Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

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

Autre commentaire sur C081

Observation

Demande directe

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The Committee notes the observations made by the International Trade Union Confederation (ITUC) and by the Indian Central Trade Unions (ICTUs), both received on 1 September 2022, as well as the Government’s reply to the latter. The Committee also notes that the Government had provided written information, on a voluntary basis, in its submission of 20 May 2021 in connection with the proceedings of the Committee on the Application of Standards (CAS).

Furthermore, the Committee notes that, in reply to the points raised in previous ITUC observations, the Government indicates that the ordinances amending the labour law, which were adopted by some of the states in 2020 in response to COVID-19, did not enter into force as the central Government, which has concurrent legislative competencies on labour matters, did not concur with any of them. With regard to the executive order by the Madhya Pradesh Government, which exempted the application of several provisions of the Factories Act, the Government informs that the order had a limited validity of three months and was not extended. In addition, the Committee welcomes the information that in the case of Gujarat, the decision to increase overtime hours from 8 hours to 12 hours a day, without payment of overtime, was struck down by the Supreme Court of India.

With regard to the direct contacts mission requested by the CAS in 2019, the Committee notes that in the context of the COVID-19 pandemic, the Government organised a series of digital technical meetings with the Office to address the issues raised in the CAS and in the Committee's observations. The meetings were attended by senior representatives of the Government and the management of the Standards Department. The Committee also notes that in its observations, ITUC calls on the Government to accept a direct contacts mission of the ILO to assess the implementation of Convention No. 81 in law and in practice and to provide the necessary technical assistance.

Articles 2 and 4 of the Convention. Labour inspection in Special Economic Zones (SEZs). The Committee notes the observations by the ITUC and the ICTUs expressing continuing concern about a lack of effective labour inspection, with continuous violations in the SEZs. ITUC also expresses concerns over the fact that inspections are being carried out by development commissioners, who also have a responsibility to promote investment in the SEZs. Moreover, the ICTUs indicate that trade unions are restricted in entering the SEZs and filing complaints, and that they are not informed of inspections conducted in these zones.

The Committee also notes the indication by the Government that the powers of labour inspectors in SEZs have been delegated to development commissioners merely due to administrative difficulties, as some SEZs have jurisdiction over more than one state. The Committee further notes the information provided by the Government that the current administrative arrangements in SEZs do not impede the conduct of independent inspections and that the implementation of safety provisions related to factories still rests with specialized labour inspectors. Furthermore, the Committee notes the information that, according to office memoranda issued in May 2019 and June 2021 by the Ministry of Labour, the SEZs’ development commissioners have been advised that labour inspections should take place without prior notice. Finally, the Committee notes the Government’s indication, in response to the Committee’s request for statistical data concerning the conduct of inspections in the SEZs, that in light of disruptions during the COVID-19 pandemic the requisite information will be made available after resumption of normalcy in industries.

Welcoming the information already provided and acknowledging the difficulties regarding the generation of meaningful data for the period 2020–21, in light of the COVID-19 pandemic, the Committee requests the Government to provide in its next report detailed statistical information on the number of labour inspectors responsible for inspections in these zones, the number of inspection visits (indicating the inspections conducted by labour inspectors and by development commissioners), the number and nature of offences reported and the number of penalties and amount of fines imposed, in addition to information on criminal prosecutions, if any. It also requests the Government to indicate in which SEZs inspection has been delegated to development commissioners, and how often inspections carried out by development commissioners take place without notice. Finally, the Committee requests the Government to indicate the number and nature of any complaints filed with respect to labour inspection in the SEZs, and whether trade unions have access to the SEZs where complaints have been filed and where they have not been.

Articles 4, 20 and 21. Availability of statistical information on the activities of the labour inspection services at the central and state levels. Availability of statistics in specific sectors. The Committee notes that in reply to the Committee’s request for annual labour inspection reports, the Government refers to the annual reports of the Ministry of Labour and Employment published on its website, which contain statistical information on inspection activities at the central level (including the number of labour inspections, the number of irregularities detected, the number of prosecutions and convictions, as well as the number of accidents in mines). The Committee also notes the information provided by the Government on the development of the Shram Suvidha web portal at the Ministry of Labour and Employment, which is to facilitate reporting and submission of returns, and the Government’s broader efforts to expand and improve the registration of workplaces through the Employees Provident Fund Organization (EPFO) website, in addition to efforts undertaken for the registration of workers in the informal sector, through the e-Shram portal. At the same time, the Committee notes the observations made by ITUC and the ICTUs that the statistical data provided does not allow for an assessment of the effective operation of the labour inspection services. The Committee also notes the Government’s reply to these observations, with additional information on the digital initiative taken by the Government to facilitate reporting of inspections and augment transparency. Furthermore, the Committee notes the Government’s indication that it is actively undertaking an All India Survey on migrant workers, domestic workers and transport sector workers, which is to inform the development of policies for the welfare of those workers.

