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

The Committee notes the Government’s reports received on 23 October 2008 and 5 October 2009, along with its replies to the comments made previously in communications dated 31 May 2007 and 11 July 2008 by the Lanka Jathika Estate Workers’ Union (LJEWU) and in a joint communication dated 4 October 2007 by the Confederation of Public Service Independent Trade Unions (COPSITU), the Government Service Labour Officers’ Association (GSLOA), the United Federation of Labour (UFL), the Progress Union (PU), the Free Trade Zone Workers Union (FTZWU) and the Health Service Trade Union Alliance (HSTUA). The content of these communications has been summarized in the Committee’s previous comments. The Committee also notes the comments made by the Ceylon Workers’ Congress (CWC) in a communication dated 8 July 2008 and by the National Trade Union Federation (NTUF) in a communication dated 22 July 2009. The Committee finally recalls that its comments also relate to the matters raised by the World Confederation of Labour (WCL – now merged into the International Trade Union Confederation (ITUC)) in September 2005.

The Committee recalls the conclusions reached by the Conference Committee on the Application of Standards (ILC, 96th Session, June 2007) which, having noted the efforts made by the Government to restructure the labour inspection system with ILO assistance, develop the prevention side of labour inspection, promote qualifications of labour inspection staff and increase the number of both female and male labour inspectors, requested the Government to communicate further information on the right of access by inspectors to establishments in export processing zones (EPZs), the powers of injunction of labour inspectors, the allocation of professional travel expenses, and the publication of an annual inspection report.

Articles 3, 13, 16 and 17 of the Convention. Restructuring of the labour inspection system with ILO assistance. In its previous comments, the Committee requested information on the consequences in practice of the restructuring of the Department of Labour and its agencies with ILO support. It also noted the need to give power of injunction to labour inspectors in the area of occupational safety and health (OSH).

The Committee notes from the statistical data provided by the Government that, while the number of registered factories has almost quadrupled since 1996 (from 4,669 in 1996 to 16,153 in 2008), the number of inspections has merely risen by approximately 30 per cent (from 3,061 in 1996 to 4,004 in 2008). Moreover, while there was an important increase in the number of complaints received and investigated (from 17 to 71 and from 16 to 96, respectively) during the same period, the number of court cases filed and concluded actually fell from 17 to seven and from 13 to three respectively. The CWC indicates in its comments of 8 July 2008 that it is not aware of any prosecutions undertaken against employers who have been found by labour inspectors to be in breach of their legal obligations. With reference to its previous comments, the Committee once again requests the Government to provide detailed information on the impact of the restructuring of the labour inspection system on the effective discharge of labour inspection functions in accordance with Article 3, in particular, the number of visits carried out, numbers and types of violations detected, cases of progress based on the provision of information and advice, cases brought to the courts and outcomes of the proceedings, number and subject of complaints investigated and results obtained.

The Committee also reiterates its request for a copy of the document on the restructuring of the Ministry of Labour, as well as any document setting out the new arrangements for the operation of the labour inspection system.

The Committee also notes that the data provided on the labour inspection activities in the area of OSH (including the number of occupational accidents and cases of occupational disease, are too general. It notes from the information provided by the NTUF in its communication of 22 July 2009 that, under sections 44 and 100 of the Factories Ordinance No. 45 of 1942, factory inspecting engineers can apply to the Magistrates’ Court for an injunction where there is an imminent risk of serious bodily injury. The Committee requests the Government to provide detailed information on the labour inspection activities carried out in the area of OSH and the results obtained as well as the numbers of occupational accidents and cases of occupational disease by sector of economic activity and geographical area. Noting moreover the comments by the NTUF on the difficulties encountered in ensuring enforcement of occupational safety and health legislation vis-à-vis employers, it invites the Government to make any comment it considers appropriate in this regard.

Articles 7(3), 8, 9 and 10. Numbers, composition and training of labour inspection staff and collaboration with technical experts. The Committee notes the detailed data provided by the Government on the labour inspection staff, which amounts to a total of 544 inspectors, including 20 new Tamil-speaking labour officers. It notes furthermore with interest that action has been taken to strengthen the labour inspectorate by recruiting 80 additional officers. Action is also being taken to recruit 21 new assistant commissioners of labour from the assistant commissioners of labour (departmental) service. Finally, requests have been made to the Ministry of Public Administration to attach to the supervisory grade of the inspection staff the officers of the Sri Lanka Administrative Service (SLAS). The Committee requests the Government to keep the ILO informed of progress made in the process of recruiting of additional inspection and supervisory staff.

The Committee also notes that there is a marked shortage of OSH staff, who number only 27 inspectors out of a total of 545. It recalls the comments previously made by the WCL and the recent comments of the NTUF with regard to the persistent shortage of factory inspecting engineers, medical officers and occupational hygienists to carry out routine inspections of industrial enterprises, particularly those in which hazardous substances are used or handled. The Committee requests the Government to indicate the measures taken or under consideration to increase the number of inspection staff specialized in OSH.

Noting moreover the text of the National Institute of Occupational Safety and Health Act No. 38 of 2009, which empowers the officers or agents of the Institute to carry out inspections on OSH and to provide advisory services in this area, the Committee also requests the Government to provide information on any arrangement to associate technical experts and specialists from the National Institute of Occupational Safety and Health with the work of the labour inspectorate for the purpose of securing the enforcement of the legal provisions relating to the protection of the health and safety of workers and investigating the effects of processes, materials and methods of work on the health and safety of workers.

