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The Committee notes the observations made by the National Federation of Independent Trade Unions of Senegal (UNSAS) on the application of this Convention, received by the ILO on 2 June 2010.
Strengthening of the labour inspection system through the creation of a medical labour inspection service. Further to its previous comments in which it noted that a medical labour inspection service had been institutionalized by Decree No. 2006–1253 of 15 November 2006, the Committee notes that this body has still not been set up. The Committee would be grateful if the Government would indicate the reasons for the delay in implementing the text creating a medical labour inspection service and keep the Office informed of any concrete measures taken to give effect to that text.
Article 13(2)(b), of the Convention. Measures with immediate executory force in the event of imminent danger to the health or safety of the workers. In its previous comments, the Committee noted the need to revise the legislation to give full effect to Article 13(2)(b), of the Convention. It notes that, according to the Government, Decree No. 2006–1255 of 15 November 2006 does not prevent labour inspectors from adopting measures with immediate executory force in the event of imminent danger to the health or safety of the workers, including where no violation has taken place. Referring in this regard to sections 6–11 (concerning enforcement orders) and sections 18–22 (concerning urgent procedures and work stoppages) of that Decree, the Government states that inspectors have the power to adopt such measures regardless of the type of activity carried out by the enterprise concerned, but that it is nonetheless considering updating the Decree. However, the Committee notes that the labour inspector may apply to the judge for an urgent procedure under section 18 only in cases where a worker’s physical integrity might be seriously undermined as a result of a failure to observe the occupational safety and health legal provisions and regulations. Furthermore, under sections 19 and 20 of the same Decree, the labour inspector may order a work stoppage in the event of a serious and imminent danger resulting from a shortcoming in or failure of protection only in the case of establishments in which the staff are involved in construction work, public works or any other works on buildings, and only where the situation constitutes a violation of the legal provisions in force. The Committee is bound to emphasize that, in accordance with the letter and spirit of Article 13(2)(b), of the Convention, the exercise of this power should not be subject to any distinction based on the type of activity or work concerned. It requests the Government to refer to paragraph 112 of its 2006 General Survey on labour inspection.
The Committee therefore requests the Government once again to take steps to amend the legislation so that it is in full conformity with Article 13(2)(b), of the Convention, according to which labour inspectors should be able to order or recommend measures with immediate executory force in the event of imminent danger to the health or safety of the workers, regardless of the branch of activity, the type of work carried out and whether or not there has been a violation of the legal provisions or regulations.
Articles 18 and 21(e) of the Convention. Adequate nature and effective enforcement of penalties for violations. The Committee notes the figures on the action taken by labour inspectors (written observations (154), enforcement orders (20), reports (0), interruption of works (0) and urgent procedures (0)). It notes that the period covered is not indicated, which makes it impossible to assess the volume of activity of the inspection services over time or the type of violations reported. Furthermore, these figures are of no use in determining the action taken with a view to improving the level of application of the relevant legislation. The Government’s indication that four enforcement orders were issued in 2008 provides no further clarification and is not accompanied by any information establishing that penalties were imposed on the persons responsible for the violations reported. The Committee notes with concern that, according to the Government, no measures to update the scale of penalties are envisaged and that the only text applicable in this regard is Decree No. 62–017 PC/MFPT/DGTSS/TMO of 22 January 1962. Further to its previous comments concerning the need to ensure the dissuasive nature of the penalties, the Committee requests the Government to refer to paragraphs 291–306 of the abovementioned General Survey and to take measures as a matter of urgency to ensure the establishment of an effective system of penalties taking into account the nature and seriousness of the violation committed, as well as, according to the circumstances, the employer’s general attitude towards its legal obligations. The Committee requests the Government to describe the measures taken and to provide the most detailed figures possible on the violations reported, the measures implemented by labour inspectors and their impact in relation to the application of the legislation and occupational safety and health requirements.
