Labour Inspection Convention, 1947 (No. 81) - Viet Nam (Ratification: 1994)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 3 of the Convention. Labour Inspection in Industrial Processing Zones (IPZs). Supervision and monitoring by the central authority. The Committee previously requested information on the delegation of tasks in the field of labour and labour inspection to IPZ management boards and whether they are subject to binding guidance from the Ministry of Labour, War Invalids and Social Affairs (MOLISA). In this respect, the Committee notes the Government’s statement in its report that no authorization has been given to IPZ management boards regarding labour inspection. The Committee also notes the information provided by the Government regarding the tasks delegated to IPZ management boards in the field of labour, such as receiving declarations of employment or issuing, re-issuing and revoking work permits for migrant workers working in enterprises in IPZs. The Committee notes that, according to the Government, IPZ management boards must report every six months to the authorized agencies on the performance of all authorized tasks, and that Provincial-level People’s Committees shall sum up and report on such authorizations in their respective provinces, for submission to the MOLISA, which may itself request reports from IPZ management boards. The Committee requests the Government to provide further information on the undertaking of labour inspections in IPZs, including the number of inspection visits, the nature of these visits (regular or ad hoc; inspections responding to complaints or accidents; inspections announced in advance versus unannounced), the number of enterprises and workers in each IPZ, the number and nature of violations detected and the number and nature of penalties imposed.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. Further to its previous comments on collaboration between the labour inspection services and employers’ and workers’ organizations, the Committee notes the Government’s indication regarding the setting up of an information portal by the Inspectorate of the MOLISA (Ministry Inspectorate), which is accessible to employers’ and workers’ organizations. The Government also indicates that there is close collaboration between the Ministry Inspectorate and the Viet Nam General Confederation of Labour, the Viet Nam Chamber of Commerce and Industry and the Viet Nam Cooperative Alliance, in the formulation of mechanisms and policies related to employers and employees; in the implementation of labour inspection campaigns; and during inspections. The Committee requests the Government to provide information on any impact of these collaboration mechanisms on improving conditions of work and the level of protection of workers while engaged in their work, including further information on the impact of such collaboration mechanisms in the implementation of labour inspection campaigns.

Article 12(1)(a). Inspection visits and powers of labour inspectors. The Committee previously noted that the MOLISA prepares annual inspection plans, and that inspection activities shall be conducted only when inspection decisions are issued. In this respect, the Committee also notes that, pursuant to section 22 of Decree No. 110/2017/ND-CP, the process for conducting labour inspection is regulated by Decree No. 86/2011/ND-CP and Decree No. 07/2012/ND-CP.

The Committee notes that the Government indicates that inspection activities are divided between inspection plans, regular inspections or ad-hoc inspections. In this respect, the Committee notes that, while Chief Inspectors are empowered under section 20 of Decree No. 86/2011/ND-CP and section 15 of Decree No. 07/2012/ND-CP to issue ad-hoc inspection decisions, such decisions have to be announced to the subjects of inspections within 15 days of their issuance (section 26 of Decree No. 86/2011/ND-CP and section 22 of Decree No. 07/2012/ND-CP). The Committee observes that such a requirement could limit the ability of labour inspectors provided with proper credentials to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection, in accordance with Article 12(1)(a) of the Convention. The Committee also notes, however, the Government’s indication that, pursuant to section 216 of the Labour Code 2019, which enters into force on 1 January 2021, an advance notice shall not be required if there is an ad-hoc inspection decision issued by a competent authority, in case of an emergency that threatens the safety, life, health, honour, and dignity of the employees at the workplace. Pursuant to section 22 of the Decree No. 110/2017/ND-CP, prior notice may not be necessary in certain situations related to OSH. While recognizing that certain provisions of national legislation, such as section 216 of the Labour Code, provide some scope for unannounced inspections, the Committee requests the Government to take the necessary measures to bring its legislation in line with the Convention to ensure that labour inspectors are empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. It requests further information on the manner in which the exceptions in section 216 of the Labour Code and section 22 of Decree No. 110/2017/ND-CP are applied in practice, including the number of inspections undertaken without previous notice and the results of such inspections, once the Labour Code comes into force.

Article 14. Notification of industrial accidents and cases of occupational disease. The Committee notes that the Government reiterates that enterprises only report accidents ranging from serious to fatal ones and serious technical incidents to local labour inspectors. In this regard, the Committee notes that section 34 of the Law on Occupational Safety and Health (OSH Law) requires that employers provide immediate notice to the provincial-level labour state management agency for accidents causing death or serious injuries to at least two employees. Section 10 of Decree No. 39/2016/ND-CP of 15 May 2016, stipulating detailed guidelines for the implementation of several articles of the OSH Law, also requires employers to notify the labour inspectorate of occupational accidents causing death or injuries to two employees or more. The Committee requests once again that the Government take the necessary measures to ensure that the labour inspectorate is notified of cases of occupational disease. In addition, in the absence of information in this regard, the Committee once again requests the Government to provide statistics available to the labour inspectorate on cases of industrial accidents and of occupational disease, including the nature of these accidents or diseases and the sectors in which they occur.

