Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes the Government’s report which was received on 23 November 2009, as well as the annual reports of the labour inspection authority for the years 2006 and 2007, forwarded with the Government’s report. It also notes the information provided in June 2010.

Article 5(a) and (b) of the Convention. Arrangements to promote cooperation and collaboration. With reference to its previous comments on this subject, the Committee notes from the Government’s report that no measure has been taken to promote cooperation between the various departments responsible for labour inspection as well as other public and private services that carry out similar activities. The Committee recalls that in previous years, over half of the controls carried out had resulted in reports which indicated, inter alia, that the enterprise was no longer at the address indicated, that it was no longer operating, that it was located in a private dwelling or even that it had no staff. The Committee notes that the annual labour inspection report for 2006 makes reference to the difficulties raised by the large number of workplaces located in private dwellings and the absence of certain employer registries.

The Committee once again refers to paragraphs 154–162 of its General Survey of 2006 on labour inspection, according to which cooperation between the inspection services and other public or private institutions would enable useful information to be sent to the labour inspectorate in order to define its priorities and improve its functioning. This includes, for instance, data enabling high-risk establishments to be identified or workplaces and undertakings which are liable to inspection to be located (e.g. through the tax authorities) as well as information on accidents at work and cases of occupational disease (through the social security services). The Committee also refers to its general observation of 2007 on the importance of effective cooperation between the labour inspection services and the justice system for increasing the effectiveness of labour inspection (General Survey, op. cit., paragraph 158). The Committee emphasizes in this regard that a system for the recording of judicial decisions accessible to the labour inspectorate can enable the central authority to make use of information on the handling of the case files submitted by or on the recommendation of labour inspectors and to include this information in the annual report, as envisaged in Article 21(e) of the Convention. The Committee finally emphasizes the importance of collaboration between the inspection staff and employers and workers or their organizations (General Survey, op. cit., paragraphs 165–171). The Committee once again requests the Government to provide information on measures taken or envisaged to ensure cooperation between the inspection services and other services, public and private institutions, as well as employers and workers or their organizations, as provided for in Article 5. With reference to its 2007 general observation in particular, the Committee requests the Government to indicate whether a system for the recording of judicial decisions is accessible to the labour inspectorate and any measures taken or envisaged to strengthen the cooperation between the labour inspection services and the justice system.

Article 12(1)(a) and (b). Right of free entry of inspectors. With regard to its previous comments on this issue, the Committee notes from the Government’s report that when an inspector reaches a supposed business address which in fact is a residence, the inspector may not enter the private dwelling as this would constitute a misuse of his/her authority to enter enterprises freely. This is so because of the limits set by the privacy provision of the Constitution of Aruba (article 1.16) and the provision regarding entry into homes (article 1.17) and is aimed at preventing any infringement on the rights of private citizens who may not be aware that their residential address was previously registered as a commercial address. When the establishment is obviously a place where business is conducted, the inspector may enter forcibly, according to article 9(a), section 3, of the State Ordinance on Worker Registration (AB 1994 GT 8). The word “forcibly” refers to forced entry by (a) inspectors accompanied by police officer(s), or (b) inspectors who have the special credentials of an extraordinary police officer. This latter authority is not vested in every inspector. At the moment, only the head of the labour inspectorate possesses this credential. It is envisaged to offer special training to all current labour inspectors so as to grant them this power. Recalling once again that under Article 12(1)(b), labour inspectors should be empowered to enter by day any premises which they may have reasonable cause to believe to be liable to inspection, the Committee requests the Government to indicate the measures taken or envisaged, including training, so as to vest all labour inspectors with the power to enter premises freely by day for inspection purposes.

Article 13(1) and (2). Powers of injunction of labour inspectors. The Committee notes that the Committee for the Modernization of Labour Legislation (CMLL) is currently in recess pending the outcome of the amendments it has submitted with a view to authorizing labour inspectors to order the stoppage of work in the event of non-compliance with national legislation. It also takes note of the Government’s assurances that it will communicate the Committee’s previous comments on this issue to the CMLL for its due attention. The Committee requests the Government to communicate with its next report the amendments to the labour legislation which have been submitted 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 trusts that such amendments will take due account of both types of measures envisaged in Article 13 of the Convention, i.e. measures ordered by labour inspectors to secure compliance with the legal provisions relating to the health or safety of the workers and measures with immediate executory force in the event of imminent danger to the health or safety of the workers, for which there is no need to rely on a violation of the law.

Articles 17 and 18. Legal proceedings and adequate penalties. The Committee notes from the Government’s report that the CMLL has not yet concretely addressed the issue of measures to increase the power of the labour inspectors and that the proposals made to this effect, listed in the Government’s 2005 report, are still pending. Furthermore, with regard to the Government’s previous assurances that it would draw up rules and directives to ensure that employers were convinced of its determination to enforce strict compliance with labour legislation, including by means of penalties, the Committee notes the Government’s statement in its latest report that it will keep the Committee informed of any progress made regarding the ordinances and decrees for labour inspection. The Committee recalls that in its previous report, the Government referred to the need to enhance the power of labour inspectors to impose administrative fines on employers who have committed violations and explained that over the years a degree of impunity had arisen, partly enhanced by the absence of regular inspections and the lack of inspection service staff. The Committee also notes that the annual inspection report for 2006 refers to the need to provide labour inspectors with training so that they obtain the credentials of extraordinary police officers, as in the absence of such credentials, labour inspectors do not have the power to impose sanctions.

The Committee once again recalls that, according to the General Survey, op. cit., paragraph 291, it is essential for the credibility and effectiveness of the system for the protection of workers, 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 would be grateful if the Government would indicate in its next report any measure taken or envisaged to ensure that a sufficiently dissuasive mechanism is in place with a view to achieving strict compliance with labour legislation, including by means of penalties, and to send copies of any relevant legal text.

Article 20. Annual inspection report. The Committee notes that the text of the annual inspection report of the Technical Inspection Department for year-end 2008 was not sent with the Government’s report, contrary to what is indicated therein. Recalling that the obligation to communicate annual reports under Article 20 of the Convention is an ongoing one, the Committee would be grateful if the annual inspection report for 2008 along with the subsequent ones were submitted with the Government’s next report.