Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee takes note of the Government’s first report which was received on 25 November 2009, as well as the text of the Civil Service Act subsequently provided by the Government. The Committee notes with interest from the Government’s report that, in its thrust towards developed country status by the year 2020, the Government recognizes the critical importance of labour inspection in promoting decent work for all.

Article 3(1) of the Convention. Functions of the system of labour inspection. The Committee notes that, according to the Government’s report, two units are responsible for labour inspection activities: the Labour Inspectorate Unit under the purview of the Ministry of Labour and Small and Micro Enterprise Development (MLSMED) and the Occupational Safety and Health (OSH) agency under the OSH authority. The latter is a multi-stakeholder advisory body appointed by the Minister of MLSMED. The labour inspectorate and the OSH agency are responsible for enforcing respectively, the national minimum wage and other terms and conditions of employment, and OSH legislation.

The Committee notes that labour inspectors and OSH inspectors are entrusted with securing the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work by virtue of several provisions, such as sections 21 and 22A of the Minimum Wages Act, as amended by Act No. 11 of 2000, sections 92, 92A and 92B of Act No. 3 of 2007 amending the Children Act (as amended by the Miscellaneous Provisions (Minimum Age for Admission to Employment) Act, 2007), sections 14 and 15 of the Maternity Protection Act, 1998, and section 72 of the Occupational Safety and Health Act (OSHA), 2004. Moreover, according to the Government, OSH inspectors are entrusted with advocacy for the implementation of the national workplace policy on HIV/AIDS and have carried out education programmes on OSH compliance. The Committee would be grateful if the Government would indicate any further duties of labour inspectors involving the supply of technical information and advice, especially in the area of OSH, as well as the notification to the competent authority of defects or abuses not specifically covered in existing legal provisions, in line with Article 3(1).

Article 5. Cooperation between the inspection services and other government services and public or private institutions. The Committee notes that the Labour Inspectorate Unit and the OSH agency have been engaged in dialogue to enhance coordination of activities between them and have developed a draft Memorandum of Understanding (MOU) which is currently being considered by the MLSMED. The Committee requests the Government to communicate the text of the memorandum on cooperation between the Labour Inspectorate Unit and the OSH agency once adopted, and to indicate progress made in its implementation. Furthermore, the Committee notes that each labour inspection body has developed a series of MOUs with other government agencies engaged in related activities. The Labour Inspectorate Unit is in the process of developing an MOU with the Ministry of Social Development and the newly formed Children’s Authority to improve the unit’s ability to respond to issues relating to child labour; it has also cooperated with the National Insurance Board with respect to the sharing of information and joint investigations. The OSH agency is in the process of developing MOUs with the: Tobago House of Assembly; Fire Service; Ministry of Health; Police Service; Environmental Management Authority; Ministry of Works and Transport; Ministry of Agriculture; and Ministry of Energy. The Committee requests the Government to keep the ILO informed of progress made in the development of cooperation between the two labour inspection bodies and various agencies engaged in related activities.

Moreover, with reference to its 2007 general observation concerning the effective cooperation between the labour inspection services and the justice system, the Committee notes that, according to section 80 of the OSHA, an inspector may initiate proceedings before the courts in relation to any complaint arising under the OSHA and that, according to the Government, OSH offences are subject to the jurisdiction of the Industrial Court (section 83(1) OSHA) and liable upon conviction to a maximum fine of 20,000 Trinidad and Tobago dollars (TTD) (approximately US$3,170) and to imprisonment for one year. Furthermore, under section 22A of the Minimum Wages Act (as amended by Act No. 11 of 2000), an inspector is to report to the Minister of MLSMED any violations of the Act so that they can be referred first to conciliation, and then to the Industrial Court in accordance with the provisions of Part V of the Industrial Relations Act on disputes procedures; the labour inspector may act as the advocate for the wronged worker throughout the process before the Industrial Court.

The Committee emphasizes that the effectiveness of the measures taken by the labour inspectorate depends to a large extent on the manner in which the judicial authorities deal with cases referred to them. It is therefore indispensable for an arrangement to be established whereby relevant information can be notified to the labour inspectorate so that, among other things, measures can be taken to raise the awareness of judges concerning the complementary roles of the courts and the labour inspectorate, respectively, in achieving the common objectives of the two institutions in the field of conditions of work and the protection of workers. The Committee would be grateful if the Government would keep the ILO informed of the number of cases referred to the courts at the initiative or recommendation of labour inspectors and the outcome of the judicial proceedings, as well as any measures adopted or envisaged to promote cooperation between the labour inspection bodies and the judicial authorities.

