Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the information supplied by the Government in its report, including detailed statistical data. It also notes the comments by the Associated Chambers of Commerce and Industry of India (ASSOCHAM) and the All India Manufacturers’ Organisation (AIMO) which were forwarded with the Government’s report.

Articles 2, 3, 10, 11, 12(1)(a) and 16 of the Convention

1. Coverage and functioning of the labour inspection system. The Committee recalls its previous comments according to which one of the priorities with regard to labour set by the National Common Minimum Programme (NCMP), adopted in 2004 by the Government, was the re-examination of labour laws to reduce labour inspectors’ power (“Inspector Raj”). According to a communication by the Centre of Indian Trade Unions (CITU), internal directives had been issued in most states in the name of “Ending Inspector Raj”, so that no labour inspection was to be carried out; the lack of labour inspection and monitoring by the Labour Department, even in many factories in the national capital territory of Delhi and industrial areas, such as Mayapuri and Patparganj, was resulting in frequent violations of minimum wage legislation and a lack of safety measures leading to frequent accidents.

The Committee notes the Government’s reply according to which the Ministry of Labour and Employment is considering the re-examination of labour laws in order to ensure a hassle-free industrial environment and reduce unnecessary interference of inspecting staff; however, this does not mean that there will be lack of monitoring of the application of labour laws and internal instructions in most states preventing inspections. The Ministry has also taken steps to make the system of inspection mostly complaint driven.

The Government adds that “‘Ending Inspector Raj” has not been a thriving concept” in the Chief Labour Commissioner’s (Central) Organisation (CLC(C)), entrusted with the task of maintaining industrial relations, enforcement of labour laws and verification of trade union membership in the Central Sphere. Therefore, in the Central Sphere, workplaces liable for labour inspections are actually inspected. The Committee takes note of the detailed statistical information provided in this regard in the Government’s report. The Committee would be grateful if the Government would continue to provide statistics on the labour inspection activities of the CLC(C) and their results.

With regard to the inspection system outside the central sphere, the Committee notes that the aim of reducing “Inspector Raj” in the framework of the NCMP is to avoid a proliferation of inspections in the same enterprise, including labour inspections, and once again emphasizes that any measure taken to limit the number of labour inspections is a restriction incompatible with the main objective of labour inspection, which is the protection of workers, and is contrary to Article 16 of the Convention which provides that workplaces or enterprises liable to labour inspection should be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. A complaint driven system aimed at reducing “unnecessary interference of inspecting staff” is also incompatible with Article 15(c) for, as a consequence, it makes it impossible for labour inspectors to respect the requirement of confidentiality relating to complaints (source and fact that an inspection visit is made as a result of a complaint).

With regard to its previous comments on the unequal coverage of the labour inspection system from one state to another in terms of workers and workplaces, the Committee notes that the Government reiterates its previous statement to the effect that measures will be taken to collect information on the coverage of workplaces and workers liable to inspection throughout the country. The Committee would be grateful if the Government would communicate to the ILO as quickly as possible comprehensive statistical information on labour inspection staff and activities (visits, advice, enforcement) by state. It also trusts that the Government will take the necessary measures, in the light of the information collected, so that any imbalances in the coverage of workplaces and workers liable to inspection from one state to the other are redressed.

2. Exemptions of certain sectors from labour inspection and introduction of self-certification schemes. In its previous comments, the Committee, following observations made by the CITU and the Bharatiya Mazdoor Sangh (BMS) on internal directives which prevent workplace inspections in special economic zones (SEZs) and in the information technology (IT) and IT-enabled service sectors (ITES), noted that, in fact, very few inspections had been carried out in these sectors and requested the Government to indicate the applicable legal provisions and to supply relevant detailed statistical data. The Committee also noted comments made by the CITU and the BMS with regard to the self-certification scheme implemented since 2008, in particular as to the absence of any mechanism for the verification by the labour inspectorate of information supplied through this procedure, and had requested information on the performance of this system in practice.

The Government replied in its previous and latest reports that there are no separate labour laws for SEZs and that the implementation of labour laws in SEZs is ensured through the respective machineries of the central or state governments, as appropriate, subject to certain dispensations provided to SEZ units such as the delegation of powers to the development commissioner under the Industrial Disputes Act, 1947 and the declaration of the SEZs as public utility services under the Industrial Disputes Act, 1947.

In relation to the IT–ITES sectors, the Government indicates that working conditions are regulated to a large extent by the generally applicable labour laws and the state governments are legally vested with powers to deal with the violation of labour laws including in the IT sector. However, the Committee notes that in the 2007–08 Annual Report of the Ministry of Labour and Employment, it is indicated that the CLC(C) has advised its subordinate offices in respect of IT software and IT service industries, that “routine and periodic inspections may not be necessary since the employees engaged by these IT industries are usually qualified and, therefore, are in a better position to protect and promote their interests”. Enforcement of labour laws in these establishments is carried out through returns submitted by the employers under various labour laws. In its latest report the Government indicates that this type of enforcement is being continued in IT software and IT service industries.

