Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 81) sur l'inspection du travail, 1947 - Viet Nam (Ratification: 1994)

Autre commentaire sur C081

Observation

Demande directe

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Articles 3(1) and (2), 4, 5(a), 10, 16 and 21 of the Convention. Primary duties of labour inspection; number of labour inspectors for the effective discharge of labour inspection duties and enhanced cooperation for the publication of an annual inspection report. The Committee notes that according to the ILO needs assessment, the exercise of multiple functions by inspectors as well as the low number of inspectors in general, poses a challenge for effective labour inspection. The Committee notes in particular, that labour inspectors both at the level of the Ministry of Labour – Invalids and Social Affairs (MOLISA) and the local Departments of Labour – Invalids and Social Affairs (DOLISAs), may be entrusted with inspection functions which go beyond the enforcement and preventive functions identified in Article 3(1) of the Convention, such as the investigation into corruption cases, and the settlement of disputes (section 4 of the Law on Inspection No. 22/2004/QH11 and section 2(2)(a) of decision No. 148/QD-LDTBXH of 30 January 2008 of MOLISA on the Roles, Responsibilities, Duties and Organization of the Ministry Inspectorate). The Committee recalls that according to Article 3(2), any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

The Committee notes moreover, that according to the ILO needs assessment of March 2012, the number of labour inspectors (which is in fact smaller than 150) is too low given the number of registered enterprises in the country (400,000) not to mention the unregistered ones.

The existing difficulties in the collection of data on enterprises as well as workers at provincial level have been confirmed by the Government in its report on the application of the Convention, mainly due to limited coordination among the agencies with competence in this domain, such as the Department of Labour, Invalids and Social Affairs, the Department of Planning and Investment, the Department of Tax, the Social Insurance Agency etc.

The Government also reports that the Department of the Inspectorate of Labour, Invalids and Social Affairs is developing projects to strengthen the capacity of the inspection staff and increase their number at district level. It also indicates however, that section 30 of the Inspection Act of 2010 has had an impact on the number of inspectors as it seems to have triggered a reorganization of inspection functions and a reallocation of inspection staff between departmental and district offices of the Ministry of Labour, Invalids and Social Affairs.

The Committee requests the Government to indicate the measures taken or envisaged in order to give effect to provisions of the Convention, in the light of the recommendations of the ILO needs assessment carried out in March 2012 in relation to:

-the need to establish separate labour inspection units at the MOLISA and DOLISA levels, so that labour inspection, in the sense of Article 3(1) of the Convention, can be dissociated from other functions like conciliation of disputes and fighting corruption.
-the need to raise the quota for labour inspectors in a progressive but concerted manner to achieve a level that is more reasonable relative to the number of enterprises and workers in the country, as provided in Article 10.
-the need to progressively achieve a more equal balance between male and female officers including among managers as provided in Article 8.
-the impact of section 30 of the Inspection Act of 2010 in relation to the above.

With reference to its previous comments, its General Observations of 2009 and 2010 and Articles 5(a), 10 and 21, the Committee would also be grateful if the Government would indicate the steps taken or envisaged in order to compile and process the data necessary for the publication of an annual labour inspection report and in particular, as a first step in that direction, the measures taken or envisaged in order to strengthen cooperation among agencies with competence in the area of data collection with a view to setting up a register of workplaces and workers engaged therein. The Committee fully endorses the Government’s request for the ILO to provide technical support in organizing a workshop on sharing experiences as well in strengthening data collection capacities for the preparation of an annual report, and requests the Government to indicate in its next report the formal steps taken in order to obtain such assistance from the ILO.

Articles 3(1)(a) and (b), 4, and 5(a). Inspection of Industrial Processing Zones (IPZs). The Committee notes from the needs assessment of March 2012 and section 31 of Decree 29/2008 ND-CP on Industrial Zones, Export Processing Zones and Economic Zones, that DOLISAs have delegated inspection powers to the management boards of IPZs. The latter hire their own enforcement staff, who, being generalists recruited by the Ministry of Home Affairs and not by the Ministry of Labour, often have to depend on guidance from labour inspectors at central and provincial levels, while there is no formal basis for coordination.

