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Labour Inspection Convention, 1947 (No. 81) - Luxembourg (Ratification: 1958)

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Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

In order to provide an overview of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129), in a single comment.

Articles 3(1) and (2) and 5 of Convention No. 81, and Articles 6(1) and (2), 12(1) and 13 of Convention No. 129. Duties of labour inspectors. Monitoring the employment of third country nationals in an irregular situation. Further to its last comment, the Committee notes the statistics for 2019, disaggregated by economic sector, sent by the Government on the activities of the Labour and Mining Inspectorate (ITM) with regard to monitoring the employment of third-country nationals in an irregular situation with respect to their residence status. In this regard, it notes that out of 5,682 inspections made by the ITM, 62 situations were recorded which involved the presence of 68 third-country nationals with irregular residence status. The Government indicates that, for all third- country nationals, employers have been urged to regularize the statutory rights of employees. However, the Committee notes that the Government has not sent any statistical information on the cases in which workers in an irregular situation have actually been granted the rights due to them, further to action by labour inspectors. The Committee requests the Government to continue providing information on the nature of the action taken by the labour inspectorate to monitor the employment of third country nationals in an irregular situation, indicating the number of cases in which workers in an irregular situation have actually been granted their statutory rights, such as the payment of unpaid wages, social security benefits or the conclusion of an employment contract.

Article 10 of Convention No. 81, and Article 14 of Convention No. 129. Number of labour inspectors. Further to its last comment, the Committee notes the information sent by the Government on ITM staff numbers and the number of labour inspectors who devote themselves entirely to primary labour inspection duties. It notes the rise in ITM staff numbers, which increased from 143 employees in 2019 to 203 employees in 2020. The Committee further notes that in 2020 the number of labour inspectors in the field was 64, out of a total of 86 inspectors, compared with 29 labour inspectors in the field in 2019, out of a total of 54 inspectors. While noting the progress that has taken place, the Committee requests the Government to continue providing information on changes in ITM staff numbers, indicating the number of labour inspectors who devote themselves entirely to primary labour inspection duties.

Issues specifically concerning labour inspection in agriculture

Article 6(1) and (2), and Articles 9 and 27 of Convention No. 129. Information on the preventive and supervisory activities of labour inspection in agriculture. Specific training for labour inspectors in agriculture. Further to its previous comments, the Committee notes the Government’s indication that in 2019 a total of 80 inspections relating to working conditions and occupational safety and health were conducted in agriculture, out of a total of 5,682 inspections by the labour inspectorate. However, it notes that the ITM annual report for 2020 does not contain any statistics on the number of labour inspection staff in agriculture, on agricultural undertakings liable to inspection and the number of staff employed therein, or on violations committed and penalties imposed in agriculture. However, the Committee notes the information contained in the 2020 ITM annual report concerning the distribution of cases handled by the labour inspectorate, according to which 303 cases involving agriculture have been handled by the ITM, namely 0.40 per cent of the total number of inspection cases. Moreover, the Committee notes that the 2020 ITM annual report contains statistics on occupational accidents in agriculture but does not contain any statistics on occupational diseases. Lastly, the Committee notes that, according to the Government, the specific training given on agriculture forms an integral part of the training for all labour inspectors. Noting the low percentage of inspections carried out in agriculture, the Committee requests the Government to take steps to ensure the application of the legislation in agriculture, and to continue providing information on the number of inspection visits carried out in this sector. The Committee requests the Government to continue to publish annual reports on the work of the labour inspectorate and send them to the ILO, and to ensure that they contain information on all the matters covered by Article 27 of Convention No. 129, including statistics on labour inspection staff in agriculture, on agricultural undertakings liable to inspection and the number of persons working therein, on violations committed and penalties imposed, and also on occupational diseases and their causes.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture)in a single comment.

Articles 3(1) and (2) and 5 of Convention No. 81, and Articles 6(1) and (2), 12(1) and 13 of Convention No. 129. Duties of labour inspectors. Monitoring the employment of migrant workers in an irregular situation. In its previous comments, the Committee noted that the Labour and Mining Inspectorate (ITM) was involved in controls for clandestine work and recalled that, in order to be compatible with the objective of protection of labour inspection, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers concerned.

The Committee notes the Government’s indications, in reply to its request, that the role of the ITM is to carry out inspections to monitor the employment of third-country nationals in an irregular situation as regards their residence status, prohibited by section L.572-1 of the Labour Code, in order to protect the rights of migrant workers as resulting from their employment relationship and to sanction employers who do not respect the relevant provisions. The Government indicates that, in accordance with section 572-7 of the Labour Code, the ITM informs the workers of their rights relating to the obligation of the employer to pay them the legal or conventional minimum social wage, and of remedies for violations of conditions of work. It also notes that the ITM ensures that employers pay the wages due to migrant workers, including by issuing administrative fines in the event of non-compliance. Also in reply to the Committee’s requests, the Government indicates that there have not been joint operations with the police and the customs and excise administration in the framework of actions to combat illegal work (“crackdown”) since 2015, but that there are plans to strengthen cooperation between the ITM and these entities. There is already collaboration, for example, in the form of notification, by the police and the customs and excise administration, to the ITM of violations, inter alia, with a view to the regularization of the workers’ situation in relation to their wages, social security contributions and taxes. The Committee requests the Government to provide statistical information on the ITM’s activities in relation to the monitoring of the employment of third-country nationals in an irregular situation as regards their residence status residing illegally in the country and on the cases in which undocumented workers have been granted their due rights as a result of the action taken by labour inspectors.

Article 3(1) and (2) of Convention No. 81, and Article 6(1), (2) and (3) of Convention No. 129. Duties of labour inspectors. The Committee notes the information provided by the Government in reply to its request for clarification on the additional duties of labour inspectors. In this regard, it notes that the Inspection, Control and Surveys (ICE) service, created following the restructuring of the ITM in 2015, is entirely dedicated to the primary functions of labour inspection as set forth in Article 3(1) of Convention No. 81 and Article 6(1) and (2) of Convention No. 129.

