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

The Committee takes note of the Government’s report which was received on 7 September 2009.

Articles 10 and 16 of the Convention. Staff numbers of the labour inspection services and effectiveness of the system. The Committee takes note of the data provided by the Government in reply to the Committee’s request with regard to the number of workplaces liable to inspection and the number of inspections carried out in 2008. According to the Government, as of 31 December 2007, 1,432,812 workplaces were subject to labour inspection. In 2008, 24,925 workplaces were inspected. The Committee observes that this represents a significant increase in relation to the number of inspections reported for 2006 which amounted to 17,732. Nevertheless, there is still considerable room for improvement in relation to the number of workplaces subject to labour inspection. The Committee would be grateful if the Government would continue to provide detailed information on the operation of the inspection system, and in particular to indicate the total number of workplaces liable to inspection and the number of inspections carried out in 2009 and 2010.

Article 12(1)(a) and (b). Right of inspectors to enter workplaces freely. In its previous comments, the Committee had noted that the Work Guideline for Labour Inspectors allowed for the possibility to carry out inspections without prior notice, as an exception to the general rule which is to give prior written notice of the plan of inspection to the employer. The Committee takes note of the clarifications made by the Government in its latest report with regard to the three types of labour inspection established in the law: (i) regular inspection based on the Comprehensive Plan for Workplace Labour Inspection; (ii) occasional inspection in cases where a law or regulation is enacted or revised or there is social demand; and (iii) special inspection where a labour dispute has taken place or is highly likely to take place following non-compliance with working conditions prescribed by labour laws and regulations or where social trouble is caused by failures to make statutory payments. The Committee notes from the Government’s report that, pursuant to section 17 of the Work Guideline for Labour Inspectors, an employer should be notified at least ten days before labour inspection is carried out; the Government is considering ways to introduce an inspection system without advance notice in phases depending on the type of inspection (regular, occasional, special inspection).

The Committee observes from the above that, although the possibility of unannounced visits is provided for in the law, it is not applied in practice as long as an inspection system without advance notice has not been introduced. The Committee recalls that Article 12 of the Convention is intended to ensure that inspectors may carry out inspections at any time, without previous notice, with the necessary freedom for an effective inspection. Unannounced visits enable the inspector to enter the inspected premises without warning the employer, especially to avoid that the employer may be tempted to conceal a violation, by changing the usual conditions of work, preventing a witness from being present or making it impossible to carry out an inspection (see General Survey of 2006 on labour inspection, paragraphs 261–263).

The Committee also observes that it is not clear from the information provided by the Government on the three types of inspection visit, whether inspection visits can take place pursuant to a complaint. It recalls that conducting unannounced visits on a regular basis is especially useful if the visit is carried out in response to a complaint, as it enables inspectors to observe the confidentiality required by Article 15(c) of the Convention regarding the purpose of the inspection (General Survey, op. cit., paragraph 263).

Consequently, the Committee would be grateful if the Government would provide in its next report information on progress made with regard to the adoption of an inspection system without advance notice to supplement the guidelines applicable to inspectors in accordance with the provisions of Article 12(1). The Committee also requests the Government to furnish statistical information on the number of unannounced visits which took place in 2009 and 2010, including the number of visits which took place in response to complaints.

Time when inspections are carried out. The Committee had previously requested the Government to provide information on the time when inspections may be carried out so as to give full effect to each of the provisions of Article 12(1). The Committee notes that, according to the Government, there is no provision in the Labour Standards Act, especially its section 102 on the authority of labour inspections, which may restrict a labour inspector’s entry to workplaces at any hour of day or night, and, therefore, inspection can be conducted freely at any hour, if it is deemed necessary. The Committee would be grateful if the Government would provide further information in its next report indicating in particular the number and types of inspection visits which were carried out in the night in 2009 and 2010.

Articles 20 and 21. Publication and communication to the ILO of an annual inspection report. In its previous comments, the Committee had requested the Government to provide information on the content of the “White Paper on Labour” published by the Ministry of Labour instead of an annual report and to communicate a copy within the time limits set out in Article 20. The Committee notes from the Government’s report that the White Paper contains the various policies and projects pursued by the Ministry and related statistics for the year concerned and deals with all the subjects described in Article 21 of the Convention except for point (b) on the “staff of the labour inspection service”. The Committee would be grateful if the Government would provide in its next report a summary of the content of the White Paper with regard to Article 21(a) and (c)–(g) of the Convention, as well as the information required under point (b).

Articles 5(a) and 21(e). Effective cooperation between the labour inspection services and the justice system. The Committee notes that, according to the Government, the 2009 White Paper contains information relative to the general observation made by the Committee in 2007, in particular, the number of cases reported to local labour offices and the results of their handling by the inspectorate (administrative settlement, referral to judicial treatment, imposition of a fine, etc.) The Government specifies that the results of the judicial examination are not included in the White Paper as judicial proceedings are concluded only after a decision is taken by the justice system. The Committee would be grateful if the Government would indicate in its next report whether a system exists or is contemplated for the recording of judicial decisions so as to enable the labour inspectorate to make use of this information in pursuance of its objectives and to include it in the annual report, as envisaged in Article 21(e) of the Convention. It would also appreciate further information on any measures taken or contemplated to promote effective cooperation between the labour inspection services and the justice system.