Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Labour Inspection Convention, 1947 (No. 81) - South Africa (Ratification: 2013)

The Committee notes the Government’s first report.

Articles 4, 5(a) and 9 of the Convention. Organization and functioning of the labour inspection system, effective cooperation with other government services engaged in similar activities and association of duly qualified technical experts and specialists in the work of the labour inspection services. The Committee notes the information provided by the Government in its report that the supervision and control of the labour inspection system is assumed by the Inspection Enforcement Services of the Department of Labour. The Government indicates that in addition to cooperation with the inspection bodies responsible for control and enforcement activities in the mining and transport sector, the Department of Labour associates so-called “approved inspection authorities” (AIAs) responsible for controls in the area of occupational safety and health (OSH), and other specialist inspectors in the work of the labour inspection services.

The Committee notes from the information in the 2010–14 Decent Work Country Programme (DWCP) that South Africa had established an integrated inspectorate and had embarked on a process of modernizing and restructuring its labour inspectorate. The Committee requests the Government to provide an organizational chart of the labour inspection services, and to supply information on whether the Inspection Enforcement Services of the Department of Labour have a unit responsible for OSH, or whether the Inspection Enforcement Services depend entirely on the association of approved inspection authorities (AIAs) and other technical experts and specialists for controls in the area of OSH. In this respect, the Committee also requests the Government to provide more information on the status and conditions of service of the AIAs and where applicable, how they differ from those of labour inspectors. It also requests the Government to provide information on whether the modernization and restructuring of the labour inspectorate is still ongoing and provide information on any steps taken in this process.

Article 5(b). Effective collaboration between the labour inspection services and employers and workers or their organizations. The Committee notes the Government’s indication that the Department of Labour is working closely with the bargaining councils, which are composed of employers’ organizations and trade unions, in the control and enforcement of “other” laws. In this respect, the Committee notes that the Minister of Labour may designate any person appointed as designated agent of a bargaining council, to perform any of the functions of a labour inspector to secure the collective agreements of the bargaining council, among other things through conducting inspections and investigating complaints (according to section 63(1)(a) of the Basic Conditions of Employment Amendment No. 75 of 1997 (as amended), read in conjunction with section 33 of the Labour Relations Act No. 66 of 1995 (as amended)). The Committee requests that the Government provide further information on the collaboration of labour inspectors with bargaining councils. As the Government has only provided succinct information on the collaboration as provided for in Article 5(b), the Committee requests the Government to provide information on other forms of collaboration, such as the forms of collaboration described in Paragraph 6 of the Labour Inspection Recommendation, 1947 (No. 81).

Articles 6 and 7. Status and conditions of service of labour inspectors. Capacity of labour inspectors. The Committee notes the information provided by the Government that labour inspectors are governed by the Public Service Act. The Committee notes from the information contained in the 2010–14 DWCP that the shortage of qualified labour inspectors owing to a high turnover of labour inspectors and the lack of suitably qualified labour inspectors in the country was a problem during the establishment of the DWCP and at the time impacted on the capacity of the labour inspectorate to effectively conduct inspections.

The Committee notes from the information in the 2015–16 annual report on the activities of the Department of Labour (available on the website of the Department of Labour) that both retaining inspectors and finding suitable, specialized candidates continues to be a challenge. In this respect, the Committee recalls its indications made in paragraph 204 of its 2006 General Survey on labour inspection that levels of remuneration and career prospects of inspectors be such that high-quality staff are attracted, retained and protected from any improper influence. The Committee requests the Government to provide information on the conditions of service of the labour inspectors (wages and allowances, career prospects, etc.) in comparison with other public servants exercising similar functions, such as tax inspectors. It also requests that the Government provide explanations on what are the challenges to attract, recruit and retain qualified candidates (such as more favourable conditions in other government services, unsafe working conditions, etc.) and any measures taken to address them.