Article 5(b). Collaboration between the labour inspectorate and employers and workers or their organizations. The Committee notes that section 25E of the OSHA provides for the establishment of OSH committees in industrial establishments occupying more than 25 persons or where the chief inspector orders the creation of an OSH committee in industrial establishments with less than 25 employees. Under section 25F of the OSHA, the OSH committee may request the chief inspector to undertake an investigation over any matter which it is unable to resolve on its own. With reference to Paragraphs 4–7 of the Labour Inspection Recommendation, 1947 (No. 81), the Committee would be grateful if the Government would provide information on the number of OSH committees set up in industrial workplaces under section 25E of OSHA and the number and outcome of investigations requested by OSH committees under section 25F of OSHA. Moreover, the Committee notes the information provided by the Government on collaboration between the Labour Inspectorate Unit and the OSH agency, on the one hand, and workers’ and employers’ organizations on the other, particularly in the area of OSH, through education programmes on OSH compliance and the hosting of national safety awards. The Committee would be grateful if the Government would continue to provide information on the organization, attendance, content and impact of education programmes provided to workers’ and employers’ organizations.

Article 6. Composition of the inspection staff. The Committee observes that inspection staff is often not vested with civil servant status and is not assured of stability of employment. For instance, with regard to the Labour Inspectorate Unit, the Committee notes that: (i) according to the Government’s report, the top four positions, that is, the chief labour inspector and three senior labour inspectors are new posts filled in April 2008 by officers employed on contract, pending the classification of the positions by the personnel department; and (ii) once these positions are classified, they will be filled by persons appointed by the public service commission. With regard to the OSH agency, the Committee notes that: (i) section 71(1)(a)(ii) of the OSHA authorizes the minister to designate as an OSH inspector not only a suitably qualified public officer but also a suitably qualified “person”; and (ii) according to the Government, the Cabinet has granted approval for a new structure of the OSH agency which will comprise 152 “contract positions”. With regard to the legal background, the Committee notes that: (i) according to sections 7 and 12(f) of the Civil Service Act, a person who is appointed to an office in the civil service for a specified period shall cease to be a civil servant at the expiration of that period; and (ii) according to sections 22(1) of the Civil Service Regulations and 12(h) of the Civil Service Act, an officer who is appointed on promotion to an office shall be required to serve on probation for one year, in addition to two years probation served at the time of appointment, and if the probation is unsuccessful, may leave the service at the termination of appointment.

The Committee recalls that, according to Article 6, the status and conditions of service of inspection staff should be such that they are assured of stability of employment and are independent of changes of government and of improper external influences. In paragraphs 203–204 of its General Survey of 2006 on labour inspection, the Committee had noted that public servant status is the status best suited to guaranteeing labour inspection staff the independence and impartiality necessary to the performance of their duties. Moreover, it is vital that levels of remuneration and career prospects of inspectors be such that high-quality staff are attracted, retained and protected from any improper influence. Inspectors cannot act in full independence, as required by their functions, if their service or their career prospects depend on political considerations. The Committee requests the Government to take the necessary measures to ensure that the staff of the Labour Inspectorate Unit and the OSH agency is 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, in line with Article 6, and to inform the ILO of the progress made in this regard.

Article 7(3). Initial and continuous training of labour inspectors. The Committee takes note of the information provided by the Government on the initial training and mentoring process, as well as the subsequent continuous training provided to officials of the Labour Inspectorate Unit and the OSH agency. The Committee would be grateful if the Government would continue to provide information on the content, timing, attendance record, evaluation and impact of training sessions carried out in the period covered by its next report.