Articles 17 and 18. Adequate penalties. Further to its previous request in this regard, the Committee notes the information provided by the Government concerning the different provisions in national legislation, setting out sanctions available to labour inspectors and sanctions applicable for obstruction of labour inspectors in the performance of their duties. The Committee also notes the statistics provided by the Government, indicating that the number of sanctions on administrative violations in 2018 and 2019 increased from 648 to 756, while the total amount of fines imposed decreased from 39,658,000,000 Vietnamese dong (US$1,708,441) to 25,411,000,000 dong (US$1,096,036). The Government nevertheless indicates that there are currently no statistics available on: (i) penalties applied for hindering labour inspectors; (ii) forms of violations reported; or (iii) on legal proceedings instituted or recommended by labour inspectors. The Committee requests the Government to provide further information on the application in practice of Articles 17 and 18 of the Convention, including any challenges and difficulties faced by labour inspectors in relation to the application of penalties or the institution of legal proceedings, and with the application of penalties for obstructing labour inspectors in the performance of their duties. It requests the Government to continue to provide information on the number and types of violations detected and sanctions imposed, including the total amount of fines imposed and collected, any other civil sanctions imposed, the number and nature of instances where signs of crime are detected, and the results of any suspected law violations transferred to the appropriate prosecutorial authorities.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 5(a) and 16 of the Convention. Inspections as often and as thoroughly as necessary. Self-inspection and self-assessment. Annual inspection plans. The Committee previously noted the information provided by the Government in relation to the use of self-inspection forms by the labour inspectorate, as well as a decrease in self-inspection questionnaires used and recommendations issued, as compared to violations detected in the period 2005–12. In this regard, the Committee notes the Government’s indication in its report that there are no sanctions in labour legislation for enterprises failing to submit the self-inspection questionnaires, which has led to: (i) low numbers of enterprises returning self inspection questionnaires; (ii) a low quality of answered questionnaires; and (iii) a low number of recommendations issued. The Government refers to several measures envisaged to improve the effectiveness of self-inspection questionnaires as a tool to assist the labour inspectorate in increasing efficiency and inspections.

The Committee notes with concern that the Government indicates that, due to several difficulties which include the insufficient number of staff, inspection work has not been performed regularly and thoroughly. In this respect, the Committee notes the Government’s indication that the numbers of inspections were 3,667 in 2016, 3,298 in 2017, 3,652 in 2018 and 3,969 in 2019. The Committee further notes that, pursuant to the Directive of the Prime Minister No. 20/CT-TTg dated 17 May 2017 regarding the Reorganization of Inspection and Examination Activities for Enterprises, the formulation and approval of an annual inspection plan must ensure that an enterprise does not undergo more than one inspection every year from a state inspection body. The Directive further provides that, with respect to ad hoc inspections, it is not allowed to expand the inspection scope, and inspect contents that are outside the scope of the inspection decision. In this regard, the Committee notes the Government’s indication that a number of planned inspections could not be performed, due to overlapping functions and mandates with other agencies. The Committee observes that restrictions on the frequency and scope of inspections could pose limitations on the ability of labour inspectors to inspect workplaces as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, in accordance with Article 16. In this respect, the Committee recalls its General Observation of 2019 on the labour inspection Conventions, expressing concern at reforms that substantially undermine the inherent functioning of labour inspection systems and urging governments to remove these restrictions, with a view to achieving conformity with Convention No. 81. The Committee requests the Government to take the necessary measures to ensure that, in accordance with Article 16 of the Convention, workplaces are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee requests the Government to provide further information on the impact of the Directive of the Prime Minister No. 20/CT-TTg dated 17 May 2017 on the inspections of the labour inspectorate, including with respect to their frequency and scope. In this regard, it requests the Government to provide detailed statistics on conducted inspection visits, disaggregated by sector and by inspection type (inspections performed according to inspection plans, regular inspections or ad hoc inspections) and identifying the number of inspections responding to complaints or to accidents, and inspections that are announced versus unannounced. The Committee also requests the Government to provide further specific information on why a number of planned inspections could not be performed, indicating in detail what overlapping functions and mandates with other agencies prevented these inspections from being carried out. In addition, the Committee further requests information on the number of self-inspection questionnaires issued and returned. Recalling that self-inspection and self-assessment should be complementary to, and not replace, labour inspection, the Committee requests the Government to provide further information on the measures taken by labour inspectors in cases where enterprises fail to respond to self-inspection questionnaires.

Article 3(2). Additional functions entrusted to labour inspectors. Following its previous comments on the exercise of multiple functions by inspectors and the low number of inspectors, the Committee notes that the Government indicates that the overall number of inspectors remains insufficient. The Government states that only approximately one third of the 464 inspectors in the labour sector, working for the Ministry of Labour, War Invalids and Social Affairs (MOLISA), the agencies performing specialized inspection functions under the MOLISA, and the provincial Departments of Labour, Invalids and Social Affairs, perform labour inspection tasks. The Committee notes that, pursuant to section 214 of the Labour Code 2019, labour inspection includes the handling of labour-related complaints and denunciations, but also notes the Government’s statement that the labour dispute settlement process in compliance with the provisions of the Labour Code and the Criminal Procedure Code does not involve labour inspectors. Taking into account the difficulties raised by the Government regarding the number of inspectors in relation to their increasing workload, the Committee requests the Government to provide detailed information on all additional functions or responsibilities that are assigned to or expected from labour inspectors, separately identified for the national and provincial levels. The Committee also requests the Government to provide detailed information on the proportion of time and resources spent by labour inspectors on their primary functions, as set out in Article 3(1), compared to those spent on all additional functions entrusted to them, separately assessed for the national and provincial levels. The Committee strongly encourages the Government to take the necessary measures to ensure that, in accordance with Article 3(2) of the Convention, any duties which may be entrusted to labour inspectors in addition to their primary duties shall not be such as to interfere with the effective discharge of those primary duties.

