Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 81) sur l'inspection du travail, 1947 - Inde (Ratification: 1949)

Autre commentaire sur C081

Observation

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The Committee notes the observations made by the International Trade Union Confederation (ITUC) received on 1 September 2015.

Follow-up to the conclusions of the Committee on the Application of Standards (CAS) of the International Labour Conference (104th Session, June 2015)

The Committee notes the discussion in the CAS and the request by the CAS for detailed information in relation to the issues that were discussed. The Committee notes the statistics provided by the Government in its report, in reply to the requests of the CAS, but observes with concern that most of the questions raised by that Committee remain unanswered.

Legislative reforms and scope of application of the Convention. The Committee previously noted the observations made by the Centre of Indian Trade Unions (CITU) concerning the proposed amendments to the scope of numerous labour laws which, according to the CITU, would exclude a great number of workers from the basic labour laws currently in force. In this regard, the Committee notes the Government’s indications in its report that the objective of the consolidation of 44 labour laws into four to five Labour Codes is to remove legal uncertainty and that, rather than excluding workers from the purview of the labour laws, it is proposed to expand the coverage of various labour laws. The Committee notes that the Government has not provided the detailed information requested by the CAS to provide explanations concerning the scope and purpose of all current proposals to amend labour laws and regulations that impact upon the system of labour inspection at the central and state levels. However, it notes the concern expressed by the ITUC that the legislative bills introduced as of 2014 have far-reaching consequences for labour inspection. Welcoming the fact that technical assistance has been sought from the ILO in relation to some draft labour laws in the ongoing legislative reform, the Committee also reminds the Government of the request made by the CAS to ensure, in consultation with the social partners, that the amendments to the labour laws undertaken at the central or state levels comply with the provisions of the Convention. In accordance with the request made by the CAS, the Committee requests the Government to provide explanations concerning the scope and purpose of all current proposals to labour laws and regulations that impact upon the system of labour inspection at the central and state level. Referring to its previous observations under Articles 12(1)(a) and 18 in relation to the Factories Act (Powers of Inspectors) and the Dock Workers (Safety, Health and Welfare) Act, the Committee hopes that, in the context of the current legislative reforms, the Government will take measures to ensure that the right of labour inspectors to enter workplaces freely without previous notification is explicitly provided for, and penalties are established that are sufficiently dissuasive to ensure the effective application of the legal provisions relating to conditions of work and the protection of workers.

Articles 12, 16 and 17 of the Convention. Labour inspection reform, including the implementation of a computerized system to randomly determine the workplaces to be inspected. The Committee notes the information provided by the Government that: (i) a computerized system, which will randomly decide which labour inspector will go to which factory, has been introduced; (ii) that this system is based on objective criteria concerning risk assessments; and (iii) by December 2014, this inspection scheme had resulted in almost 11,200 inspections. The Committee notes that the Government has not replied to the allegations of the CITU that, under this system, labour inspectors will no longer have the power to decide on the premises they will inspect. However, the Committee notes the Government’s indication that inspections as a result of complaints and serious matters will be included in a mandatory inspection list.

In relation to this system, the Committee also notes the concerns raised by the ITUC that the Labour Code on Wages Bill, 2015, provides for a web-based inspection schedule based solely on self-certification, complaints and lists of defaulters. The inspection system will provide a randomized allocation of sites to inspect. The trade union indicates that, under this new scheme, employers will be notified in advance of the inspection and penalties may only be imposed after an inspector has issued a written order and given the employer additional time to comply. The ITUC further indicates that the decision to rename inspectors as facilitators also implies that enforcement is not part of the objectives of the labour inspection system. The Committee requests the Government to provide its comments in relation to the observations made by the ITUC. The Committee also requests the Government to provide information on the number of labour inspections, specifying whether they were undertaken as a result of computer-based generation, a complaint or included in a list of workplaces that are known for infringing labour law provisions. In this regard, please also provide information on the criteria used for the generation of decisions with respect to labour inspections. The Committee requests the Government to indicate whether labour inspections may be undertaken at the initiative of labour inspectors where they have reason to believe that a workplace is in violation of legal provisions and to provide relevant statistical data in respect of the same (Article 12(1)(a) and (b)). The Committee also requests the Government to provide information on the measures taken, in law and practice, to ensure that the labour inspections may be undertaken without prior notice (Article 12(1)(a)) and that labour inspectors have the discretion under Article 17(2) of the Convention to initiate prompt legal proceedings, where required.

Articles 2, 4 and 23. Labour inspection in special economic zones (SEZs) and the information technology (IT) and IT-enabled services (ITES) sectors. The Committee previously noted the Government’s indication that very few inspections had been carried out in the SEZs and in the IT and ITES sectors.

Concerning labour inspection in SEZs, the Committee notes that the Government has not provided the detailed information on labour inspections in SEZs, although information in relation to the application of ten laws in three SEZs (Noida SEZ, Visakhapatanam SEZ and Mumbai SEEPZ SEZ) has been provided. In this regard, it notes the Government’s reiterated indications that there are no separate labour laws for SEZs, and that SEZs are subject to labour inspection. While enforcement powers may be delegated to the Development Commissioner (a senior government employee) under the Special Economic Zones Rules, 2006, this has only been done in certain cases, and this does not weaken the enforcement of the labour law in any manner. In this regard, the Committee notes the observations made by the ITUC that trade unions in SEZs are largely absent in view of anti-union discrimination practices and that working conditions are poor, and that enforcement powers have been delegated to the Development Commissioners in several states, and that their central function is to attract investment.

