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

Repetition

The Committee would be grateful if the Government would provide particulars concerning the following points.

Part I of the report form. The Committee would be grateful if the Government would provide the ILO with a copy of the Civil Service Act.

Article 2(2) of the Convention. Exemption of certain workplaces from the scope of the Convention. According to the Government, mining and transport undertakings “are generally not exempted” from the application of the Convention. The Committee would be grateful if the Government would indicate instances when such undertakings are exempted from the application of the Convention and the criteria used for their identification, and give information concerning the bodies empowered with labour inspection in such instances.

Article 3(2). Impact of additional duties on the performance of labour inspection functions. According to the Government, labour inspectors are charged to handle disputes under Chapter 21 of the Labour Practices Law (hereinafter LPL) (Conciliation of grievances) which is one of their primary duties under that chapter. The Committee would like to draw the Government’s attention to Article 3(1) of the Convention which enumerates the primary duties that labour inspectors should be entrusted with as: (a) to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work; (b) to supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions; and (c) to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions. Article 3(2) recommends that any further duties which may be entrusted to labour inspectors shall 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. In addition, according to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), which contains guidance for the application of the Convention, the functions of labour inspectors should not include that of acting as conciliators or arbitrators in proceedings concerning labour disputes. The Committee asks the Government to indicate the measures taken to bring the legislation into conformity with the Convention in this regard by ensuring in particular that labour inspectors are progressively discharged of conciliatory functions, so that they can devote the work time to the performance of their primary inspection duties.

Article 6. Status and conditions of service of the inspection staff. According to the Government, given that the status and conditions of service of the inspection staff have no legal basis, due consideration will be taken into account during the review of the Labour Code. The Committee hopes that the amendments to be made to the Labour Code will reflect the principles enshrined in this core provision of the Convention and would be grateful if the Government would communicate as soon as possible a copy of the consolidated text.

Article 7. Initial and subsequent training of labour inspectors. According to the Government, the strategic plan of the Ministry of Labour requires the training of inspectors before employment and, besides, section 51, of the LPL entitles chief labour inspectors to identify training areas for labour inspectors and make necessary improvements so that the objectives of the inspectorate are realized. The Committee would be grateful if the Government would provide more information on the type and content of initial and subsequent training given to labour inspectors and the impact of such training on labour inspection activities.

Article 10. Numbers and qualifications of the labour inspection staff. The Committee would be grateful if the Government would provide information concerning the availability of the different categories of inspectors, including inspectors to whom special or technical functions have been assigned, and particulars of the geographical distribution of the inspection staff.

Article 12(1)(a). Extent of the right of free entrance of labour inspectors to workplaces liable to inspection. Section 55, of the LPL provides that a “labour inspector may without previous notice at any time during working hours enter and inspect any workplace within the application of any provision of this Title or Title 18 [of the LPL] …”. The Committee would like to draw the Government’s attention to paragraph 270 of the General Survey of 2006 on labour inspection which provides that “[t]he protection of workers and technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped”. In the light of the aforesaid, the Committee asks the Government to take appropriate measures to ensure, in accordance with the Convention, that labour inspectors are legally authorized to enter and inspect workplaces liable to inspection not only during the working hours, but also “at any hour of the day or night”.

Article 13(2). Power of labour inspectors in the event of danger to health and safety. Measures to be ordered with immediate executory force. Section 54, paragraph 3, of the LPL provides that “[w]here a labour inspector becomes aware of any circumstance, condition, or practice which may impair the safety, health or welfare of the employees in a workplace under his jurisdiction, even though such circumstance, condition or practice is not illegal, he shall attempt to have the employer correct it and shall call it to the attention of his superior”. Moreover, paragraph 4 of the abovementioned provisions, of the LPL provides that “[a] labour inspector shall investigate serious industrial accidents and occurrences of occupational disease, as defined in Chapter 36 (of the LPL), of which they are notified or otherwise obtain knowledge in order that, if possible, the causes may be ascertained and precautions may be taken to prevent recurrence”. The Committee would be grateful if the Government would clarify if the right given to labour inspectors under section 54, paragraph 3, of the LPL is subject to any right of appeal to a judicial or administrative authority which is provided by law. Moreover, the Committee would be grateful if the Government would provide the relevant legal provisions and clarify if the aforementioned right also authorizes labour inspectors “to make or to have made orders” requiring alterations to installations or plants, and if measures taken under these orders may have immediate executory force in the event of imminent danger to the health or safety of the workers.