Articles 5(a), 20 and 21. Publication of an annual inspection report. The Committee notes the Government’s indication that the Inspectorate of the MOLISA (Ministry Inspectorate) prepares an annual inspection report, in accordance with the regulations of the Government Inspectorate, containing the information covered by Article 21, except for statistics on occupational accidents and diseases. The Committee nevertheless notes that no annual report on the activities of the labour inspection services has been transmitted to the Office. In this regard, the Committee notes that the Government requests technical assistance from the Office as regards the establishment of a database of enterprises covering all types of production and businesses, to help it report on the information covered by Article 21(c) of the Convention. The Committee requests the Government to take all the necessary measures to ensure that the annual report of the labour inspectorate is published and transmitted to the ILO in the near future, in accordance with Article 20 of the Convention, and that this annual report contains information on all the subjects listed under Article 21. The Committee hopes that the technical assistance requested by the Government will be provided in the near future, with a view to ensuring the establishment of a register of enterprises and full compliance with Articles 20 and 21 of the Convention.

Articles 10 and 11. Resources available to the labour inspectorate. Further to its previous comments which noted the Government’s indication that human resources, material means and facilities of the labour inspectorate were inadequate, the Committee notes the Government’s indication that increasing the number of labour inspectors has been difficult. The Government states that there were approximately 155 officials performing labour inspection tasks, from the Ministry Inspectorate, the agencies performing specialized inspection functions under the MOLISA, and the provincial Departments of Labour, Invalids and Social Affairs. The Government indicates that while the labour inspection team has a strong background, the current number of inspectors is still deemed to be insufficient. The Committee further notes the Government’s indication that some localities have few inspectors while their tasks have increased and their work becomes more complex, which has a negative impact on the validity and effectiveness of inspection activities. Concerning material means, the Committee notes section 6 of Circular No. 14/2015/TT-BLDTBXH of 2015 of the MOLISA, as amended, which stipulates that inspectors must be provided with equipment and working facilities at the agency, in accordance with laws and regulations, and stipulates the equipment provided to inspectors on work trips. The Committee urges the Government to strengthen its efforts with a view to ensuring that the labour inspectorate has sufficient human and material resources for the effective discharge of its duties. In addition, the Committee requests the Government to provide information on the application in practice of section 6 of Circular No. 14/2015/TT-BLDTBXH, as amended, and to continue to provide information on the tools and other material means available to labour inspectors.

The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

With reference to its observation, the Committee would like to provide further information on the following points.

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. Conciliation and mediation. The Committee notes that the Government did not reply to its previous comment in this respect and once again reminds it of the primary functions of labour inspectors under Article 3(1) of the Convention, and of the guidance contained in Paragraph 8 of Recommendation No. 81 establishing that “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. Taking into account the shortage of resources to which the Government refers in its report, the Committee hopes that the Government will take the necessary measures to ensure that, in accordance with Article 3(2) of the Convention, any duties which may be entrusted to labour inspectors in addition to their primary duties shall not be such as to interfere with the latter.

Article 3. Labour Inspection in Industrial Processing Zones (IPZs). Supervision and monitoring by the central authority. The Committee notes that, according to the Government, labour inspectors in Viet Nam are part of the system of labour inspection agencies in the field of labour, invalidity and social affairs, and that the state inspection agency carries out inspection in IPZs, in accordance with the Law on inspection. The Government also indicates that some departments of labour, invalidity and social affairs (DOLISAs) authorized IPZ management boards to discharge some state tasks in the management of labour and that they have to report to the central industrial zone management agency. The Committee requests the Government to indicate the manner in which IPZ management boards report to the Ministry of Labour, War Invalids and Social Affairs (MOLISA) and to clarify the extent to which they are subject to legally binding guidance given by the MOLISA in the field of labour, including on labour inspection. It also requests the Government to indicate the powers and obligations of IPZ management boards and to indicate the abovementioned state tasks in the management of labour that they discharge.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes the information from the Government’s report that a prevention culture is still insufficiently developed in the country and that cooperation programmes between the MOLISA and both the Viet Nam Labour Confederation and the Viet Nam Chamber of Commerce and Industry aim at promoting it. The Committee would be grateful if the Government would provide information on the arrangements made for collaboration between the labour inspection services and employers’ and workers’ organizations, and on their impact on improving conditions of work and the level of protection of workers while engaged in their work. It refers in this respect to the guidance contained in Part II of Recommendation No. 81 on collaboration of employers and workers as regards safety and health.