Concerning the enforcement of labour laws in the IT and the ITES sectors, the Committee notes the indications of the Government that, in addition to returns submitted by the employers under various labour laws, inspections are carried out through labour inspection visits. However, it notes that no statistics on labour inspections carried out in this sector have been provided. The Committee once again requests the Government to provide detailed statistical information on labour inspections in all SEZs (including on the number of SEZs and the number of enterprises and workers therein, the number of inspections carried out, offences reported and penalties imposed, and industrial accidents and cases of occupational disease reported). It also once again requests the Government to specify the number of SEZs in which enforcement powers have been delegated to Development Commissioners. In accordance with the request made by the CAS, the Committee requests the Government to review, with social partners, the extent to which delegation of inspection powers from the Labour Commissioner to the Development Commissioner in SEZs has affected the quantity and quality of labour inspections, and communicate the outcome of this review. Please also provide information on the number of workplaces in the IT and ITES-enabled services, and the inspections carried out in this sector.

Articles 3(1), 10, 16, 20 and 21. Information on the activities of the labour inspection services to determine their effectiveness and coverage of workplaces by labour inspection in the central and states sphere. The Committee previously noted the Government’s indications that the Ministry of Labour and Employment was considering the re-examination of labour laws in order to ensure a “hassle-free” industrial environment and reduce unnecessary interference by inspection staff (“Ending Inspector Raj”), and that steps were being taken to make the system of inspection mostly complaints-driven. The Committee notes that the Government reiterates that the “Ending of Inspector Raj” does not mean an “end of the inspection system”, but is intended to refer to an end to malpractices in the current inspection system and that there is no intention to reduce the monitoring of compliance with labour laws. The Committee also previously noted that most states did not have internal instructions preventing labour inspections. In this regard, the Committee notes that the Government stresses that there have there been no serious imbalances in the number of inspections between different states.

The Committee notes that, once again, no annual report on the work of the labour inspection services has been communicated to the ILO. Moreover, it notes that the Government has not provided the detailed statistical information requested by the CAS, covering at the central and state levels all the matters set out in Article 21 (including the number of staff of the respective labour inspectorates), which would allow an assessment as to whether Articles 10 and 16 of the Convention are being applied. While noting the information provided by the Government on the activities of the labour inspection services at the central and state levels aggregated in relation to ten different laws, it notes that this information does not enable the Committee to make an informed assessment of the coverage of workplaces and workers at the central and state levels. In particular, it notes that once again no information was provided on the number of workplaces liable to inspection and the workers employed therein or the number of labour inspectors working within the labour inspection services in the states, and that the statistical information provided only covers 11 states. In this context, it also notes the observations made by the ITUC that, in many cases, labour inspection bodies continue to be extremely understaffed. The Committee requests the Government to take the necessary steps to ensure that the central authority publishes, in the very near future, an annual report on labour inspection activities containing all the information required by Article 21 in relation to the central and states spheres. Concerning the absence of information on the number of workplaces liable to inspection and the workers employed therein, the Committee requests the Government to provide information on the availability of registers of workplaces at the central and state levels, or the efforts that have been undertaken to establish such registers in all states. The Committee invites the Government to consider availing itself of ILO technical assistance for the establishment of registers of workplaces and annual reports on the work of the labour inspection services.

Article 5(b). Collaboration of the labour inspection services with employers’ and workers’ organizations. The Committee notes the reiterated information by the Government as to the bodies for tripartite consultation at the central and state levels, as well as the examples provided by the Government on the collaboration of the labour inspectorate with trade unions and workers’ representatives in the major port areas of the country. The Committee requests the Government to provide information on the consultations held with the social partners concerning labour inspection issues at the central and state levels, and, in particular, on the consultation of the social partners in the framework of the current legislative reforms, in so far as they concern labour inspection.

Articles 10 and 16. Coverage of workplaces by labour inspections. Self-inspection scheme. The Committee previously noted the observations made by the CITU and the Bharatiya Mazdoor Sangh (BMS) with regard to the self-certification scheme implemented in 2008 (which includes the requirement of employers employing more than 40 workers to submit a self-certificate certified by a chartered accountant), in particular concerning the absence of any mechanism for the verification by the labour inspectorate of information supplied through this procedure. In this regard, the Government indicates that self-certification is fundamentally a support system to help employers ensure compliance with labour laws, that it is an additional requirement to the system of statutory labour inspections and that it is in no way a substitute to the main work of labour inspection. The Committee notes however that the Government has not provided the explanations requested by the CAS as to the arrangements for verification of information supplied by employers making use of self-certification schemes, nor on health and safety inspections, undertaken by certified private agencies, including the number of inspections, the number of violations reported by such agencies, and compliance and enforcement measures taken. The Committee requests the Government to provide the information requested by the CAS on the health and safety inspections undertaken by certified private agencies, as well as an explanation as to the arrangements for verification of information supplied by employers making use of self-certification schemes.

Articles 12(1)(a) and (b) and 18. Free access of labour inspectors to workplaces. The Committee notes that the Government has not provided the detailed information requested by the CAS on compliance with Article 12 of the Convention with regard to access to workplaces in practice, to records, to witnesses and other evidence, as well as the means available to compel access to such. Moreover, it notes that the Government has not provided the requested statistics on the denial of such access, steps taken to compel such access, and the results of such efforts. The Committee requests the Government to provide this information.

[The Government is asked to reply in detail to the present comments in 2016.]