Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

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

Autre commentaire sur C081

Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 16 September 2020. The ITUC states that, as part of the response to the COVID-19 pandemic, a number of states (including Uttar Pradesh, Madhya Pradesh, Rajasthan and Gujarat) have made changes to their labour laws by way of amendments, ordinances or executive orders, bypassing tripartite consultations and parliamentary debates. The ITUC states that the changes, based on the extraordinary measures provisions of the Factories Act 1948, gravely undermine workers’ rights and leave them without protection, in particular with regard to working hours, safety and health and wages. The ITUC also expresses concern about the provisions adopted in the state of Madhya Pradesh that exempt “non-hazardous factories” from routine inspections by the Labour Commissioner, and permit these factories to submit third-party certification regarding compliance instead. The ITUC states that this exemption is a violation of the Convention and will endanger the health and safety of workers. The Committee requests the Government to provide its observations in this respect.

In addition, the Committee notes that the Occupational Safety and Health (OSH) and Working Conditions Bill, previously noted by the Committee, was adopted in September 2020. The Committee proceeded with the examination of the application of the Convention on the basis of the new legislation adopted (see Articles 12 and 17 below), as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations made by the Council of Indian Employers (CIE), received on 30 August 2019, and the observations made by the International Trade Union Confederation (ITUC), received on 1 September 2019, as well as the Government’s reply in relation to the observations made by the ITUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion in the Conference Committee on the Application of Standards (CAS) of the International Labour Conference, at its 108th Session (June 2019), on the application of the Convention, and the conclusions adopted. The conclusions of the CAS called upon the Government to: (i) ensure that the draft legislation, in particular the Code on Wages, and the OSH and Working Conditions Act, is in compliance with the Convention; (ii) ensure that effective labour inspections are conducted in all workplaces, including the informal economy and in all Special Economic Zones (SEZs); (iii) promote collaboration between officials of the labour inspectorate and employers and workers, or their organizations, in particular when it comes to the implementation of inspection reports; (iv) increase the resources at the disposal of the central and state government inspectorates; (v) ensure that labour inspectors have full powers to undertake routine and unannounced visits and to initiate legal proceedings; (vi) pursue its efforts towards the establishment of registers of workplaces at the central and state levels; (vii) provide detailed information on the progress made with respect to measures taken to improve the data collection system, enabling the registration of data in all sectors; (viii) ensure that the operation of the self-certification scheme does not impede or interfere with the powers in functions of labour inspectors to carry out regular and unannounced visits in any way, as this is only a complementary tool; (ix) submit its annual report on labour inspection to the ILO; and (x) provide information on the number of routine and unannounced visits, as well as on the dissuasive sanctions imposed against infractions to guarantee the enforcement of labour protections in practice. The CAS also invited the Government to accept a direct contacts mission and to elaborate a report in consultation with the most representative employers’ and workers’ organizations on progress made in the implementation of the Convention in law and practice. The Committee notes with concern the statement in the Government’s report that it does not accept any direct contacts mission.

Articles 2 and 4 of the Convention. Labour inspection in SEZs. In its previous comments, the Committee noted the Government’s earlier indication that few inspections had been carried out in SEZs, and that Development Commissioners continued to exercise inspection powers in some SEZs. The Committee notes the observations of the ITUC expressing concern that the power of labour inspectors are being exercised by Development Commissioners who have a responsibility to promote investment in SEZs. The Committee also notes the observations made by the CIE that some of the SEZs have jurisdictions in more than one state, and that due to this administrative difficulty, Development Commissioners have been appointed to oversee the functioning of the SEZs. The CIE adds that Development Commissioners have been given full powers to enforce the labour laws through labour inspectors deputed by the local governments.