Articles 12(1)(a) and 16. Inspection methods. 1. Inspection visits. The Committee notes that, according to the Government, the MOLISA prepares inspection programmes on the basis of an assessment of past inspection activities and that, pursuant to article 36 of the Law on Inspection, inspection activities shall be conducted only when inspection decisions are issued. The Government indicates that inspection decisions are based on: inspection programmes; requests of heads of state management agencies; detection of law violations; and the need to deal with complaints and to prevent and combat corruption. The Committee also notes the information that Decree No. 61/1998/ND-CP of 15 August 1998 and some of the provisions of Directive No. 22/2001/CT/TTg of 11 September 2001 expired, and that the process and method for conducting labour inspection are regulated by Decree No. 86/2011/ND-CP and Decree No. 07/2012/ND-CP. The Committee requests the Government to indicate the specific provisions of the Decree No. 07/2012/ND-CP giving effect to the abovementioned articles of the Convention and to communicate a copy of the text, if possible in one of the working languages of the ILO. Furthermore, the Committee once again requests it to provide information on inspections visits carried out without giving advance notice and on the nature of the problems addressed during unannounced visits.

2. Self-inspection and self-assessment. The Committee notes that, according to the Government, the use of self-inspection questionnaires is a solution to increases the number of inspections and enhance the effectiveness of inspections. However, the Committee notes from the Government’s report that, between 2005 and 2012, the reply rate to self-inspection questionnaires decreased from 59.9 per cent to 32.98 per cent and that, according to the Government, sanctions have not been imposed on enterprises that did not report. Furthermore, the Committee notes that during the same period, the number of violations detected increased from 4,556 to 30,108, whereas the number of recommendations decreased from 8,946 to 4,606 and the number of sanction was in 2012 at the same level as in 2005. The Committee requests the Government to explain the reasons for these trends and the measures taken to address them. It also once again requests the Government to provide statistical information on the nature of labour law violations identified, contents of advice given by labour inspectors, preventive measures ordered (including measures with immediate executory force in the event of imminent danger to the health or safety of the workers), sanctions imposed and legal proceedings instituted. Finally, the Committee requests the Government to indicate any functions performed by labour inspectors on the following up on violations when planning inspection visits.

Article 14. Notification of industrial accidents and cases of occupational disease and preventive function of labour inspection. The Government reiterates that only serious occupational accidents and diseases are reported to the MOLISA. Referring to paragraph 118 of its 2006 General Survey on labour inspection, the Committee reminds the Government of the importance of the notification to labour inspectors of industrial accidents and cases of occupational disease, to provide them with the necessary information to identify high-risk activities and the most vulnerable categories of workers and to carry out research into the causes of occupational accidents and diseases in establishments and enterprises liable to inspection. The Committee requests the Government to provide statistical information on the number of cases of industrial accidents and cases of occupational disease, and to take the necessary measures to ensure that the labour inspectorate is notified of industrial accidents and cases of occupational disease, regardless of their seriousness.

Articles 17 and 18. Adequate penalties. The Committee notes from the Government’s report that Chapter XVI of Law No. 10/2012/QH13 instituting the Labour Code and Law No. 15/2012/QH13 on the Handling of Administrative Violations establish sanctions against labour law violations, and that, pursuant to Law No. 15/2012/QH13, fines for administrative violations are determined as a percentage of the prescribed ceiling. The Committee also notes the information from the Government’s report that a Decree on the sanctioning of administrative violations in the field of labour has been submitted to the Government and that, during the preparation of reports on implementation of the Penal Code, the MOLISA proposed a number of labour law violations for which criminal prosecution may be considered. The Committee requests the Government to keep the Office informed of the legislative developments in this respect. It also requests the Government to indicate the penalties for obstructing labour inspectors in the performance of their duties, and to provide statistical information on the number and type of violations reported and sanctions imposed, as well as the number of legal proceedings instituted or recommended by labour inspectors, if any.

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

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Follow-up to the labour inspection needs assessment of 2012. The Committee notes with interest that, in reply to its comment concerning the follow-up to the labour inspection audit conducted by the ILO in 2012, the Government indicates that, to set up an advanced labour inspection system which fully meets the requirements of the Convention, the Ministry of Labour, War Invalids and Social Affairs (in collaboration with the ministries concerned) has developed the plan “Strengthening the inspection capacity in the field of labour, invalids and social affairs until 2020” (the MOLISA plan), which has been submitted to the Prime Minister for consideration and approval. The Committee requests the Government to provide a copy of this plan once approved, if possible in one of the ILO’s working languages, and to keep the Office informed of progress made or any difficulties encountered in its implementation.

Articles 10 and 11 of the Convention. Resources available to the labour inspectorate. The Committee notes that, according to the Government, human resources and material means and facilities of the labour inspectorate are inadequate, and that the inadequacy of material means particularly affects occupational safety and health inspection. The Committee notes that the Government indicates that the MOLISA plan contains important measures to improve facilities for labour inspection across the country. In addition, the Government indicates that the use of self-inspection questionnaires is a solution to address the shortage of human and financial resources. In this respect, the Committee once again reminds the Government that self-inspection and self-assessment should be complementary to, and not replace labour inspections. The Committee requests the Government to continue to take the necessary measures, if necessary with financial assistance to be sought in the context of international cooperation, to ensure that the labour inspectorate is provided with the necessary resources for the effective discharge of its duties, and to keep the Office informed of any development in this respect.

