Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 81) sur l'inspection du travail, 1947 - Inde (Ratification: 1949)

Autre commentaire sur C081

Observation

Demande directe

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The Committee notes the observations made by the International Organisation of Employers (IOE) received on 1 September 2017, reiterating the statements made by the Employer members during the discussion of the application of the Convention by India in the Conference Committee on the Application of Standards (CAS) in 2017.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the 2017 conclusions of the CAS on the application of this Convention by India. The Committee recalls that this case was also discussed by the CAS at the 104th Session of the International Labour Conference in June 2015.

Articles 6, 10 and 11 of the Convention. Material and human resources at the central and state levels. The Committee notes that the Government provided written information to the CAS in 2017 on the number of labour inspectors (in relation to 32 of 36 states). It also notes that the Government refers, in its report, to budgetary constraints, but indicates that the strength of the staff is generally adequate for inspection needs and that, where necessary, staff is employed on a temporary basis. With respect to the hiring of temporary staff, the Committee recalls that, pursuant to Article 6, the status and conditions of service of inspection staff should be such that they are assured of stability of employment and are independent of changes of government and of improper external influences. The Committee requests the Government, in line with the 2017 conclusions of the CAS, to increase the resources at the disposal of the central and state government inspectorates, and to provide information on the working conditions and transport facilities of the labour inspection services therein. It requests the Government to continue to provide information on the number of labour inspectors in all states. Recalling that, as public servants, labour inspectors are generally appointed on a permanent basis (General Survey on labour inspection, 2006, paragraph 203), the Committee further requests the Government to specify the manner in which it is ensured that temporary inspectors are independent of changes of Government and of improper external influences, and to provide information on the number of temporary staff employed during the reporting period.

Articles 10 and 16. Coverage of workplaces by labour inspections. Self-inspection scheme. The Committee previously noted that mandatory self-assessments (required by employers employing more than 40 workers) are among the sources of information used by the Central Analysis and Intelligence Unit (CAIU) to draw a conclusion on a prima facie evidence of labour law violations, and a decision to enter (or not) the relevant workplace in the computerized system for inspection visits to be carried out. In this context, the Committee noted the observations made by the Centre of Indian Trade Unions (CITU) and the Bharatiya Mazdoor Sangh (BMS) pursuant to which there was an absence of any mechanism for the verification of information supplied through the self-certification scheme.

The Committee notes the Government’s indication to the CAS in 2017 that self-inspections had been adopted with a view to encouraging voluntary compliance for health and safety issues at workplaces and were different from inspections. Self-inspections did not replace labour inspections but were rather an additional mechanism for compliance. The Committee notes the additional information provided by the Government that the scheme of self-certification had been adopted by a large number of states, but had not yet become operational in most of them. The Government adds that in the few states in which the self-certification scheme had become operational, it was backed by a very effective system of random inspections and inspections in response to complaints. The Committee once again requests the Government, in line with the 2017 conclusions of the CAS, to provide information on how the information submitted through self-certificates is verified by the labour inspectorate, in particular in relation to health and safety inspections.

