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

The Committee takes note of the Government’s first report and the attached text of the Occupational Safety and Health Act, 2007 (OSH Act).

Articles 3(1) and 17(2) of the Convention. Functions of the system of labour inspection and discretion of labour inspectors. The Committee notes that under the provisions of the OSH Act, the Labour Inspection Act, 1997, and the Labour Relations Act, 2005, the functions of labour inspectors appear to be mostly confined to enforcement. Under section 31 of the OSH Act, the labour inspector may order adjustments to the OSH training programme of a workplace or a repetition of training, but does not appear to provide directly any training or advice. The Committee indicated in paragraph 85 of its General Survey of 2006 on labour inspection, that Conventions Nos 81 and 129 give the same importance to information and advice to employers and workers concerning the most effective means of complying with the legal provisions as to enforcement; and that these two functions are inextricably linked and represent the two key aspects of labour inspection. The Committee requests the Government to provide details on the activities of labour inspectors in the area of provision of information and advice, in the areas of labour relations and OSH through for instance awareness-raising campaigns in the media, training, etc. and to specify the impact of such activities in terms of improved compliance rates.

Referring to section 20 of the Labour Inspection Act and sections 259, 264 and 265 of the Labour Relations Act and, recalling that according to Article 17(2) of the Convention, it should be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings, the Committee requests the Government to specify whether labour inspectors have such discretion and to provide relevant details.

Articles 4(1) and 19. Supervision and control by a central authority, notably through periodical reporting. According to the Government, the labour inspection system is under the supervision of the Ministry of Labour and Social Policy. The Committee requests the Government to describe the structure of the labour inspection system including the number and coverage of the various divisions and offices at the central and local levels.

Noting moreover, that there is no information in the report on the manner in which local inspection offices report to the central inspection authority (electronically or otherwise, subjects covered and frequency), the Committee requests the Government to provide such information as required by Article 19, and to furnish copy of any periodical activity report.

Article 5(a). Cooperation with other bodies and institutions. Cooperation with the justice system. The Committee draws the Government’s attention to the general observation made in 2007 on the importance of effective cooperation between the labour inspection services and the justice system with a view to ensuring the enforcement of legal provisions relating to conditions of work and the protection of workers. Referring to section 20 of the Law on labour inspection of 16 July 1997, the Committee requests the Government to provide a general appreciation of current cooperation levels between the labour inspectorate and competent bodies including the criminal courts and the Misdemeanour Authority which is the body in charge of labour-related issues, and to describe the system through which the labour inspectorate is informed of their decisions.

The Committee notes that under the OSH Act, labour inspectors may take steps with a view to remedying defects in plant layout or working methods and may even prohibit the operation of an equipment in whole or in part if the workers’ occupational safety and health is endangered (section 49(2)); the labour inspector may also ban the operation of the workplace altogether, if the identified irregularities and flaws are not eliminated within a determined period of time (section 49(1) and (3)). At the same time, labour inspectors can refer cases to the Misdemeanour Authority which may issue fines for violations of the Act (sections 52 and 54 OSH Act). Prior to such referral, labour inspectors must propose a settlement procedure to the employer aimed at overcoming the consequences of the violation (section 54(1) OSH Act) especially in relation to category I and II misdemeanours, for example, in case of failure to appoint one or more persons in charge of OSH, or adopt safety measures in the event of a fire or prepare a rescue and evacuation plan. Moreover, for category III misdemeanours (e.g. failure to prepare and implement a safety statement, allowing access to employees to working places exposed to serious and specific hazards, etc.), the inspectors may propose mediation aimed at removing the consequences of the misdemeanour (section 55 of the OSH Act). The mediation procedure takes place before a mediation commission established by the Minister (section 55(5)). Section 50 provides that after receiving a notification of mediation, the labour inspector shall immediately make an inspection and, where the life and health of employees are directly threatened, the inspector shall immediately prohibit the operation of the workplace until the necessary measures are taken. The Committee would be grateful if the Government would provide details illustrating the manner in which this system operates in practice, in particular:

–      the frequency of injunctions issued by labour inspectors;

–      the activities of the mediation commission (frequency, subjects and outcomes of mediation);

–      whether the labour inspectors may refer cases of OSH violations to the criminal courts; and

–      whether in the case of imminent danger due to category III misdemeanours, measures with immediate effect may be imposed by the labour inspector prior to the initiation of mediation proceedings (sections 49, 50 and 55 of the OSH Act).