Articles 4, 7, 10 and 11 of Convention No. 81, and Articles 7, 9, 14 and 15 of Convention No. 129. Restructuring of the labour inspection system and number of labour inspectors. The Committee notes the detailed information provided by the Government, in reply to its previous request, on the restructuring of the ITM in 2015, including the provision of further training in the “knowledge academy” to all ITM staff. The Committee welcomes the information on the significant increase of budgetary resources allocated to labour inspection over the past five years.

The Committee also notes the information provided by the Government on the reasons for lowering the number of labour inspection staff (from 103 in 2013 to 92 in 2015). The Government indicates that the reduction in the number of ITM staff is essentially linked to retirements, but that some new agents and interns have been recruited (according to the information provided in the annual report of the ITM, the ITM had 117 staff members at the end of 2016). Moreover, the Committee welcomes the Government’s indications that the ITM’s goal is to increase, over the course of the next ten years, the number of staff to at least 200 agents. The Committee requests the Government to continue to provide information on the number of ITM staff, indicating the number of labour inspectors entirely dedicated to the primary functions of labour inspection.

Issues specifically concerning labour inspection in agriculture

Articles 6(1) and (2), 9 and 27 of Convention No. 129. Information on the preventive and supervisory activities of labour inspection in agriculture. In its previous comment, the Committee noted that statistics on the ITM’s activities in agriculture were still not reflected in the annual inspection reports.

The Committee notes the Government’s indications that labour inspections are carried out in all economic sectors and that it is still not possible to provide statistics on the ITN’s activities in agricultural undertakings. In this context, the Committee notes the information provided in the 2016 annual report of the ITM (available on the ITM website) indicating that, in the long term, an approach based on economic sector-specific strategies will be developed. The Committee hopes that the Government will soon be in a position to provide statistical data so that the ITM’s activity in agricultural undertakings can be analysed and statistics on the points provided in Article 27(c) to (g) of Convention No. 129 can be incorporated into the annual report of the ITM. The Committee requests the Government to provide information, where available, on any measures taken or envisaged to develop an inspection strategy for the agricultural sector, including any strategy involving specific training for ITM labour inspectors in agriculture.

Articles 11, 12(1) and 13 of Convention No. 129. Cooperation with the chamber of agriculture and other governmental bodies and collaboration with employers and workers, or their organizations, in agriculture. The Committee notes the information provided by the Government, in reply to its request, indicating that the ITM works closely together with the chambers of agriculture and other institutions (such as agricultural technical secondary schools and agricultural associations) to provide training on prevention for workers and employers, particularly the employees responsible for preventing occupational risks in the undertakings. The Committee also notes the information provided by the Government, in reply to its request, on collaboration between the ITM and the social partners in agriculture.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention Nos 81 and 129 in a single comment.

Articles 3(1) and (2), and 5 of Convention No. 81 and Articles 6(1) and (2), 11, 12(1) and 13 of Convention No. 129. Functions of labour inspectors. With reference to its previous comment, the Committee notes the Government’s explanations that the wording of new section L.612-1 of the Labour Code, which provides in subsection 1(a) that the inspectorate of labour and mines shall be responsible, among other functions, for ensuring the enforcement of the legislation, “inter alia” conditions of work and the protection of workers, does not in any way relegate to a secondary level the principal functions of the labour inspectorate, as set out in Article 3(1) of the Convention.

Methods of supervision of the conditions of work of posted workers. The Committee notes the information in the Government’s report in reply to its previous request, and the information contained in the 2014 annual report of the Labour and Mining Inspectorate (ITM) on the methods for supervising the conditions of work of posted workers. It notes the Government’s indication that these workers benefit from the same rights as national workers.

Supervision of the employment of migrant workers in an irregular situation. With regard to clandestine work, the Committee previously noted that the Inter-administrative Unit to Combat Illegal Work (CIALTI) undertook action known as “crackdowns” with the participation of officials from several ministries or administrations, including the labour inspectorate and the Security and Alcohol Department (ASCAB) of the Customs and Excise Administration. In this connection, the Committee notes the Government’s indication that the “crackdowns” carried out up to 2014 did not produce the desired results and have been rethought and modified since the beginning of 2015. The Committee notes from the annual report of the ITM for 2014 that the ASCAB Department carried out during that year 257 controls for clandestine work on behalf of the ITM, during which 31 violations were detected. The Committee notes that, in accordance with section L.612-1(1)(f) of the Labour Code, labour inspectors shall be responsible for controlling the employment of migrant workers in an irregular situation and that, for this purpose, the ITM shall conduct a risk analysis for the regular identification of sectors in which there is a concentration of employment of migrant workers in an irregular situation concerning their residence status. It observes that the Government has not provided the information requested in its comments made in 2007 and reiterated in 2010 and 2014 concerning the situation of migrant workers found to be in an irregular situation during such controls, particularly with regard to the protection of rights arising out of their employment. The Committee recalls that, in order to be compatible with the protective vocation of labour inspection, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers concerned. The Committee requests that the Government specify whether the “crackdown” actions referred to above have been totally brought to an end. It also requests the Government to provide details on the specific role of the ITM in monitoring the employment of migrant workers in an irregular situation and, where appropriate, to provide statistics on this subject. The Committee also requests the Government to provide information on the action taken by the ITM to ensure compliance by employers with their obligations in relation to the rights of migrant workers in an irregular situation, such as the payment of wages and social security and other benefits, throughout the effective duration of their employment relationship, particularly in cases in which such workers are at risk of expulsion from the country. It further requests the Government to provide information on cases in which undocumented workers have obtained the entitlements to which they were due.