The Committee requests the Government to pursue its efforts to ensure that the central authority transmits to the ILO annual reports on labour inspection activities containing all the information required by Article 21. The Committee encourages the Government to continue its efforts towards the registration of workplaces and the improvement of its data collection system in all sectors, and requests that the Government keep the Committee updated on progress made in this regard. Further, the Committee requests the Government to indicate in what specific ways the data generated by its new digital initiatives are used by the labour inspection services for the planning of inspections.

Articles 10 and 11. Material means and human resources. The Committee notes the Government’s indication in its report, that sufficient resources have been at the disposal of Central Labour Inspection agencies and State Governments, including adequate transport facilities or allowances, and that facilities like mobiles and laptops are being provided to inspection personnel by the respective state governments. However, the Committee also notes the continuing concern expressed by ITUC, in its observations, that the human and material resources of the labour inspectorate remain inadequate. The Committee requests the Government to provide updated information on the number of labour inspectors and more concrete information on the material resources and transport facilities of the labour inspection services.

Articles 12 and 17. Free initiative of labour inspectors to enter workplaces without prior notice, and discretion to initiate legal proceedings without previous warning. The Committee notes the Government’s response to the Committee’s request for information as well as the concerns expressed by ITUC and the ICTUs in relation to certain provisions in the occupational safety and health (OSH) and Working Conditions Code of particular relevance to labour inspection, including the use of the term ‘inspector cum facilitator’ instead of ‘inspector’, which had been opposed by the central trade unions, and the distinction between ‘inspections’ and ‘surveys’, as referred to in the Codes. With regard to the term ‘inspector cum facilitator’, the Government explains that the addition of the word ‘facilitator’ points to efforts to strengthen the rights of workers by extending advice and support regarding compliance with various provisions of the Code. Regarding the legal provisions on the prior announcement of visits related to ‘surveys’, the Government explains that section 20 of the OSH and Working Conditions Code dealing with ‘surveys’ does not relate to inspections, but rather aims at allowing the government to conduct examinations of facilities and the testing of plant and machinery, outside the inspection system. Finally, in response to the concern expressed by the ICTUs that the web-based randomized inspections referred to in sections 34 and 37 of the OSH and Working Conditions Code may confine inspections to a randomly computer-generated list, the Government indicates that the web-based allocation of inspections does not impede the powers of labour inspectors to conduct free and independent inspections, based on the requisite intelligence. More broadly, the Committee notes the Government’s indication that the recently introduced labour Codes do not compromise the powers of inspectors and that all inspections carried out by Central government are unannounced. The Government indicates that the OSH and Working Conditions Code does not envisage any restriction to the powers of labour inspectors to enter freely and without prior notice, at any hours of the day or night, any workplace liable to inspection, and that any guideline framed under the Code on Wages will not include instructions which are in violation of Article 12(1)(a) of Convention No. 81. The Committee notes nonetheless that the Government did not provide an answer to the question related to section 110 of the OSH and Working Conditions Code, according to which prosecution proceedings against an employer for any offence shall not be initiated by inspectors-cum-facilitators before an opportunity is given to the employer concerned to comply with relevant provisions of the Code within a period of thirty days from the date of notice, except for the case of an accident or a violation of the same nature repeated within a period of three years from the date on which the first violation was committed.

The Committee further notes that the Code on Wages provides that inspectors-cum-facilitators shall, before the initiation of prosecution for an offence, give employers an opportunity to comply with the provisions of the Code within a certain time limit (section 54(3)).

The Committee recalls that under Article 17 of the Convention, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give a warning or advice instead of instituting or recommending proceedings.

The Committee requests that the Government take the necessary measures to ensure that labour inspectors are able to initiate legal proceedings without previous warning, in conformity with Article 17 of the Convention. The Committee also requests the Government to transmit to the Committee examples of guidelines framed under the Code on Wages, as cited above, and examples of instances when inspectors-cum-facilitators have delayed or deferred inspections of establishments as well as examples when they have deferred initiation of prosecutions. Noting the Government’s explanation regarding limitations on meaningful data collection over the past two years, due to the COVID-19 pandemic, the Committee requests that the Government provide detailed information in its next report onthe number and nature of offences reported, the number of penalties and amount of fines imposed, and the criminal prosecutions initiated, if any.

The Committee is raising other matters in a request addressed directly to the Government.