Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

The Committee notes the Government’s report received at the ILO on 29 May 2008. It also notes Act No. 75/AN/00/4e to organize the Ministry of Employment and National Solidarity, the organizational chart of the Ministry and the summary table of statistics on the work of the labour inspection services and social legislation in the period 2003–07 and the constitutional provisions providing that international standards and commitments prevail over national provisions.

In its previous comments, the Committee referred to comments made by the General Union of Djibouti Workers (UGTD) in 2007 calling for an urgent review of the labour inspection system and the strengthening of its resources. In the absence of any recent statistics on the working of the labour inspectorate, the Committee also asked the Government to report in as much detail as possible on the following matters: (i) the supervision of working conditions and the protection of workers in enterprises in export processing zones excluded from the scope of the new Labour Code by section 1 of the Code; (ii) the impact of the conciliation work carried out by labour inspectors on the volume and quality of their inspection duties (Article 3(2) of the Convention); (iii) human resources and means of action of the labour inspectorate in relation to the requirement of Article 16 that workplaces shall be visited as often and as thoroughly as necessary; and (iv) the need to give effect to Articles 20 and 21 concerning the requirement that the central inspection authority shall publish and communicate to the ILO an annual general report on the work of the inspection services.

On the basis of the information sent by the Government, the Committee wishes to draw attention to the following points.

Articles 1 and 2 of the Convention. Supervision of working conditions and protection of workers in industrial and commercial establishments in export processing zones. The Committee noted in its previous comments that, under section 1 of the Labour Code, the Code applies throughout the national territory except in export processing zones (EPZs) which are governed by special legislation. According to the Government, not only are the EPZs beyond the competence of the labour inspectorate but the legislation applying to them, which has prompted objections in the country, grants excessive privileges to employers at the expense of the workers. The Government explains that supervision of the enterprises allowed to operate in EPZs is the responsibility of the ports and EPZs authorities, which also issue visas for foreign workers and deal with any disputes regarding the election of staff delegates in the zones. The Committee notes, however, that pursuant to section 31 of the EPZ Code issued by Act No. 53/AN/04 of 17 May 2004, “the Djibouti Labour Code governs labour relations in the export processing zones”, and that the legislation on EPZs available at the ILO contains no provisions on this subject. The Government is asked to indicate whether section 31 of the EPZ Code has been repealed and if so, to provide the relevant text, and in any event to provide copies of the texts governing the working conditions and protection of the workers occupied in establishments in the EPZs together with the legal provisions respecting their enforcement.

Articles 3(1)(a) and (b), and 17. Need to ensure a balance between the enforcement and advisory functions of labour inspection. According to the Government, the work of inspection services pertaining to labour legislation focuses largely on persuasion and information. The Committee nonetheless notes that the national legislation contains, as the Convention requires, a whole set of legal provisions that also enable inspectors to prosecute those who are in breach of the law on working conditions. In paragraph 279 of its General Survey of 2006 on labour inspection, the Committee pointed out in this connection that although advice and information can only encourage compliance with legal provisions, it should nonetheless be accompanied by an enforcement mechanism enabling those guilty of violations reported by labour inspectors to be prosecuted. In keeping with its assertion that no labour legislation, however developed it may be, can exist for long without an effective labour inspection system, the Government should ensure that the inspection system is able to make use of all means of action available to it under the law to attain its objectives. A balance between the advisory and enforcement roles of the inspection services would, without doubt, contribute to reducing the number and scale of labour disputes. The Committee accordingly asks the Government to take the appropriate steps to ensure that, where necessary, inspectors exercise in practice the authority conferred by Article 17 of the Convention, to which section 196 of the Labour Code gives effect, themselves to initiate legal action before the competent jurisdiction against those who breach labour laws and regulations, on the basis of the provisions of Title IX of the Code which defines offences and establishes the penalties applying to them.

