Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee takes note of the Government’s report. It also notes the comments from the National Confederation of Senegalese Workers (CNTS) received by the ILO on 1 September 2008.

Articles 3 (paragraph 1(a)), 13 (paragraph 2(b)), 18 and 21(e) of the Convention. Supervision of the application of occupational safety and health legislation and adequate penalties. Measures with immediate executory force in the event of imminent danger to the health or safety of the workers. The Committee notes that a number of Decrees concerning occupational safety and health were adopted in 2006 implementing the provisions of section L.168 et seq. of the Labour Code. It notes that Decree No. 2006-1253 of 15 November 2006 sets up a medical labour inspection service under the Labour and Social Security Directorate, entrusted, inter alia, with ensuring the application of occupational safety and health legislation and regulations, in permanent contact with the regional labour inspection services. The Committee would be grateful if the Committee would provide information on the staff and logistics of the medical labour inspection service and on its activities in practice, especially with respect to the links it has with the labour inspectors and controllers at the regional level.

The Committee also takes note of the adoption of Decree No. 2006-1255 of 15 November 2006 concerning the labour inspectorate’s legal measures of intervention in the area of occupational safety and health (observation, enforcement order, urgent procedure, work stoppage and report). It would, however, like to draw the Government’s attention to some of the provisions of this Decree concerning the measures with immediate executory force in the event of imminent danger to the health or safety of the workers. Under this text, the labour inspector may: (i) apply to the judge for an urgent procedure “in the event of a serious or imminent danger that might seriously undermine a worker’s physical integrity, resulting from a failure to observe occupational safety and health legal provisions and regulations” (section 18); and (ii) order a work stoppage “in the case of establishments in which the staff are involved in construction work, public works or any other works on buildings”, “when there is a serious or imminent danger resulting from a shortcoming in or failure of protection” (sections 19 and 20). The Committee therefore requests the Government to take the necessary steps to ensure that, in conformity with Article 13(2)(b) of the Convention, measures with immediate executory force may also be ordered in the event of imminent danger to the health or safety of the workers, without necessarily establishing the existence of a violation of legal provisions or regulations; these measures should apply to any industrial and commercial establishment, whatever the branch of activity concerned.

The Committee notes that the Government has not provided the information requested on the subject of penalties applied in the event of a violation of the labour legislation and that it refers, in this respect, to the Decrees of 2006 concerning occupational safety and health. The Committee points out that these legislative texts only establish the maximum amount of the fines (18,000 CFA francs) and the maximum prison sentence (ten days); reference is made to the scale of penalties for petty crimes to determine the conviction for each violation. This scale of penalties was established by Decree No. 62-017 PC/MFPT/DGTSS/TMO of 22 January 1962, which the Committee has already described as being obsolete in its previous comments. It is impossible, from this scale, to identify the violations concerned or the penalty incurred for each violation. The Committee is of the opinion that the maximum applicable fine (18,000 CFA francs, i.e. €28) is not sufficiently dissuasive – which is essential for the credibility and effectiveness of systems for the protection of workers. As it already pointed out in its previous comments, employers might prefer to pay low fines rather than taking the necessary measures to comply with the legal provisions and guarantee the occupational safety and health of the workers. The Committee therefore requests the Government to take the necessary measures to ensure that the system of penalties incurred is effective, that the penalties incurred are adequate and that they defined in proportion to the nature and seriousness of the violation committed. The Government is asked to keep the Office informed of the measures taken in this respect, and to provide available figures on the violations reported (type of violations and number of written observations, enforcement orders, records, work stoppages and urgent procedures), as well as on the subsequent proceedings initiated by the labour inspectors and the courts (penalties imposed, etc.).

Article 5(a). Cooperation between the labour inspection services and the justice system. The Committee notes that workshops involving labour inspectors and judges have been organized, in the context of the project ADMITRA–ILO, with a view to strengthening cooperation between the judicial system and the labour inspection services. The Committee requests the Government to state whether these meetings had any impact on the functioning of the labour inspectorate and on the handling of labour inspectors’ reports on violations submitted to the courts, which the Government indicates is somewhat slow.

