Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Repetition

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) together.

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Legislation. The Committee previously noted the legislative reforms regarding the Labour Inspection Act (LIA) of 2014 and requested the Government to indicate the extent to which labour inspectors are bound by the general principles established under the Inspections Act (IA) as well as how the overlapping or conflicting provisions under the IA and the LIA are applied in practice to the daily work of labour inspectors.

The Committee notes the Government’s reference in its report to section 3 of the LIA providing that unless otherwise provided by the LIA, the performance of inspection and inspectors shall be subject to the provisions of the IA governing inspection, the provisions governing the general administrative procedure and the provisions of specific regulations governing the supervision of individual inspection services that operate within the inspectorate. The Government states in this respect that inspectors carry out their work pursuant to the LIA, but that for issues not regulated in the LIA, they carry out inspections pursuant to the IA. In this respect, the Committee notes that qualifications of inspectors, the initiation of inspections, additional powers including seizure of documents, inspection records, and entities liable to inspection are covered by the LIA (sections 9–11 and 13–15), while inspection procedures and access to workplaces are regulated by the IA. The Committee takes note of the information provided by the Government.

Article 3(1)(a), (b) and (2) of Convention No. 81 and Article 6(1)(a), (b) and (3) of Convention No. 129. Functions entrusted to labour inspectors. Additional duties entrusted to labour inspectors related to immigration. The Committee previously noted with concern that labour inspectors can impose fines on migrant workers for the performance of work that violates the Employment, Self-employment and Work of Aliens Act (ESWAA) (sections 51, 60, 61, 63, and 66), and are obliged to inform the police authority when its supervision activities lead to the suspicion of illegal residence of migrant workers (section 44(4)). It requested the Government to take the necessary measures to ensure that the control duties by the labour inspectorate under the ESWAA do not prejudice the exercise of its primary duty to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers. It also requested information on the manner in which the labour inspectorate ensure the enforcement of employers’ obligations with regard to the rights of migrant workers.

The Committee notes the Government’s indication that sanctions for violations of the ESWAA do not affect the protection of labour rights of migrant workers or their right to suitable working conditions. In accordance with section 19(1)-2 of the LIA, inspectors may prohibit the worker concerned from performing work until the correction of the irregularity, if during an inspection they find that the employer has enabled a foreigner or a person without citizenship to work contrary to regulations governing the employment of foreigners. According to the 2019 annual report on inspection activities (Annual Report), the inspectors found 49 infringements in 2019, compared to 29 in 2018. The Government also states that the labour inspectorate imposed sanctions on migrant workers due to such violations in a few cases in 2018 and 2019. The Government further indicates that a migrant worker whose employment contract is determined to be null and void in accordance with section 23 of the Employment Relationship Act (ERA) only enjoys the protection of labour rights if they prove the existence of an employment relationship in court.

The Committee recalls that, in accordance with Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129, the function of the system of labour inspection is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and that 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. It also recalls that neither Convention No. 81 nor Convention 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 (paragraph 77, General Survey of 2006, Labour inspection). Referring to paragraph 452 of its General Survey of 2017, Working together to promote a safe and healthy working environment, the Committee further indicates that workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country. The Committee requests the Government to take measures to ensure that the duties entrusted to labour inspectors do not interfere with the fundamental objective of securing the protection of workers in accordance with the primary duties set out in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. It requests the Government to provide further specific information on the number of cases in which sanctions were imposed on migrant workers, the violations concerned and the sanctions imposed. The Committee once again requests the Government to provide information on the manner in which the labour inspection services ensure the enforcement of employers’ obligations with regard to the rights of migrant workers, in particular those in an irregular situation or without an employment contract, including specific information as to the payment of remunerations and any other benefits owed for the work they performed.

Articles 6 and 10 of Convention No. 81 and Articles 8 and 14 of Convention No. 129. Number of labour inspectors and their conditions of service. Stability and independence of labour inspectors. The Committee previously noted the continuous decline in the number of labour inspectors and their heavy workload, as well as issues related to external pressure facing inspectors from both complainants and employers, as documented in the Annual Report for 2017. It requested the Government to take measures to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspectorate, and to provide information on measures taken to address the pressure facing labour inspectors.

