Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the Government’s report in reply to its direct request of 2005, and the new regulations issued under the Labour Law adopted in 2004. It notes with interest that section 7 of Order No. 13 of 2005 respecting the regulation and procedures of labour inspection giving full effect to Article 12, paragraph 2, of the Convention, which provides that labour inspectors may refrain from notifying the employer of their presence on the occasion of an inspection visit where they consider that such notification may be prejudicial to the effectiveness of the inspection.

The Committee draws the Government’s attention to the following points.

Article 12, paragraph 1(a), of the Convention. Right of inspectors to enter workplaces freely. Under section 7 of Order No. 13 of 2005, labour inspectors are prohibited from notifying the employer of any inspection of the undertaking, irrespective of its purpose. The Committee emphasizes that, while the principle of surprise inspections is one of the prerequisites for the effectiveness of most inspections, the exercise of the right of free entry of inspectors, as set out in the Convention, should not exclude the possibility of inspectors notifying the employer of the inspection where they consider this useful for the proper implementation of the envisaged operations and verifications. Certain controls may indeed require the presence of the employer or her or his representative in the undertaking, the preparation of specific documents and conditions that are favourable for the inspection. It is also important that the free entry of inspectors into workplaces liable to inspection is not restricted by the requirement of authorization from a higher authority, and the possession of credentials demonstrating their functions should be considered sufficient for the legitimate exercise of the related powers and prerogatives. The Committee would be grateful if the Government would ensure that the legislation is amended so as to provide that labour inspectors may, in cases that they consider appropriate for the proper implementation of the inspection, notify the employer in advance of an inspection visit.

It also requests the Government to take measures to amend the legislation so that the right of free entry without prior notification by inspectors into workplaces liable to inspection is only subject to the possession of credentials certifying their functions, and is not restricted by the need for a mission order or authorization from a higher authority.

The Committee would be grateful if the Government would provide information on any progress achieved in this respect.

Article 13, paragraph 2(b). Measures with immediate executory force in cases of imminent risk to the health and safety of workers. Further to its previous comment relating to section 100 of the new Labour Law respecting the indirect powers that inspectors may exercise to order measures to protect workers against imminent risks to their health and safety resulting from the negligence of the employer, the Committee notes that, under the terms of section 12 of Order No. 13 of 2005, the time limit determined for an employer to bring to an end a violation of the provisions of the Labour Law may not be less than two weeks. It is bound to remind the Government that, in accordance with Article 13, paragraph 2(b), of the Convention, labour inspectors should have the right to make or to have made orders requiring measures “with immediate executory force” with a view to the elimination of such threats. The Government is therefore requested to take measures rapidly to supplement the legislation so that it explicitly provides that measures ordered with a view to the elimination of an imminent danger to the health or safety of the workers, including those determined in section 100 of the Labour Law, have immediate executory force and that there is no waiting period for their implementation.

Article 15(c). Confidentiality of the source of complaints and prohibition upon revealing that an inspection was made in consequence of a complaint. While noting that that confidentiality of the author of a complaint is guaranteed by section 10 of the above Order, the Committee notes that, contrary to the provisions of the Convention, no provision prohibits the inspector from revealing to the employer that a visit of inspection was made in consequence of a complaint. The Committee would be grateful if the Government would take measures to amend the legislation so as to give full effect to Article 15(c) of the Convention, the objective of which is to secure the effective protection of workers who make complaints against any reprisals by the employer.

Articles 19, 20 and 21. Use of the data contained in inspection reports with a view to the prevention of danger to health and safety at work. With reference to the information contained in the annual inspection report for 2004, the Committee notes with interest the data relating to the geographical distribution of workplaces liable to inspection (24,920) and the number of workers employed therein (335,235) (clause (c) of Article 21). It notes that over the course of the year inspectors carried out a total of 2,240 inspections, a figure which includes surprise inspections and scheduled inspections throughout the territory, disaggregated by the month, as well as data on occupational injuries. While noting a correlation between the number of employment accidents and the frequency of inspections, the Committee nevertheless regrets the absence of data on the number and categories of workplaces inspected, which would be useful to assess the rate of coverage by the labour inspectorate of the industrial and commercial workplaces liable to inspections. The Committee notes with interest the detailed presentation of certain data, including those relating to the distribution of employment accidents by branch, showing a clear predominance of accidents in the building and construction sector (47 per cent), the commercial, catering and hotel sector (25 per cent), processing industries (20 per cent) and transport and communications (13 per cent). It also notes a heading relating to a category of employment injuries qualified as “simple”, with the indication that they did not result in incapacity for work. These injuries affect, among others, the back, trunk, abdomen, shoulders and hands. There is no mention in the report of whether measures are envisaged to reduce occupational risks and improve conditions of work in the most exposed activities, or information and education activities for the categories of workers most affected by employment accidents. These measures could consist, for example, of an increase in the frequency of inspections in workplaces where workers are most exposed, and the development of educational activities on prevention measures for which employers and each worker are responsible. The number and frequency of injuries qualified as simple and not requiring absence from work could justify monitoring by the inspection services of the possible delayed consequences of such injuries in terms of harmful musculoskeletal pathologies that are prejudicial to the workers concerned and to the financial performance of the establishment. The Committee would be grateful if the Government would ensure that the annual inspection report is in future completed in accordance with the requirements of Article 21 with the inclusion of data on the staff of the labour inspection services (clause (b)), statistics of inspection visits (clause (d)) and statistics of occupational diseases (clause (g)). It invites the Government to draw the attention of the central inspection authority to Paragraph 9 of the Labour Inspection Recommendation, 1947 (No. 81), on the level of detail that is desirable in the required information so that the annual report can serve as a basis for the determination of the advisory and enforcement activities of the inspection services required to improve conditions of work at workplaces.