The Committee notes that the Labour Code applies to “all workers, and organizations or individuals utilizing labour on the basis of a labour contract in any sector of the economy and in any form of ownership” (section 2 of the Labour Code) and state labour inspectors have the duty to control the enforcement of the Labour Code, ensuring compliance with the provisions relating to labour, occupational safety and hygiene (section 186 of the Labour Code). It draws the conclusion that workplaces in IPZs fall by law within the ambit of the state labour inspectorate.

The Committee recalls that labour inspection should, according to Article 4 of the Convention, be placed under the supervision and control of a central authority. The purpose is, as indicated in paragraph 140 of the General Survey of 2006 on labour inspection, to facilitate the establishment and application of a single policy throughout the territory and make it possible to use available resources in a rational way. Moreover, under Article 5, effective cooperation should be promoted between the inspection services and other government services and public or private institutions engaged in similar activities.

The Committee requests the Government to provide detailed information on the legal basis on which the enforcement staff within IPZs operates, their number, administrative organization, powers and obligations, operating procedures and the actual activities they have carried out over the reporting period (number of visits, violations found, measures taken etc.) as well as the manner in which these activities are reported to and supervised by the central labour inspection authority.

Articles 3(1)(a) and (b), 5(b), 12(c), 13, 14 and 17. Enforcement and preventive functions of the labour inspectorate and collaboration between the labour inspectorate and employers and workers and their organizations. The Committee recalls from its previous comments that self-assessments should be complementary to, and not replace labour inspections. It notes from the 2012 ILO needs assessment that the introduction of self-assessment reporting in workplaces could be an innovative way to expand the reach of labour inspection action if the results of this process could be used by the labour inspectorate as a source of information for identifying violations, planning visits, designing prevention strategies, etc. It also notes in this regard, that the 2012 ILO needs assessment proposes that the information gathered from self-assessment reports, including on occupational accidents, could be used – possibly in the framework of a national registry of enterprises – in order to plan inspection visits more strategically but also in order to plan broader preventive action, especially in areas which are usually less covered by labour inspection action, like small and medium-sized enterprises (SMEs). The Committee requests the Government to indicate the measures taken or envisaged to give effect to the provisions of the Convention, in the light of the recommendations of the ILO needs assessment of 2012, in order to ensure that self-inspections are fed into the inspection programming process and that they increase the effectiveness of the labour inspection system with regard to its primary enforcement and prevention functions set out in Articles 3 and 13.

The Committee notes moreover from the Government’s report that labour inspectors were trained in 2008 in self-inspection questionnaires. However, it also notes from the ILO needs assessment, that violations identified by a self-assessment did not necessarily result in a follow-up visit by a labour inspector. The Committee requests the Government to indicate any functions performed by labour inspectors in relation to the completion of self-inspection questionnaires by employers and the following up on violations identified therein when planning labour inspection visits.

The Committee also reiterates its request for a copy of a “self-inspection” questionnaire which was not attached to the Government’s report, as well as for detailed and documented statistical information on the results of the application of the “self-inspection” system, including the number and nature of contraventions of the labour legislation identified, contents of the advice given by inspectors, preventive measures ordered (including measures with immediate executory force in the event of imminent danger to the health or safety of the workers), sanctions imposed and legal proceedings instituted.

Noting moreover that according to the ILO needs assessment of 2012 the focus on a preventative approach towards labour inspection seemed to be insufficiently developed in the labour inspectorate, the Committee requests the Government to indicate any measures taken or envisaged in order to develop a preventative culture in partnership with employers’ and workers’ organizations, including through awareness-raising campaigns in targeted sectors.

Noting finally from the needs assessment that only serious accidents and diseases tended to be reported to the labour inspectorate, the Committee requests the Government to indicate the process for the recording and notification of industrial accidents and cases of occupational disease. It draws the Government’s attention to the guidance provided in this regard in the code of practice on the recording and notification of occupational accidents and diseases which is accessible at the following website: http://www.ilo.org/safework/info/ standards-and-instruments/codes/WCMS_107800/lang--en/index.htm.

