Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report for the period ending 1 September 2006 in reply to its previous comments, as well as the attached documents. It also notes the communication by the Government, on 26 October 2006, of the comments made on this report by the National Confederation of Senegal Employers (CNES), the National Confederation of Senegalese Workers (CNTS) and the National Union of Autonomous Trade Unions of Senegal (UNSAS).

1. Articles 2, 3, paragraph 1(a), and 18 of the Convention. Supervision of legal provisions and application of adequate penalties. With reference to its previous comments on the need to establish a system of penalties applicable to violations of the provisions on conditions of work, the Committee notes that the Government refers to the provisions of Decree No. 62-017 PC/MFPT/DGTSS/TMO of 22 January 1962, issued under the former Labour Code, which is still in force. It notes that this Decree provides for penalties applicable to violations of the provisions on wages, weekly rest, employment and apprenticeship contracts and certain occupational health measures in particular. The Committee notes, firstly, that the provisions of the above Decree explicitly apply to certain sections of the former Labour Code, which do not correspond to the relevant sections of the 1997 Labour Code and, secondly, that the amounts established do not seem to have been adjusted for more than 40 years. It would therefore be desirable in all respects for relevant texts to be issued under the new Labour Code and for the amounts of the above penalties to be established at a level that is dissuasive in accordance with developments in the financial situation, with a view to ensuring that employers and workers are informed of their reciprocal rights and obligations, labour inspectors and any other authority or court apprised of a violations of the legal provisions on conditions of work can enforce the implementation of those provisions and the applicable penalties are adequate, as prescribed by Article 18. The consolidation of the applicable texts in a single document would certainly facilitate their enforcement by inspectors and courts, as well as compliance by law-abiding employers. In paragraph 292 of its General Survey of 2006 on labour inspection, the Committee emphasizes that it is essential for the credibility and effectiveness of systems for the protection of workers for violations to be identified by national legislation and for the proceedings instituted or recommended by labour inspectors against employers guilty of violations to be sufficiently dissuasive to make employers in general aware of the risks they run if they fail to meet their obligations. It is also important for penalties to be defined in proportion to the nature and gravity of the offence and for the amount of fines to be regularly adjusted to take account of inflation. It would be regrettable if employers preferred to pay fines as a less costly alternative to taking the measures necessary to ensure compliance with the legal provisions on working conditions, which is a phenomenon widely observed and reported to the ILO by numerous trade union organizations (paragraph 295 of the General Survey). The Committee cites a number of examples of good practice in this area (paragraph 296 et seq.). The Committee hopes that the Government will take relevant measures soon in the light of the above comments and that it will provide information on any developments in this area.

The Committee also requests the Government to provide, as soon as they have been adopted, a copy of the decrees implementing sections L.168 (occupational health and safety measures), L.185 (occupational safety services and representatives) and L.190 (status of labour inspectors and controllers) of the Labour Code, which it indicates are still being prepared, even though ten years have passed since the adoption of the above Labour Code. It also requests the Government to specify whether a draft decree implementing section L.189 (labour and social security services) is also being prepared.

2. Articles 5(a) and 18. Obstacles to the discharge of inspection duties. The Committee notes with interest the provision of a copy of the form for requesting the police and gendarmerie to issue a summons to any person who has refused to comply with an inspection. The Committee would be grateful if the Government would indicate whether, in practice, labour inspectors have the possibility of requesting police assistance in the event of being obstructed in the performance of their duties during the inspection of a workplace. If so, the Government is requested to describe the relevant procedure and provide information on the relevant case law as regards the penalties imposed in practice on employers who obstruct labour inspectors in their work.

3. Articles 10 and 11. Human and logistical resources of the labour inspectorate. According to the CNTS, no efforts have been made to equip the labour inspectorate with adequate resources, which has caused a considerable reduction in the actions of labour inspectors and controllers. The unlikelihood of inspections encourages violations of the legal provisions on conditions of work and the protection of workers while engaged in their work, in particular with regard to occupational safety and health. The CNTS is concerned about the Government’s intentions in this respect in the short, medium and long term. The UNSAS considers the lack of financial resources to be a major obstacle facing the labour administration, which is understaffed and encounters difficulties in managing its mail and sending notices to users. The lack of means of transport is also preventing inspectors from playing their role in the prevention of disputes. Consequently, the labour courts are swamped. Moreover, the conditions of service of labour inspectors are not attractive enough, which prompts them to withdraw in favour of the private sector, where conditions of work and social benefits are far more attractive than those offered by the civil service. The CNES in turn considers that the improvement of the conditions of work will depend on the resources made available to the labour inspectorate and on the demonstration of the labour inspectorate’s capacity to perform its tasks properly, including producing periodic reports.

