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

Convention (n° 81) sur l'inspection du travail, 1947 - Costa Rica (Ratification: 1960)

The Committee notes the comments of the Confederation of Workers Rerum Novarum (CTRN), dated 22 August 2010, as well as the Government’s reply dated 30 March 2011. The Committee also notes the new comments of the CTRN, dated 31 August 2011 which were transmitted to the Government on 22 September 2011. The Committee requests the Government to communicate any information or comment that it may deem appropriate in that regard so as to enable the Committee to examine these comments at the next session.

Articles 3(1)(a) and (2) and 5(a) of the Convention. Labour inspection, economic crisis and collaboration of inspection services with the social partners. In its 2009 observation, the Committee had noted the comments of the CTRN and the Labour Union of the National Bank of Costa Rica (SEBANA), denouncing the incompatibility of a Bill “for the protection of employment in times of crisis”, that had been supported by the Government and entrepreneurs, with the Decent Work Country Programme, since it had been drafted without any consultation with the social partners, in particular with regard to the right of employers to reduce workers’ wages. Moreover, the Committee had noted with concern that, pursuant to Directive No. 004-009, a labour inspector would be designated in order to verify whether, upon the employer’s request, there was a necessity to reduce working days or wages or adopt any other measure affecting workers’ rights during a period of up to six months, as well as whether the request was supported by all the workers, and to submit a report to the regional chief, who would transmit it to the National Directorate of the Labour Inspectorate, so that a decision could be taken in accordance with the law and the directives issued for that purpose by the higher administration of the ministry.

The Committee notes that, by the end of January 2011, the Bill “for the protection of employment in times of crisis” was before the Economic Affairs Commission of the Legislative Assembly and had not been submitted before the Plenary for its discussion nor convoked for analysis, nor subjected to a consultation with the social partners. Furthermore, the Committee notes with interest that Directive No. 007-09 issued by the National Directorate and the Chief Legal Adviser of the General Labour Inspectorate suspends Directive No. 004-09 of 24 March 2009 until a legal framework permitting, supporting and sustaining eventual changes in working time, reduction of wages or of any other entitlement is in place. The Committee requests the Government to provide information on any developments regarding the adoption process of the Bill “for the protection of employment in times of crisis” and, in particular, on the role of inspection within that framework.

The Committee notes that, according to the Government, the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) and the trade union confederations have been requested to forward a list of possible candidates for the National Advisory Council in order to bring it into operation as a tripartite body on labour inspection. The Committee also notes that, in order to bring the Council into operation, the Management Unit of the National Directorate of the Labour Inspectorate included within the objectives of the Institutional Plan of Operations for 2010 the fostering of instances of participation and social dialogue to improve compliance with the labour legislation. Recalling that the issue of the composition of the National Advisory Council has been addressed in its comments since 2004, the Committee hopes that the Government will soon be able to give an account in its next report of the composition of the Council and the commencement of its work and requests the Government to keep the ILO informed of any progress in this regard.

Articles 3(2), 10, 11, 16 and 21(c). The CTRN alleges that, in addition to the fact that the inspectors’ volume of work has increased due to the increase in the number of workers, the amount and complexity of the legislation whose application they have to supervise since the implementation of the transfer of competencies from the inspectorate to the regional offices (established by the Plan of Transformation and by Regulation No. 28578). Moreover according to the CTRN, a greater volume of administrative work has been generated, which has been undertaken by the labour inspectors, due to the fact that regional offices lack clerks and bailiffs. The Union mentions an assessment made by the National Directorate of the Labour Inspectorate in March 2006 where it was stated that one of the obstacles to the inspection work was the fact that the transfer of competencies towards regional offices was not accompanied by the transfer of the necessary resources, in the manner foreseen, and reiterated that inspectors devoted a great part of their working day to conciliation. Owing to that situation, inspection visits were not performed with the required regularity and their number had suffered a steady decrease since 2004. The CTRN also highlights that this 2006 assessment mentioned the scarcity and restrictions to the use of regional offices’ vehicles, the inadequacy of the travel budget, the difficulties in obtaining travel allowances, as well as other shortages.

The Committee notes that according to the Government’s report, as of April 2011, the total number of labour inspectors was 102, approximately half of whom were assigned positions at the Central Regional Office which groups the provinces of San José, Cartago, Heredia and the cantons of Puriscal and Los Santos. The Committee notes that the efforts made by the Ministry of Labour and Social Security between 2008 and 2010 to staff regional offices, particularly with more inspectors, have not been successful, owing to the implementation of austerity policies and the reduction of the state budget in the wake of the international financial crisis. The Government outlined the steps taken vis-à-vis the Ministry of Finance for the creation of 15 additional posts for support staff to assist labour inspectors and conciliators, and refers to the need to hire at least 27 more inspectors in order to be able to meet the needs of the regional offices.