Articles 12(1) and 15(c). Right of free entry of inspectors to workplaces liable to inspection and duty of confidentiality. The Committee notes from the ILO needs assessment of March 2012 as well as the Government’s report that regular (planned) inspection visits are carried out after having given at least three days’ notice to the employer and having communicated an outline of the proposed matters to be addressed during the visit, while “irregular” inspections are carried out upon a complaint or when assigned. The Committee emphasizes that while it is not always inappropriate to announce inspection visits ahead of time, Article 12(1) requires that labour inspectors have the power to enter workplaces at any time of day or night without prior notice. As indicated in paragraph 263 of the 2006 General Survey on labour inspection, unannounced visits may be useful in order to prevent the employer from concealing a violation, by changing the usual conditions of work and/or preventing a witness from being present or making it impossible for labour inspectors to carry out an inspection visit. Moreover, if regular inspections are always carried out with advance notice, it is very difficult, in case of inspection visits carried out pursuant to complaints, to avoid giving any intimation to the employer of the fact that a visit takes place consequent to a complaint, as required by Article 15(c) of the Convention. The Committee would be grateful if the Government would indicate any legislative or other measures taken or envisaged in order to ensure that labour inspectors exercise the discretion to carry out inspections, including regular ones, without advance notice, if they deem it appropriate, in line with section 187(1) of the Labour Code. The Committee would also be grateful if the Government would provide further information on the criteria used for the planning of visits and the nature of the problems addressed in unannounced visits. In particular, the Committee would be grateful if the Government would clarify whether restrictions previously imposed on the free choice of undertakings to be inspected and the frequency of inspections per undertakings, are still in force (sections 3 and 7 of Decree No. 61/1998/ND-CP of 15 August 1998 and the implementing order No. 22/2001/CT-TTg of 11 September 2001).

Noting finally that, according to the ILO needs assessment, labour inspectors do not use checklists during inspections, the Committee requests the Government to indicate the measures taken or envisaged in order to develop checklists for labour inspections and to communicate a copy.

Article 7. Training of labour inspectors. The Committee notes with interest the information provided by the Government on the training provided to labour inspectors on a range of subjects. It notes from the ILO needs assessment of 2012 that a strategic national training plan should be considered. The Committee requests the Government to continue to provide information on training made available to labour inspectors as well as details on the number of participants, the duration of the training, the feedback obtained and the impact of the training provided on the effectiveness of the labour inspection system.

Article 11. Material resources. The Committee notes that according to the ILO needs assessment of 2012 there was a lack of technical equipment and labour inspectors were obliged to use their own vehicles or public transportation, while they received a modest travel allowance to cover inspection related travel expenses. The Committee requests the Government to indicate the steps taken or envisaged in order to carry out an inventory to ensure the procurement of necessary equipment and related training, as provided in the ILO needs assessment. It also requests the Government to provide a copy of the form that labour inspectors have to complete in order to request the reimbursement of travel costs and to describe the relevant modalities.

Articles 17 and 18. Sufficiently dissuasive sanctions and prohibition of obstruction. The Committee notes from the ILO needs assessment and from Decree No. 47/2010/ND-CP on administrative sanctions on labour law violations, that amounts were set for a range of infractions, but that inspectors had limited discretion to impose larger fines in case of aggravating factors and being subject to a tight timeframe for their enforcement (section 5 of the Decree). In addition, the maximum fine per infraction is set at 30 million dong (VND) (about US$1,500) which is not considered to be dissuasive, while fines above VND500,000 can only be imposed by chief labour inspectors at DOLISAs and the chief inspector of MOLISA and not by labour inspectors on duty (section 23, Decree No. 47). The Committee notes from the 2012 ILO needs assessment that changes to the Labour Code should be considered on an urgent basis by the legal office of MOLISA in the context of the current legislative reform in order to ensure that the level of sanctions for labour law violations is sufficiently dissuasive and that the obstruction of labour inspectors in the performance of their duties is clearly prohibited and accompanied by adequate penalties. 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.