Article 5(a). Cooperation between the labour inspection services and the justice system. The Committee notes that, according to the Government, the cooperation between the labour inspection system and the judicial system is in the process of being strengthened with a view to improving the processing of cases. The Government mentions, however, the difficulties encountered by the inspection services in accessing the registration system for court decisions, but points out that, in response to the Committee’s 2007 general observation, educational and informative training has been provided for labour inspectors and judges with a view to increasing awareness of the cooperation between the systems.
The Committee notes with regret that the information provided by the Government remains vague with regard to the content of the training and insufficient for the purpose of making any assessment of the impact of the measures taken. Furthermore, it is not even indicated whether measures aimed at facilitating access to court decisions by the labour inspectorate are envisaged.
Referring to its 2007 general observation, the Committee requests the Government to provide detailed information on the measures implemented to promote effective cooperation between the labour inspection services and the justice system, as well as on the impact of these measures in terms of court decisions.
Articles 6, 7, 10 and 11. Labour inspectorate staff, status and qualifications; means available for carrying out inspection duties. The Committee notes that the labour inspectorate is currently staffed by 57 inspectors and 63 controllers covering the entire country. The Government indicates in its report that the pay and career prospects of inspectors is a matter under consideration. According to the UNSAS, the working conditions of labour inspectors and controllers are clearly inadequate in view of the duties that they are required to carry out and they lack the necessary means of transport to carry out regular inspections of establishments. The Committee requests the Government to keep the ILO informed of the process of adopting the status and conditions of service of labour inspectors, as well as of any measures taken in this regard. It would be grateful if the Government would in any case take measures to ensure that the functions of labour inspector and controller are sufficiently appealing to attract and retain qualified persons within the inspection services and that the conditions of service of inspection staff are at least equivalent to those applicable to other categories of public officials with comparable duties and responsibilities, such as finance and tax inspectors.
The Committee also requests the Government to take the necessary measures to ensure that labour inspectors and controllers have the material resources and transport facilities required to carry out their duties and to keep the Office informed of any progress made in this regard, as well as any difficulties encountered.
Article 12(1)(a) and (2). Investigation powers of inspectors. In this regard, the Government refers to its reply contained in its previous report. The Committee is therefore bound to repeat its previous comments as follows:
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(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 10, 20 and 21. Basic information required to assess the functioning of the labour inspectorate in practice: statistics of industrial and commercial workplaces liable to inspection and number of workers covered. In its 2009 general observation, the Committee stressed the importance of keeping a register of the workplaces and enterprises liable to inspection, containing data on the number and categories of workers employed therein. The Committee requests the Government to take due account of its 2009 general observation and to provide the Office with information on the measures taken to ensure that a register of the workplaces liable to inspection is created as well as on the results achieved.
Articles 20 and 21. Annual report on the labour inspection activities. The Committee notes the preparation of an annual report by the labour statistics service. It reminds it of the dual obligation to ensure that the central labour inspection authority publishes an annual report and transmits that report to the ILO, as provided for by the above Articles of the Convention. The Committee requests the Government to take every measure necessary to ensure the publication and communication of such report by the central inspection authority within the prescribed time limits (in Article 20) and further reminds it that this report should contain the information required on the matters listed in Article 21. Part IV of the Labour Inspection Recommendation, 1947 (No. 81), contains very useful guidance on the manner in which this information could be presented so as to reflect, as faithfully as possible, the functioning of the labour inspectorate, including its strengths and weaknesses, and provide a basis for determining the budgetary, organizational and educational measures required to enhance its effectiveness.
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.
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.
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 with interest 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 with interest 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, paragraph 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.
Article 5(a). Cooperation between the labour inspection services and the justice system. The Committee notes with interest 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.
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, paragraph 2, of the Convention, is given a legal basis.