Articles 7(1)–(2), 10 and 21(c). Qualifications and number of labour inspectors. The Committee notes that the legislation relative to terms and conditions of employment (section 21 of the Minimum Wages Act, section 92A of the Children Act (as amended by the Miscellaneous Provisions (Minimum Age for Admission to Employment) Act, 2007) and section 14 of the Maternity Protection Act, 1998) does not refer to any qualifications required for the designation of labour inspectors (of the Labour Inspectorate Unit) and is confined to providing that the minister may authorize in writing “any officer” of the MSLMED to carry out inspections. On the contrary, section 71 of the OSHA provides that the minister may designate a “suitably qualified” public officer (or person) as an OSH inspector “on the advice of the chief inspector”. The Committee recalls that, under the Convention, labour inspectors should be recruited with sole regard to their qualifications for the performance of their duties and the means of ascertaining such qualifications should be determined by the competent authorities. The Committee also notes that the Labour Inspectorate Unit is composed of 18 labour inspectors, four of which are senior personnel. At the time of reporting, the OSH agency was composed of 58 persons but would be restructured based on the approval granted by Cabinet in September 2009 so as to comprise 152 positions. The new structure would take effect in November 2009 and comprise 63 inspectors, four of which would be senior personnel. According to the Government, the major challenge in the application of the Convention is ensuring that the staffing complement of the Labour Inspectorate Unit and the OSH agency is adequate to meet the increasing number of industrial establishments due to rapid industrialization in the country over the past few years and the thrust to promote small and micro-enterprises. The Government indicates that this issue is currently being addressed through plans to conduct organizational reviews and recruit suitably qualified inspectors and officers. The Committee requests the Government to specify the qualifications required for recruitment in the Labour Inspectorate Unit and the OSH agency, as well as the means available for ascertaining these qualifications (e.g. examinations, etc.). It also requests it to indicate in its next report the steps taken or envisaged towards organizational review and recruitment of suitably qualified inspectors.

Furthermore, with reference to its 2009 general observation on availability of statistics on industrial and commercial workplaces liable to labour inspection and on the number of workers covered as an essential basis in order to evaluate labour inspection needs and staffing levels, the Committee requests the Government to furnish information on the number, nature, size and situation of the workplaces liable to inspection, as well as the number and classes of workers employed in such workplaces.

Article 8. Gender composition of the labour inspection staff. The Committee would be grateful if the Government would communicate sex disaggregated data on the staff of the Labour Inspectorate Unit and the OSH agency in its next report.

Article 11. Transport facilities necessary for the performance of the duties of labour inspectors. The Committee notes that labour inspectors are paid a monthly motor vehicle upkeep allowance, mileage allowance and subsistence allowance, the rate of which is subject to contract negotiations carried out triennially between the Public Services Association of Trinidad and Tobago and the Government. OSH inspectors are required to use their personal vehicles for the performance of their duties and are paid a monthly transportation allowance to cover maintenance and fuel costs. The Committee requests the Government to specify whether labour inspectors are, like OSH inspectors, required to use their personal vehicles, whether the allowances paid depend on the distance travelled by labour and OSH inspectors in the performance of their duties, and to transmit the claim forms for such allowances as well as for the reimbursement of travelling and incidental expenses.

Articles 12(1)(a)–(b) and 15(c). Power to carry out unannounced visits at any time of the day or night; obligation of confidentiality relating to complaints, and combating child labour. The Committee notes that according to sections 22(1) and (2) of the Minimum Wage Act, 15(1), (3), (4) and (5) of the Maternity Protection Act and 92B(1), (3), (4) and (5) of the Children Act (as amended by the Miscellaneous Provisions (Minimum Age for Admission to Employment) Act, 2007), an inspector may enter premises where an employee is employed only with the permission of the owner or occupier or, in the absence of permission, by judicial warrant; such warrant is to be granted only where admission to premises has been refused or refusal is apprehended and there is reasonable ground for entry; moreover, a judge is not supposed to issue a warrant unless he/she is satisfied either that written notice of the intention to apply for a warrant has been given to the occupier, or that the giving of such notice would defeat the object of the entry. Furthermore, according to the Children Act and the Maternity Protection Act, entry may be sought at a reasonable time, while under the Minimum Wages Act, the labour inspector may seek entry at all reasonable times.

The Committee also notes that while OSH inspectors have, according to section 77 of the OSHA, a duty of confidentiality as to the existence or the source of a complaint which gives rise to an inspection visit, the inspectors of the Labour Inspectorate Unit do not appear to be under such a duty and no corresponding provision appears in the laws concerning minimum wages, minimum age or maternity protection.

The Committee recalls that according to Article 12(1)(a), labour inspectors should be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection and, according to Article 12(1)(b), they should be able to enter by day any premises which they may have reasonable cause to believe to be liable to inspection. As indicated in the General Survey, op. cit., paragraph 263, the principle of unannounced visits serves to enable the inspector to enter the inspected premises without warning the employer or his/her representative in advance, especially in cases where the employer may be expected to attempt to conceal a violation, and to observe the confidentiality required by Article 15(c) of the Convention as regards the purpose of the inspection if the latter is carried out in response to a complaint. Furthermore, Article 12(2) enables labour inspectors to avoid notifying the employer or his representative of their presence on the occasion of an inspection visit if they consider that such a notification may be prejudicial to the performance of their duties.