Articles 5(a) and 18. Obstacles to the discharge of inspection duties, cooperation with the law enforcement services. The Committee notes that, according to the Government, labour inspectors may request police assistance while carrying out their duties, either by official courier, or verbally in the event of an emergency. Referring to its previous comments which concerned not only the applicable law but also the practice followed in this respect, the Committee requests the Government to indicate whether recent cases of labour inspectors and controllers being obstructed in their work have been reported to the central labour inspectorate and, if so, to specify the relevant procedures that ensued, especially the penalties imposed on those committing the violations.

Articles 6, 7, 10 and 11. Labour inspectorate staff: status, qualifications, number and logistical resources. According to the CNTS, the labour inspectorate does not have enough staff to carry out its functions efficiently and lacks means of transport and operational premises. Noting the Government’s indications that considerable efforts are made to recruit staff, the Committee requests the Government to provide as much detailed information as it can on the number of labour inspectors and controllers recruited or in the process of being recruited, as well as on the total number of staff with inspection duties, as defined under the Convention. It also asks it to indicate the measures taken to ensure that the inspection staff have conditions of service that are at least as attractive as those enjoyed by other public officials with similar responsibilities, particularly with respect to pay and career prospects, and that they have the necessary means to carry out their duties and be protected from any improper external influences.

Article 12, paragraphs 1(a) and 2. Inspectors’ powers of investigations. The Government specifies in its report that, in both law and practice, labour inspectors and controllers are entitled to enter freely any workplace liable to inspection at any hour of the day and night, irrespective of whether or not collective work is being carried out there, as their right to enter an establishment does not depend on the nature of its work. However, according to section L.197(1) and (2) of the Labour Code, “labour and social security inspectors shall be authorized to enter freely, at any hour of the day, any workplace liable to inspection ... ” and “at night, in premises where collective work is being carried out”. The Committee therefore feels bound to request the Government once again to take the necessary measures to bring the labour legislation into conformity with Article 12, paragraph 1(a), of the Convention, to ensure that inspectors might freely enter establishments liable to inspection, irrespective of their type of activity, and not only during the day but also at night.

In its previous comments, the Committee had also requested the Government to amend section L.197(1), in fine, which states that “the head of the enterprise or establishment, or his representative, may accompany the labour and social security inspector during the inspection”, because it hinders the freedom of action to which the inspector should be entitled during his visit. While noting the Government’s comments that the fact of being accompanied during an inspection by the employer or his representative is a legal option open to the labour inspectors and controllers, the Committee nevertheless points out that the actual wording of this section of the Labour Code gives the choice to the employer (or his representative) and not to the inspector, although it should be for the inspector to decide whether or not to be accompanied during his visit in the exercise of his duties, as prescribed by the Convention. The Committee therefore requests the Government once again to take the necessary measures to amend the Labour Code so that the labour inspector might be authorized to decide whether the employer should accompany him on his visit or not, and that he might exercise his right to interrogate the staff alone, pursuant to Article 12(c)(i) of the Convention, thereby guaranteeing the respect of the principle of confidentiality with respect to the workers (Article 15(c)). Finally, noting that, according to the Government, the labour inspector is free to decide whether he notifies the employer or not of his visit, the Committee requests it to ensure that this right, as defined under Article 12(2) of the Convention, is given a legal basis.

Articles 19, 20 and 21. Periodical reports and annual reports on the activities of the labour inspection services. The Government once again stresses the labour administration’s lack of resources to gather and communicate information at the central level. Consequently, it was unable to draw up an annual report on the activities of the inspection services. Referring to its previous comments, the Committee trusts that the inspection report forms used in visits, referred to by the Government in its report, will help local inspection offices to draw up periodical reports on their activities and that, in conformity with Article 19, these reports will be submitted to the central inspection authority. It hopes that the central inspection authority will soon be able to draw up an annual report covering the country as a whole, which will contain the information required under Article 21, if necessary with the technical assistance of the ILO; it also hopes that it will, for this purpose, take account of the guidelines contained in Part IV of the Labour Inspection Recommendation, 1947 (No. 81). The Committee requests the Government to keep the ILO informed of any developments in this area.