The Committee notes the Government’s report for the period ending 1 September 2006 in reply to its previous comments, as well as the attached documents. It also notes the communication by the Government, on 26 October 2006, of the comments made on this report by the National Confederation of Senegal Employers (CNES), the National Confederation of Senegalese Workers (CNTS) and the National Union of Autonomous Trade Unions of Senegal (UNSAS).
1. Articles 2, 3, paragraph 1(a), and 18 of the Convention. Supervision of legal provisions and application of adequate penalties. With reference to its previous comments on the need to establish a system of penalties applicable to violations of the provisions on conditions of work, the Committee notes that the Government refers to the provisions of Decree No. 62-017 PC/MFPT/DGTSS/TMO of 22 January 1962, issued under the former Labour Code, which is still in force. It notes that this Decree provides for penalties applicable to violations of the provisions on wages, weekly rest, employment and apprenticeship contracts and certain occupational health measures in particular. The Committee notes, firstly, that the provisions of the above Decree explicitly apply to certain sections of the former Labour Code, which do not correspond to the relevant sections of the 1997 Labour Code and, secondly, that the amounts established do not seem to have been adjusted for more than 40 years. It would therefore be desirable in all respects for relevant texts to be issued under the new Labour Code and for the amounts of the above penalties to be established at a level that is dissuasive in accordance with developments in the financial situation, with a view to ensuring that employers and workers are informed of their reciprocal rights and obligations, labour inspectors and any other authority or court apprised of a violations of the legal provisions on conditions of work can enforce the implementation of those provisions and the applicable penalties are adequate, as prescribed by Article 18. The consolidation of the applicable texts in a single document would certainly facilitate their enforcement by inspectors and courts, as well as compliance by law-abiding employers. In paragraph 292 of its General Survey of 2006 on labour inspection, the Committee emphasizes that it is essential for the credibility and effectiveness of systems for the protection of workers for violations to be identified by national legislation and for the proceedings instituted or recommended by labour inspectors against employers guilty of violations to be sufficiently dissuasive to make employers in general aware of the risks they run if they fail to meet their obligations. It is also important for penalties to be defined in proportion to the nature and gravity of the offence and for the amount of fines to be regularly adjusted to take account of inflation. It would be regrettable if employers preferred to pay fines as a less costly alternative to taking the measures necessary to ensure compliance with the legal provisions on working conditions, which is a phenomenon widely observed and reported to the ILO by numerous trade union organizations (paragraph 295 of the General Survey). The Committee cites a number of examples of good practice in this area (paragraph 296 et seq.). The Committee hopes that the Government will take relevant measures soon in the light of the above comments and that it will provide information on any developments in this area.
The Committee also requests the Government to provide, as soon as they have been adopted, a copy of the decrees implementing sections L.168 (occupational health and safety measures), L.185 (occupational safety services and representatives) and L.190 (status of labour inspectors and controllers) of the Labour Code, which it indicates are still being prepared, even though ten years have passed since the adoption of the above Labour Code. It also requests the Government to specify whether a draft decree implementing section L.189 (labour and social security services) is also being prepared.
2. Articles 5(a) and 18. Obstacles to the discharge of inspection duties. The Committee notes with interest the provision of a copy of the form for requesting the police and gendarmerie to issue a summons to any person who has refused to comply with an inspection. The Committee would be grateful if the Government would indicate whether, in practice, labour inspectors have the possibility of requesting police assistance in the event of being obstructed in the performance of their duties during the inspection of a workplace. If so, the Government is requested to describe the relevant procedure and provide information on the relevant case law as regards the penalties imposed in practice on employers who obstruct labour inspectors in their work.