The Committee requests the Government to indicate the provisions which establish a duty of confidentiality for the inspectors of the Labour Inspectorate Unit and, if no such provision exists, to take steps to this end and keep the ILO informed of any progress achieved.

In addition to the above, the Committee notes that under section 92B(1) of the Children Act, entry may be sought by a labour inspector to a workplace only “where a person under the age of 18 years is employed or where there is any book, record or other document relating to a person under the age of 18 years which may afford evidence as to the contravention of any provision of this Act”. This should be read in conjunction with section 92 of the same Act, according to which all employers shall keep and maintain a register of every person under the age of 18 years employed by them and the register shall be produced for inspection at any reasonable hour of any working day on request by an inspector. The Committee observes that these provisions do not appear to allow labour inspectors to enter workplaces freely in order to investigate whether children are employed therein. The Committee refers to its general observation of 1999 on labour inspection and child labour in order to emphasize the importance of enabling labour inspectors to have free access to any workplace where they may have reasonable cause to believe that children are working.

The Committee requests the Government to take necessary measures aimed at bringing the Minimum Wage Act, the Maternity Protection Act and the Children Act into conformity with the abovementioned provisions of the Convention so as to empower the labour inspectors to enter freely and without previous notice, at any hour of the day or night, any workplace liable to inspection and to enter by day any premises which they may have reasonable cause to believe to be liable to inspection and furthermore, to omit notifying the employer of their presence if they consider that such a notification may be prejudicial to the performance of their duties.

Noting that under section 72(1)(a) of the OSHA, an OSH inspector may enter workplaces “at all reasonable times”, the Committee requests the Government to specify whether this provision allows OSH inspectors to carry out inspection visits by night.

Code of ethics. The Committee notes that, according to the Government, a code of ethics developed by the OSH agency covers the provisions of Article 15. The Committee would be grateful if the Government would provide a copy of the code of ethics developed by the OSH agency and indicate whether a similar code applies to the activities of the Labour Inspectorate Unit.

Article 16. Powers of labour inspectors. The Committee notes that, according to the Government, inspectors from the Labour Inspectorate Unit carry out both scheduled inspections and inspections initiated by complaints from workers; the OSH agency follows a standard inspection procedure which relies on voluntary compliance at a first stage, and compulsory compliance if no progress is found during the re-inspection and, finally, the possibility of prosecution proceedings if a continued failure to comply is noted by the inspector during a subsequent visit. The Committee would be grateful if the Government would indicate the number of routine and unannounced inspection visits carried out in the period covered by its next report and specify whether the labour inspection bodies operate on the basis of an annual plan of visits.

Article 18. Penalties for violations of legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties. The Committee notes that under section 72(5) of the OSHA, penalties for obstructing an inspector in the execution of his/her duties include a fine of TTD2,000 (approximately US$317) and imprisonment for six months. No corresponding fines are provided in other legislative texts concerning the inspectors of the Labour Inspectorate Unit. The Committee would be grateful if the Government would indicate the number of penalties enforced for obstructing OSH inspectors in the performance of their duties. It also requests the Government to indicate the measures taken or envisaged in order to establish and enforce adequate penalties for obstructing inspectors of the Labour Inspectorate Unit in the performance of their duties.

Articles 19, 20 and 21. Periodical reporting obligations on the work of the labour inspectors and publication and communication to the ILO of an annual labour inspection report. The Committee notes that according to the Government, inspectors are required to submit a weekly status report on inspections to their supervisor as well as a monthly statistical report. Failure by an inspector to submit a report can be considered as neglect of duty and can result in disciplinary proceedings. Moreover, OSH inspectors are required to submit monthly reports to the OSH agency on their activities, including information on accidents and complaints investigated, industrial establishments visited, meetings attended, and training and lectures provided. Finally, according to the Government, annual reports are prepared on the work of the inspection services and submitted to the Minister of MLSMED. Recalling that, under Article 20, the labour inspection central authority should publish an annual general report on the work of the inspection services and transmit a copy of it to the ILO within a reasonable period after its publication, the Committee would be grateful if the Government would ensure that an annual report containing data on each of the items listed in Article 21 is published and communicated to the ILO. In the absence of such a report, the Committee would be grateful if the Government would forward all relevant data available.