Cooperation with private experts in the area of OSH. Also with reference to Articles 9 and 13, the Committee notes that section 6(1) of the OSH Act authorizes the employer to delegate the responsibilities and activities related to OSH to an authorized legal entity or to a natural person who may be licensed by the Minister for Labour and Social Policy under section 45 of the Act to perform expert tasks (risk assessments, regular testing and control of the working equipment, etc.). This does not exempt employers from their responsibilities in the area of OSH (section 6(3)). The Committee would be grateful if the Government would specify the manner in which the entities or persons licensed to perform expert tasks in the area of OSH cooperate with labour inspectors including the manner in which it is ensured that the risk assessment system and workplace OSH policies remain under the control of labour inspectors.

Moreover, noting that the conditions for granting a licence to an authorized legal entity or a natural person are to be laid down in a rulebook to be issued by the Minister under section 46 of the OSH Act and that licences may be revoked, inter alia, upon proposal of the labour inspector according to section 45(2) of the OSH Act, the Committee requests the Government to provide a copy of the rulebook and to specify the manner in which these entities are supervised.

Cooperation with other government services. According to the Government, the labour inspectorate is divided into two major departments, one focusing on the labour relationship and one on OSH. The department in charge of the labour relationship has almost twice as many inspectors as the department in charge of OSH (63 and 33, respectively). The detection of people who work without an employment contract takes place in full cooperation with other inspection services and the Employment Service Agency, through common inspections and data exchange. According to the Labour Inspection Act, “the labour inspector is authorized to request presentation of personal identification documents (personal identification cards, passports, etc.) from persons working for the employer, and they are obliged to show the documents requested” (section 11, paragraph 3); the inspectors may temporarily seize documents which are necessary for providing evidence and for determination of facts (section 12); the inspector may take statements from workers (employees), give oral or written orders and, where necessary, request assistance by competent state bodies (section 11, paragraph 2); finally, the labour inspector is obliged to inform another competent body if he/she finds that a regulation under the competencies of that other body has been violated (section 20).

The Committee recalls that the role of the labour inspectorate, pursuant to the provisions of the Convention, is in principle not to monitor the legality of the employment relationship but the conditions in which the work is performed. The Committee recalls that neither Convention No. 81 nor the Labour Inspection (Agriculture) Convention, 1969 (No. 129), contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status (see General Survey, op. cit., paragraph 77). In view of the growing numbers of foreign and migrant workers in many countries, the labour inspectorate is often asked to cooperate with the immigration authorities; such cooperation 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 (General Survey, op. cit., paragraph 161). In this respect, it should be emphasized that the expression “while engaged in their work” used in Article 3(1)(a) of the Convention indicates that the protection afforded by the labour inspection must be provided to all workers for the period of their employment relationship. In order to remain in conformity with the purpose of their duties, the action taken by inspectors should enable the implementation of legal proceedings against employers guilty of contraventions, entailing not only the imposition of adequate penalties in accordance with the various categories of contraventions but also the requirement to pay any outstanding sums owed to the workers concerned for the actual duration of their period of employment. The financial consequences (fines and workers’ wages) resulting from the actions of the labour inspectorate can constitute, in the Committee’s opinion, an effective deterrent against the employment of persons in an irregular situation with regard to labour legislation. The Committee has also noted on several occasions that, under Article 3(2), any activities of labour inspectors which go beyond these parameters may interfere with the discharge of the primary duties of labour inspectors or prejudice the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee would be grateful if the Government would:

–      clarify the grounds on which labour inspectors may require the production of personal identification cards and passports under section 11 of the Labour Inspection Act and whether labour inspectors may seize passports of irregular foreign workers under section 12 and, if that is the case, take all necessary measures with a view to amending these provisions in light of the fact that the primary function of the labour inspection is to ensure the enforcement of legal provisions relating to conditions of work and the protection of all workers while engaged in their work under Article 3(1)(a) and that, under Article 3(2), any further duties entrusted upon labour inspectors should not prejudice in any way the effective discharge of the primary duties;

–      specify the proportion of the activities carried out by labour inspectors in the area of combating illegal employment in relation to activities in the areas of OSH and labour relations; and

–      clarify whether labour inspectors collaborate with the authority competent for the control of illegal migration under sections 11 and 20 of the Labour Inspection Act and, if that is the case, provide details on the objectives of the collaboration, the manner in which it takes place, etc. In particular, please indicate in which way foreign workers in an irregular residency status may recover their acquired rights, such as outstanding wages and social security benefits, in case they are expelled.

Article 5(b). Collaboration with employers and workers or their organizations. According to the Government, collaboration takes place regularly through seminars organized by the Ministry of Labour and Social Policy, trade unions and employers’ organizations both at the national and branch levels. The Committee also notes that the OSH Act provides for the appointment of elected representatives in charge of OSH in workplaces where there is a risk to occupational safety and health, independently of the number of employees, as well as in all workplaces with more than ten employees (sections 28 and 29). It also provides for the creation of an expert advisory Council for Occupational Safety and Health with tripartite composition (sections 43 and 44). In addition, an Economic and Social Council has been established since 2006. The Committee would be grateful if the Government would indicate the activities carried out by the Council for Occupational Safety and Health and the Economic and Social Council in relation to labour inspection, and would provide details on the content, frequency and impact of seminars addressed to the social partners. Finally, it requests the Government to provide details, including examples, on the manner in which OSH representatives collaborate with labour inspectors.