Function of preventing and conciliating labour disputes. With reference to section L.612-1(1)(b) of the Labour Code, the Committee notes the Government’s indication that the personnel of the labour inspectorate is responsible for preventing and conciliating all labour disputes which do not lie within the competence of the National Conciliation Office. It also notes that the Government is not yet in a position to quantify the time and resources devoted by the personnel of the labour inspectorate to the discharge of their various functions, and that reflection has commenced on this subject since the restructuring of the ITM initiated in February 2015. The Committee recalls in this regard the terms of Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129 and draws the Government’s attention to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which the “functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee requests that the Government provide information on the measures adopted to ensure that the functions set out in Article 3(1) of the Convention continue to be the principal functions of the labour inspectorate. In this respect, it once again requests the Government to provide information on the proportion of time and resources devoted to the various inspection functions.

Supervision and prevention in relation to occupational safety and health in agricultural undertakings. In its previous comment, the Committee requested the Government to provide information on the legal provisions respecting the exercise by inspectors of the functions of prevention and supervision in agricultural undertakings, and to provide statistics on the application of these provisions. In this context, the Committee notes that the ITM is responsible for the enforcement of Book III, Title I, of the Labour Code respecting occupational safety, and its implementing regulations. The Committee also notes that certain agricultural undertakings are governed by the amended Act of 10 June 1999 concerning classified establishments, which contains provisions on the protection of the health and safety of workers. Finally, the Government indicates that the ITM is not yet in a position to provide statistical data on the application in practice of these provisions. The Committee requests the Government to continue its efforts to produce statistical data on the application in practice of these provisions.

Articles 4 and 10 of Convention No. 81 and Articles 7 and 14 of Convention No. 129. Restructuring of the labour inspection system and number of labour inspection staff. The Committee notes that, according to the 2014 annual report of the ITM, the personnel of the labour inspectorate decreased from 103 in 2013 to 99 in 2014 and that, according to the Government’s report, the ITM was composed of 92 officials in 2015. It also notes that one of the consequences of the restructuring of the ITM has been the centralization of the personnel. It notes that an “inspection, control and surveys” service has been established with the objective of making the inspection system more proactive. The Committee requests that the Government provide information on the reasons for the reduction in the numbers of labour inspection personnel. It also requests that the Government provide further information on the restructuring of the ITM and to provide an organizational chart of the labour inspectorate. Furthermore, it requests that the Government provide information on any changes in the financial resources allocated to the labour inspectorate over the past five years.

Articles 5(a) and 9 of Convention No. 81 and Articles 11 and 12(1) of Convention No. 129. Cooperation and collaboration on occupational safety and health surveillance. In its last comment, the Committee requested the Government to provide information on the status and role of supervisory bodies carrying out controls in workplaces involving asbestos and workplaces where workers are exposed to hazardous substances. The Committee notes the Government’s explanations, particularly in relation to section L.614-7(1) of the Labour Code, which provides that the ITM may be assisted by individuals or public or private law associations, approved by the Ministry, to fulfil various technical functions and to conduct studies and verifications. The latter are called “approved experts” or “supervisory bodies”, depending on the functions set out in the provision.

With regard to the agricultural sector, the Committee noted in its previous comment the collaboration between the inspectorate and the Chamber of Agriculture, and requested the Government to provide information on the content and procedures for cooperation between the labour inspectorate in agriculture and other governmental bodies. In this respect, the Committee notes the Government’s indication that the ITM collaborates with various institutions, including the administration responsible for technical services in agriculture, the association of accident insurance schemes and the health department. Nevertheless, the Government does not specify the content of such cooperation. The Committee requests that the Government specify the content of the cooperation between the ITM and these institutions in the field of agriculture.

Article 7(3) of Convention No. 81 and Article 9(3) of Convention No. 129. Training of labour inspectors. The Committee notes that, in the context of the current restructuring of the ITM, the Government envisages the creation of a “knowledge academy” for the development of further training for labour inspection officials. The Committee also notes that labour inspectors are not provided with specific training in agriculture. In this connection, the Committee recalls the terms of Article 9(3) of Convention No. 129 and draws the Government’s attention to Paragraph 4 of the Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), under the terms of which labour inspectors in agriculture should “have knowledge of the economic and technical aspects of work in agriculture”. The Committee requests that the Government provide information on any progress achieved in the establishment of the “knowledge academy” (and on the content of training, the number of labour inspectors inscribed, etc.).

Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129. Scope of the freedom of inspectors to enter workplaces liable to inspection. In its previous comment, the Committee expressed the view that the subordination of inspections under the terms of section L.614-3(1) of the new Labour Code to the existence of “sufficient proof or legitimate grounds” restricts the right of labour inspectors to enter establishments and workplaces liable to inspection in a manner that is contrary to the Convention. It emphasized that the sole condition upon the exercise of this right, in accordance with Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129, should be the requirement for inspectors to be provided with proper credentials. In this regard, the Committee notes the explanations provided by the Government, according to which the terms “sufficient proof or legitimate grounds” do not restrict the right of labour inspectors to enter establishments or workplaces liable to inspection as all the legal grounds relating to the generic or specific functions of the ITM constitute legitimate grounds.

Issues specifically relating to labour inspection in agriculture

Articles 3, 4 and 5(3) of Convention No. 129. Coverage of the labour inspection services in agriculture. In its previous comment, the Committee requested the Government to specify the various categories of workers that the ITM is responsible for protecting, and the applicable legislative provisions or regulations. The Government indicates in this respect that the ITM is responsible for the protection of employed persons and indicates that, under the terms of section L.611-2 of the Labour Code, the term employed person should be understood to mean any individual, including trainees, apprentices and students engaged in an agricultural undertaking for the provision of services in exchange for remuneration which are performed under a relationship of subordination.

