Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Labour Inspection Convention, 1947 (No. 81) - India (Ratification: 1949)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations made by the Centre of Indian Trade Unions (CITU) received on 4 November 2014 concerning, among other things, the proposed amendments to the scope of application of numerous labour laws, which according to the CITU would exclude a great number of workers from the basic labour laws currently in force. The Committee requests the Government to provide its comments in this respect.

Legislation. The Committee notes that the Office was requested to examine the recently elaborated draft Small Factories (Regulation of Employment and Conditions of Services) Bill, 2014. It notes that the Office has communicated its comments to the Government, including with regard to labour inspection and occupational safety and health (OSH). The Committee requests the Government to provide information on the adoption of the Bill, as well as on any envisaged legislative reforms. It hopes that the Government will continue to avail itself of ILO technical assistance for this purpose.

Articles 10 and 16 of the Convention. Coverage of workplaces by labour inspection. 1. 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 of inspecting staff (“Ending Inspector Raj”), and that steps were being taken to make the system of inspection mostly complaints-driven. In this regard, the Government previously indicated that this did not mean that there was a lack of monitoring of the application of labour laws: labour inspections were actually carried out in the central sphere and, contrary to the CITU’s indications, most states did not have internal instructions preventing labour inspections. In this context, the Committee previously emphasized that measures taken to limit the number of labour inspections are not compatible with the main objective of labour inspection, which is the protection of workers, and Article 16 of the Convention which provides that workplaces or enterprises liable to labour inspection should be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.

The Committee notes the statistics provided by the Government in reply to the Committee’s previous request concerning labour inspection activities and their results in the central and state spheres. Concerning enforcement activities in the central sphere, the Committee notes that it appears from the statistical information provided by the Government that the number of labour inspections, violations detected, proceedings initiated, and convictions in relation to the supervision of a number of laws has decreased from 2010 to 2014. Concerning enforcement activities in the sphere of the states, the Committee considers that it is not able to properly assess the functioning of labour inspection in the states, as no information was provided on the number of workplaces and workers covered by labour inspection in each state, and as the statistical information concerning labour inspection in the states was only provided in relation to three laws. It is therefore unable to determine whether the Government has taken any measures to address the previously observed imbalance in the coverage of workplaces and workers liable to inspection from one state to the other. Recalling once again that, under Article 16, workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, the Committee requests that the Government take the necessary measures to ensure that full effect is given to this provision of the Convention. It requests the Government to continue to provide statistical information on the labour inspection activities and its results in the central and states spheres, which should be as detailed as possible, and also include information on the workplaces subject to labour inspection and the workers employed therein.

2. 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 indications, in reply to the allegations of the CITU and the Bharatiya Mazdoor Sangh (BMS), that very few inspections had been carried out in the SEZs and in the IT and ITES sectors. It further noted the Government’s indications that there are no separate labour laws for SEZs, and that SEZs are subject to labour inspection, except for dispensations provided to SEZ units such as the delegation of powers to the development commissioner under the Industrial Disputes Act, 1947. Furthermore, the Government indicated that the enforcement of labour laws in the IT–ITES sectors is carried out through returns submitted by the employers under various labour laws. The Committee notes that the Government has not provided a reply in relation to the Committee’s previous requests since 2007 on labour inspection and compliance with the legal provisions in these sectors. The Committee therefore once again requests the Government to specify the dispensations provided to SEZ units and the extent to which they have an impact on labour inspection; it would also be grateful if the Government would furnish detailed statistical information on: enterprises and workers in SEZs; labour inspectors who oversee them; inspections carried out; offences reported; penalties imposed; and industrial accidents and cases of occupational disease reported.

It further requests the Government to provide information on the number of returns submitted on the application of labour laws in the IT and ITES sectors, to forward copies of relevant examples, and to describe the process through which such returns are submitted and verified by the labour inspectors. The Committee also requests the Government to provide information on any amendments proposed under the Labour Laws (exemption from furnishing returns and maintaining registers by certain establishments) Act, 1988.