The Committee notes with concern the convergent points of view expressed by these organizations on the labour inspectorate’s precarious resources and the repercussions of the inadequacies at various levels on its operation and the conditions of work. The Government acknowledges that the means of transport which were available to inspectors between 2000 and 2002 are no longer working and have not been replaced. It indicates that this has resulted in inspectors being reduced to carrying out “desk-based inspections”, intervening in the resolution of disputes reported to them, and that the few inspections carried out in enterprises are directly linked to these disputes. The Committee emphasizes that it is the Government’s responsibility to make the necessary arrangements in accordance with Article 11 to furnish labour inspectors with transport facilities in cases where suitable public facilities do not exist (paragraph 1(b)), as well as to reimburse them for any travelling expenses for professional purposes (paragraph 2), to enable them to perform their duties and, in particular, to carry out inspections of workplaces as thoroughly and as often as prescribed by Article 16. It hopes that the Government will take measures as soon as possible to give effect to these provisions of the Convention, in particular to establish conditions in which an assessment can be made, if necessary, with the technical assistance from the ILO and international financial cooperation, of the operation of the labour inspectorate and of its human, material and logistical requirements, with a view to ensuring appropriate budgetary allocations. It requests the Government to keep the ILO informed of any developments in this regard and any difficulties encountered.

4. Article 12, paragraphs 1(a) and (b), and 2. Inspectors’ powers of investigation. According to the Government, section L.197(1) and (2) of the Labour Code give effect to these provisions of the Convention. However, the Committee observes that, under Article 12, paragraph 1(a), of the Convention, the right of inspectors to enter freely workplaces liable to inspection applies without any restriction “at any hour of the day or night.” By making their right of entry to these workplaces at night subject to the condition that collective work is carried out there, the national legislation is contrary to the Convention since it does not permit certain technical inspections which require machinery to be stopped, for example, or checks to verify that no clandestine work is taking place after the closing time of the establishments supposed to operate only during the day.

The Committee also notes that section L.197(1) of the Labour Code states that the head of the enterprise or establishment, or his representative, may accompany the labour and social security inspector during the inspection. This provision is also contrary to the Convention in that it hinders the freedom of action to which the inspector shall be entitled during the inspection and his or her ability to decide, in accordance with Article 12, paragraph 1(c)(i), to interrogate “alone or in the presence of witnesses, the employer or the staff” and to fulfil the obligation of professional secrecy and confidentiality with regard to the source of the complaints, as prescribed by Article 15(b) and (c). The Committee emphasizes that the freedom of action which should be granted to labour inspectors during inspections includes the possibility of not notifying the employer or his representative of their presence if they consider that such a notification may be prejudicial to the performance of the inspection (Article 12, paragraph 2).

Drawing the Government’s attention to paragraphs 261–275 of its 2006 General Survey, the Committee once again requests it to take the necessary measures to bring the legislation into conformity with the Convention in respect of: (1) the extent of the right of inspectors to enter freely workplaces liable to inspection and premises which they may have reasonable cause to believe are liable to inspection; (2) the discretion of the inspector to authorize the employer or his representative to accompany him or her on the inspection; and (3) the right of inspectors not to notify the employer or his representative of their presence if they consider that such a warning may be prejudicial to the performance of the inspection.

5. Articles 19, 20 and 21. Obligation to submit reports on inspection activities. The Committee notes, in reply to its repeated request to provide the results of a survey announced in 1992 on occupational medicine in electricity, water and construction companies, that this survey has never been carried out due to lack of funding. It also notes that no annual general report on the work of the inspection services has been received by the ILO for many years. The comments made by the CNES also show that the inspection services are not in a position to produce periodic reports on their activities. Noting, however, the Government’s commitment to examine the best manner in which to train and raise the awareness of regional labour inspectors with regard to the gathering and provision of statistics, the Committee hopes that it will ensure that the central labour inspection authority makes efforts to develop tools to this end, including, in particular, inspection report forms for use by inspectors and controllers, adapted to the various categories of commercial and industrial workplaces liable to inspection and containing, in particular, headings for the type of visit, the legislative fields covered by the inspection, the inspector’s findings and follow-up action taken (advice, information, warning, interim measures until compliance, initiation of or recommendation for legal proceedings). Appropriate processing of such report forms by the inspection offices will allow the periodic reports referred to in Article 19 to be prepared and sent to the central inspection authority so that it has the necessary information for preparing the annual report, the publication and communication of which are prescribed by Article 20 and the content of which is defined by Article 21. The Committee hopes that the Government will provide information in its next report on any developments in this area and any relevant documents and reports.