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Labour Inspection Convention, 1947 (No. 81) - Yemen (RATIFICATION: 1976)

Other comments on C081

Observation

Direct Request

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With reference to its observation, the Committee would like in addition to raise the following points.

Articles 2(1), 3(1), 16, 17 and 23 of the Convention. Labour inspection and child labour. The Committee notes that, according to the ILO inspection audit referred to in the Committee’s observation and conducted at the request of the Government in October 2009, and further to the Committee’s comments in the direct request in 2009 under the Worst Forms of Child Labour Convention, 1999 (No. 182), the national legal provisions on child labour are still rarely enforced, so that child labour remains widespread, especially in the agricultural sector and rural areas. The Committee asks the Government to describe the measures taken by the labour inspectorate with a view to securing the enforcement of the legal provisions relating to the employment of children and young persons, and to provide information on their outcome (number of infringements detected, investigations, prosecutions, convictions and penal sanctions applied, remedies provided, etc.).

Articles 2(1), 3(2), 5(a), 6, 10, 11 and 12 and 23. Labour inspections in the oil sector. According to the findings of the labour inspection audit, labour inspectors are provided with transport, lodging and meals by oil companies during labour inspections in this sector. The Committee would like to emphasize that this practice not only poses a problem in relation to the required independence and neutrality of labour inspectors, but also the efficiency of inspections in this sector, as the prior notification of employers is a logistical necessity in order to be granted the abovementioned means of inspection, and employers are given the opportunity, if they so wish, to camouflage potential shortcomings. Furthermore, the dependence on third party logistics for inspections means the restriction in practice of the free initiative of inspectors to enter workplaces liable to inspection.

The Committee further notes from the labour inspection audit that labour inspections in the oil sector are made a priority, among other reasons, because of the large number of foreign nationals employed there in comparison with other sectors. In this regard, it also notes that inspections in the oil sector are carried out together with labour inspectors and representatives from the Ministry of Oil and Mineral Resources, as well as representatives of the Passports Department. The Committee asks the Government to provide clarifications on the procedure concerning labour inspections in the oil sector. It invites the Government to take measures to ensure that the labour inspectorate has the necessary human and material resources to carry out inspections in all economic sectors without any dependence on third party resources, so that these inspections can be conducted with the neutrality required.

Furthermore, the Committee asks the Government to specify the role of labour inspectors in the framework of joint inspections with representatives of the Ministry of Oil and Mineral Resources and the Passports Department, as well as the number of inspections carried out in this sector, and their outcome (number and nature of infringements detected, legal provisions concerned, the penalties imposed and the corrective measures taken, including the issuance of work permits for foreign workers, etc.).

Please indicate in particular the manner in which the enforcement of employers’ obligations with regard to the rights of undocumented foreign workers is ensured for the period of their effective employment relationship, especially in cases where such workers are liable to expulsion from the country.

Article 3(1) and (2). Additional functions entrusted to labour inspectors. The Committee notes from the labour inspection audit that both individual and collective labour disputes are handled by labour inspectors. In this regard, the Committee would like to refer the Government to paragraph 72 of its 2006 General Survey on labour inspection, in which it emphasizes that the time and energy that labour inspectors spend on seeking solutions to collective labour disputes, especially in a situation in which resources are scarce, is often at the expense of the performance of their primary duties, as defined in Article 3(1) of the Convention. The Committee asks the Government to indicate the proportion of supervisory activities carried out by inspectors in relation to their conciliation duties and, where appropriate, to take measures to relieve labour inspectors of conciliation duties so that they can resume their primary duties as defined in Article 3(1) of the Convention with a view to enabling them to carry out inspections in the highest possible number of industrial and commercial workplaces liable to inspection.

Articles 4, 5(a) and 11. Effective organization and functioning of the labour inspection system under the supervision and control of a central authority. Cooperation with other government services and public institutions. The Committee notes from the labour inspection audit that there is insufficient coordination between the Directorates at the Ministry of Social and Labour Affairs (MOSAL), including between the Directorates for the General Administration of Labour Inspection (GALI) and the General Administration of Occupational Safety and Health (GAOSH). Furthermore, the labour inspection services are not provided with adequate resources, with the GALI disposing of the smallest budget among all Directorates. In this regard, the Committee notes the recommendations made in the ILO inspection audit concerning the integration of the functions of labour inspection and occupational safety and health (OSH) inspection, through the establishment of an independent institution under the MOSAL and provided with adequate financial resources.