The Committee notes the Government’s indication, in response to the concerns expressed by the ITUC, that the deputed labour inspectors from the states work independently, are paid by the states and may conduct inspections on their proper initiative without prior intimation to the Development Commissioners. The Committee further notes the Government’s indications, in reply to the Committee’s request to ensure that effective labour inspections are conducted in all SEZs, that the number of inspections has increased substantially in the last three years. In this respect, the Committee notes with interest from the statistical information provided by the Government, an increase in the number of inspections undertaken in six of the seven SEZs from 2016–17 to 2018–19: from 0 to 62 in Falta Kolkata; from 26 to 30 in Vishakapatnam; from 46 to 105 in Mumbai; from 16 to 30 in Noida; from 368 to 2,806 in Kandla; and from 189 to 222 in Chennai. The number of inspections undertaken in the SEZ Cochin went from 22 to 18 over the same period. The Committee notes however, that the number of penalties imposed remained low, and in three out of the seven SEZs, no penalties were imposed during this period. The Committee requests the Government, in line with the 2019 conclusions of the CAS, to ensure that effective labour inspections are conducted in all SEZs. Welcoming the information already provided, the Committee requests the Government to provide more detailed statistical information on the number of labour inspectors responsible for inspections in these zones, the number of inspection visits, the number and nature of offences reported, the number of penalties imposed, the amounts of fines imposed and collected, and information on criminal prosecutions, if any. It also requests the Government to continue to provide information on the number of enterprises and workers in each SEZ. The Committee further requests the Government to provide up-to-date information indicating in which SEZs labour inspection powers have been delegated to Development Commissioners, including the specific powers so delegated and how inspections are carried out in those SEZs.

Articles 4, 20 and 21. Availability of statistical information on the activities of the labour inspection services at the central and state levels. Availability of statistics in specific sectors. The Committee notes the Government’s reference, in reply to the Committee’s previous request for an annual labour inspection report, to the 2018–19 report published by the Ministry of Labour and Employment, which contains statistical information on inspection activities at the central level (including the number of labour inspections, the number of irregularities detected, the number of prosecutions and convictions, as well as the number of accidents in mines). Concerning the state level, the Committee notes the statistical information on labour inspection activities provided by the Government with its report (including on the number of labour inspections in 14 states, and the number of violations detected, prosecutions and penalties imposed in 15 states). Finally, the Committee welcomes the information available on the Shram Suvidha web portal at the Ministry of Labour and Employment concerning the information on registered workplaces in nine states and the information that discussions are ongoing with other states concerning the integration of information into the portal. The Committee also notes the observations made by the ITUC that the statistical data provided does not allow for an assessment of the effective operation of the labour inspection services. The Committee urges the Government to pursue its efforts to ensure that the central authority (at the central level or the state levels), publishes and transmits to the ILO annual reports on labour inspection activities containing all the information required by Article 21. In line with the 2019 conclusions of the CAS, the Committee encourages the Government to pursue its efforts towards the establishment of registers of workplaces at the central and state levels. In this regard, the Committee also once again requests the Government to provide detailed information on the progress made with respect to measures taken to improve the data collection system enabling the registration of data in all sectors.

Articles 10 and 11. Material means and human resources at the central and state levels. The Committee notes with interest the Government’s indication, in response to the Committee’s request to increase the resources at the central and state government inspectorates, that more than 574 labour inspectors have been recruited at the state levels in the last two years, bringing the total number of labour inspectors to 3,721. The Government adds that at the central level, the number of labour inspectors is 4,702. The Committee also notes the information provided by the Government in relation to the central level and 19 states on the transport facilities or transport allowance provided, as well as on the available material resources.

The Committee notes the statement of the CIE that the use of technology, information and communications technology in particular, has contributed to promoting compliance. The Committee also notes the observations made by the ITUC that the human and material resources of the labour inspectorate are inadequate. It notes the Government’s reply that inspectors at the central government level and in most states are provided vehicles for conducting inspections. In line with the 2019 conclusions of the CAS, the Committee requests the Government to continue to take measures to increase the resources at the disposal of the central and state government inspectorates, and to provide information on the concrete measures taken in that respect. It also requests the Government to continue to provide information on the number of labour inspectors, material resources and transport facilities and/or budget for travel allowances of the labour inspection services at the central level and for each state, and to provide statistical information on the workplaces liable to inspection at the central level and state levels.