With regard to the effect given to Article 5(1) of Convention No. 129, the Government indicates that the ITM system covers members of the family of the owner or operator of the undertaking on condition that they are subject to a relationship of subordination. It does not apply to agricultural owners or sharecroppers not engaging external labour and exercising their activity as self-employed persons. The Committee notes this information.

Article 13 of Convention No. 129. Collaboration between officials of the labour inspectorate and employers and workers or their organizations. In its previous comment, the Committee requested the Government to provide information on the collaboration between labour inspectors carrying out inspections in agriculture and employers and workers or their organizations. In this regard, the Committee notes that the ITM has provided training on conditions of work and health and safety for agricultural employers and employed persons. However, the Committee recalls that collaboration between the labour inspection services and the social partners may take various forms. It may, for example, occur within the framework of a health and safety committee. The Committee requests the Government to provide information on the measures adopted or envisaged to encourage collaboration between the ITM and the social partners.

Articles 14, 15(1)(b) and 21 of Convention No. 129. Transport facilities for inspections of agricultural undertakings. Adequacy of the number of inspection personnel and frequency of inspections. In its last comment, the Committee requested the Government to provide information on the number of labour inspectors assigned to agriculture, the frequency of inspections, the measures taken to ensure the effectiveness of inspections and the means of transport available for inspections. In this regard, the Government indicates that, since its restructuring, the labour inspectorate is organized to work in all sectors, through its various pools, and that there are therefore no labour inspectors specifically assigned to agriculture. It also indicates that 33 vehicles are available for the ITM in general. With regard to statistics on the frequency of inspections, it adds that they are not yet available. The Committee requests the Government to take the necessary measures for the production of statistics as a basis for analysing the action of the ITM in agricultural undertakings.

Article 27 of Convention No. 129. Information on the activities of the inspection services in agriculture contained in the annual report. In its previous comment, the Committee requested the Government to provide information on the measures taken to ensure that the annual reports of the ITM contain the information required in Article 27 of the Convention. In this regard, the Committee notes the information provided by the Government to the effect that there are 2,137 agricultural undertakings in Luxembourg and that 5,068 people work in the sector, of whom 840 are employees. It also notes that in 2014 no penalties were issued and that three work-related accidents were reported. While welcoming the information provided by the Government, the Committee requests the Government to take the necessary measures to obtain detailed data on all of the matters covered by clauses (a)–(g) of Article 27 and to include this data in the annual report of the ITM.

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

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition
Articles 5(a) and 9 of the Convention. Cooperation and collaboration with regard to monitoring occupational safety and health. The Committee notes the indication in the Government’s report that the inspectorate is going through a period of change, especially in view of the need to take account of the work done by former customs officers, which affects the establishment of definitive procedures at this stage. According to the information provided by the Government in its 2008 report, the Labour and Mining Inspectorate (ITM) had worked on drafting and amending various legislative texts relating to its various spheres of competence, including those coming within the scope of application of the present Convention, namely, safety and health on temporary or mobile worksites. Moreover, several drafts of Grand Ducal Regulations have been submitted to the Ministry of Labour and Employment. The Committee notes in particular, because of the link with the subjects covered by the Convention, the draft relating to worksites involving problems with asbestos (asbestos cement, friable asbestos/flocking and asbestos removal) and the draft relating to exposure to hazardous substances in the workplace, and notes that the inspections in this context in 2008 were conducted by inspection bodies regarding which it is unclear whether these were activated by the labour inspectorate or whether they were bodies acting autonomously. The Committee requests the Government to supply information on the status and role of the inspection bodies whose annual report for 2008 indicates that they undertook inspections on sites involving asbestos, and also on exposure to hazardous substances in the workplace, and requests it to supply copies of the texts of the certificates of approval adopted pursuant to section L.614-3(7) of the Labour Code, which establish the relationship with the Labour and Mining Inspectorate, and also the operational arrangements for each sphere of action (Article 9).

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

The Committee notes that the Government’s report contains no reply to its previous comments. It must therefore repeat its previous comments.