The Committee also notes from the ILO inspection audit that there is insufficient cooperation and coordination between the labour inspection services and other government institutions assuming similar functions. In this regard, the Committee notes the recommendation in the ILO inspection audit regarding the development of such cooperation and coordination mechanisms, mainly between the General Corporation for Social Insurance (GCSI) and the Ministry of Fisheries, where a large part of the working population is employed, but which is currently neglected by labour inspection. The Committee asks the Government to indicate the measures taken or envisaged to give effect to the abovementioned recommendations on the establishment of a functioning system of labour inspection placed under the control of a central authority and endowed with sufficient budgetary resources for the discharge of its functions.

Referring also to its previous comments in this regard, the Committee once again asks the Government to indicate the measures taken to secure effective cooperation between the labour inspection services and the other public or private institutions and bodies engaged in similar work, so as to enlist their support in the control and supervision in all the areas for which it is responsible. The Committee also once again asks the Government to indicate the measures established or envisaged to enhance effective cooperation between the labour inspection services and the judicial authorities.

Article 5(b). Collaboration with employers and workers or their organizations. The Committee notes that, according to the assessment in the labour inspection audit, the General Federation of the Trade Unions of Yemen (GFTUY) and the Federation of Yemeni Chambers of Commerce and Industry (FYCCI), deplore their lack of association in labour inspection activities. It notes the recommendations made concerning the active involvement of the social partners in labour inspection activities, including through the development and implementation of related policies and strategies, and capacity building for the social partners through training and awareness-raising measures (media campaigns, brochures). The Committee asks the Government to indicate the measures taken or envisaged to promote effective collaboration between labour inspectors and employers’ and workers’ organizations, in light of the abovementioned recommendations.

Article 6. Conditions of service of labour inspectors. The Committee notes from the ILO labour inspection audit that labour inspectors are governed by Civil Service Act No. 19 of 1991, and receive the same salaries as other civil servants. The average salary of a labour inspector is about 30,000 Yemeni rials (YER) (about US$150) which, according to the findings in the audit, is not enough to provide for the basic requirements for a small family. Some 30 per cent of the penalties collected from employers are deducted by each regional labour office, 10 per cent of which are paid to inspectors as an additional allowance. As a result, in addition to their salaries, each inspector receives about YER5,000 to YER10,000 per month (about US$25 to US$50).

The Committee has emphasized, in paragraph 204 of its 2006 General Survey on labour inspection, that it is vital that levels of remuneration and career prospects are such that high-quality staff are attracted, retained, and protected from any improper influence. In paragraph 214 of the General Survey, it further indicated that a low standard of living can expose inspection officials to the temptation to treat certain employers leniently in exchange for favours. The Committee notes the recommendation in the labour inspection audit for an increase in the inadequate salaries and allowances of labour inspectors to cover at least basic living conditions, and the consideration of options such as an incentive system based on performance and evaluation to ensure neutrality, avoid corruption and increase motivation, rather than maintaining a system of income that is to a certain extent linked to the amounts of fines collected. The Committee invites the Government to indicate the follow-up measures taken or envisaged to implement these recommendations.

It requests the Government to take all the necessary measures to ensure that the conditions of service of labour inspectors, including the system of remuneration and wage levels, are such that labour inspectors are independent of improper external influences, including from the employers concerned, and that they enjoy the required neutrality for the proper discharge of their duties, in conformity with the principles laid down by this Article.

Article 7. Recruitment of sufficiently qualified labour inspectors and their initial and subsequent training. The Committee notes from the information in the ILO inspection audit that labour inspectors are recruited as civil servants in accordance with Civil Service Act No. 19 of 1991, which stipulates, among others, that labour inspectors shall be qualified for the vacancy they apply for. However, civil servants are not tested before appointment, but remain under probation for a period of six months from the date of appointment. The newly recruited labour inspectors do not undergo any formal training, but accompany their senior colleagues as trainee inspectors for practical training for varying periods of time.

According to the information in the audit, labour inspectors are insufficiently trained and lack the knowledge and experience for the effective discharge of their functions. In light of the above, the Committee notes the recommendation in the ILO inspection audit that labour inspectors should be selected with sole regard to their qualifications, and that they should receive initial training prior to assuming office, as well as comprehensive training during the course of employment, and that a national training plan or programme should be established at the GALI to this end. The audit further suggests the establishment of a training unit with a library and the reform of the labour and OSH inspection checklists and forms in order to cover more aspects of the working conditions and terms of employment in inspected enterprises, and the development of a “guide for labour inspection”. The Committee would be grateful if the Government would provide information on the measures taken or envisaged to implement the abovementioned recommendations, in order to ensure that labour inspectors are adequately trained on a regular basis, both when they enter the service and during the course of their employment.