Articles 12 and 17. Free initiative of labour inspectors to enter workplaces without prior notice, and discretion to initiate legal proceedings without previous warning. The Committee previously requested the Government to ensure that, in the ongoing legislative reform, any legislation developed be in conformity with the Convention. The Committee notes the Government’s indication, in response to this request, that the Code on Wages was adopted in August 2019. The Committee notes that pursuant to section 51(5)(b) of the Code on Wages, labour inspectors entitled “inspectors-cum-facilitators” may inspect establishments “subject to the instructions or guidelines issued by the appropriate Government from time to time”. It further notes that the Code on Wages provides that inspectors-cum-facilitators shall, before the initiation of prosecution for an offence, give employers an opportunity to comply with the provisions of the Code within a certain time limit through a written direction (section 54(3)).

In addition, the Committee notes the adoption of the OSH and Working Conditions Code on 28 September 2020. The Code provides that, subject to rules made, inspector-cum-facilitators may enter any place which is used, or they have reason to believe is used, as a work place and inspect and examine the establishment and any premises, plant, machinery, article, or any other relevant material (section 35(1) and (2)). The Committee notes that while the Code also gives inspectors-cum-facilitators and other appropriately authorized officers the power to enter workplaces at any time during normal working hours or at any other time deemed necessary, it requires them to give notice in writing to the employer prior to undertaking a survey (section 20(1)); and with respect to inspections in mines (section 41), to provide at least three days before conducting inspections (for the purpose of surveying, levelling or measuring any mine or any output therefrom), except in emergency situations pursuant to a written order from the Chief Inspector-cum-Facilitator. The Committee further notes that section 110 provides that an inspector-cum- facilitator shall not initiate prosecution proceedings against an employer for any offence in Chapter XII of the Code (on offences and penalties), and shall give an opportunity to comply with relevant provisions of the Code within a period of thirty days from the date of notice giving opportunity, and, if the employer complies with such provisions within the period, no such proceeding shall be initiated against the employer. Section 110 further provides that the period of notice does not apply in the case of an accident or if it concerns a violation of the same nature repeated within a period of three years from the date on which the first violation was committed. In addition, the Committee notes the statistics provided by the Government concerning the number of convictions and penalties imposed at the central level and for 11 states for the period of 2016–19.

The Committee recalls that under Article 12(1)(a) of the Convention, labour inspectors shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection, and it further recalls Article 17 of the Convention provides that, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give a warning or advice instead of instituting or recommending proceedings. The Committee requests the Government to take measures to ensure that labour inspectors are empowered, in law and practice and in line with Article 12(1)(a) and (b) of the Convention, to make visits without previous notice. In this respect, noting that the Code on Wages provides for inspections subject to the instructions or guidelines issued by the appropriate Government, the Committee urges the Government to ensure that the instructions issued fully empower labour inspectors in accordance with Article 12(1)(a) and (b) of the Convention. The Committee also requests the Government to provide further information on the meaning of the term “survey” in section 20 of the OSH and Working Conditions Code, and to indicate whether labour inspectors are required to provide notice of all inspections in writing under the Code. It also urges the Government to take the necessary measures to ensure that labour inspectors are able to initiate legal proceedings without previous warning, where required, in conformity with Article 17 of the Convention. In this respect, it requests the Government to provide further information on the meaning of the term “inspectors-cum-facilitators,” including the functions and powers of officials performing this role. Noting the statistics already provided, the Committee requests the Government to provide information on the number and nature of offences reported, the number of penalties imposed, the amounts of fines imposed and collected, and information on criminal prosecutions, if any.

The Committee is raising other matters in a request addressed directly to the Government which reiterates the content of its previous request adopted in 2019.