Articles 6 and 7. Status, conditions of service and training of labour inspectors. The Committee would be grateful if the Government would specify whether labour inspectors have security of employment as public servants and indicate the scale of their salaries and career prospects, also in relation to other comparable categories of public officers like tax inspectors.

The Committee also requests the Government to provide information on the training provided to labour inspectors both at the time of recruitment and subsequently, including on the subjects, frequency, attendance and evaluation of such training.

Articles 8 and 10. Numbers and gender composition of labour inspection staff. According to the Government, the total number of inspectors is 63 in the field of labour relationship and 33 in the field of OSH. In addition, seven inspectors have completed the procedure for admission. The Committee notes that the number of labour inspectors may appear limited given that under section 13 of the Labour Inspection Act, labour inspectors are obliged to inspect at least once a year the workplaces in the field of industry, trade, construction, agriculture, forestry, transport, communal services, craft trade, hotel and restaurant management, school and university workshops and laboratories for professional practice; moreover, workplaces in other fields should be inspected at least once every three years.

The Committee recalls that, under Article 10, the number of labour inspectors should be sufficient to secure the effective discharge of the duties of the inspectorate and should be determined with due regard to, among other things, the number of workplaces liable to inspection and the number of workers employed in such workplaces. The Committee refers in this regard to its 2009 general observation on the importance of comprehensive data on the number of industrial and commercial workplaces and workers covered in making an overall assessment of the impact of the labour inspection system and the sufficiency of the available human and material resources vis-à-vis identified needs. The Committee requests the Government to provide an appreciation of the current levels of labour inspection staff in relation to the number of workplaces liable to inspection, the workers employed therein, and the frequency of labour inspection visits. The Committee would also be grateful if the Government would specify the gender composition of the labour inspection staff.

Article 11. Material resources. The Committee notes that, according to the Government, labour inspectors are provided with adequately equipped offices and vehicles as well as other equipment; all expenses in connection with official duties are paid. The Committee would be grateful if the Government would describe the equipment (computers, technical equipment, consumables, etc.) and the number of vehicles at the disposal of labour inspectors and provide a copy of the form for the reimbursement of travelling expenses and allowances.

Article 14. Notification of industrial accidents and cases of occupational disease. The Committee notes that, according to sections 21 and 23 of the Labour Inspection Act, the Minister of Labour and Social Policy shall issue an instruction for conducting investigations of cases of death, collective and serious injuries at work within six months from the date of entry into force of the Act. The Committee requests the Government to communicate a copy of the relevant instruction.

Article 15(c). Duty of confidentiality as to the source of complaints. According to section 16 of the Labour Inspection Act, the inspector is obliged to act upon complaints submitted by workers and inform in writing the person who submitted the complaint on the inspection findings. However, the Committee notes that no information is provided as to the obligation of confidentiality relating to complaints in accordance with Article 15(c) of the Convention. The Committee requests the Government to indicate the provisions which establish a duty for labour inspectors to treat as absolutely confidential the source of any complaint and to avoid giving any intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint, as required by Article 15(c). If such provisions do not exist, the Government is requested to take the necessary steps to give effect to the Convention in this regard and to inform the ILO.

Articles 20 and 21. Publication of an annual inspection report. The Committee notes that the Government’s report contains no information on measures taken to give effect to these provisions of the Convention nor any statistics relating to labour inspection activities. The Committee recalls that, under Article 20, the central inspection authority should publish an annual report on the work of the inspection services and communicate a copy of it to the ILO within a reasonable period. It emphasizes that the publication of an annual inspection report is a very important tool for providing a general appreciation of the extent to which the national legal provisions are applied in practice. Good quality reports containing the information requested by Article 21 reflect the relevant legislation, organization, human and material resources, scope, activities and results of the labour inspection system. Consequently, they provide national authorities, including those in charge of budgetary matters, with a regular means for assessing the extent to which the available resources match the related needs and requirements. They are moreover an invaluable source of practical information and data for the ILO supervisory bodies but also the employers’ or workers’ organizations who may make appropriate comments on ways to improve the functioning of the labour inspection system. The Committee therefore requests the Government to ensure that an annual labour inspection report is published in the nearest future and to furnish until then all available data on the workplaces liable to inspection and the number of workers employed therein; inspection visits carried out, violations found, proceedings instituted and penalties imposed; and industrial accidents and occupational diseases.