3. Articles 10 and 11. Human and logistical resources of the labour inspectorate. According to the CNTS, no efforts have been made to equip the labour inspectorate with adequate resources, which has caused a considerable reduction in the actions of labour inspectors and controllers. The unlikelihood of inspections encourages violations of the legal provisions on conditions of work and the protection of workers while engaged in their work, in particular with regard to occupational safety and health. The CNTS is concerned about the Government’s intentions in this respect in the short, medium and long term. The UNSAS considers the lack of financial resources to be a major obstacle facing the labour administration, which is understaffed and encounters difficulties in managing its mail and sending notices to users. The lack of means of transport is also preventing inspectors from playing their role in the prevention of disputes. Consequently, the labour courts are swamped. Moreover, the conditions of service of labour inspectors are not attractive enough, which prompts them to withdraw in favour of the private sector, where conditions of work and social benefits are far more attractive than those offered by the civil service. The CNES in turn considers that the improvement of the conditions of work will depend on the resources made available to the labour inspectorate and on the demonstration of the labour inspectorate’s capacity to perform its tasks properly, including producing periodic reports.
The Committee notes with concern the convergent points of view expressed by these organizations on the labour inspectorate’s precarious resources and the repercussions of the inadequacies at various levels on its operation and the conditions of work. The Government acknowledges that the means of transport which were available to inspectors between 2000 and 2002 are no longer working and have not been replaced. It indicates that this has resulted in inspectors being reduced to carrying out “desk-based inspections”, intervening in the resolution of disputes reported to them, and that the few inspections carried out in enterprises are directly linked to these disputes. The Committee emphasizes that it is the Government’s responsibility to make the necessary arrangements in accordance with Article 11 to furnish labour inspectors with transport facilities in cases where suitable public facilities do not exist (paragraph 1(b)), as well as to reimburse them for any travelling expenses for professional purposes (paragraph 2), to enable them to perform their duties and, in particular, to carry out inspections of workplaces as thoroughly and as often as prescribed by Article 16. It hopes that the Government will take measures as soon as possible to give effect to these provisions of the Convention, in particular to establish conditions in which an assessment can be made, if necessary, with the technical assistance from the ILO and international financial cooperation, of the operation of the labour inspectorate and of its human, material and logistical requirements, with a view to ensuring appropriate budgetary allocations. It requests the Government to keep the ILO informed of any developments in this regard and any difficulties encountered.
4. Article 12, paragraphs 1(a) and (b), and 2. Inspectors’ powers of investigation. According to the Government, section L.197(1) and (2) of the Labour Code give effect to these provisions of the Convention. However, the Committee observes that, under Article 12, paragraph 1(a), of the Convention, the right of inspectors to enter freely workplaces liable to inspection applies without any restriction “at any hour of the day or night.” By making their right of entry to these workplaces at night subject to the condition that collective work is carried out there, the national legislation is contrary to the Convention since it does not permit certain technical inspections which require machinery to be stopped, for example, or checks to verify that no clandestine work is taking place after the closing time of the establishments supposed to operate only during the day.
The Committee also notes that section L.197(1) of the Labour Code states that the head of the enterprise or establishment, or his representative, may accompany the labour and social security inspector during the inspection. This provision is also contrary to the Convention in that it hinders the freedom of action to which the inspector shall be entitled during the inspection and his or her ability to decide, in accordance with Article 12, paragraph 1(c)(i), to interrogate “alone or in the presence of witnesses, the employer or the staff” and to fulfil the obligation of professional secrecy and confidentiality with regard to the source of the complaints, as prescribed by Article 15(b) and (c). The Committee emphasizes that the freedom of action which should be granted to labour inspectors during inspections includes the possibility of not notifying the employer or his representative of their presence if they consider that such a notification may be prejudicial to the performance of the inspection (Article 12, paragraph 2).
Drawing the Government’s attention to paragraphs 261–275 of its 2006 General Survey, the Committee once again requests it to take the necessary measures to bring the legislation into conformity with the Convention in respect of: (1) the extent of the right of inspectors to enter freely workplaces liable to inspection and premises which they may have reasonable cause to believe are liable to inspection; (2) the discretion of the inspector to authorize the employer or his representative to accompany him or her on the inspection; and (3) the right of inspectors not to notify the employer or his representative of their presence if they consider that such a warning may be prejudicial to the performance of the inspection.