Article 15(b). Extent of the obligation of secrecy aimed at protecting employers’ rights. Section 57, paragraph 1, of the LPL provides that “[a] labour inspector is forbidden, even after termination of his services, to divulge, except as required by his duties, any information coming to his knowledge in the course of his employment”. With respect to the information obtained by labour inspectors in the course of their duties, the General Survey on labour inspection emphasizes the legitimate interests of employers by providing in paragraph 232 that such interests “have to be safeguarded by protection that is of a permanent nature” and further indicating that such obligation of secrecy maintained by labour inspectors shall continue “after they have left the service”. Moreover, in paragraph 234 it provides that “[t]he obligation of secrecy is frequently enforced through penalties”. The Committee would be grateful if the Government would take appropriate measures to ensure that the obligation of secrecy imposed on labour inspectors is of a permanent nature and that appropriate penalties or disciplinary measures are in place in case of the violation of such an obligation, as required under Article 15(b) of the Convention.

Article 17. Right of labour inspectors to freely opt for relevant action to be taken towards employers in violation of legal provisions. According to the Government, the application of this Article of the Convention is provided by section 56, of the LPL pursuant to which: “if the labour inspector finds the existence of violation of any of the provisions of this Title or Title 18 (of the LPL), he shall instruct the employer to cease such violation by a written notice specifying a reasonable period not less than three months and not more than six months for compliance. If the violation is continued after the time allowed for its correction in such notice, the labour inspector shall bring the matter before the Ministry of Labour … . If the violation involves danger to the lives or health of employees, the labour inspector may immediately bring it to the attention of the Ministry for its action”. The Committee would like to draw the Government’s attention to paragraph 282 of the abovementioned General Survey which provides that “violations may be the result of failure to understand the terms or scope of the applicable laws or regulations. Therefore, the labour inspectors must always have discretion to choose not to impose penalties as a means of enforcing legal provisions” and that to this end Article 17 of the Convention provides labour inspectors with the discretion of either giving warning or advice instead of instituting or recommending proceedings. Further, the same paragraph elaborates on the right of discretion of labour inspectors provided in Article 17 of the Convention by providing that “this discretion implies that inspection staff have the necessary capacity for judgment to be able to distinguish between serious or repeated wilful non-compliance, culpable negligence or flagrant ill will, which call for a penalty, and an involuntary or minor violation, which may lead to a mere warning”. In the light of the aforesaid, the Committee would be grateful if the Government would take the necessary measures to ensure that labour inspectors enjoy the right of giving warning and advice or instituting or recommending proceedings in cases of violation of the law, as provided in Article 17 of the Convention.

Articles 19, 20 and 21. Reporting obligations on the work of the labour inspection services. According to the Government, a routine inspection report was attached to its annual report under this Convention which the Committee has not received. Moreover, the Government indicated that an annual report on activities of the Inspectorate Division is submitted to the Assistant Minister for onward submission to the central authority, which is subsequently published in the annual report of the Ministry of Labour. The Committee would be grateful if the Government would communicate to the ILO a copy of the aforementioned reports. It also requests it to ensure that an annual report containing information on each of the matters listed in Article 21 is published and communicated to the ILO, according to the provisions of Article 20.

Other information needed to assess the level of application of the Convention. Finally, the Committee would also be grateful if the Government would provide information on the implementation in law and in practice of the following provisions of the Convention: Article 3(1)(b), Article 5(b), Article 7(2), Article 10(a–c), Article 11(1)(b) and (2), Article 12(1)(b) and (2), Article 13(3) and Parts III–VI of the report form.