Articles 12 and 17. Free initiative of labour inspectors to enter workplaces without prior notice, and discretion to initiate legal proceedings without previous warning. Code on the Wages Bill and ongoing legislative reform. The Committee notes that the Code on Wages, 2017 Bill (the Bill) currently before Parliament is proposed to repeal the Payment of Wages Act, 1936 and the Minimum Wages Act, 1948, which specify the powers of labour inspectors, including the entry into workplaces, to enforce wage-related legislation. The Committee notes that the Bill does not explicitly refer to the principles contained in Article 12(1)(a) and (b), but provides that the governments at the state level may lay down separate inspection schemes (including the generation of a web-based inspection schedule). Moreover, the Bill renames labour inspectors as “facilitators” and requires inspectors to give previous warning and provide additional time to rectify a violation before any penal procedures may be initiated. The Committee notes that this Bill is part of an ongoing legislative reform, and recalls that the CAS requested the Government in 2015 and 2017 to take measures to ensure that any legislation developed was in conformity with the Convention. The Committee requests the Government, in line with the request of the CAS, to ensure that any legislation prepared in the context of the ongoing legislative reform complies with the principles of the Convention and to provide information on the consultations undertaken with the social partners thereon. In this respect, the Committee requests the Government to take the necessary measures to ensure that the Code on Wages explicitly includes the free initiative of labour inspectors to enter workplaces without prior notice, in conformity with Article 12(1)(a) and (b) of the Convention. The Committee also requests the Government, in line with the 2017 conclusions of the CAS, to provide information on the discretion of labour inspectors to initiate prompt legal proceedings without previous warning, where required, by indicating the total number of violations detected and the number of legal proceedings initiated by labour inspectors, distinguishing between those cases where a prior warning had been issued beforehand and where immediate enforcement action had been implemented.

Articles 2, 4 and 23. Labour inspection in special economic zones (SEZs). In its previous comments, the Committee noted the Government’s indication that very few inspections had been carried out in SEZs. The Committee notes that the Government provided written information to the CAS in 2017, indicating that a tripartite meeting was held in May 2017 to discuss the effectiveness of labour inspection following the delegation of inspection powers to the Development Commissioners, and that a regular review of the implementation of labour laws in SEZs would be developed in due course. The Government also expressed the view that, despite their function of attracting investment, Development Commissioners are able to exercise their functions without a conflict of interest. In addition, the Committee notes that the Government, in reply to the request of the CAS in 2017, provides some statistical information on the number of inspection visits, violations detected and penalties imposed in relation to five SEZs in which inspection powers have been delegated to the Development Commissioners and six SEZs in which inspection powers have not been delegated. Unannounced inspection visits have been undertaken during 2016–17 in only one of the five SEZs exercising delegated inspection powers, and in only two of these five SEZs during the prior two years (2014–15 and 2015–16). The Government’s information further indicates that, for the same three-year period, unannounced inspections have been carried out in only two of the six SEZS where inspection powers have not been delegated. Finally, the Government’s statistical information indicates that penalties have been imposed in only two of the five SEZs exercising delegated inspection powers, and in only five cases in those two SEZs during 2016–17. The Committee requests the Government, in line with the 2017 conclusions of the CAS, to ensure that effective labour inspections are conducted in all of the existing SEZs. It also requests the Government to specify the number of SEZs in which enforcement powers have been delegated to Development Commissioners and to provide detailed statistical information on labour inspections in all SEZs, including the number of enterprises and workers in each SEZ and the number and nature of offences reported, the number of penalties imposed, the amounts imposed and collected and criminal prosecutions and prison terms imposed, if any.

Articles 4, 20 and 21. Availability of statistical information on the activities of the labour inspection services at the central and state levels. The Committee notes that, once again, no annual report on the work of the labour inspection services has been communicated to the Office. It notes from the information provided by the Government to the CAS in 2017 that, in view of the federal structure of the country and the sovereignty of the states, there is no statutory mechanism for the states to furnish data to the central Government. Such information is provided by the states on a voluntary basis on various labour-related matters, and the Government provided information to the CAS in relation to those states for which information was available. During the discussion in the CAS, the Government referred to the strengthening and modernization of the collection of statistics by the Labour Bureau, and it reiterated its willingness to seek technical advice from the ILO regarding the preparation of annual labour inspection reports and establishments of registers of workplaces liable to inspection. The Committee also notes the observations made by the IOE that the federal structure of the country does not justify the failure to communicate information. The Committee urges the Government to take the necessary measures to ensure that the central authority, at the central level or the state level, publish and submit to the ILO annual reports on labour inspection activities containing all the information required by Article 21. The Committee encourages the Government to pursue its efforts towards the establishment of registers of workplaces at the central and state levels and the computerization and modernization of the data collection system, and to provide detailed information on any progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2018.]