Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s report containing replies to its previous comments, as well as the documentation attached. It also notes the Centre of Indian Trade Unions’ (CITU) comments, sent to the ILO on 4 April 2004, the Government’s reply to these comments, as well as the further CITU comments received on 14 October 2004.

The CITU deplores the multiple restrictions of the right of labour inspectors to enter workplaces freely, the lack of human resources and material means, the inappropriate level of penalties in relation to their objective of dissuasion and the lack of cooperation with trade unions on the occasion of inspection visits.

1. The right of labour inspectors to enter workplaces freely (Article 12 of the Convention). In reply to the Committee’s observations, the Government insists that section 9 of the Factories Act, 1948, and section 4 of the Dock Workers (Safety, Health and Welfare) Act, 1986, are in conformity with Article 12 of the Convention. The Committee notes, however, that the legislation mentioned does not explicitly provide for the right to enter workplaces freely and without prior notification.

The Government also indicates, in response to the comments made previously by Hind Mazdoor Sabha (HMS) alleging the abolition of labour inspectorates in a number of states, that this allegation is unfounded. However, according to the CITU, measures have been taken to prevent labour inspectors from having access to workplaces liable to inspection. The Government states that it does not yet have at its disposal the relevant information, although a copy of the order (No. ST/4/2001/S497 S36) issued by the State Haryana under which inspections are prohibited, unless on the basis of prior approval by the highest state office, represented by the Labour Commissioner, has been communicated to the ILO by the CITU.

Furthermore, according to the CITU, inspectors are not allowed to enter export processing zones (EPZs) and special economic zones (SEZs) without the permission of the Development Commissioner, the administrative authority in the zones concerned. The Government strongly contests this point.

According to the CITU, in the field of information technology and IT-enabled service establishments (ITES), general exemptions from all labour laws are granted through executive orders, inspections are no longer carried out and violations of labour legislation are no longer detected or prosecuted. In reply to these observations, the Government affirms that the labour legislation is still applicable to this sector.

Referring to its 2001 observation, the Committee recalls that, pursuant to Article 12(1)(a), labour inspectors should be empowered to enter freely, without previous notice at any hour of the day or night, any workplace liable to inspection. No prior authorization may therefore be required. The Committee also recalls the Government’s obligation to ensure a precise and coherent legal framework to be respected throughout the country, thereby excluding the possibility for federated states to establish prohibitions or restrictive legal or practical measures in the area of labour inspection. According to the Government, the terms "as he thinks fit" and "reasons to believe" in section 9 of the Factories Act, 1948, and section 4 of the Dock Workers (Safety, Health and Welfare) Act, 1986, imply that labour inspectors may use their discretion in the use of their powers, including the right of free entry without prior notice. The Committee considers that section 9 and section 4 of the above Acts may give rise to variations in the interpretation of the scope of labour inspectors’ duties and powers and could result in different legal provisions and practices in the various states. The Committee therefore urges the Government to take measures to ensure the conformity of its law and practice with the wording and spirit of the Convention and to inform the ILO about any progress made to this end.

Furthermore, the Committee notes that, according to section 19 of the Minimum Wages Act, 1948, section 7(b) of the Payment of Gratuity Act, 1972, section 27 of the Payment of Bonus Act, 1965, section 15 of the Maternity Benefit Act, 1961, and section 14 of the Payment of Wages Act, 1936, labour inspectors may enter the workplace at "a reasonable time" to perform inspections. The Committee emphasizes that, pursuant to the Convention, the right to freely enter workplaces liable to inspection should be granted at any hour of the day or night, without taking into consideration any other condition (Article 12, paragraph 1(a)). It requests the Government to take the necessary measures to amend the legislation to this end and to keep the ILO informed.

The Committee asks the Government to indicate whether the Weekly Holidays Act, 1942, and the Sale Promotion Employees (Conditions of Service) Act, 1976, are still in force and under the control of labour inspectors.

The Committee also requests the Government to provide the ILO with the more recent statistics related to the information technology (IT) sector, including the number of inspections carried out in this sector, the number of enterprises and workers liable to inspection, the number of labour inspectors responsible for controlling this sector, the number of violations recorded and penalties imposed, and the number of occupational diseases and accidents reported.

