Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the detailed information in the Government’s report in reply to its previous comments as well as the information on the activities of labour inspectors in the Pay and Conditions of Employment Branch (PCEB) and in the Occupational Safety and Health (OSH) Department of the Ministry of Labour and Social Security. It further notes the detailed information contained in the report of the Ministry of Labour and Social Security (MLSS) for 2008 and 2009.

Article 18 of the Convention. Increase of penalties. The Committee notes with satisfaction that, through the amendments of the Factories Act (FA) and the Holidays with Pay Act (PA) in 2009, the process of amending the prescribed fines by these Acts has been simplified as this process now merely requires a ministerial order, and that through the amendment of the FA and PA, the penalties for breaches of these laws have significantly increased, involving prison sentences in the case of default of payment (versions of the texts amending the FA:
No. 08-2009, and the PA: No. 14‑2009, are available at the website of the Houses of Parliament www.japarliament.gov.jm/index.php?option=com_content&view=
article&id=334&Itemid=45). Among other things, there has been an increase in the fines for the obstruction of labour inspectors in the course of their duty and for failure to notify accidents and occupational diseases up to maximum fines of JMD500,000 and JMD300,000, respectively (see FA). The Committee would be grateful if the Government would indicate the impact of the increased fines and other penalties on the observance of the amended legal provisions.

Articles 3(1) and (2). Preventive activities in the field of occupational safety and health. The Committee notes with interest the Government’s indication of the development and implementation by the OSH Department of the MLSS of a Voluntary Compliance Programme (VCP), a programme aimed at raising awareness of employers and workers and at encouraging the improvement of safety and health in all economic sectors. According to the Government, the response to this programme, which was launched in 2007 and comprises two sets of VCPs, namely one in the area of safety and health and one in the area of HIV and AIDS, has been overwhelming with more than 70 enterprises applying, exceeding the original goal of enrolling 50 enterprises in the programme. Participating enterprises are subject to an audit by OSH inspectors based on a set of performance criteria and, provided that they attain a certain score, recommended for a VSP certificate valid for two years. According to the Government, workplaces with excellent safety and health management systems will not only be recognized and promoted as model workplaces, but the VSP coordination and partnership programme which aims to complement the regulatory and enforcement efforts by OSH inspections through the identification of risks and the development of solutions by employers and workers, will also allow for enterprises to be self-regulatory, once the new OSH Act is passed (which, according to the Government, is expected in the near future). The Committee would be grateful if the Government would provide further information on the number of participating enterprises, the number of VSP certificates issued, the publication of recognized best OSH practices, the manner and number of inspection visits after the issuance of a VSP certificate and the overall impact of the programme on safety and health conditions in participating enterprises.

Please provide further information on the envisaged self-regulatory approach (for example, self-assessment procedure in enterprises and envisaged level of control through OSH inspections in self-regulatory enterprises).

Article 13. Powers of labour inspectors to order immediate preventive measures. The Committee has repeatedly noted the Government’s reference to the pending adoption of a new OSH Act, which would extend the power of OSH inspectors to issue prohibition notices (stop orders), where the safety and health of workers may be adversely affected, to all branches of the economy. It notes that the draft of this Act, after minor modifications by the Ministry, is currently being finalized by the Chief Parliamentary Counsel and that the final version of the OSH Bill will be tabled in Parliament in 2011 and enacted in the near future. The Committee requests the Government to take appropriate steps to ensure that the legislation is supplemented without delay with regard to the abovementioned powers of labour inspectors and to send a copy of the relevant text.

Article 14. Notification of cases of occupational disease. The Committee notes that, according to the information in the current report of the Government, during the last reporting period, the OSH inspectorate has not been informed of cases of any of the 15 occupational diseases which are recognized in national legislation. In addition to the reasons for the under-reporting previously brought forward (such as: (i) the difficulty of establishing a causal relationship between the disease and the worker’s occupation; and (ii) the lack of qualified specialists in occupational medicine), the Government adds that some contemporary diseases, such as the carpal tunnel syndrome, are not recognized by national legislation. The Government indicates that it is therefore currently reviewing the Workmen’s Compensation Act and the National Insurance (Prescribed Diseases) Regulations with a view to incorporating the ILO list of occupational diseases into national legislation. The Committee hopes that through the abovementioned increase of the amount of fines for the non-respect of the obligation to notify accidents and occupational diseases, this obligation will be better observed in the future. The Committee would be grateful if the Government would indicate the steps taken to adopt the ILO list of occupational diseases and, if so, to provide information on the impact of this measure on the number of notifications of occupational diseases to the OSH inspectorate as well as on the labour inspection activities aimed at identifying sectors with a high level of occurrence of occupational diseases and developing appropriate preventive actions.

It once again asks the Government to indicate the measures envisaged to improve the system for the notification of occupational diseases. In this context, the Committee again wishes to draw the Government’s attention to the ILO code of practice on the recording and notification of occupational accidents and diseases which offers guidance on the collection, recording and notification of reliable data and the effective use of such data for preventive action
(available at www.ilo.org/safework/normative/codes/lang--en/docName--WCMS_
107800/index.htm).

Articles 20 and 21. Annual report on the work of the labour inspection services. The Committee notes the information annexed to the Government’s report, on the activities of labour inspectors in the PCEB and in the OSH Department of the MLSS. It notes, however, the absence of statistics of violations detected and penalties imposed. As the collection of relevant data is concerned, the Committee would like to refer the Government to paragraph 158 of its General Survey of 2006 and to its general observation of 2007 to recall the necessity for measures aimed at promoting effective cooperation between the labour inspection services and other government services or public institutions responsible for investigating and penalizing infringements with a view to establishing a procedure for the communication of the relevant information, which would enable the central inspection authority to include them in the annual report on its activities. In addition, the Committee recalls that a separate annual report on the work of the inspection services, in accordance with all the requirements contained in Articles 20 and 21, has to be established and published by the central inspection authority. The Committee requests the Government to ensure that an annual report containing all the data required by Article 21 of the Convention is published by the central authority and a copy sent to the ILO as soon as possible or to indicate the steps taken to this end and, if applicable, the difficulties encountered.