Repetition
The Committee notes the Government’s report for the period ending 30 June 2010, and also the annual reports of the Labour and Mining Inspectorate (ITM) for 2007, 2008 and 2010 received at the ILO on 21 April 2011. It notes the publication, on the ITM’s website, of the annual reports starting with the report for 2004, which provides an overview of the changes in the operation of the labour inspectorate in each area.
The Committee also notes the inclusion in the annual report of the Code of Ethics for the labour inspectorate, adopted on 11 June 2008 and presented as a document that seeks to enable the ITM, as an organization, and its staff to apply quality standards in the sphere of professional and ethical conduct.
The Committee also notes the establishment of the ITM Help Centre in October 2009. This is an online service at national level providing advice and assistance designed to answer any questions that may arise for employees and employers regarding the national legislation. According to the information contained in the annual inspection report for 2010, the Help Centre, which is accessible on the website www.guichet.lu, has already enabled members of the labour inspectorate, who work on a decentralized basis in regional agencies, to provide a coordinated focus for users and to deal with investigations in enterprises.
Articles 3(1)(a) and 5 of the Convention. Methods for controlling the conditions of work of posted workers. The Committee notes that the Labour Code, adopted pursuant to the Act of 31 July 2006, was amended in particular by the inclusion of new provisions through the Act of 21 December 2007 concerning the reform of the Labour and Mining Inspectorate (ITM). The amended version of the Labour Code came into force on 13 June 2011.
The Committee notes the amendment of section 142-3 of the Code, under which foreign enterprises operating in Luxembourg without being permanently established there and employing one or more workers are now required to send to the ITM, as soon as possible (and no longer at the request of the ITM, as was the case under the former provisions), the documents referred to in section 142-2 concerning the enterprise and the workers employed in it. The Committee understands that this legal amendment will give the ITM the possibility of inspecting the conditions of work of the employees concerned as soon as the enterprise commences operations in Luxembourg, and thereby prevent any attempted abuse to the detriment of workers employed for short periods.
However, the Committee notes in the annual report of the ITM for 2010 that 30 injunctions for non-compliance with the new section 142-3 were issued, including nine by officials of the Luxembourg Liaison Office for Posted Workers (BLLD) (an entity resulting from the amalgamation of the Department for Posted Workers and Action against Illegal Work (SDTI) and the Luxembourg Liaison Office), and 21 by officials of the excise administration. The BLLD has a promotional and organizational role within the Inter-Administrative Task Force against Illegal Work (CIALTI), a variable and non-institutionalized structure capable of mobilizing officials from six to eight ministries or administrations and which thereby makes an active contribution, according to the annual report, to the “crackdowns” on worksites or in enterprises already referred to in the previous comments of the Committee. In 2010, a total of 17 interventions relating to “organized undeclared work” during weekends and three “after-work” interventions (i.e. between 17.00 hours and 21.00 hours) were implemented. The interventions related to undeclared work and also to overtime. The annual report also indicates that, in the context of the activities of the ASCAB division of the Customs and Excise Administration undertaken in cooperation with the ITM, a total of 792 inspections took place, during which 204 infringements were reported and penalized. A total of 48 penalties were imposed for undeclared work, and eight reports were drawn up for infringements of the legislation relating to posted workers. The Committee further notes that the cross-border cooperation in which the BLLD participates seeks to take effective action against the numerous and increasingly ingenious variations in illegal work, and to make a specific contribution to the prevention of occupational accidents and diseases among migrant workers.
The Committee requests the Government to clarify the role of ITM inspection staff in the preparation and implementation of “crackdowns”.
Referring to its comments of 2007 which were repeated in 2010, and noting that the Government has not supplied the requested information regarding the situation of foreign workers found as a result of inspections to have irregular status, especially as regards the protection of rights deriving from their status as employees during their actual period of employment, the Committee requests the Government to provide this information.
The Committee requests the Government to state the manner in which cross-border cooperation on controlling the posting of workers contributes to the prevention of accidents and cases of occupational disease among migrant workers.
Articles 2 and 3. Scope of application of the Convention and duties of labour inspection staff. Former section L.611-1 of the Labour Code stated that “without prejudice to other duties arising from the legal, regulatory or administrative provisions, the ITM shall be responsible in particular for: (i) enforcing the legal, regulatory, administrative and collective agreement-derived 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, safety, health and welfare, the employment of children and young persons, equality of treatment between women and men, protection against sexual harassment in the workplace, and other connected matters, in so far as such provisions are enforceable by the Labour and Mining Inspectorate [...]”. This provision was in full conformity with Articles 2 and 3(1) of the Convention as regards the scope of the Convention and the duties of the labour inspectorate (focusing on conditions of work and the protection of workers).
The Committee notes that, under the terms of the new provisions on this matter (section 612-1 of the Code), the ITM is responsible in particular for enforcing the legal provisions “including those” relating to conditions of work and the protection of workers, which, at least according to the letter of the provision, relegates the inspection tasks of the labour inspectorate as defined by Article 3(1) of the Convention to a secondary level of competence. It notes that labour inspection staff are responsible for a number of other duties unconnected with the duties defined by Article 3, such as surveillance and monitoring of the marketing and use of products in the country (lifts, pressure appliances in general, gas appliances, lifting appliances), which draw substantially on the human and logistical resources of the inspectorate.
In its General Survey of 2006 on labour inspection, the Committee emphasized that primary inspection duties (enforcement of the legal provisions as established in Article 3(1); provision of technical information and advice to employers and workers and their organizations; contributing towards improving the relevant legislation) are complex and require time, resources, training and considerable freedom of action and movement (paragraph 69). It reminds the Government once again that, in accordance with Article 3(2) of the Convention, any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee therefore requests the Government to take the necessary measures to re-establish the labour inspectorate, on the basis of law, in its primary duties, as defined in Articles 2 and 3(1) of the Convention, and to provide information on the measures taken or contemplated towards this end.
It also requests the Government to indicate the proportion of time and resources devoted by labour inspection staff to the performance of other duties as compared with the time and resources devoted to the duties defined in Article 3(1).
Article 12(1). Scope of inspectors’ freedom to enter workplaces liable to inspection. The Committee notes that, under the terms of section L.614-3(1), subsection 1 of the new Code, “If there are legitimate grounds or sufficient evidence to consider that it is necessary to enforce the legal provisions coming within the competence of the Labour and Mining Inspectorate in worksites, workplaces and buildings and also their respective outbuildings, members of the labour inspectorate must be able to enter freely and without previous notice at any hour of the day or night any such location that is liable to inspection.” The same provision also states that “Inspection or search activities undertaken on the spot must respect the principle of proportionality with regard to the grounds for such activities.” The Committee notes that this provision signifies a regression with regard to the previous national legislation. In fact, section 13(1) of the Act of 4 April 1974 concerning the reorganization of the Labour and Mining Inspectorate, which was in line with Article 12(1)(a) of the Convention, had been maintained by virtue of section 612 1(1) of the Act of 31 July 2006, which provided that “inspection personnel equipped with the relevant documents of authorization shall be empowered: (1) to enter freely and without previous notice [workplaces liable to inspection]”.
The Committee considers that the fact that the new Code makes inspections subject to the existence of sufficient evidence or legitimate grounds restricts, in a way which is contrary to the Convention, the scope of labour inspectors’ right to enter workplaces liable to inspection. The only condition that should be attached to this right, in accordance with Article 12(1), is the obligation for labour inspectors to be equipped with proper credentials. The fact that a workplace is liable to inspection is sufficient reason in itself for the full exercise of this right in order to ensure moreover, an effective application of Article 16, according to which workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee also wishes to emphasize that recognition of inspectors’ right to enter workplaces freely as defined by the Convention also enables labour inspectors to ensure that they discharge their obligation of confidentiality with regard to the source of any complaint and also as regards preventing the establishment of any link between the inspection and a complaint (Article 15(c)).
The Committee therefore requests the Government to take the necessary measures to restore in the legislation the right of labour inspectors to freely enter workplaces liable to inspection, as provided for in Article 12(1)(a) of the Convention, and to indicate the measures taken in this regard.

