Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information contained in the Government’s report in reply to its previous comments. It draws the Government’s attention to the following points.

International cooperation and ILO technical assistance. The Committee notes that an assessment of the labour inspection situation was conducted by the ILO as part of project RLA/07/04M/USA on the strengthening of civil service systems in the Ministries of Labour of Honduras and El Salvador. It would be grateful if the Government would provide information on any action contemplated or taken as a follow-up to the recommendations resulting from this assessment.

Article 6 of the Convention. Status and conditions of service of labour inspectors. With reference to its previous comments on the need to take measures promptly to ensure that labour inspectors have stability of employment and are independent of changes of government and of improper external influences, the Committee notes with interest that a project to integrate the region’s labour inspectors into the administrative career system will be implemented by the ILO regional office with international financial support. The Committee expresses the firm hope that the Government will ensure that steps are taken in practice in the context of this project so that labour inspectors are governed by specific conditions of service such that they are assured of the stability of employment and independence required by the Convention, and that their career prospects are such as to attract and retain qualified and motivated staff in the inspection services. It requests the Government to keep the ILO informed of all progress made in this regard and to send copies of any relevant legislative texts.

Article 12, paragraph 1(a) and (b). Scope of inspectors’ right of entry to workplaces. In the comments which it has been making for a number of years, the Committee requests the Government to take the necessary measures to give a legal basis to inspectors’ right of access to workplaces, as prescribed by the Convention, namely to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection (clause (a)), and to enter by day any premises which they may have reasonable cause to believe to be liable to inspection (clause (b)). The Government states once again in its report that inspectors’ right of free entry to workplaces liable to inspection, established by section 38 of the Act concerning the structure and functions of the labour and social security sector, extends to night work according to the activities of the enterprise. The Committee cannot overemphasize the need to give legal authorization to inspectors to exercise their right of free entry to workplaces liable to inspection, regardless of the hours of work of those establishments. It draws the Government’s attention to paragraph 270 of its General Survey of 2006 on labour inspection in which it emphasizes that the purpose of the above provisions of the Convention is to allow inspectors to carry out inspections, where necessary and possible, to enforce the application of legal provisions relating to conditions of work. The Committee is of the view that the protection of workers and the technical requirements for inspection should be the primordial criteria in 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. It therefore requests the Government to take the necessary steps without delay to bring the legislation into conformity with the Convention and to send copies of any text drafted or adopted to this end. The Committee would be grateful if the Government would supply copies, as stated in its report, of reports of inspections undertaken at night.

Article 12, paragraphs 1(c)(i) and 2. Scope of the powers of labour inspectors to investigate and notification of their presence at the workplace. With reference to the comments which it has been making since 2001, the Committee notes the Government’s new explanations to the effect that section 47 of the Act on the structure and functions of the labour and social security sector, under which inspections are carried out with the participation of the employer, the workers or their representatives, aims to give transparency to inspections. The Committee is bound to repeat that the obligation thus placed on the inspector to carry out inspections with the employer, the workers or their representatives clearly constitutes an obstacle to the freedom of investigation prescribed by the Convention and also to the freedom of expression and spontaneity of the statements made by the persons questioned, particularly workers, and that it is therefore prejudicial to the effectiveness of the inspection. The Committee emphasizes in paragraph 275 of the above General Survey that to ensure that statements are as spontaneous and reliable as possible, it is essential for labour inspectors to exercise their own judgement as to whether to carry out confidential interviews where this is required by the subject of the interview. In this way, inspectors can avoid embarrassing the employer or his or her representative in front of the workers or, conversely, exposing workers to the risk of reprisals. It also reminds the Government that, in accordance with the terms of Article 12, paragraph 2, a labour inspector should be authorized not to notify the employer or his representative of his presence, if he considers this preferable in order to ensure the effectiveness of the inspection. The Committee therefore requests the Government once again to ensure that the legislation is rapidly brought into conformity with the letter and spirit of these provisions of the Convention. It hopes that the Government will provide the ILO with relevant information, together with any related legislative texts.

Article 14. Notification of industrial accidents and cases of occupational disease to the labour inspectorate. With reference to its previous comments on this matter, the Committee notes that the draft general law on the prevention of occupational risks is still under discussion in the competent committee of the Legislative Assembly. It also notes that, in practice, the services responsible for the inspection of occupational safety and health require enterprises to notify and record industrial accidents and cases of occupational disease. Inviting the Government to refer to paragraph 118 of the above General Survey concerning the importance of the preventive function of labour inspection, the Committee draws its attention once again to its general observation of 1996 concerning the publication by the ILO of a code of practice on the recording and notification of occupational accidents and diseases in order to provide member States with guidance in this area. It hopes that the Government will not fail to ensure, in the discussions of the draft general law on the prevention of occupational risks, that the national legislation defines the cases and the manner in which the labour inspectorate must be informed of industrial accidents and cases of occupational disease, and that it will keep the ILO informed of all developments in this regard and of the adoption of any relevant texts.

Article 18. Adequate penalties. While noting the information provided by the Government with regard to criteria for the imposition of fines, the Committee refers to paragraph 295 of the General Survey in which it emphasizes the importance of ensuring that fines retain a sufficiently deterrent character despite monetary fluctuations, so that employers do not prefer to pay fines as a less costly alternative to taking the necessary measures to ensure compliance with the legal provisions on working conditions and the protection of workers. It requests the Government to take the necessary steps rapidly to establish an appropriate method for the adjustment of the amounts of fines applicable for the violation of legal provisions enforced by labour inspectors or for obstructing inspectors in the discharge of their duties. The Committee would be grateful if the Government would provide information in its next report on the measures taken and copies of any related documents.

Articles 20 and 21. Publication and communication to the ILO of an annual inspection report. The Committee notes that, despite its repeated requests, no annual inspection report as required by these provisions of the Convention has been sent to the ILO since the ratification of the Convention in 1995. The Committee trusts that the Government, in the context of international cooperation and the technical assistance which it receives from the ILO, will take the necessary steps to ensure that the central inspection authority publishes and communicates to the ILO, within the deadlines prescribed by Article 20, an annual report containing the information required by Article 21(a) to (g).

Labour inspection and child labour. The Committee notes that the statistics supplied by the Government on inspections targeting child labour, and also in relation to prevention and awareness-raising activities in this field, in 2006 and 2007 relate in particular to the agricultural sector. The Committee requests the Government to take steps to ensure that information on enforcement by the labour inspectorate of the legal provisions relating to child labour in industrial and commercial establishments is sent to the Office and is included in a separate section in the annual inspection report.

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