Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Labour Inspection Convention, 1947 (No. 81) - Jamaica (Ratification: 1962)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations of the Jamaica Confederation of Trade Unions (JCTU) and the Jamaica Employers Federation (JEF), received on 1 January 2022.

Article 12(1)(a) and (c)(ii) of the Convention. Unannounced visits. Production of documents. The Committee notes the Government’s indication, in response to the Committee’s previous request concerning measures to give effect to Article 12(1)(a) and (c)(ii), that in accordance with the requirements under section 13(2)(b) of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, any power of entry of labour officers should not prejudice the rights and freedoms of others. The Government adds that, in this connection, legislation requiring the power of entry by labour inspectors has to have provisions requiring reasonable notice before a proposed entry, except in circumstances where the officer has a search warrant.

The Committee also notes that the JEF is in agreement with the Government's response and is particularly concerned about the proposed ability to enter premises at any time of the day or night. In addition, the Committee notes that, according to JCTU, in many reported circumstances, including in the construction industry, confining labour inspectors to giving notice before a proposed entry invalidates the intent of the inspection, as it facilitates the employer to artificially make adjustments or instruct responses that would affect the inspector's assessment. The Committee further notes that, according to JCTU, similar powers of “unannounced entry” are afforded to other arms of Government in situations where this is deemed necessary. The Committee emphasizes that the conditions for the exercise of the right of free entry to workplaces set out in the Convention are intended to enable inspectors to carry out inspections of workplaces in order to enforce legal provisions relating to conditions of work. On this understanding, unannounced visits enable the inspector to enter work premises without warning the employer, especially in cases where the employer may be expected to attempt to conceal a violation by changing the usual conditions of work, preventing a witness from being present or making it impossible to carry out an inspection (see the 2006 General Survey on labour inspection, paragraph 263). The Committee therefore requests the Government to take concrete measures, including in the context of a possible adoption of the new draft OSH Bill, to ensure, in accordance with Article 12(1)(a) and (c)(ii) of the Convention, that labour inspectors provided with proper credentials are empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection, and to require the production of any books, registers or other documents the keeping of which is prescribed by national laws or regulations relating to conditions of work, in order to see that they are in conformity with the legal provisions, and to copy such documents or make extracts from them.

Article 13(2)(b). Measures with immediate executory force in the event of imminent danger to the health or safety of the workers. The Committee notes that the Government does not provide further information on this point. It notes that according to the information contained in the annual report of the Ministry of Labour and Social Security (MLSS) for 2017-2018, while the main operational activities of the Occupational Safety and Health Department (OSHD) focus on the administration of the Factories Act, 1943 and associated Regulations, other entities, including governmental organizations, are requesting the services of the OSHD to develop programmes and provide OSH auditing services. The Committee once again requests the Government to take prompt measures, including in the context of the drafting of the new OSH Bill, to ensure that labour inspectors are empowered to order measures with immediate executory force to eliminate imminent danger to the safety and health of workers in all industrial workplaces, and to provide information on the measures taken in this respect. It also requests the Government to provide statistical information on the preventive measures taken by labour inspectors with immediate executory force, in application of Article 13(2)(b) of the Convention.

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