The Committee recalls that it raised other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Referring to its observation, the Committee requests the Government to supply additional information on the following point.

Articles 5(a) and 9 of the Convention. Cooperation and collaboration with regard to monitoring occupational safety and health. The Committee notes the indication in the Government’s report that the inspectorate is going through a period of change, especially in view of the need to take account of the work done by former customs officers, which affects the establishment of definitive procedures at this stage. According to the information provided by the Government in its 2008 report, the Labour and Mining Inspectorate (ITM) had worked on drafting and amending various legislative texts relating to its various spheres of competence, including those coming within the scope of application of the present Convention, namely, safety and health on temporary or mobile worksites. Moreover, several drafts of Grand Ducal Regulations have been submitted to the Ministry of Labour and Employment. The Committee notes in particular, because of the link with the subjects covered by the Convention, the draft relating to worksites involving problems with asbestos (asbestos cement, friable asbestos/flocking and asbestos removal) and the draft relating to exposure to hazardous substances in the workplace, and notes that the inspections in this context in 2008 were conducted by inspection bodies regarding which it is unclear whether these were activated by the labour inspectorate or whether they were bodies acting autonomously. The Committee requests the Government to supply information on the status and role of the inspection bodies whose annual report for 2008 indicates that they undertook inspections on sites involving asbestos, and also on exposure to hazardous substances in the workplace, and requests it to supply copies of the texts of the certificates of approval adopted pursuant to section L.614-3(7) of the Labour Code, which establish the relationship with the Labour and Mining Inspectorate, and also the operational arrangements for each sphere of action (Article 9).

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s report for the period ending 30 June 2010, and also the annual reports of the Labour and Mining Inspectorate (ITM) for 2007, 2008 and 2010 received at the ILO on 21 April 2011. It notes with interest the publication, on the website http://www.itm.lu/itm-rapport annuel, of the annual reports starting with the report for 2004, which provides an overview of the changes in the operation of the labour inspectorate in each area.

The Committee also notes with interest the inclusion in the annual report of the Code of Ethics for the labour inspectorate, adopted on 11 June 2008 and presented as a document that seeks to enable the ITM, as an organization, and its staff to apply quality standards in the sphere of professional and ethical conduct.

The Committee also notes with interest the establishment of the ITM Help Centre in October 2009. This is an online service at national level providing advice and assistance designed to answer any questions that may arise for employees and employers regarding the national legislation. According to the information contained in the annual inspection report for 2010, the Help Centre, which is accessible on the website www.guichet.lu, has already enabled members of the labour inspectorate, who work on a decentralized basis in regional agencies, to provide a coordinated focus for users and to deal with investigations in enterprises.

Articles 3(1)(a) and 5 of the Convention. Methods for controlling the conditions of work of posted workers. The Committee notes that the Labour Code, adopted pursuant to the Act of 31 July 2006, was amended in particular by the inclusion of new provisions through the Act of 21 December 2007 concerning the reform of the Labour and Mining Inspectorate (ITM). The amended version of the Labour Code came into force on 13 June 2011.

The Committee notes with interest the amendment of section 142-3 of the Code, under which foreign enterprises operating in Luxembourg without being permanently established there and employing one or more workers are now required to send to the ITM, as soon as possible (and no longer at the request of the ITM, as was the case under the former provisions), the documents referred to in section 142-2 concerning the enterprise and the workers employed in it. The Committee understands that this legal amendment will give the ITM the possibility of inspecting the conditions of work of the employees concerned as soon as the enterprise commences operations in Luxembourg, and thereby prevent any attempted abuse to the detriment of workers employed for short periods.

However, the Committee notes in the annual report of the ITM for 2010 that 30 injunctions for non-compliance with the new section 142-3 were issued, including nine by officials of the Luxembourg Liaison Office for Posted Workers (BLLD) (an entity resulting from the amalgamation of the Department for Posted Workers and Action against Illegal Work (SDTI) and the Luxembourg Liaison Office), and 21 by officials of the excise administration. The BLLD has a promotional and organizational role within the Inter-Administrative Task Force against Illegal Work (CIALTI), a variable and non-institutionalized structure capable of mobilizing officials from six to eight ministries or administrations and which thereby makes an active contribution, according to the annual report, to the “crackdowns” on worksites or in enterprises already referred to in the previous comments of the Committee. In 2010, a total of 17 interventions relating to “organized undeclared work” during weekends and three “after-work” interventions (i.e. between 17.00 hours and 21.00 hours) were implemented. The interventions related to undeclared work and also to overtime. The annual report also indicates that, in the context of the activities of the ASCAB division of the Customs and Excise Administration undertaken in cooperation with the ITM, a total of 792 inspections took place, during which 204 infringements were reported and penalized. A total of 48 penalties were imposed for undeclared work, and eight reports were drawn up for infringements of the legislation relating to posted workers. The Committee further notes that the cross-border cooperation in which the BLLD participates seeks to take effective action against the numerous and increasingly ingenious variations in illegal work, and to make a specific contribution to the prevention of occupational accidents and diseases among migrant workers.

The Committee requests the Government to clarify the role of ITM inspection staff in the preparation and implementation of “crackdowns”.

Referring to its comments of 2007 which were repeated in 2010, and noting that the Government has not supplied the requested information regarding the situation of foreign workers found as a result of inspections to have irregular status, especially as regards the protection of rights deriving from their status as employees during their actual period of employment, the Committee requests the Government to provide this information.

