Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes the information provided by the Government, which was received on 23 October 2008, in reply to its previous comments. The Committee recalls that its comments concerned the points raised by the Lanka Jathika Estate Workers’ Union (LJEWU) in a communication dated 31 May 2007, and also in a joint communication from the Confederation of Public Service Independent Trade Unions (COPSITU), the Government Service Labour Officers’ Association (GSLOA), the United Federation of Labour (UFL), the Progress Union (PU), the Free Trade Zone Workers Union (FTZWU) and the Health and Safety Trade Union Alliance (HSTUA), dated 4 October 2007.

The Committee also notes a brief communication sent to the ILO on 8 July 2008 by the Ceylon Workers’ Congress (CWC) on certain aspects of its 2007 general observation calling on member States to promote effective cooperation between the labour inspection services and the judicial system, and a further observation sent on 11 July 2008 by the LJEWU on recent developments relating to the application of the Convention. These communications were forwarded to the Government on 16 and 17 September 2008, respectively.

The LJEWU’s communication dated 31st May 2007 contained comments on the application in law and practice of each of the provisions of the Convention. The Committee notes in particular, under Article 5 of the Convention, the indication that certain departments and statutory boards are informed of inspections to facilitate matters where necessary (for example, the police, the Board of Investment (BOI) in respect of export processing zones (EPZs), etc.).

With regard to the question of the status and independence of labour inspection staff (Article 6), while indicating that all officers recruited to the labour inspectorate are instructed to abide by the principles enshrined in Article 15 at their induction and in follow-up training courses and that general compliance is satisfactory in this regard, the LJEWU nevertheless indicates that, at times, politicians and other influential persons do interfere. It also considers that the training of labour inspectors should be strengthened on a regular basis (Article 7) to help them handle current disputes and issues and that labour inspection staff, including specialists (around 24 electrical, mechanical and civil engineers, but only two doctors and three research assistants in the Occupational Hygiene Division) should be increased at both the central and local levels (Articles 9 and 10). It adds that transport facilities are inadequate and that the limitation on the mileage that is reimbursed serves to limit the number of inspections (Article 11).

Moreover, the LJEWU deplores that EPZs are highly secured areas where prior approval is needed for entry and it suggests that the Department of Labour (DOL) should negotiate with the BOI to allow labour inspectors to enter workplaces in EPZs, on production of the identity card issued by the Department, without insisting on prior permission (Article 12, paragraph 1(a)).

With regard to the preventive role of labour inspection and the powers entrusted to inspectors to order measures necessary to eliminate threats to the safety and health of workers, the LJEWU recommends that when legal remedies are adopted, they should be published to inform other employers. It adds that a mechanism for the regular notification of industrial accidents and cases of occupational disease to labour inspection should be established (Articles 13 and 14).

With regard to the application of Articles 17 and 18 on enforcement actions against employers regarding any other matter covered by the Convention, the LJEWU reports that due to delays in legal action, there have been instances where some employers that were at fault could not be punished or fines be recovered. Moreover, it points out that, apart from a few updated fines applicable to violations under the Factory Ordinance and the Women, Young Persons and Children Act, the penal provisions are outdated and it calls for penalties, and especially fines, to be reinforced.

According to the LJEWU, measures have been taken to identify all workplaces in order to ensure that not a single workplace is left out and that a new inspection system is now in force under which compliance with all important laws is checked during a single inspection. The LJEWU is of the view that such measures along with the introduction of a new reporting form will ensure the adequate frequency and thoroughness of inspections (Article 16).

While indicating that the annual report published by the Commissioner General of Labour contains most of the information called for by Articles 20 and 21, the LJEWU hopes that an annual labour inspection report will be published separately.

The joint communication dated 4 October 2007 received by the ILO from the COPSITU, GSLOA, United Federation of Labour, Progress Union, Free Trade Zone Workers Union and Health and Safety Trade Union Alliance focuses on the conclusions adopted following the discussion in June 2007 by the Conference Committee on the Application of Standards (96th Session). These unions, representing workers in the public and private sectors, allege what they call glaring discrepancies in the reports submitted by the Government to the ILO and wish to reveal the true labour inspection situation prevailing in the country.

They affirm that, in practice, the DOL does not undertake inspection in public sector workplaces that come under the central Government and Provincial Councils and they consider that the Public Administrative Circulars and the provisions of the Establishment Code that govern the conduct of public servants, including their industrial relations, are rather confusing. According to these unions, the labour inspection staff is inadequate vis-à-vis the size of the labour force (which they estimate at around 7 million workers), as well as the number of the workplaces liable to inspection (Article 10(a)(i) and (ii)). They also allege that, despite the approval by the Public Service Commission of a cadre of 429 labour officers for the labour inspectorate in 2001, only 258 are currently in post, of whom 164 are engaged in administrative work on a full-time basis, which leaves 194 labour officers to perform labour inspection activities. Emphasizing that the majority of workers in the garment and plantation industries are women, they express the need for an increased number of women labour inspectors (Article 8). They also emphasize the insufficiency of occupational health and safety specialists (Article 9). They add that 175 field officers were recruited in 1997, bypassing the standard recruitment procedure applicable to labour officers, exclusively for the purpose of the enforcement of the Employees’ Provident Fund Act. Moreover, although 42,000 graduates have recently been recruited to the public sector under a Graduate Employment Scheme, there was not a single labour inspector among them.

The joint communication explains that the EPZs come under the purview of the BOI, which has a separate Industrial Relations Department under a Director of Industrial Relations and its own set of inspectors who are not paid out of the Government Consolidated Fund and do not belong to the public service. It emphasizes that the labour inspectors of the DOL cannot make surprise inspections of workplaces inside EPZs (Article 12, paragraph 1 (a)), as entry thereto is restricted. The unions consider that this militates against the very purpose of labour inspection to the detriment of the interests of workers. They also refer to the adoption by the BOI of the procedure for entry into EPZs under which labour inspectors are obliged to request authorization from the BOI security, which is subordinated to the consent of the management in the establishment to be inspected. Consequently, if a labour-related incident occurs in such an establishment, the moment the BOI security informs the employer that a labour inspector is seeking permission to enter, the management knows that there has been a complaint and can take measures against the worker or workers concerned. Referring to Article 4 of the Convention, the unions consider that an independent central labour inspection authority is an absolute necessity. They call for its establishment by an act of Parliament and for the abolition of the BOI labour inspectorate in EPZs. In their view, the political will of the Government will only be credible if sufficient funds are allocated from the national budget to provide labour inspectors with means of transport or the adequate reimbursement of travel expenses (Article 11).

The unions call for tripartite collaboration in EPZs, as well as in the industrial and public sectors (Article 5) and for continuous training for labour officers. With regard to the necessary frequency and thoroughness of labour inspections (Article 16), they regret that due to the shortage of qualified and well-trained personnel, the incidence of the non-payment of mandatory contributions to the Employees’ Provident Fund by employers is very high. Consequently, registers of workplaces liable to inspection and the numbers of employees therein are not updated. This means that employers that are not in compliance with labour law benefit from impunity. They add that the annual report published by the DOL is not complete, as it does not contain the up to date information requested by Article 21(c), (d), (e), (f) and (g).

As the Government’s report was received too late for examination at its present session and further observations from trade unions have been received in the meantime, the Committee will examine the matters raised, as well as any additional comments that the Government may wish to make on these issues, at its next session (2009). The Committee also draws the Government’s attention to its obligation under article 22 of the ILO Constitution to send a report on the application of the Convention in 2009.