The Committee notes the Government’s information that the number of approved posts at the labour inspectorate increased from 106 in 2017 to 121 in 2019, and that recruitment procedures are under way. According to the 2019 Annual Report, there are 120 employees at the labour inspectorate, including 91 inspectors (up from 81 in 2018) and the number of business entities increased from 215,354 in 2018 to 220,236 in 2019. The Annual Report further states that inspectors, in particular those in charge of monitoring working conditions and employment relationships and social affairs, still face difficulties to promptly process all requests. In 2019, the labour inspectorate received 7,215 complaints, of which about 80 per cent fall into the competence of inspectors monitoring working conditions and employment relationships. Information in the 2019 Annual Report also indicates that the number of these inspectors has increased in recent years in response to their heavy workload, but that there has been a decrease in the number of occupational safety and health (OSH) inspectors (from 41 in 2008 to 31 in 2019). In this regard, the Annual Report states that measures will be taken to reinforce OSH inspections.

The Committee also notes the Government’s indication that a risk assessment undertaken of the work of the inspectorate indicated that nearly all employees of the labour inspectorate, and particularly inspectors, are exposed to the risk of third-party violence, due to the nature of their work. In order to address this, the labour inspectorate has taken measures to prevent unauthorized access to its offices, drafted instructions outlining measures to reduce such violence, and organized various lectures and workshops on stress management, communication in difficult situations and other relevant topics. Concerning protection against aggression, certain inspections are carried out by two inspectors or together with other supervisory authorities, and inspectors may also request that police officers be present at the inspection. The Government also indicates that, in addition to the provisions on the independence of inspectors provided for by the IA and the LIA, certain inspections are carried out by inspectors from the head office instead of local units if it is assessed necessary to prevent the external influence from local stakeholders. The Committee also notes that, however, the 2019 Annual Report states that labour inspectors continue to be overwhelmed with the amount of assigned cases and face a significant level of external pressure from both complainants and employers in the form of insults, misconduct and aggressiveness concerning matters beyond their mandate. While taking note of the increase in the number of inspectors from 2017 to 2019, the Committee requests the Government to reinforce its efforts to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspectorate, regarding both inspectors monitoring working conditions and employment relationships and OSH inspectors. It also requests the Government to continue to provide information on the measures taken in this respect. In addition, the Committee urges the Government to strengthen its efforts to address the issues raised in the 2019 Annual Report related to violence, harassment and other external pressure facing labour inspectors, including with a view to ensuring their independence from improper external influences.

Article 12(1)(b) of Convention No. 81 and Article 16(1)(b) of Convention No. 129. Access to workplaces liable to inspection. The Committee previously noted that pursuant to section 21 of the IA regarding business and other premises not belonging to the person liable, persons owning or possessing business premises, production premises or other premises or land can refuse inspectors’ free access under certain conditions. The Committee notes the Government’s explanation in response to its request that an inspection may only be denied in the exceptional cases provided for by section 21 of the IA. The Government also indicates that, if a person unjustifiably refuses to allow an inspection, they may be subject to the same measures as a witness who refuses to testify, and the inspection may be carried out against their will. With reference to its comments above on the LIA and the IA, the Committee notes that the LIA does not contain provisions relating to access to workplaces liable to inspection. The Committee recalls that, by virtue of Article 12(1)(b) of Convention No. 81 and Article 16(1)(b) of Convention No. 129, labour inspectors should be empowered to enter by day premises which they may have reasonable cause to believe to be liable to inspection in order to efficiently ensure workers’ protection, and that these Articles do not allow for any restrictions. With reference to its General Survey of 2006, Labour Inspection, paragraph 266, the Committee also recalls that restrictions placed in law or in practice on inspectors’ right of entry into workplaces can only stand in the way of achieving the objectives of labour inspection as set out in the Convention. The Committee once again urges the Government to take measures to bring the national legislation into conformity with Article 12 of Convention No. 81 and Article 16 of Convention No. 129 to ensure that that labour inspectors are empowered to enter by day premises which they may have reasonable cause to believe to be liable to inspection. In the meantime, it requests the Government to provide detailed information on the implementation of section 21 of the IA in practice, indicating the number of times that inspectors have been denied access to workplaces under this section, the reasons given for each denial under one or more of the exceptions provided for in section 21, and the outcome of any proceedings reviewing each denial.