5. Articles 19, 20 and 21. Obligation to submit reports on inspection activities. The Committee notes, in reply to its repeated request to provide the results of a survey announced in 1992 on occupational medicine in electricity, water and construction companies, that this survey has never been carried out due to lack of funding. It also notes that no annual general report on the work of the inspection services has been received by the ILO for many years. The comments made by the CNES also show that the inspection services are not in a position to produce periodic reports on their activities. Noting, however, the Government’s commitment to examine the best manner in which to train and raise the awareness of regional labour inspectors with regard to the gathering and provision of statistics, the Committee hopes that it will ensure that the central labour inspection authority makes efforts to develop tools to this end, including, in particular, inspection report forms for use by inspectors and controllers, adapted to the various categories of commercial and industrial workplaces liable to inspection and containing, in particular, headings for the type of visit, the legislative fields covered by the inspection, the inspector’s findings and follow-up action taken (advice, information, warning, interim measures until compliance, initiation of or recommendation for legal proceedings). Appropriate processing of such report forms by the inspection offices will allow the periodic reports referred to in Article 19 to be prepared and sent to the central inspection authority so that it has the necessary information for preparing the annual report, the publication and communication of which are prescribed by Article 20 and the content of which is defined by Article 21. The Committee hopes that the Government will provide information in its next report on any developments in this area and any relevant documents and reports.
The Committee notes the Government’s report replying in part to its previous comments and the documentation attached to the report.
According to the Government, the reinforcement of the means of transport made available to the regional labour inspectorate had a very positive effect both on inspection activities and on the motivation of inspectors. The Committee requests the Government to provide information showing the extent of these improvements, including the number, frequency and effectiveness of the inspection visits to workplaces.
The Government is once again asked to provide a copy of the application form that labour inspectors may use to seek assistance from the civilian and military authorities in carrying out certain missions.
Lastly, the Committee trusts that the Government will provide information on the points it raised in its previous direct request, which read as follows:
Recalling once again that, as one of the ILO’s priority instruments, this Convention requires Members which have ratified it to provide the ILO with a report every two years on any new legislative provisions or measures taken by the competent authorities to give effect to it, in accordance with the questions raised in the report form. The Committee therefore requests the Government to provide such reports in future. It also requests the Government to provide information on the following points.
The Committee would be grateful if the Government would indicate the progress made in the procedure for the enactment of various decrees under sections L.168, L.185, L.186, L.189 and L.190 of the Labour Code, the signature of which was announced in its report, and to provide copies, where appropriate.
Article 2, Article 3, paragraph 1(a), and Articles 17 and 18 of the Convention. With reference to its previous comments, the Committee notes the penalties set out in sections L.278-L.286 of the Labour Code for violations of certain specific provisions of the labour law. It notes that the penalties for obstructing labour inspectors in the exercise of their duties are set out in section L.281, but notes once again that no penalties appear to be envisaged for violations of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours of work, wages and occupational safety and health conditions. The Committee trusts that the Government will take the necessary measures to establish a system of penalties applicable to this type of violation with a view to giving effect to the relevant provisions of the Convention.
Article 12. Further to its previous comments, the Committee requests the Government to take measures to supplement the powers set out in section L.197 of the Labour Code through the adoption of legal provisions under which labour inspectors are authorized to enter at night any workplace liable to inspection and by day any premises which they may have reasonable cause to believe to be liable to inspection (paragraph 1(a) and (b)), and a provision authorizing them to refrain from notifying the employer or his representative of their presence on the occasion of an inspection visit where they consider that such a notification may be prejudicial to the performance of their duties.
Articles 20 and 21. Noting the Government’s partial replies to its previous comments on these provisions, the Committee would be grateful if it would provide information on the results of a survey announced in 1992 on occupational medicine in electricity, water and construction companies.