Articles 10, 11 and 16. Sufficient number of labour inspectors and adequate coverage of workplaces by labour inspection. Material conditions. The Committee notes the Government’s indication that there are 959 labour inspectors working within the Inspection Enforcement Service (including nine provincial chief inspectors, 27 specialist inspectors across all sectors, 72 principal inspectors and 850 general inspectors). The Committee notes the conclusions drawn in a report sent by the Government on the practical application of the Convention, that the labour inspection services are underfunded and understaffed. In this respect, the Committee also notes from the information in the 2015–16 annual report on the activities of the Department of Labour that, over the medium term, the Department plans to increase the number of inspections. However, according to the information in that report, there is currently no budget to recruit additional labour inspectors with a view to cover the needs in terms of the necessary human resources to function more effectively and to ensure that at a minimum the workplaces under supervision are inspected thoroughly and with sufficient frequency. The Committee requests that the Government provide information on the needs determined by the Department of Labour in terms of the budgetary and human resources for the effective discharge of the labour inspection functions, in relation to the criteria provided for in Article 10(a)(i)–(iii), (b) and (c). It also requests that the Government provide information on any efforts undertaken to meet these needs so as to achieve a sufficient coverage of workplaces by labour inspection.

Article 12(1)(a) and (b). Free access of labour inspectors to workplaces liable to inspection at any hour of the day or night. The Committee notes that section 65(1) of the Basic Conditions Employment Act (BCEA) provides that labour inspectors may only enter workplaces “at any reasonable time”, whereas Article 12(1)(a) provides that labour inspectors shall be empowered to enter freely and without previous notice “at any hour of the day or night” any workplace liable to inspection, and Article 12(1)(b) provides that labour inspectors shall be empowered to enter “by day” any premises which they may have reasonable cause to believe to be liable to inspection.

The Committee recalls its indications made in paragraph 269 of its 2006 General Survey on labour inspection that the term “reasonable time” without defining the term constitutes a limitation to the scope of the prerogative in Article 12(1) concerning the timing of visits of inspections. The Committee further emphasized, in paragraph 270 of this General Survey, that the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped. It finally emphasized that it should be for the inspector to decide whether a visit is reasonable, noting that obviously, inspections should only be carried out at night or outside working hours where this is warranted. The Committee therefore requests the Government to bring the national legislation into conformity with the requirements set out in Article 12(1)(a)–(b).

Article 15(c). Obligation concerning the confidentiality of the source of a complaint and the fact that an inspection visit was made in consequence of a complaint. The Committee notes that the BCEA does not require that labour inspectors shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and shall give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. The Committee requests the Government to take measures to give a legal basis to the principle of confidentiality set forth in Article 15(c).

Articles 20 and 21. Publication and communication of annual labour inspection reports. The Committee notes that no annual report on the activities of the labour inspection services was received. The Committee notes however the information in the 2015–16 annual report on the activities of the Labour Department available on the Labour Department’s website which also contains statistical information on labour inspection and enforcement. The Committee moreover notes the statistical information provided by the Government in a report on the practical application of the Convention, including: the staff of the labour inspection service (Article 21(b)), the number of labour inspection visits undertaken (Article 21(d)), the number of improvement notices, compliance orders, and referrals to the courts (Article 21(e)), and the number of industrial accidents (Article 21(f)).

The Committee notes from the information in the 2010–14 DWCP report that the insufficient data gathering, information and communication system had been recognized as a challenge with regard to the capacity of the inspectorate to effectively perform inspections. According to that report, the inadequate use of electronic means of reporting and data collection also makes it difficult to assess compliance for the purposes of strategic planning and setting priorities. Noting that a significant number of statistical data on labour inspection is already available, the Committee requests that the Government take the necessary steps to ensure that the central authority publishes and communicates to the ILO an annual report on labour inspection activities containing all the information required by Article 21, including information on the statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(b)), and statistics of occupational diseases (Article 21(g)). In this regard, the Committee also requests the Government to provide information on whether the Government has undertaken efforts to improve the collection of inspection data, including through electronic means.