Articles 5(a), 20 and 21. Publication of an annual inspection report. The Committee notes that no annual report on the activities of the labour inspection services has been transmitted to the Office. Referring to its previous comments and to its general observations of 2009 and 2010, the Committee once again asks the Government to indicate the measures taken to promote inter-institutional cooperation for the establishment of a register of workplaces liable to inspection and the workers employed therein, with a view to ensuring the fulfilment by the central inspection authority of its obligation to publish and transmit to the ILO an annual report in accordance with Articles 20 and 21 of the Convention. It also once again requests the Government to indicate the formal steps taken in order to obtain ILO technical assistance in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

With reference to its observation, the Committee would like to provide further information on the following points.

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. Conciliation and mediation. The Committee notes that the Government did not reply to its previous comment in this respect and once again reminds it of the primary functions of labour inspectors under Article 3(1) of the Convention, and of the guidance contained in Paragraph 8 of Recommendation No. 81 establishing that “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. Taking into account the shortage of resources to which the Government refers in its report, the Committee hopes that the Government will take the necessary measures to ensure that, in accordance with Article 3(2) of the Convention, any duties which may be entrusted to labour inspectors in addition to their primary duties shall not be such as to interfere with the latter.

Article 3. Labour Inspection in Industrial Processing Zones (IPZs). Supervision and monitoring by the central authority. The Committee notes that, according to the Government, labour inspectors in Viet Nam are part of the system of labour inspection agencies in the field of labour, invalidity and social affairs, and that the state inspection agency carries out inspection in IPZs, in accordance with the Law on inspection. The Government also indicates that some departments of labour, invalidity and social affairs (DOLISAs) authorized IPZ management boards to discharge some state tasks in the management of labour and that they have to report to the central industrial zone management agency. The Committee requests the Government to indicate the manner in which IPZ management boards report to the Ministry of Labour, War Invalids and Social Affairs (MOLISA) and to clarify the extent to which they are subject to legally binding guidance given by the MOLISA in the field of labour, including on labour inspection. It also requests the Government to indicate the powers and obligations of IPZ management boards and to indicate the abovementioned state tasks in the management of labour that they discharge.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes the information from the Government’s report that a prevention culture is still insufficiently developed in the country and that cooperation programmes between the MOLISA and both the Viet Nam Labour Confederation and the Viet Nam Chamber of Commerce and Industry aim at promoting it. The Committee would be grateful if the Government would provide information on the arrangements made for collaboration between the labour inspection services and employers’ and workers’ organizations, and on their impact on improving conditions of work and the level of protection of workers while engaged in their work. It refers in this respect to the guidance contained in Part II of Recommendation No. 81 on collaboration of employers and workers as regards safety and health.

Articles 12(1)(a) and 16. Inspection methods. 1. Inspection visits. The Committee notes that, according to the Government, the MOLISA prepares inspection programmes on the basis of an assessment of past inspection activities and that, pursuant to article 36 of the Law on Inspection, inspection activities shall be conducted only when inspection decisions are issued. The Government indicates that inspection decisions are based on: inspection programmes; requests of heads of state management agencies; detection of law violations; and the need to deal with complaints and to prevent and combat corruption. The Committee also notes the information that Decree No. 61/1998/ND-CP of 15 August 1998 and some of the provisions of Directive No. 22/2001/CT/TTg of 11 September 2001 expired, and that the process and method for conducting labour inspection are regulated by Decree No. 86/2011/ND-CP and Decree No. 07/2012/ND-CP. The Committee requests the Government to indicate the specific provisions of the Decree No. 07/2012/ND-CP giving effect to the abovementioned articles of the Convention and to communicate a copy of the text, if possible in one of the working languages of the ILO. Furthermore, the Committee once again requests it to provide information on inspections visits carried out without giving advance notice and on the nature of the problems addressed during unannounced visits.

2. Self-inspection and self-assessment. The Committee notes that, according to the Government, the use of self-inspection questionnaires is a solution to increases the number of inspections and enhance the effectiveness of inspections. However, the Committee notes from the Government’s report that, between 2005 and 2012, the reply rate to self-inspection questionnaires decreased from 59.9 per cent to 32.98 per cent and that, according to the Government, sanctions have not been imposed on enterprises that did not report. Furthermore, the Committee notes that during the same period, the number of violations detected increased from 4,556 to 30,108, whereas the number of recommendations decreased from 8,946 to 4,606 and the number of sanction was in 2012 at the same level as in 2005. The Committee requests the Government to explain the reasons for these trends and the measures taken to address them. It also once again requests the Government to provide statistical information on the nature of labour law violations identified, contents of advice given by labour inspectors, preventive measures ordered (including measures with immediate executory force in the event of imminent danger to the health or safety of the workers), sanctions imposed and legal proceedings instituted. Finally, the Committee requests the Government to indicate any functions performed by labour inspectors on the following up on violations when planning inspection visits.