The Committee requests the Government to state the manner in which cross-border cooperation on controlling the posting of workers contributes to the prevention of accidents and cases of occupational disease among migrant workers.

Articles 2 and 3. Scope of application of the Convention and duties of labour inspection staff. Former section L.611-1 of the Labour Code stated that “without prejudice to other duties arising from the legal, regulatory or administrative provisions, the ITM shall be responsible in particular for: (i) enforcing the legal, regulatory, administrative and collective agreement-derived 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, safety, health and welfare, the employment of children and young persons, equality of treatment between women and men, protection against sexual harassment in the workplace, and other connected matters, in so far as such provisions are enforceable by the Labour and Mining Inspectorate [...]”. This provision was in full conformity with Articles 2 and 3(1) of the Convention as regards the scope of the Convention and the duties of the labour inspectorate (focusing on conditions of work and the protection of workers).

The Committee notes that, under the terms of the new provisions on this matter (section 612-1 of the Code), the ITM is responsible in particular for enforcing the legal provisions “including those” relating to conditions of work and the protection of workers, which, at least according to the letter of the provision, relegates the inspection tasks of the labour inspectorate as defined by Article 3(1) of the Convention to a secondary level of competence. It notes that labour inspection staff are responsible for a number of other duties unconnected with the duties defined by Article 3, such as surveillance and monitoring of the marketing and use of products in the country (lifts, pressure appliances in general, gas appliances, lifting appliances), which draw substantially on the human and logistical resources of the inspectorate.

In its General Survey of 2006 on labour inspection, the Committee emphasized that primary inspection duties (enforcement of the legal provisions as established in Article 3(1); provision of technical information and advice to employers and workers and their organizations; contributing towards improving the relevant legislation) are complex and require time, resources, training and considerable freedom of action and movement (paragraph 69). It reminds the Government once again that, in accordance with Article 3(2) of the Convention, any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee therefore requests the Government to take the necessary measures to re-establish the labour inspectorate, on the basis of law, in its primary duties, as defined in Articles 2 and 3(1) of the Convention, and to provide information on the measures taken or contemplated towards this end.

It also requests the Government to indicate the proportion of time and resources devoted by labour inspection staff to the performance of other duties as compared with the time and resources devoted to the duties defined in Article 3(1).

Article 12(1) Scope of inspectors’ freedom to enter workplaces liable to inspection. The Committee notes that, under the terms of section L.614-3(1), subsection 1 of the new Code, “If there are legitimate grounds or sufficient evidence to consider that it is necessary to enforce the legal provisions coming within the competence of the Labour and Mining Inspectorate in worksites, workplaces and buildings and also their respective outbuildings, members of the labour inspectorate must be able to enter freely and without previous notice at any hour of the day or night any such location that is liable to inspection.” The same provision also states that “Inspection or search activities undertaken on the spot must respect the principle of proportionality with regard to the grounds for such activities.” The Committee notes that this provision signifies a regression with regard to the previous national legislation. In fact, Section 13(1) of the Act of 4 April 1974 concerning the reorganization of the Labour and Mining Inspectorate, which was in line with Article 12(1)(a) of the Convention, had been maintained by virtue of section 612-1(1) of the Act of 31 July 2006, which provided that “inspection personnel equipped with the relevant documents of authorization shall be empowered: (1) to enter freely and without previous notice [workplaces liable to inspection]”.

The Committee considers that the fact that the new Code makes inspections subject to the existence of sufficient evidence or legitimate grounds restricts, in a way which is contrary to the Convention, the scope of labour inspectors’ right to enter workplaces liable to inspection. The only condition that should be attached to this right, in accordance with Article 12(1), is the obligation for labour inspectors to be equipped with proper credentials. The fact that a workplace is liable to inspection is sufficient reason in itself for the full exercise of this right in order to ensure moreover, an effective application of Article 16, according to which workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee also wishes to emphasize that recognition of inspectors’ right to enter workplaces freely as defined by the Convention also enables labour inspectors to ensure that they discharge their obligation of confidentiality with regard to the source of any complaint and also as regards preventing the establishment of any link between the inspection and a complaint (Article 15(c)).

The Committee therefore requests the Government to take the necessary measures to restore in the legislation the right of labour inspectors to freely enter workplaces liable to inspection, as provided for in Article 12(1)(a) of the Convention, and to indicate the measures taken in this regard.

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

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes with regret 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:

Referring also to its observation, the Committee notes from the annual report of the Labour and Mining Inspectorate (ITM) for 2005 that in its activities relating to the Act on the Posting of Workers, labour inspectors cooperate with the secondment service, the mobile customs brigade or the regional services of the special police in the Inter-Administrative Task Force Against Illegal Work (CALTI). The Task Force, which if need be can call on 200 supervisory staff from six to eight ministries, departments or public establishments, has carried out numerous “crackdowns” on worksites all over the country. The Committee also notes from the annual report that 21 large-scale interventions and approximately 210 medium-scale interventions carried out in 3,128 foreign enterprises led to the closure of seven sites that are being constructed as a preventive measure. The Committee would be grateful if the Government would indicate the other types of sanctions imposed on employers found to be in breach of the legislation on conditions of work and the protection of workers (Articles 17 and 18 of the Convention). It also requests the Government to provide details of the consequences of offences reported in connection with the rights of illegal foreign workers acquired during their period of employment.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

The Committee notes the Government’s reports for the periods ending on 30 June 2005 and 30 June 2007, received at the ILO on 21 December 2005 and 26 November 2007, respectively, the annual report of the Inspectorate of Labour and Mines (ITM) for 2005 and the legislation attached. It also notes that the Labour Code, adopted on 31 July 2006, does not change the previous legal provisions on labour law, including those on labour inspection.