The Committee hopes that the Government will soon transmit the annual report for 2000, as it has undertaken to do, and that in future it will transmit such reports containing the information required on each of the matters set out in Article 21 within the time limits provided for in Article 20.
Also with reference to its observation, the Committee notes the Government’s brief report, the partial replies provided to its earlier comments and the attached documents.
Articles 2; 3, paragraph 1(a); 17 and 18 of the Convention. With reference to its previous comments, the Committee notes the penalties set out in sections L.278 to L.286 of the Labour Code for violations of certain specific provisions of labour law. It notes that the penalties for obstructing labour inspectors in the exercise of their duties are set out in section L.281, but notes once again that no penalties appear to be envisaged for violations of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours of work, wages and occupational safety and health conditions. The Committee trusts that the Government will take the necessary measures to establish a system of penalties applicable to this type of violation with a view to giving effect to the relevant provisions of the Convention.
Article 5(a). With reference to its previous comments on the application of this provision, and noting that the civil and military authorities provide assistance to labour inspectors on the basis of request forms intended for this purpose, the Committee requests the Government to indicate the authorities in question and to provide a copy of the above form.
Articles 11, paragraph 2, and 16. The Committee notes with interest that, further to its previous comments concerning the need to provide the inspection services with equipment and transport facilities to enable them to discharge their function of supervising workplaces as effectively as possible, the Government took measures in 1999 to allocate new service vehicles to all the regional labour inspection services. It would be grateful if the Government would supplement this information by indicating the geographical distribution of service vehicles and by providing information on the impact of this improvement in the facilities available on the number and quality of inspections.
The Committee is also addressing a request directly to the Government on certain points.
The Committee notes the Government’s successive reports, according to which no change has occurred in the application of the Convention since 1993. It nevertheless notes the adoption in 1997 of a new Labour Code. The Committee hopes that the Government will not fail to provide copies, as soon as they are published, of each of the texts to be issued under sections L.168(2), L.185, L.186, L.189 and L.190 concerning, respectively, measures for the organization and functioning of institutions contributing to the observance of safety and health requirements, the improvement of working conditions and the health protection of workers; the organization, duties, functioning and means of action of occupational safety services; the organization, functioning and means of action of occupational medicine services; the organization and functioning of regional labour and social security inspectorates; and the status of labour and social security inspectors and controllers. The Committee however wishes to draw the Government’s attention to and requests it to provide additional information on the following points.
1. Reporting obligations. The present Convention is classified as a priority instrument and, as such, requires Members which have ratified it to provide the ILO every two years with a detailed report on the legislative provisions or any other measures taken by the competent authorities for its application, by providing the information required in the report form. The Government is requested to take the appropriate measures for effective compliance with this obligation.
2. Annual general report on the work of the inspection services. The Committee notes that, over the past ten years, the competent authority has not provided any annual report of the inspection services. The preparation, publication and transmission to the ILO of such reports are required by Article 20, containing information on the subjects enumerated in Article 21(a) to (g) of the Convention. However, the note on the results of the survey of occupational medicine for the period ending 1990 provides statistical information on the subjects covered by Article 21(c), (d), (e), (f) and (g), of the above Article in the field of occupational health in a number of sectors. The survey was supposed to have covered other sectors in so far as adequate material resources were made available to the services responsible for the survey. The Committee would be grateful if the Government would provide information on the results of the survey as announced in other sectors, as well as on any measures and action which may have been envisaged and implemented based on the findings of the survey. It would also be grateful if the Government would in addition take the necessary measures to ensure that the competent authority prepares, publishes and transmits regularly to the ILO copies of annual reports containing information on the subjects enumerated in Article 21 for all the sectors liable to supervision by the labour inspection services.