Furthermore, the Committee notes that action has been taken to absorb 178 field officers entrusted with the enforcement of the Employees’ Provident Fund Act (i.e. the social security law covering the private sector) as labour officers so as to further strengthen the labour inspection service. With reference to its previous comments on this question, the Committee requests the Government to indicate the impact of the increase in staff entrusted with the enforcement of the Employees’ Provident Fund Act in recovering social contributions from half of all employers who, according to the Government, had failed to pay them.

The Committee notes with interest that the number of female inspectors has increased to 154. However, male inspectors continue to account for over 70 per cent of the labour inspection staff (391 male inspectors). The Committee requests the Government to indicate the impact of the recruitment of female labour inspectors in terms of the effective discharge of labour inspection functions in sectors with a predominantly female workforce, such as the textile sector, and to keep the ILO informed of progress made in terms of the further recruitment of female staff.

Finally, noting the information provided by the Government on initial and periodic training of labour inspectors, the Committee requests the Government to provide details on the training activities carried out (subjects, dates, attendance and evaluation of the training).

Article 12(1)(a). Right of labour inspectors to enter freely workplaces liable to inspection. With reference to the comments previously made by the LJEWU on this question, the Committee notes the Government’s indication that: there is no restriction or difficulty in entering EPZs for officers of the Department of Labour; inspections can be carried out only by the commissioner of labour and his/her officers and not the Board of Investment (BOI) – there is no separate labour inspectorate for EPZs; and all relevant parties (commissioner general of labour, BOI officials, major trade unions, employers’ organizations and the Minister of Labour) meet in the framework of the National Labour Advisory Council (NLAC), where the issue of labour inspection in EPZs has never been raised by the trade unions. The Committee recalls that it has noted in the past the generally applicable legislation and information on the rights exercised in practice by labour inspectors during inspections. It must, however, note that almost all the communications received from trade union organizations, including the most recent communication from the NTUF dated 22 July 2009, confirm that the right of labour inspectors to free entry in EPZs encounters obstacles in practice due to the need to give prior notice to the BOI. The Committee once again draws the Government’s attention to the importance of enabling inspectors to exercise the right to free entry into workplaces, including in EPZs, without prior notice, as established by the Convention. This is necessary, among other things, to enable inspectors to observe the confidentiality required with regard to the purpose of the inspection if it is carried out in response to a complaint, as well as to maintain the confidentiality of the source of the complaint (see in this respect, the General Survey of 2006 on labour inspection, paragraph 263). The Committee requests the Government to take all necessary measures to ensure that, as required by Article 12, labour inspectors may enter EPZs on the sole condition that they hold appropriate credentials, without prior notice to the BOI. It would also be grateful if the Government would indicate the number of inspection activities carried out in EPZs and their outcomes (number of inspection visits, violations detected by subject, measures taken and outcomes).

Finally, the Committee suggests that the Government may host a discussion on ways to improve labour inspection in EPZs in the framework of the NLAC and keep the ILO informed of the outcome of the discussions.

Article 11(1)(b). Travelling expenses. The Government indicates that public officers including the labour inspectorate are paid subsistence and travelling expenses in accordance with the rates stipulated by the Ministry of Public Administration in consultation with the Ministry of Finance. Most of the district offices have official vehicles to use for labour inspections. In addition, the inspecting officers could use their own vehicles. The cost of travelling is reimbursed at the rates stipulated by the Government. Finally, inspecting officers can obtain low interest loans to buy personal vehicles, if they wish. However, the LJEWU and the NTUF are of the view that the travelling allowance is inadequate and the limitations placed on the mileage that is reimbursed limits the number of inspections carried out. The Committee once again urges the Government to take measures to provide inspectors with the transport facilities that are indispensable for the discharge of their functions, and to keep the ILO informed of any measures taken or under consideration to this end.

Article 18. Dissuasive sanctions. The Committee notes with interest that, following the amendment of the Employment of Women, Young Persons and Children Act, steps have been taken to update the fines and penal provisions in all legislative acts relating to conditions of work. It notes in this regard the text of the bills to amend the Shop and Office Employees’ Act, the Maternity Benefits Ordinance, the Termination of Employment of Workmen (Special Provisions) Act and the Industrial Disputes Act, communicated by the Government. The Committee requests the Government to keep the ILO informed of the progress made in the adoption of the abovementioned bills.

Article 21. Statistics and the publication of the annual report on labour inspection activities. In its report, the Government acknowledges that the collection and analysis of statistical data for the annual report could be further improved and requests the ILO for technical assistance. Recalling that in its previous comments the Committee welcomed action to update the master register of workplaces and, with reference to its 2009 general observation on the importance of such statistics, the Committee requests the Government to indicate any progress made in relation to the collection of data on the number of workplaces liable to inspection, including in EPZs, and the workers employed therein. It also reiterates its previous requests under Article 21 for the publication of data on the number of inspections made, including in EPZs; the violations identified and the penalties applied; and cases of occupational disease; and for measures to be taken to ensure that the annual report is published, as required by Article 20.

With regard to the Government’s request for technical assistance, the Committee invites the Government to take formal steps to this end.