Article 14. Notification of industrial accidents and cases of occupational disease and preventive function of labour inspection. The Government reiterates that only serious occupational accidents and diseases are reported to the MOLISA. Referring to paragraph 118 of its 2006 General Survey on labour inspection, the Committee reminds the Government of the importance of the notification to labour inspectors of industrial accidents and cases of occupational disease, to provide them with the necessary information to identify high-risk activities and the most vulnerable categories of workers and to carry out research into the causes of occupational accidents and diseases in establishments and enterprises liable to inspection. The Committee requests the Government to provide statistical information on the number of cases of industrial accidents and cases of occupational disease, and to take the necessary measures to ensure that the labour inspectorate is notified of industrial accidents and cases of occupational disease, regardless of their seriousness.

Articles 17 and 18. Adequate penalties. The Committee notes from the Government’s report that Chapter XVI of Law No. 10/2012/QH13 instituting the Labour Code and Law No. 15/2012/QH13 on the Handling of Administrative Violations establish sanctions against labour law violations, and that, pursuant to Law No. 15/2012/QH13, fines for administrative violations are determined as a percentage of the prescribed ceiling. The Committee also notes the information from the Government’s report that a Decree on the sanctioning of administrative violations in the field of labour has been submitted to the Government and that, during the preparation of reports on implementation of the Penal Code, the MOLISA proposed a number of labour law violations for which criminal prosecution may be considered. The Committee requests the Government to keep the Office informed of the legislative developments in this respect. It also requests the Government to indicate the penalties for obstructing labour inspectors in the performance of their duties, and to provide statistical information on the number and type of violations reported and sanctions imposed, as well as the number of legal proceedings instituted or recommended by labour inspectors, if any.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Follow-up to the labour inspection needs assessment of 2012. The Committee notes with interest that, in reply to its comment concerning the follow-up to the labour inspection audit conducted by the ILO in 2012, the Government indicates that, to set up an advanced labour inspection system which fully meets the requirements of the Convention, the Ministry of Labour, War Invalids and Social Affairs (in collaboration with the ministries concerned) has developed the plan “Strengthening the inspection capacity in the field of labour, invalids and social affairs until 2020” (the MOLISA plan), which has been submitted to the Prime Minister for consideration and approval. The Committee requests the Government to provide a copy of this plan once approved, if possible in one of the ILO’s working languages, and to keep the Office informed of progress made or any difficulties encountered in its implementation.

Articles 10 and 11 of the Convention. Resources available to the labour inspectorate. The Committee notes that, according to the Government, human resources and material means and facilities of the labour inspectorate are inadequate, and that the inadequacy of material means particularly affects occupational safety and health inspection. The Committee notes that the Government indicates that the MOLISA plan contains important measures to improve facilities for labour inspection across the country. In addition, the Government indicates that the use of self-inspection questionnaires is a solution to address the shortage of human and financial resources. In this respect, the Committee once again reminds the Government that self-inspection and self-assessment should be complementary to, and not replace labour inspections. The Committee requests the Government to continue to take the necessary measures, if necessary with financial assistance to be sought in the context of international cooperation, to ensure that the labour inspectorate is provided with the necessary resources for the effective discharge of its duties, and to keep the Office informed of any development in this respect.

Articles 5(a), 20 and 21. Publication of an annual inspection report. The Committee notes that no annual report on the activities of the labour inspection services has been transmitted to the Office. Referring to its previous comments and to its general observations of 2009 and 2010, the Committee once again asks the Government to indicate the measures taken to promote inter-institutional cooperation for the establishment of a register of workplaces liable to inspection and the workers employed therein, with a view to ensuring the fulfilment by the central inspection authority of its obligation to publish and transmit to the ILO an annual report in accordance with Articles 20 and 21 of the Convention. It also once again requests the Government to indicate the formal steps taken in order to obtain ILO technical assistance in this respect.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 3(1) and (2), 4, 5(a), 10, 16 and 21 of the Convention. Primary duties of labour inspection; number of labour inspectors for the effective discharge of labour inspection duties and enhanced cooperation for the publication of an annual inspection report. The Committee notes that according to the ILO needs assessment, the exercise of multiple functions by inspectors as well as the low number of inspectors in general, poses a challenge for effective labour inspection. The Committee notes in particular, that labour inspectors both at the level of the Ministry of Labour – Invalids and Social Affairs (MOLISA) and the local Departments of Labour – Invalids and Social Affairs (DOLISAs), may be entrusted with inspection functions which go beyond the enforcement and preventive functions identified in Article 3(1) of the Convention, such as the investigation into corruption cases, and the settlement of disputes (section 4 of the Law on Inspection No. 22/2004/QH11 and section 2(2)(a) of decision No. 148/QD-LDTBXH of 30 January 2008 of MOLISA on the Roles, Responsibilities, Duties and Organization of the Ministry Inspectorate). The Committee recalls that according to Article 3(2), any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

The Committee notes moreover, that according to the ILO needs assessment of March 2012, the number of labour inspectors (which is in fact smaller than 150) is too low given the number of registered enterprises in the country (400,000) not to mention the unregistered ones.