3. Powers of labour inspectors and effectiveness of inspections in workplaces liable to inspection. The Committee notes that the new Labour Code maintains restrictions on the powers of labour inspections which can only prejudice their authority and independence and, therefore, the effectiveness of their work. Under the terms of section L.97, labour inspectors can only enter workplaces liable to inspection during the daytime, and only where such workplaces employ workers who are legally protected. The Committee recalls that, in accordance with Article 12(1)(a) of the Convention, inspectors should be able to enter freely and without previous notice, also at any hour of the night, any workplace liable to inspection, without any restriction related to the status of the workers who may be employed therein. The freedom of inspectors to enter workplaces as envisaged by the Convention is required precisely to enable them to detect any unlawful work at any time. However, the new legislation does not contain a provision explicitly authorizing labour inspectors to enter such workplaces freely and without previous notice. The authorization required under the terms of section 197(1) from the employer or his representative to accompany the inspector is not in conformity with Article 12(2) of the Convention, according to which labour inspectors should have the possibility of refraining from notifying them of their presence when they consider that such notification may be prejudicial to the performance of their duties. The Government is requested to take measures to make appropriate amendments to its legislation with a view to ensuring that it is in conformity with the above provisions of the Convention and to keep the ILO informed of any progress achieved in this respect.
4. Assistance of the civil and military authorities to labour inspectors. The Committee notes that, in accordance with section 196 of the Labour Code, the civil and military authorities must provide labour inspectors, at their request, with help and assistance in the discharge of their duties. It requests the Government to indicate the procedures for the implementation of this provision, particularly as they relate to the collaboration of the military authorities in the discharge of the functions of the labour inspection services.
5. Transport facilities. The Committee notes from the above survey concerning occupational health that emphasis is placed on the manifest inadequacy of the means of transport available to the labour inspection services to carry out an exhaustive survey of the situation, and therefore on the need to improve these facilities. For the discharge of their functions, the labour inspection services should also be provided with adequate vehicles or transport facilities. The absence or manifest inadequacy of such means of transport constitutes an obstacle to labour inspection. Employers who employ workers in workplaces that are distant from the inspection services may therefore consider that they are protected from sanctions to which they would otherwise be liable due to the failure to observe the applicable legal provisions concerning conditions of work and the protection of workers in the performance of their work. The Committee would be grateful if the Government would indicate the manner in which effect is given to Article 11 of the Convention, which sets out the obligation for the competent authority to make the necessary arrangements to furnish labour inspectors with the transport facilities necessary for the performance of their duties in cases where suitable public facilities do not exist (Article 11(1)(b)) and for the reimbursement to labour inspectors of any travelling and incidental expenses which may be necessary for the performance of their duties (Article 11(2)).
6. Legal basis for penalties for violations of the legal provisions the application of which is supervised by labour inspectors. The Committee notes that the Labour Code does not set out the penalties to which employers and workers are liable for violations of provisions the application of which is supervised by the labour inspection services. It would be grateful if the Government would indicate the instruments which provide a legal basis for the decisions of labour inspectors and of the respective administrative and judicial bodies.
Articles 20 and 21 of the Convention. Further to its previous observations, the Committee recalls the data and analysis contained in the Note on labour statistics for 1988. It notes with interest the Government's statement that the necessary steps will be taken to include statistics of occupational diseases in the Note in future. The Committee hopes that the Government will shortly provide copies of the annual Notes from 1988 onwards, in accordance with Article 20 of the Convention. It also asks the Government to indicate the form in which the Notes are published.
Articles 3, paragraph 2, and 16. The Committee notes that only 15 per cent of the establishments registered in 1986 were inspected in 1988. For Dakar, the corresponding figure was 7.9 per cent. It would be grateful if the Government would indicate the measures taken or envisaged to ensure that workplaces are inspected as often and as thoroughly as is necessary, and that other tasks entrusted to labour inspectors do not hamper the performance of their main duties.
Article 21 of the Convention. The Committee notes with interest the information contained in the Note on labour statistics for 1988. It expresses the hope that, in future, it will be possible for the Note to be completed by a list of the laws and regulations relevant to the work of the inspection services and by statistics of occupational diseases (Article 21(a) and (g)).