Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information supplied by the Government in its report. It further notes the comments made by the Centre of Indian Trade Unions (CITU) in a communication dated 25 August 2008, and the comments of the Bharatiya Mazdoor Sangh (BMS) which were transmitted with the Government’s report.

Articles 2, 3, 10, 11, 12, paragraph 1(a), and 16 of the Convention. (a) Coverage and functioning of the labour inspection system  The Committee notes that one of the priorities with regard to labour set by the National Common Minimum Programme (NCMP), adopted in 2004 by the Government, is the re-examination of labour laws to reduce “Inspector Raj”. In its communication, the CITU alleges that, in the name of “ending Inspector Raj”, internal directives have been issued in most states that no labour inspection is to be carried out. The organization adds that the lack of labour inspection and monitoring by the Labour Department, even in many factories in the national capital territory of Delhi and industrial areas, such as Mayapuri and Patparganj, is resulting in frequent violations of minimum wage legislation and a lack of safety measures leading to frequent accidents.

It would appear to the Committee that the Government’s aim in relation to the NCMP with regard to reducing “Inspector Raj” is to avoid a proliferation of inspections in the same enterprise, including labour inspections. The Committee, however, wishes to emphasize that it considers any measure taken to limit the number of labour inspections as a restriction that is incompatible with the main objective of labour inspection, which is the protection of workers. Recalling, in accordance with Article 16 of the Convention, that workplaces or enterprises liable to labour inspection should be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, the Committee requests the Government to take the necessary measures to ensure that full effect is given to this provision of the Convention and to keep the ILO informed of the measures adopted.

In its previous comments, the Committee observed that the scope of labour inspection, in terms of the workers covered and workplaces visited, varied considerably from one state to another. It requested the Government to take the necessary measures to ensure a better coverage of workplaces and workers liable to inspection throughout the country in the light of the needs of each state (by increasing staff numbers, the number of inspections, etc.). While noting the Government’s reply that the information is being collected and will be supplied once it has been received, the Committee hopes that the necessary measures will be taken in the near future and that the relevant information will be sent to the ILO.

The Committee requests the Government to provide information in reply to the CITU’s allegations of the lack of monitoring of the application of labour laws and the existence of internal instructions in most states preventing inspections. The Government is also requested to provide detailed information on the measures taken or envisaged with a view to reducing “Inspector Raj” and to specify their impact on the labour inspection system, and particularly on the number of inspections carried out by labour inspectors throughout the country.

(b) Labour inspections in special economic zones (SEZs) and in enterprises in the information technology (IT) and IT-enabled service sectors (ITES). In its previous comments, the Committee observed that very few inspections had been carried out in enterprises in SEZs, and particularly in the IT and ITES sectors. It requested the Government to indicate the legal provisions applicable to these enterprises and sectors and to supply statistical data on the number of enterprises and workers in the above sectors, the number of labour inspectors, offences reported, penalties imposed and also the number of industrial accidents and cases of occupational disease reported. In its communication, the BMS alleges that in newly emerging sectors, such as IT, and in SEZs, the labour administration is denied a role and that legal measures need to be taken by the Government to remedy this situation. Furthermore, the CITU states that the practice of issuing internal directives to prevent workplace inspections is most rampant in SEZs and in the IT and ITES sectors.

The Committee notes that, according to the Government, there are no separate labour laws for SEZs and that labour laws, as amended from time to time by the respective state government, apply in SEZs. The Government adds that the implementation of labour laws in SEZs is ensured through the respective machineries of the central or state governments, as appropriate. Noting the Government’s indication that it is seeking to obtain from the agencies concerned statistics on the number of enterprises and workers in SEZs, the Committee trusts that the Government will not fail to send information on the functioning of the labour inspection system in SEZs, including the data requested previously, which are indispensable to assess the situation with regard to the enforcement of labour laws and, accordingly, the protection of workers. It also asks the Government to supply information on the points raised by the CITU and the BMS with regard to the lack of inspections in these sectors.

(c) Free access of labour inspectors to workplaces. Labour inspections in the state of Haryana. Self-certification system. In its communication, the CITU adds that the situation with regard to labour inspections has not improved in the state of Haryana. It further alleges that no labour inspection can be carried out without the prior authorization of the Secretary of Labour and that such authorization is never given. According to the organization, no inspections are conducted in many factories and this situation leads to the failure to implement basic labour laws on minimum wages and to violations of freedom of association. Recalling that, in accordance with Article 12, paragraph 1(a), of the Convention, labour inspectors shall be empowered to enter freely workplaces liable to inspection, the Committee requests the Government to supply its comments on the CITU’s allegations.

Noting the Government’s commitment to amend section 9 of the Factories Act (Powers of Inspectors) and section 4 of the Dock Workers (Safety, Health and Welfare) Act to establish explicitly the right of inspectors to enter workplaces freely, the Committee requests it to take the necessary measures to re-establish this right wherever it may have been removed. It hopes that the Government will soon be in a position to inform the ILO of the measures taken for that purpose and of the adoption of legal provisions giving full effect to the above provisions of the Convention. The Government is requested to supply a copy of the amended texts once they are adopted.

With regard to the self-certification scheme implemented recently, the CITU observes that there is no provision for the verification of information supplied through this procedure, and the BMS alleges that, within the context of globalization and labour reforms, there is an attempt to do away with the system of legal inspection to the detriment of the workers’ interests. According to the Government, the information requested by the Committee on the functioning of this system is being collected and will be provided when it has been received. The Committee therefore requests the Government to supply this information. Furthermore, referring again to Article 16, which provides that workplaces shall be inspected as often and as thoroughly as is necessary, it requests the Government to describe the measures adopted to ensure that the self-certification system does not lead to a restriction of the frequency and thoroughness of inspection visits. If the necessary measures have not yet been taken, the Committee urges the Government to adopt them and to keep the ILO duly informed. It also asks the Government to supply information on the arrangements made for the verification of information supplied by employers, the handling of any disputes and the action taken with regard to violations that are identified in the state of Haryana and throughout the country.

Article 18. Adequacy of penalties. The Committee notes the Government’s indication that an amendment enhancing the penalties under various provisions of the Factories Act, 1948, is at an advanced stage of enactment and that a proposed amendment is being prepared under the Dock Workers (Safety, Health and Welfare) Act, 1986. With reference to its previous comments, the Committee hopes that these amendments will be adopted in the near future and will establish penalties that are sufficiently dissuasive to ensure the effective application of the legal provisions relating to conditions of work and the protection of workers, and that copies of the final texts will be sent to the ILO in the near future.

The Committee is also addressing a request directly to the Government on certain other points.