Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

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 made by the Centre of Indian Trade Unions (CITU) received on 14 March 2018.

Articles 2, 4 and 23 of the Convention. 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. It also noted that the Development Commissioners, who are responsible for attracting investment, continued to exercise inspection powers in some SEZs. In this respect, the Committee notes the observations made by the CITU to the Conference Committee on the Application of Standards (CAS) in 2017 and again by the CITU in its observations made in March 2018 that there is virtually no inspection system in SEZs. The trade union adds that despite the absence of violations reported, there are violations of all basic labour laws in SEZs and that there has been no improvement in the situation since the discussion in the CAS in June 2017.

The Committee notes the explanations provided by the Government, in its report in response to the Committee’s request on the authorities responsible for inspections, that there are currently seven SEZ zones. The Government states that in some cases, the SEZs cover several states and that the situation with regard to inspections may differ within one SEZ, depending on the state where the enterprise is physically located. The Government adds that inspection powers are assumed by Development Commissioners in two SEZs, namely Visakhapatnam and Mumbai Seepz (except with regard to the supervision of the Factories Act including its occupational safety and health provisions). In five SEZs (Noida, Cochin, Madras, Falta and Kandla) inspection powers have not been delegated to the Development Commissioners (except in one of the ten states in which operations of the SEZ Noida take place). The Committee notes the Government’s indication that no powers were delegated in relation to laws that are administered centrally. The Committee also notes the information provided by the Government for five of the seven SEZs (except for Cochin and Falda), including information on the number of enterprises and workers. While the Committee notes that these statistics are more detailed than those provided by the Government in recent years, they still do not enable the Committee to make an informed assessment of the protection of workers in these zones. Moreover, the Committee notes that no information is available (or no penalties were imposed) in most of the SEZs for which statistics were provided (in Kandla two criminal prosecutions and prison terms were reported). The Committee once again 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. In this respect, it once again requests the Government to provide detailed statistical information on labour inspections in all SEZs, including on the number of enterprises and workers in each SEZ, the number of routine and unannounced 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.

Articles 10 and 11. Material means and human resources at the central and state levels. The Committee recalls the 2017 conclusions of the CAS concerning the need to increase the resources at the disposal of the central and state government inspectorates. The Committee notes the statistics provided by the Government in its report on the number of labour inspectors at the central and state levels, which for the state level is the same information that was provided by the Government in 2017 to the CAS and does not reflect any additional recruitments. Concerning the status of labour inspectors, the Committee notes the Government’s clarification, in reply to the Committee’s request, that the possibility to employ staff on a temporary basis as labour inspectors only concerns the deployment of public servants from other Government services. The Committee once again requests the Government to increase the resources at the disposal of the central and state government inspectorates, and to continue to provide information on the number of labour inspectors at the central level and in all states. Because the Government has only provided general information in this respect, the Committee also once again requests the Government to provide more detailed information on the available material resources and transport facilities (such as number of vehicles) of the labour inspection services at the central 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. Code on the Wages Bill, the Occupational Safety and Health and Working Conditions Bill, and ongoing legislative reform The Committee previously noted that the Code on Wages, 2017 Bill does not explicitly refer to the principles contained in Article 12(1)(a) and (b), but provides that the governments at the state levels may lay down separate inspection schemes (including the generation of a web-based inspection schedule). It also previously noted that the Code on Wages 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 the Government’s indication, in response to the Committee’s request, that several tripartite meetings were held in the drafting process of the Code on Wages Bill. The Government further emphasizes that the Code on Wages Bill does not curtail inspection powers where inspections are necessary, and that in the event of complaints made or indicators of the existence of labour law violations, labour inspectors will continue to have full discretion to undertake inspections without prior notice and initiate the required actions. The Government indicates that the Code on Wages Bill is currently before the Parliamentary Standing Committee.