The existing difficulties in the collection of data on enterprises as well as workers at provincial level have been confirmed by the Government in its report on the application of the Convention, mainly due to limited coordination among the agencies with competence in this domain, such as the Department of Labour, Invalids and Social Affairs, the Department of Planning and Investment, the Department of Tax, the Social Insurance Agency etc.

The Government also reports that the Department of the Inspectorate of Labour, Invalids and Social Affairs is developing projects to strengthen the capacity of the inspection staff and increase their number at district level. It also indicates however, that section 30 of the Inspection Act of 2010 has had an impact on the number of inspectors as it seems to have triggered a reorganization of inspection functions and a reallocation of inspection staff between departmental and district offices of the Ministry of Labour, Invalids and Social Affairs.

The Committee requests the Government to indicate the measures taken or envisaged in order to give effect to provisions of the Convention, in the light of the recommendations of the ILO needs assessment carried out in March 2012 in relation to:

• -the need to establish separate labour inspection units at the MOLISA and DOLISA levels, so that labour inspection, in the sense of Article 3(1) of the Convention, can be dissociated from other functions like conciliation of disputes and fighting corruption.
• -the need to raise the quota for labour inspectors in a progressive but concerted manner to achieve a level that is more reasonable relative to the number of enterprises and workers in the country, as provided in Article 10.
• -the need to progressively achieve a more equal balance between male and female officers including among managers as provided in Article 8.
• -the impact of section 30 of the Inspection Act of 2010 in relation to the above.

With reference to its previous comments, its General Observations of 2009 and 2010 and Articles 5(a), 10 and 21, the Committee would also be grateful if the Government would indicate the steps taken or envisaged in order to compile and process the data necessary for the publication of an annual labour inspection report and in particular, as a first step in that direction, the measures taken or envisaged in order to strengthen cooperation among agencies with competence in the area of data collection with a view to setting up a register of workplaces and workers engaged therein. The Committee fully endorses the Government’s request for the ILO to provide technical support in organizing a workshop on sharing experiences as well in strengthening data collection capacities for the preparation of an annual report, and requests the Government to indicate in its next report the formal steps taken in order to obtain such assistance from the ILO.

Articles 3(1)(a) and (b), 4, and 5(a). Inspection of Industrial Processing Zones (IPZs). The Committee notes from the needs assessment of March 2012 and section 31 of Decree 29/2008 ND-CP on Industrial Zones, Export Processing Zones and Economic Zones, that DOLISAs have delegated inspection powers to the management boards of IPZs. The latter hire their own enforcement staff, who, being generalists recruited by the Ministry of Home Affairs and not by the Ministry of Labour, often have to depend on guidance from labour inspectors at central and provincial levels, while there is no formal basis for coordination.

The Committee notes that the Labour Code applies to “all workers, and organizations or individuals utilizing labour on the basis of a labour contract in any sector of the economy and in any form of ownership” (section 2 of the Labour Code) and state labour inspectors have the duty to control the enforcement of the Labour Code, ensuring compliance with the provisions relating to labour, occupational safety and hygiene (section 186 of the Labour Code). It draws the conclusion that workplaces in IPZs fall by law within the ambit of the state labour inspectorate.

The Committee recalls that labour inspection should, according to Article 4 of the Convention, be placed under the supervision and control of a central authority. The purpose is, as indicated in paragraph 140 of the General Survey of 2006 on labour inspection, to facilitate the establishment and application of a single policy throughout the territory and make it possible to use available resources in a rational way. Moreover, under Article 5, effective cooperation should be promoted between the inspection services and other government services and public or private institutions engaged in similar activities.

The Committee requests the Government to provide detailed information on the legal basis on which the enforcement staff within IPZs operates, their number, administrative organization, powers and obligations, operating procedures and the actual activities they have carried out over the reporting period (number of visits, violations found, measures taken etc.) as well as the manner in which these activities are reported to and supervised by the central labour inspection authority.

Articles 3(1)(a) and (b), 5(b), 12(c), 13, 14 and 17. Enforcement and preventive functions of the labour inspectorate and collaboration between the labour inspectorate and employers and workers and their organizations. The Committee recalls from its previous comments that self-assessments should be complementary to, and not replace labour inspections. It notes from the 2012 ILO needs assessment that the introduction of self-assessment reporting in workplaces could be an innovative way to expand the reach of labour inspection action if the results of this process could be used by the labour inspectorate as a source of information for identifying violations, planning visits, designing prevention strategies, etc. It also notes in this regard, that the 2012 ILO needs assessment proposes that the information gathered from self-assessment reports, including on occupational accidents, could be used – possibly in the framework of a national registry of enterprises – in order to plan inspection visits more strategically but also in order to plan broader preventive action, especially in areas which are usually less covered by labour inspection action, like small and medium-sized enterprises (SMEs). The Committee requests the Government to indicate the measures taken or envisaged to give effect to the provisions of the Convention, in the light of the recommendations of the ILO needs assessment of 2012, in order to ensure that self-inspections are fed into the inspection programming process and that they increase the effectiveness of the labour inspection system with regard to its primary enforcement and prevention functions set out in Articles 3 and 13.

