Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

The Committee notes the Government’s report for the period from 1 June 2004 to 31 May 2006.

1. Development of the system and action of the labour inspectorate. The Committee notes with interest the detailed information contained in the CD‑ROMs on the activities of the Labour Department for the years 2003–04 and 2005, and particularly the measures taken in the various fields to improve the conditions of work in establishments, taking into account new phenomena and risks and technological developments. It also notes with interest that a telephone line is now available 24 hours a day for employers and workers so that they can seek and receive technical information and advice on issues covered by the Convention (Article 3, paragraph 1(a), of the Convention), and to register complaints.

2. Article 7. Reinforcement of training for labour inspectors. The Committee also notes with interest that training programmes have been established to reinforce the professional competence, knowledge and skills of inspectors responsible for occupational safety and health. The training of Labour Department officials also includes participation in international conferences, detachment to overseas occupational safety and health authorities and seminars on specific themes, such as civil engineering, electrical engineering, mechanical engineering, chemical safety and plant and machinery operation, as well as information technology and legal issues.

3. Article 3, paragraphs 1(a) and 2, and Article 17. Purpose of supervision by the labour inspectorate and other controls. In its previous comments, the Committee requested the Government to provide detailed information on the manner in which it was ensured that the duty of controlling the illegal employment of workers, which is entrusted to labour inspectors, does not prejudice the performance of their primary duties, which are set out in Article 3, paragraph 1. The Government indicates in reply that labour inspectors conduct inspections of workplaces to secure the effective enforcement of legal provisions relating to conditions of work and the protection of workers. It specifies that, in conducting such inspections, through interviews with workers and the checking of wages and benefit records, labour inspectors also check the identity of workers on the basis of the records of employees to deter illegal employment. According to the Government, enforcement actions such as the arrest and detention of illegal workers suspected of breaches of the Immigration Ordinance are carried out by officers of other law enforcement authorities, such as the police and the Immigration Department.

The Committee further notes in the Annual Report of the Labour Department for 2005 (point 6.12 of the chapter on employees’ rights and benefits) that labour inspectors carried our 133,014 workplace inspections, of which 131,399 were also conducted to combat illegal employment. Joint operations were carried out by the labour inspectorate, the police and the Immigration Department, leading to the arrest of 538 illegal workers and 237 employers suspected of employing illegal workers. A telephone hotline has also been made available to the public to facilitate the provision of information on illegal employment activities.

The Committee notes that, according to the Government, the actions taken by labour inspectors under the Immigration Ordinance also serve to protect the employment opportunities of local workers so as to better protect the rights and benefits of these workers. However, according to the information contained in the Annual Report for 2005, while national workers who are employed illegally benefit from inspection activities with a view to regularizing their situation in relation to social benefits through the conviction of employers that are in breach of the rules, it would appear that no measures are envisaged in this respect in relation to foreign workers without the necessary residence authorization. Indeed, they are subject to arrest and imprisonment. The annual report contains illustrations of suspected illegal workers being arrested, sitting on the ground with their faces to the wall.

With regard to employers in breach of the Immigration Ordinance, the Government appears to indicate that they are subject to inquiries and prosecution by the police and the Immigration Department. In its General Survey of 2006 on labour inspection, the Committee emphasized that “neither Convention No. 81 nor Convention No. 129 contains any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status”. The Committee supported its views with a reference to the preparatory work for the Labour Inspection (Agriculture) Convention, 1969 (No. 129), observing that most of the member States that expressed views on the issue were of the opinion that, “given the traditionally informal nature of the employment relationship in agricultural enterprises in many countries, the existence of a wage relationship with the operator should be the determining factor in defining the workers covered” by labour inspection (General Survey, paragraph 77). It recommended that cooperation by labour inspection with immigration authorities “should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions” (paragraph 161).

The Committee cannot overemphasize the reasons for which the exercise by labour inspectors of duties related to the monitoring of the illegal immigration of workers can be a serious obstacle to the discharge of their duties of supervising conditions of work and the protection of workers. In paragraph 78 of the General Survey, it observed that since the human and other resources available to labour inspectorates are not unlimited, this would appear to entail a proportionate decrease in inspection of conditions of work in some countries. Efforts to control the employment of migrant workers in an irregular situation require the mobilization of considerable resources in terms of staff, time and material resources, which inspection services can provide only to the detriment of their primary duties. In the view of the Committee, “the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers if it is to be compatible with the objective of labour inspection. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and the protection of workers” (paragraph 78).

The Committee hopes that the Government will take this guidance and these recommendations into account and that it will be in a position in its next report to indicate the measures adopted with a view to re-establishing the primary duties of the labour inspectorate, and limiting its role in the enforcement of the legislation respecting the illegal immigration of workers to the extent necessary for the prosecution of employers who are in breach of the rules (Article 17 of the Convention) and for the protection of the workers concerned (Articles 2 and 3).