The Government is also requested to provide the same statistics for EPZs and the SEZs.

2. Obligation to produce a report (Articles 20 and 21). Referring to the CITU’s comments, the Committee notes the detailed labour inspection reports. However, the Committee observes that the statistics on the activities of State Labour Departments and factory inspectorates are not complete. The reports often indicate that data for certain states have not been transmitted. Furthermore, these statistics relate to the enforcement of various acts and do not therefore allow a general picture to be built up of labour inspection activities throughout the country. Referring to its previous comments, the Committee requests the Government to provide more detailed statistics and information on the distribution of the various factory inspectorates in each state, the number of inspectors in each inspectorate, the number of inspections carried out, the number of entities and workplaces covered by the various State Labour Departments and the various factory inspectorates under the Factories Act.

With regard to the statistics of occupational diseases and accidents, the Committee urges the Government to take measures rapidly to ensure that they are communicated by each of the inspectorates for inclusion in future annual reports.

The Committee recalls in this regard the obligations set out in Articles 20 and 21 of the Convention, which also apply to federated states under the terms of paragraph 2 of Article 4. It therefore requests the Government to take the necessary measures to improve the data collection system and to keep the ILO informed of any progress in this respect.

3. Effectiveness of labour inspection; sanctions and fines. The Committee notes the CITU’s comments on the annual report (2002-03) alleging that the loss of effectiveness of the labour inspectorate is due to the lack of human and material resources and to the diminished infrastructure compared to the growing number of establishments liable to inspection, in particular in the "central sphere". The CITU also deplores the paltry nature of the sanctions in relation to the objective of dissuasion. The Government indicates that during the year 2002-03, 42,391 inspections were conducted in the "central sphere" and that, despite the many constraints, effectiveness is still guaranteed.

The Committee recalls that, pursuant to Article 10, the number of labour inspectors should be sufficient to secure the effective discharge of their functions with due regard to the importance and complexity of their duties and the material resources available. Moreover, in accordance with Article 11, labour inspectors should be provided with suitably equipped local offices and transport facilities. The Committee hopes that the Government will gradually improve the working conditions of inspectors and that relevant information will soon be sent to the ILO.

The Committee notes that the penalties established by section 95 of the Factories Act, 1948, section 14 of the Dock Workers (Safety, Health and Welfare) Act, 1986, and section 15 of the Environment (Protection) Act, consist of sentences of imprisonment and fines, the amount of which may be increased in the event of repeat offences. Referring to paragraph 263 of its General Survey on labour inspection, 1985, the Committee emphasizes that penalties should be fixed at a sufficiently high level to have a dissuasive effect and should therefore be periodically reviewed. It urges the Government to take the appropriate measures for this purpose and to keep the ILO informed.

4. Cooperation with trade unions and employers’ organizations. The CITU deplores the lack of cooperation between trade unions and the inspection services. It indicates that the trade unions are often not informed of inspections and are not involved in the labour inspection process. In response to these allegations and to the Committee’s previous comments on this subject, the Government indicates that labour inspectors usually consult trade union representatives during inspections on the application of labour law provisions, but that there is no statutory requirement for the involvement of trade unions in the inspection process. It adds that cooperation with employees’ representatives takes the form of joint tripartite Dock Safety Committees, headed by the Chief Inspector of Dock Safety, under the Dock Workers (Safety, Health and Welfare) Act, 1986, and bipartite Safety Committees, under the Factories Act. The Committee notes that, according to the Government, union representatives also participate in Dock Safety Week, periodic meetings have been held between labour inspectors and trade union leaders, and dockworkers participate in investigations and training programmes.

The Committee recalls that, in accordance with Article 5(b), officials of the labour inspectorate should collaborate with employers and workers or their organizations. It draws the Government’s attention to the guidance provided by Part II of Recommendation No. 81 on the possible forms of such collaboration. Although the involvement of trade unions in inspection visits is not provided for under the Convention, the Committee considers that the association of workers’ representatives with inspection visits is very beneficial. It would be grateful if the Government would indicate if measures have been taken or are envisaged to this end.