Article 3(2). Accumulation of tasks assigned to labour inspectors and its impact on the volume and quality of their inspection duties. In its observations of 2007, the UGTD expressed the view that in future the duties of the inspectorate should encompass conciliation and prevention. The Committee drew the Government’s attention in this connection to Article 3(2), which places restrictions on the additional duties that may be required of labour inspectors, and asked the Government to send the Office information on the manner in which observance of this provision is ensured. The Government acknowledges that workplace inspection has its shortcomings. Furthermore, the data the Government provided on the work of the inspectorate in the area of occupational safety and health are slight in comparison with those pertaining to the settlement of individual and collective labour disputes. The Government nonetheless hopes that in future, the labour inspection service will be able to conduct three visits a week. The Committee notes this information with concern, observing that it bears out the UGTD’s assertion that the labour inspection system needs to be reviewed and strengthened so that it can perform its duties fully. It furthermore regrets that it has not been informed of the number of workplaces subject to inspection and is therefore unable to assess the extent to which the needs for inspection are covered. Observing that the time and energy that labour inspectors spend in attempting to settle collective labour disputes interfere with the performance of their primary duties, the Committee suggests, in paragraph 74 of its General Survey mentioned above, that conciliation or mediation in collective labour disputes be entrusted to a specialized body or officials. It notes in this connection that section 181 of the new Labour Code in fact provides for the establishment of an arbitration council to hear collective labour disputes that conciliation has failed to settle. It notes, however, that the Council will hear the dispute only after the labour inspector or labour director has attempted conciliation and referred the matter to it within eight full days (section 180 of the Code). The Committee reminds the Government of the specific warning in Paragraph 8 of Recommendation No. 81 that “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes” and it urges the Government to envisage taking steps to relieve inspectors of their role as preliminary conciliators in labour disputes. It would be grateful if the Government would also take measures to ensure, as required by Article 16 of the Convention, that the strength of the inspectorate is sufficient to cover the workplaces liable to inspection and send the Office information with as much supporting documentation as possible on all progress made in this matter and on any difficulties encountered.

Articles 10, 11 and 16. Reinforcement of the labour inspection system. The Committee notes that in order to reinforce the labour inspection system, the Government plans to create four new sections of the inspectorate, two in the capital and two in the interior of the country, and to take advantage of technical support from the ILO Subregional Office in Addis Ababa to organize a training course for labour controllers and the single labour inspector at the ILO International Training Centre in Turin. It also notes that the Government is examining possibilities for cooperation between the labour inspectorate and the competent medical and technical institutions, and that a tripartite workshop on Convention No. 81 was to be organized by the ILO subregional office in 2008. The Committee hopes that the Government will not fail to keep the ILO informed of any developments relative to any of these matters.

Further to its previous comments, the Committee once again asks the Government to provide the most recent data available on the number and geographical distribution of the workplaces liable to inspection (including mines and quarries), the number of workers employed therein and the transport facilities available to the labour inspector and labour controllers for duty travel.

Such information is essential to the central inspection authority in evaluating the human and material resources needed in order to attain the objectives of labour inspection and hence to estimating the funding of the inspectorate in the national budget.

Articles 20 and 21. Publication, communication and content of the annual inspection report. While taking note of the table of statistics attached to the Government’s report on the work of the inspection services, the Committee observes that it covers a period of five years and that, in terms of activities and results, it is not sufficiently specific or relevant to be of use in evaluating the operation and efficiency of the labour inspection system. The Committee is therefore once again bound to ask the Government to take the necessary measures for the  publication of an annual inspection report, as provided in section 192 of the Labour Code, within the time limits prescribed in Article 20 and containing the information required by Article 21. Emphasizing that such a report is an essential tool in evaluating the efficiency of the inspection system and in identifying the resources required for its improvement, in particular through appropriate budgetary estimates, the Committee requests the Government to pay due attention to the indications in Part IV of the Labour Inspection Recommendation, 1947 (No. 81) as to the level of detail that would be appropriate in the information required by clauses (a) to (g) of Article 21 of the Convention. It recalls that it may request ILO technical assistance for this purpose.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.