3. Introduction of self-certification schemes. The Committee previously noted the observations made by the CITU and the BMS with regard to the self certification scheme implemented in 2008, in particular as to the absence of any mechanism for the verification by the labour inspectorate of information supplied through this procedure. The Committee noted the Government’s indications that under this scheme, employers employing up to 40 persons are required to provide only a self-certificate regarding compliance, while those employing 40 or more persons are required to submit a self-certificate duly certified by a chartered accountant. It further noted the Government’s indications that a new inspection policy was introduced in 2008, placing emphasis on inspections in newly covered units, employers in violation of the legal provisions and those not submitting self-certifications. The Committee notes the information in a publication of the Ministry of Labour and Employment that self-certification of employers is foreseen by 16 labour laws in the central sphere. The Committee notes that the Government has not provided a reply in relation to its previous requests since 2007 in this regard. The Committee therefore once again requests the Government to supply information on the impact of the self-certification system introduced in 2008, notably on the frequency, thoroughness and effectiveness of inspection visits, to indicate the sectors in which self-certification is most prominent and to describe the arrangements made for the verification of information supplied by employers in self-certification schemes, the handling of any disputes and the action taken with regard to violations that are identified.

Article 6. Independence and integrity of labour inspectors. The Committee previously noted the indications of the All India Manufacturers’ Organisation (AIMO), according to which any proposal to give substantial powers to labour inspectors may give rise to a problem of corruption, and that the Government had made the labour inspection system complaints-driven to reduce arbitrariness. The Committee notes that the Government has not provided any reply in relation to the Committee’s previous request. It once again recalls that, under Article 6, the conditions of service of inspection staff, notably their wages, should be such as to guarantee their independence vis-à-vis improper external influences. The Committee once again requests the Government to provide information on the pay scale of labour inspectors by comparison with the remuneration of comparable categories of public officers like tax inspectors.

Article 12(1)(a). Free access of labour inspectors to workplaces. The Committee notes that the Government has again not provided information in relation to the Government’s previous announcement of amendments to the Factories Act, 1948, and the Dock Workers (Safety, Health and Welfare) Act so as to bring these laws into conformity with the requirements under Article 12(1)(a) of the Convention, i.e. to explicitly establish the right of labour inspectors to enter workplaces freely. It further notes that the Government has also not provided a reply in relation to the CITU’s previous allegations that in the State of Haryana no labour inspection can be carried out without the prior authorization of the Secretary of Labour, which is never given. In this context, the Committee also notes from the information in a publication of the Ministry of Labour and Employment that the Government plans to implement a computerized system, which will randomly decide which labour inspector will go to which factory. The Committee requests the Government to take the necessary measures aimed at amending the Factories Act (Powers of Inspectors) and the Dock Workers (Safety, Health and Welfare) Act without further delay, so that the right of labour inspectors to enter freely workplaces liable to inspection is guaranteed in law. It asks the Government to remove all restrictions in practice, where they exist, with regard to the principle of the free initiative of labour inspectors to enter any workplace liable to inspection. The Committee would also be grateful if the Government would provide information on the abovementioned plans to implement a computerized system to determine the workplaces to be inspected, and provide information on whether in this system, labour inspectors would also be authorized to enter any workplace liable to inspection on their own unimpeded initiative.

Article 18. Adequacy of penalties. The Committee previously noted the Government’s reiterated indications since 2008 that amendments enhancing the penalties under various provisions of the Factories Act, 1948, and the Dock Workers (Safety, Health and Welfare) Act, 1986, were under active consideration and that the relevant texts would be sent to the ILO, once adopted. The Committee notes that the Government, in its present report, has not provided information in this regard. It therefore once again urges the Government to take all necessary measures to have these amendments adopted without further delay so as to establish penalties that are sufficiently dissuasive to ensure the effective application of the legal provisions relating to conditions of work and the protection of workers, and to furnish copies of the final texts to the ILO.

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

[The Government is asked to reply in detail to the present comments in 2015.]