Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Labour Inspection Convention, 1947 (No. 81) - Aruba

The Committee notes the Government’s reports received in 2006 and 2007, the labour inspection reports and the technical reports for 2002, 2003, 2004 and 2005.

Article 5(a) and (b) of the Convention. The Committee notes that, in reply to its previous comments, the Government states in its report that it has not adopted any measure to promote cooperation between the various departments responsible for labour inspection. The labour inspection reports also show that a large number of controls (for example, 475 out of 845 conducted in 2004) result in reports which indicate, inter alia, that the enterprise is no longer at the address indicated or that it is no longer operating, that it is located in a private dwelling or even that it has no staff. With reference to paragraphs 154 to 162 of its General Survey of 2006 on labour inspection, the Committee emphasizes that the support of certain public and private services that carry out similar activities is essential for the functioning of the labour inspectorate. Cooperation between the inspection services and institutions would enable useful information to be sent to the labour inspectorate in order to define its priorities and improve its functioning. This include information on accidents at work and cases of occupational disease (social security services) and also data enabling high-risk establishments to be identified or locating workplaces and undertakings which are liable to inspection (tax authorities). The Committee also emphasizes that closer cooperation between the competent administrative and judicial authorities, which might be based on stepping up training and raising the awareness of judges, would make for improved handling of the case files submitted by or on the recommendation of labour inspectors, as well as increasing the effectiveness of labour inspection (paragraph 158 of the General Survey). It hopes that the Government will take measures in the near future to promote cooperation between the inspection services and other Government services and public and private institutions performing similar activities and, if necessary, cooperation between the inspection staff and employers and workers or their organizations (paragraphs 165 to 171 of the General Survey) and that it will send information on all further developments in this respect.

Article 12, paragraph 1(a) and (b). Right of free entry of inspectors. The Committee notes the Government’s additional explanations with regard to the points which were raised in 1999 by the trade unions with regard to obstacles that might be faced by inspectors in the performance of their duties in larger enterprises, particularly multinationals. According to the Government, under no circumstances do major enterprises prevent the labour inspectors from conducting their visits. Indeed, the latter have good relations with most major enterprises and are given the information they request. On the other hand, it can happen that, when inspectors carry out unscheduled visits, the person responsible for the staff register is absent. Moreover, the Committee notes that efforts are being made to submit measures for the consideration of the Committee for the Modernization of Labour Laws (CMLL) aimed at enabling labour inspectors to enter private dwellings the addresses of which have been sent to the authorities as being business addresses. The Committee reiterates that pursuant to the provisions of Article 12, paragraph 1(a) and (b), of the Convention, labour inspectors must be empowered to enter freely at any hour of the day or night any workplace liable to inspection, and to enter by day any premises which they may have reasonable cause to believe to be liable to inspection, in order to discharge their duties. The absence of the employer or his representative does not constitute valid grounds for preventing this right from being exercised. The Committee therefore asks the Government to supply information on the measures taken to ensure that labour inspectors have the right of free entry in accordance with the Convention.

Article 13, paragraphs 1 and 2. Powers of injunction of labour inspectors. The Committee notes that measures have been proposed by the CMLL with a view to authorizing labour inspectors to order the stoppage of work in the event of non-compliance with national legislation. It would like to draw the Government’s attention to the provisions of the Convention which distinguish two kinds of powers aimed at affording protection to workers against risks to their health. Inspectors must have the right to make or have made orders requiring, firstly, such measures as may be necessary to secure compliance, within a specified time limit, with the legal provisions relating to the health or safety of the workers and, secondly, measures with immediate executory force in the event of imminent danger to the health or safety of the workers. It is important to note that, in the latter case, it is not necessary to establish the existence of a violation of the legislation, the existence of an imminent danger being sufficient grounds for ordering a measure with immediate executory force. The Committee hopes that the Government will ensure that the measures proposed by the CMLL will incorporate the distinction made by Article 13 of the Convention in such a way that, in the event of imminent danger to the health and safety of the workers, there is no need to establish the existence of a violation of the law in order to impose a stoppage of work until such time as the conditions of health and safety in question are restored.

Articles 17 and 18. Legal proceedings and adequate penalties. According to the Government, the CMLL has also proposed measures to increase the power of labour inspectors to impose administrative fines on employers who have committed violations. The Committee would be grateful if the Government would send drafts of the relevant texts and, if they have been adopted, to send copies of the final texts.

The Government explains that over the years a degree of impunity has arisen, partly enhanced by the absence of regular inspections and the lack of inspection service staff. In order to rectify the situation, it considers it necessary to make an effort, initially, to ensure that the employers are convinced of the determination to enforce strict compliance with labour legislation, including by means of penalties. It announces that rules and directives for the employers and for the public are being drawn up to this effect. After a transition period allowing employers to comply with the proscribed rules, it will impose the application of penalties in the event of violations. In this regard, the Committee underlines, in paragraph 292 of its 2006 General Survey on labour inspection, that it is essential for the credibility and effectiveness of the system for the protection of workers for violations to be identified by national legislation and for the proceedings instituted or recommended by labour inspectors against employers guilty of violations to be sufficiently dissuasive and to make employers in general aware of the risks they run if they fail to meet their obligations. The Committee reiterates that inspectors should, nevertheless, have the capacity to refrain from having recourse to immediate penalties for ensuring the application of legal provisions and thus give priority to securing conformity (Article 17, paragraph 2), a follow-up visit after giving the employer a time limit generally being enough to achieve the desired objective (paragraph 283 of the General Survey). The Committee asks the Government to supply information in its next report regarding the progress made on the drawing up of rules and directives for the application of labour legislation intended for employers and the public, and to send copies of the relevant texts once they have been adopted.