The Government also indicates that: (i) the Ministry of Labour and Social Security endeavours to ensure that labour inspectors devote as much time as possible to their duties to ensure good coverage; (ii) with the support of phase III of the “Cumple y Gana” Project, it has been possible to equip all the inspectors with computers; (iii) the relocation of the office is in process; and (iv) the acquisition of six vehicles has been planned for the transportation of inspectors.

The Committee would be grateful if the Government would provide in its next report information on the number of industrial and commercial workplaces liable to inspection, together with their geographical distribution; the number and category of workers employed in such undertakings (men, women, and young people); the number of vehicles available for labour inspectors or the transport facilities that they may benefit from in the course of duty, together with their geographical distribution; as well as any other useful information for the evaluation, by the competent authority, of the needs of the labour inspection in regard to human resources (inspectors and administrative staff), material means, means or facilities of transport.

Noting with interest that the Government has requested ILO technical assistance with a view to carrying out an evaluation of the labour inspection system to be followed by a plan of action, the Committee requests the Government to keep the ILO informed of all progress made in this respect.

Articles 5(a), 17 and 18. Cooperation between labour inspection services and the judicial system. The Committee notes with interest the information that, in the course of the year 2010, the Advisory Unit of the National Directorate of the Labour Inspectorate sent an official communication to the judicial authorities, to coordinate actions in the labour sphere. The modalities for cooperation through the judicial school are being explored. Similarly, joint activities have been projected for the analysis of labour issues by the Supreme Court of Justice and the Ministry of Labour and Social Security. Furthermore, the Government indicates that, in order to accelerate the administration of justice, a Bill on the reform of the labour procedure had been introduced before the Legislative Assembly.

The Committee would be grateful if the Government would keep the Office informed of the progress made towards strengthening the cooperation between the labour inspection and the justice system in particular with a view to accelerating the administration of labour justice. The Committee also requests the Government to provide information on any measure adopted to improve enforcement and sanction mechanisms for labour law infringements in accordance with Articles 17 and 18 of the Convention.

Article 12(1)(a) and (b). Right of inspectors to freely enter workplaces. The Committee notes that the Government transmits part of Directive No. 23 2008, by the Ministry of Labour and Social Security of 31 July 2008, which contains the new Handbook of Procedures of the Labour Inspection. It notes that the latter does not provide a response to the comments made since 2003 with regard to the scope of the right of inspectors to enter workplaces covered by the Convention. Consequently, and noting that labour inspectors are authorized under section 24(i) of Decree No. 28578 of 3 February 2000 (Regulation on the Organization and Services of the Labour Inspectorate) to visit workplaces during the daytime and night-time, while the right to enter freely at night workplaces liable to inspection is limited by section 89 of the Organic Act of the Ministry of Labour and Social Security to workplaces in which night work is carried out, the Committee urges the Government to take the appropriate measures without further delay in order to bring its national legislation into conformity with the requirements of the Convention in that regard, so that labour inspectors are authorized to enter during the night into all workplaces liable to inspection, regardless of their working hours. The Committee requests the Government to keep the ILO informed of all developments in this regard.

Articles 12(2) and 15(c). Notification of the inspector’s presence when carrying out an inspection and efficiency of supervision and principle of confidentiality. The Committee emphasizes since 2004, the need to set out in the legislation the right of labour inspectors to refrain from informing the employer or his representative of their presence where they consider that such notification may be prejudicial to the effectiveness of the inspections. The Government indicates that it acts in conformity with the Handbook of Procedures of the Labour Inspection, which specifies that, whenever possible, the inspection will be initiated with an interview of the employer or his or her representative in order to indicate its scope, objectives and possible consequences. The Committee draws the Government’s attention to the fact that indicating the objectives of the visit when it originated in a complaint or a denunciation constitutes an obstacle to the principle of confidentiality enshrined in Article 15(c). The Committee requests the Government to endeavour to take the appropriate measures without further delay in order to grant inspectors the right to abstain from notifying their presence to the employer or his or her representative at the beginning of the inspection visit, when they consider that such notification may be prejudicial to the performance of their duties. Furthermore, the Committee requests the Government to take the appropriate measures for the modification of the Handbook of Procedures of the Labour Inspection in accordance with the principle of confidentiality of complaints provided for in Article 15(c) of the Convention.

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