Developments in the labour inspection system. The Committee notes the process to enhance the efficiency and relevance of the labour inspection system, in particular a bill to reform the ITM currently before the competent parliamentary bodies. It awaits any developments in this respect and would be grateful if the Government would keep the Office informed.

International cooperation in labour inspection. The Committee notes that the annual report of the ITM contains information on each of the subjects set out in Article 21 of the Convention, and also on the ITM’s regional activities in the context of the European Union, such as participation in the drafting of new directives on occupational health and safety, and its activities at international level including the organization, in collaboration with the ILO, of a conference on integrated labour inspection systems held from 9 to 11 March 2005 and attended by delegates from some 70 countries. The Committee notes that according to section 6 of the Act on the Posting of Workers, the ITM’s purpose is to act as a liaison office for international cooperation with counterpart public administrations in the Member States of the European Union. The synergy thus created will enhance action to prevent industrial accidents and occupational diseases among migrant workers, in the “major region” composed of the founding members of the “old Europe”. The Committee would be grateful if the Government would provide information on the ways and means used to attain this objective, and on the results.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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:

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

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous observation, which read as follows:

Developments in the labour inspection system. The Committee notes the process to enhance the efficiency and relevance of the labour inspection system, in particular a bill to reform the ITM currently before the competent parliamentary bodies. It awaits any developments in this respect and would grateful if the Government would keep the Office informed.

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

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Developments in the labour inspection system. The Committee notes the process to enhance the efficiency and relevance of the labour inspection system, in particular a bill to reform the ITM currently before the competent parliamentary bodies. It awaits any developments in this respect and would grateful if the Government would keep the Office informed.

2. International cooperation in labour inspection. The Committee notes with interest that the annual report of the ITM contains information on each of the subjects set out in Article 21 of the Convention, and also on the ITM’s regional activities in the context of the European Union, such as participation in the drafting of new directives on occupational health and safety, and its activities at international level including the organization, in collaboration with the ILO, of a conference on integrated labour inspection systems held from 9 to 11 March 2005 and attended by delegates from some 70 countries. The Committee notes with interest that according to section 6 of the Act on the Posting of Workers, the ITM’s purpose is to act as a liaison office for international cooperation with counterpart public administrations in the Member States of the European Union. The synergy thus created will enhance action to prevent industrial accidents and occupational diseases among migrant workers, in the “major region” composed of the founding members of the “old Europe”. The Committee would be grateful if the Government would provide information on the ways and means used to attain this objective, and on the results.

The Committee is addressing a request on another point directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that, with the creation of the function of labour inspector, the function of labour supervisor, performed by unionists appointed by the Minister of Labour at the proposal of their trade unions, will be suppressed. It notes however that, among the selection criteria for candidates having passed the labour inspector aptitude and competency examination to be organized by the Labour and Mines Inspectorate, occupational and union experience will be given special consideration. The Committee would be grateful if the Government would indicate whether the outright exclusion from the examination of persons with the general aptitudes and competencies required for the job of labour inspector, but no union experience, is envisaged. The Government is also asked to indicate whether and in what manner customs and excise officers who have the authority to impose sanctions in the areas under their responsibility will be integrated in the inspectorate.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. It is therefore bound to repeat its previous observation which read as follows:

The Committee notes with satisfaction the information contained in the Government’s report and its “Note to the Government in Council on the reform of the inspectorate of labour and mines” for the joint implementation of a labour inspection system based on the recommendations of the tripartite audit mission prepared and organized by the ILO, and intended to improve the application of the fundamental principles enshrined in the Convention.

Attentive to any changes in the situation, the Committee requests the Government to keep the ILO informed of any new developments.

A request is being addressed directly to the Government on certain points.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

With reference also to its observation, the Committee notes that, with the creation of the function of labour inspector, the function of labour supervisor, performed by unionists appointed by the Minister of Labour at the proposal of their trade unions, will be suppressed. It notes however that, among the selection criteria for candidates having passed the labour inspector aptitude and competency examination to be organized by the Labour and Mines Inspectorate, occupational and union experience will be given special consideration. The Committee would be grateful if the Government would indicate whether the outright exclusion from the examination of persons with the general aptitudes and competencies required for the job of labour inspector, but no union experience, is envisaged. The Government is also asked to indicate whether and in what manner customs and excise officers who have the authority to impose sanctions in the areas under their responsibility will be integrated in the inspectorate.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes with satisfaction the information contained in the Government’s report and its "Note to the Government in Council on the reform of the inspectorate of labour and mines" for the joint implementation of a labour inspection system based on the recommendations of the tripartite audit mission prepared and organized by the ILO, and intended to improve the application of the fundamental principles enshrined in the Convention.

Attentive to any changes in the situation, the Committee requests the Government to keep the ILO informed of any new developments.

It is addressing a request directly to the Government on certain points.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the information replying in part to its previous comments. The Committee also notes that, following a preparatory mission of the ILO in April-May 2002, a tripartite audit of the inspectorate of labour and mines was conducted in the country with support from an ILO team in July of the same year. It requests the Government to provide information on the measures taken or envisaged as a result of the recommendations of the above tripartite mission as regards the organization and operation of the labour inspection system in terms of the application of the Convention.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes with interest the information provided by the Government in its report, particularly with regard to the amendments to the legislation over recent years which bring it into closer conformity with the provisions of the Convention. However, it notes that the annual inspection reports, as envisaged and described in Articles 20 and 21, have not been transmitted to the ILO since 1992. The Committee hopes that the Government will rapidly take the necessary measures to ensure that the competent authority, within the terms of the Convention, prepares, publishes and transmits such reports to the Office in the near future.

The Committee would also be grateful if the Government would provide information concerning women working in the labour inspection services and any special duties which are assigned to women inspectors, as suggested by Article 8 of the Convention.