The Committee further notes that the OSH and Working Conditions Bill, published on the website of the Ministry of Labour and Employment in March 2018, also renames labour inspectors as “facilitators” (section 34(1)), and provides that they conduct inspections, including web-based inspections (as prescribed by the governments at the state levels (section 34(2)). The Committee also notes that facilitators have the power to prosecute, conduct or defend before a court any complaint or other proceeding arising under the OSH and Working Conditions Code, or the rules and regulations made thereunder (section 35(xii)), and to exercise such powers as may be prescribed (section 35(xiii)). However, the Bill is silent with regard to the powers of labour inspectors to initiate legal proceedings against persons who violate or neglect to observe legal provisions enforceable by labour inspectors. Moreover, the OSH and Working Conditions Bill requires inspectors to give prior notice of at least three days before conducting inspections in mines, except in dangerous situations (section 39).

With reference to its 2006 General Survey, Labour inspection, paragraph 263, the Committee recalls that unannounced visits enable the inspector to enter the inspected premises without warning the employer or his or her representative in advance, especially in cases where the employer may be expected to attempt to conceal a violation, by changing the usual conditions of work, preventing a witness from being present or making it impossible to carry out an inspection. The Committee also recalls that under Article 17, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal or administrative proceedings without previous warning, and that the possibility of giving previous notice to carry out remedial or preventive measures may be provided for in national laws or regulations by way of exception. Recalling that the CAS requested the Government to take measures to ensure that any legislation developed was in conformity with the Convention, the Committee requests the Government to take the necessary measures to ensure that the Code on Wages and the OSH and Working Conditions Act explicitly allow labour inspectors on their own initiative to enter workplaces without prior notice, not limited to situations where complaints have been made or indicators exist for labour law violations, in conformity with Article 12(1)(a) and (b) of the Convention. It also requests the Government to ensure that the Code on Wages and the OSH and Working Conditions Act will guarantee the discretion of labour inspectors to initiate prompt legal or administrative proceedings without previous warning, or to order remedial measures and give warnings instead of instituting or recommending proceedings, where the situation so requires (Article 17 of the Convention).

Effect given to the above-mentioned principles in practice. Statistics on labour inspections without previous notice, and the initiation of legal proceedings without previous warning. The Committee notes the information provided by the Government, in response to its request, on the number of violations detected and the relevant prosecutions initiated at the central level and 36 state/union territories. However, the Committee also notes that the Government has not provided the requested information on those cases where a prior warning had been issued before the initiation of legal proceedings and where immediate enforcement action has been taken. The Committee therefore once again requests the Government, to provide information not only on the total number of violations detected and the number of legal proceedings initiated by labour inspectors, but to disaggregate this information between those cases where a prior warning had been issued beforehand and where immediate enforcement action had been implemented. The Committee also requests the Government to provide information on the total number of inspections undertaken, distinguishing those inspections that were undertaken with and without prior notice.

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 that, once again, no annual report on the work of the labour inspection services has been communicated to the Office, although it notes that the Government refers to the reports published by the Labour Bureau (a Department of the Ministry of Labour and Employment) in 2013 and 2014. The Committee takes due note of the information provided by the Government concerning the number of inspections undertaken, violations detected and prosecutions initiated. It notes that there are still no statistics on the application of the labour legislation in the information technology (IT) and IT enabled services (ITES) sectors. The Committee recalls from the information submitted 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, and that relevant information is provided by the states on a voluntary basis.

The Committee notes the reiterated indications made by the Government concerning a project for the strengthening and modernization of the collection of statistics by the Labour Bureau. This project is planned to include an online-reporting system to enable the improved collection and compilation of statistics, including data from the states. The Committee also notes the Government’s indication, in response to the Committee’s request, that enterprises are required to maintain registers and provide information about their activities, and that there are efforts to unify reporting forms and registers. However, the Committee notes that the Government does not provide the requested information on the maintenance of workplace registers at the central and state levels. The Committee once again urges the Government to take the necessary measures to ensure that the central authority, at the central level or the state levels, publishes and submits 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. 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.

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 2019.]