tion, of the decision taken."