Please also provide information on the training activities undertaken during the period covered by the next report (the subjects covered, the frequency of such training and number of participants, etc.).

Articles 8, 9, 10 and 11. Number of inspectors, including women inspectors, and allocation of sufficient human and material resources (transport facilities, etc.) to the labour inspection services. According to the information in the labour inspection audit, the number of labour and OSH inspectors is very limited and insufficient to cover the large number of registered industries in the country. Furthermore, the segregation rules in the country, and the fact that the majority of inspectors are male, prevents the proper inspection of women workers’ conditions in the respective establishments. There are 41 labour inspectors (but no women) throughout the structures of the GALI, of which 14 are directors of regional labour offices, and therefore not directly involved in labour inspection activities. Furthermore, the Committee understands from the labour inspection audit that there are 18 OSH inspectors (of which seven are women) working throughout the structures of the GAOSH, of which some are directors who do not conduct inspection visits. There are no OSH specialists working at the GAOSH, except for one physician (general practitioner).

The Committee notes that, according to the labour inspection audit, the minimum logistical requirements for labour inspection are not available. For instance, there are no transport means and inspectors have no access to computers or the Internet, and all inspection activities are manual. Expenses incurred by the inspectors for work-related purposes are not reimbursed. The GAOSH has however some equipment for the monitoring of physical pollutants in the workplace, such as noise, illumination, heat and moisture.

In light of the above, the Committee notes the recommendations made in the ILO labour inspection audit relating to: the revision of the budget of the MOSAL and the allocation of adequate financial resources for labour inspection activities; an increase in the number of labour inspectors, and particularly OSH inspectors; an increase in the number of women inspectors; the recruitment of physicians, to be trained and qualified in OSH; the provision of adequate means of transport for inspections and the computerization of inspection activities through access to computers and the Internet. The Committee asks the Government to make every effort to provide the labour inspection services with the financial, material and human resources necessary for the effective performance of their duties, and to report in detail on the measures taken or envisaged for the implementation of the abovementioned recommendations in this regard, including the effort to acquire international financial assistance for this purpose.

Please provide, in the next report, up-to-date information on the proportion of the national budget and the budget of the MOSAL allocated to the public labour inspection services, the number of men and women labour inspectors exercising at the central and regional levels, and the material resources, including computers, facilities and means of transport available.

Article 12(c)(i). Powers of labour inspectors. Further to its previous comments, the Committee notes that the Labour Code, in the version available at the ILO, still does not include the power of labour inspectors to interrogate employers or workers. Noting that a relevant recommendation on the establishment of this power in the national legislation has also been included in the ILO labour inspection audit, the Committee asks the Government to keep the Office informed in this regard, and to send a copy of any legislative texts, once they have been adopted.

Articles 3(1)(b), 13 and 14. Notification to the labour inspectorate of industrial accidents and cases of occupational disease, and inspection activities aimed at their prevention. The Committee notes that section 114 of the Labour Code provides that the employer shall keep records of industrial accidents and cases of occupational disease, notify the competent authorities and submit statistics on industrial accidents and occupational diseases to the ministry upon request. There are, however, no clear provisions concerning the obligations and responsibilities of employers towards their employees in the event of industrial accidents and cases of occupational disease. Furthermore, according to the information in the labour inspection audit, there is no functioning system for the notification, investigation and documentation of industrial accidents and cases of occupational disease in practice. Most industrial accidents are not notified, whereas no work-related diseases are notified, as they are usually not identified or diagnosed, which is mainly due to the lack of human and technical resources. In this regard, the Committee notes that the labour inspection audit recommends the development, in cooperation with the social partners, of a system for the notification and investigation of industrial accidents and cases of occupational disease.

According to section 118 of the Labour Code, inspectors have no powers of injunction, but may request a ministerial decision for temporary suspension of any machine thought to be a source of danger, for not more than one week. If violations are not removed during this period, the matter may be referred by the minister to a “specialized arbitration committee” for longer or permanent suspension. The Committee asks the Government to provide information on any measures taken or envisaged for the development of a system for the notification, investigation and documentation of industrial accidents and cases of occupational disease as recommended in the labour inspection audit, including legislative measures to determine the cases, conditions and the manner in which the labour inspectorate must be informed of industrial accidents and cases of occupational disease.