With regard to the self-certification schemes introduced in April 2008, the Government indicates that in the context of the preparation of the 11th  Five-Year Plan (2007–12), the Planning Commission set up a Working Group on Labour Laws and Other Labour Regulations which made the following recommendation on the self-certification system: “Since inspections are becoming complaint driven, the problems of “Inspector Raj” may not be as formidable as it is made out to be. The system of inspections cannot be eliminated, as it would compromise with the interests of workers, especially those who are vulnerable. Hence it would be more pragmatic to promote transparency by resorting to self-certification system and placing employee-related information obtained through this method in the website”. As a result, since 1 April 2008, those employing up to 40 persons are required to give only a self-certificate regarding compliance, while those employing 40 or more persons submit a self-certificate duly certified by a chartered accountant. According to the Government, this has been introduced to minimize routine inspections of complying employers. In this regard, the Committee would like to draw the Government’s attention to the fact that, in general, the risk of non-application of labour legislation is not less significant in establishments employing a small number of workers than in larger enterprises. The Committee also notes that a new inspection policy has been introduced since 1 April 2008, placing emphasis on inspection of newly covered units, defaulters and those not submitting self-certification with a view to concentrating on improving compliance. According to the Government the information previously requested by the Committee on the functioning of this system is still being collected and will be furnished on receipt.

Recalling once again that under Article 16, workplaces shall be inspected as often and as thoroughly as is necessary, the Committee urges the Government to adopt measures to ensure the full implementation of this provision by ensuring notably that the issuing of any dispensation and the introduction of a self-certification system does not affect the effectiveness of the labour inspection system and especially the frequency and thoroughness of inspection visits. In particular:

–           The Committee requests the Government to specify the dispensations provided to EPZ and SEZ units and the extent to which they have an impact on labour inspection; it would also be grateful if the Government would furnish detailed statistical information on the: enterprises and workers in EPZs and SEZs; labour inspectors who oversee them; inspections carried out; offences reported; penalties imposed; and industrial accidents and cases of occupational disease reported.

–           The Committee requests the Government to forward examples of returns submitted on the application of labour laws in the IT and ITES sector and to describe the process through which such returns are submitted and verified by the labour inspectors.

–           The Committee requests the Government to supply information on the impact of the self-certification system introduced on 1 April 2008, notably on the frequency and effectiveness of inspection visits, to indicate the sectors in which self-certification is most prominent and to describe the arrangements made for the verification of information supplied by employers in self-certification schemes, the handling of any disputes and the action taken with regard to violations that are identified.

3. Free access of labour inspectors to workplaces. The Committee recalls that the CITU had previously indicated that in the State of Haryana no labour inspection could be carried out without the prior authorization of the Secretary of Labour which was never given. Moreover, the lack of inspections in factories had led to the failure to implement basic labour laws on minimum wages and violations of freedom of association. The Government does not provide a specific reply to these allegations and is confined to reiterating previously provided information on the future amendment of section 9 of the Factories Act (Powers of Inspectors) and section 4 of the Dock Workers (Safety, Health and Welfare) Act which will establish explicitly the right of inspectors to enter workplaces freely. According to the Government, these amendments are included in the next batch. Recalling that, in accordance with Article 12(1)(a) of the Convention, labour inspectors shall be empowered to enter freely workplaces liable to inspection, the Committee requests the Government to take the necessary measures aimed at amending section 9 of the Factories Act (Powers of Inspectors) and section 4 of the Dock Workers (Safety, Health and Welfare) Act without further delay, so that this right is guaranteed. The Government is requested to keep the ILO informed of progress made to this end and to supply a copy of the amended texts once they are adopted.

Articles 6 and 15(a). Independence and integrity of labour inspectors. The Committee notes that, according to the AIMO, any proposal to give substantial powers to labour inspectors may give rise to a problem of corruption. It also refers to the Government’s indication that steps are taken to make the labour inspection system complaints-driven in order to reduce arbitrariness. The Committee recalls that under Article 6, the conditions of service of inspection staff, notably their wages, should be such as to guarantee their independence vis-à-vis improper external influences and that under Article 15, labour inspectors should be prohibited from having any direct or indirect interest in the undertakings under their supervision. These provisions are intended to provide safeguards against improper influences. The Committee would be grateful if the Government would provide information on the pay scale of labour inspectors by comparison to the remuneration of comparable categories of public officers like tax inspectors. It also requests the Government to forward the text of any code of conduct or similar document applicable to labour inspectors.

Article 18. Adequacy of penalties. The Committee had previously noted the Government’s indication that an amendment enhancing the penalties under various provisions of the Factories Act, 1948, was at an advanced stage of enactment and that a proposed amendment was being prepared under the Dock Workers (Safety, Health and Welfare) Act, 1986. In its latest report the Government indicates that the proposal to incorporate the amendments enhancing the penalties under these Acts is still under the active consideration of the Government and that once the amendments are notified, the final text will be sent to the ILO. With reference to its previous comments, the Committee urges the Government to take all necessary measures to have these amendments adopted without further delay so as to establish penalties that are sufficiently dissuasive to ensure the effective application of the legal provisions relating to conditions of work and the protection of workers, and to furnish copies of the final texts to the ILO.

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