The Committee also requests the Government to provide information and data on the investigation of industrial accidents and cases of occupational disease (numbers of cases reported to the labour inspectorate, as well as number of investigations, findings and follow-up measures, including the sanctions imposed).

The Committee further asks the Government to provide information and data on the preventive action taken at the request of the labour inspection services with a view to remedying defects observed in plant, layout or working methods which labour inspectors may have reasonable cause to believe constitute a threat to the health or safety of the workers, including the measures ordered with immediate executory force in the event of imminent danger to the health or safety of the workers, following a relevant request by the labour inspectorate.

Articles 17 and 18. Sufficiently dissuasive sanctions. The Committee notes that the sanctions under Labour Code No. 5 of 1995, in its current version, range from YER500 to YER20,000 (about US$2.5 to US$100), or imprisonment for a period not exceeding three months. In this regard, it notes the recommendation in the labour inspection audit for an increase in the sanctions set out in national law so that they are sufficiently dissuasive. The Committee requests the Government to indicate the legislative measures taken or envisaged in order to ensure that sanctions for labour law violations, including obstruction of labour inspectors, are sufficiently dissuasive and effectively enforced.

Articles 2(1), 5(a), 10, 16, 19, 20, 21 and 23. Labour inspection reports as tools for evaluating and improving the operation of the inspectorate. In its last comment, the Committee expressed the hope that, in view of the progress already made in compiling certain statistics that are of use in assessing the operation of the labour inspection system, the Government would be in a position to take the necessary steps to ensure that an annual inspection report containing the information required by Article 21(a) to (g) is published and sent to the ILO. However, the Committee notes that the Government has again not sent an annual report on labour inspection activities, nor reported any progress made in that respect. The Committee would like to emphasize again, as it did in its last comment, that the information contained in annual reports on labour inspections would be a useful tool for the central inspection authority in defining priorities for action and the corresponding resources. This would be particularly important in the current situation with regard to labour inspection, as it appears from the ILO labour inspection audit that labour inspection activities currently cover a very small percentage of existing enterprises and workers, as the majority of the resources of labour inspection in the country are directed at the oil sector. High-risk sectors, on the other hand, mainly small and medium enterprises, which form 88 per cent of existing enterprises in the country, are not covered by the labour inspection services and are not subject to inspection. In this regard, the Committee notes from the information in the ILO labour inspection audit that annual labour inspection plans, at the central level, merely determine the sector or geographical area to be inspected in each month of the year, without identifying any specific enterprises and that, at the regional level, labour inspection activities are not planned, but decided randomly on a daily basis without any link with, or supervision by, the central authority. As it might appear from the ILO labour inspection audit, there is no national labour inspection policy or strategy and the scant resources available for labour inspection are scattered and not properly used. Noting further that the MOSAL does not have any form of registry of the enterprises operating in the country, the Committee would also like to draw the Government’s attention to its general observation of 2009, in which it emphasized the importance of establishing and updating a register of workplaces and enterprises liable to inspection and the number of workers employed therein, which would provide the central labour inspection authorities with the data that are essential to prepare the annual report. The Committee also notes the related recommendation in the ILO inspection audit on the establishment of a comprehensive register of workplaces, the sharing of data with other institutions in possession of related data and information, and the follow-up of inspection activities with a view to the establishment of an annual report on inspection activities. The Committee asks the Government to indicate the measures taken or envisaged with regard to the establishment of a national register of enterprises, as recommended in the labour inspection audit. It once again asks the Government to take all the necessary steps to ensure that an annual inspection report is published and sent to the ILO within the time limits set by Article 20 of the Convention, containing the information required by Article 21(a) to (g). In this respect, the Committee draws the attention of the Government to the guidance given in Recommendation No. 81 (Part IV), on the amount of detail that is appropriate.

Revision of labour legislation. Further to previous comments in which the Committee noted the Government’s announcements on pending legislative amendments, including the revision of the Labour Code, the Committee notes that there are no indications of any new developments in this regard. The Committee would therefore be grateful if the Government would inform the ILO of any developments regarding the revision of legislative provisions concerning the application of the Convention, including copies of any texts adopted. In particular, the Government is requested to provide information on any legislative developments regarding the abovementioned issues under Articles 12 (c)(i), 17 and 18 of the Convention and to indicate whether it is envisaged to extend the coverage of labour law so as to include some of the categories which are currently not covered (e.g. workers in agriculture, domestic workers and public servants).