The Committee notes moreover from the Government’s report that labour inspectors were trained in 2008 in self-inspection questionnaires. However, it also notes from the ILO needs assessment, that violations identified by a self-assessment did not necessarily result in a follow-up visit by a labour inspector. The Committee requests the Government to indicate any functions performed by labour inspectors in relation to the completion of self-inspection questionnaires by employers and the following up on violations identified therein when planning labour inspection visits.

The Committee also reiterates its request for a copy of a “self-inspection” questionnaire which was not attached to the Government’s report, as well as for detailed and documented statistical information on the results of the application of the “self-inspection” system, including the number and nature of contraventions of the labour legislation identified, contents of the advice given by inspectors, preventive measures ordered (including measures with immediate executory force in the event of imminent danger to the health or safety of the workers), sanctions imposed and legal proceedings instituted.

Noting moreover that according to the ILO needs assessment of 2012 the focus on a preventative approach towards labour inspection seemed to be insufficiently developed in the labour inspectorate, the Committee requests the Government to indicate any measures taken or envisaged in order to develop a preventative culture in partnership with employers’ and workers’ organizations, including through awareness-raising campaigns in targeted sectors.

Noting finally from the needs assessment that only serious accidents and diseases tended to be reported to the labour inspectorate, the Committee requests the Government to indicate the process for the recording and notification of industrial accidents and cases of occupational disease. It draws the Government’s attention to the guidance provided in this regard in the code of practice on the recording and notification of occupational accidents and diseases which is accessible at the following website: http://www.ilo.org/safework/info/ standards-and-instruments/codes/WCMS_107800/lang--en/index.htm.

Articles 12(1) and 15(c). Right of free entry of inspectors to workplaces liable to inspection and duty of confidentiality. The Committee notes from the ILO needs assessment of March 2012 as well as the Government’s report that regular (planned) inspection visits are carried out after having given at least three days’ notice to the employer and having communicated an outline of the proposed matters to be addressed during the visit, while “irregular” inspections are carried out upon a complaint or when assigned. The Committee emphasizes that while it is not always inappropriate to announce inspection visits ahead of time, Article 12(1) requires that labour inspectors have the power to enter workplaces at any time of day or night without prior notice. As indicated in paragraph 263 of the 2006 General Survey on labour inspection, unannounced visits may be useful in order to prevent the employer from concealing a violation, by changing the usual conditions of work and/or preventing a witness from being present or making it impossible for labour inspectors to carry out an inspection visit. Moreover, if regular inspections are always carried out with advance notice, it is very difficult, in case of inspection visits carried out pursuant to complaints, to avoid giving any intimation to the employer of the fact that a visit takes place consequent to a complaint, as required by Article 15(c) of the Convention. The Committee would be grateful if the Government would indicate any legislative or other measures taken or envisaged in order to ensure that labour inspectors exercise the discretion to carry out inspections, including regular ones, without advance notice, if they deem it appropriate, in line with section 187(1) of the Labour Code. The Committee would also be grateful if the Government would provide further information on the criteria used for the planning of visits and the nature of the problems addressed in unannounced visits. In particular, the Committee would be grateful if the Government would clarify whether restrictions previously imposed on the free choice of undertakings to be inspected and the frequency of inspections per undertakings, are still in force (sections 3 and 7 of Decree No. 61/1998/ND-CP of 15 August 1998 and the implementing order No. 22/2001/CT-TTg of 11 September 2001).

Noting finally that, according to the ILO needs assessment, labour inspectors do not use checklists during inspections, the Committee requests the Government to indicate the measures taken or envisaged in order to develop checklists for labour inspections and to communicate a copy.

Article 7. Training of labour inspectors. The Committee notes with interest the information provided by the Government on the training provided to labour inspectors on a range of subjects. It notes from the ILO needs assessment of 2012 that a strategic national training plan should be considered. The Committee requests the Government to continue to provide information on training made available to labour inspectors as well as details on the number of participants, the duration of the training, the feedback obtained and the impact of the training provided on the effectiveness of the labour inspection system.

Article 11. Material resources. The Committee notes that according to the ILO needs assessment of 2012 there was a lack of technical equipment and labour inspectors were obliged to use their own vehicles or public transportation, while they received a modest travel allowance to cover inspection related travel expenses. The Committee requests the Government to indicate the steps taken or envisaged in order to carry out an inventory to ensure the procurement of necessary equipment and related training, as provided in the ILO needs assessment. It also requests the Government to provide a copy of the form that labour inspectors have to complete in order to request the reimbursement of travel costs and to describe the relevant modalities.

Articles 17 and 18. Sufficiently dissuasive sanctions and prohibition of obstruction. The Committee notes from the ILO needs assessment and from Decree No. 47/2010/ND-CP on administrative sanctions on labour law violations, that amounts were set for a range of infractions, but that inspectors had limited discretion to impose larger fines in case of aggravating factors and being subject to a tight timeframe for their enforcement (section 5 of the Decree). In addition, the maximum fine per infraction is set at 30 million dong (VND) (about US$1,500) which is not considered to be dissuasive, while fines above VND500,000 can only be imposed by chief labour inspectors at DOLISAs and the chief inspector of MOLISA and not by labour inspectors on duty (section 23, Decree No. 47). The Committee notes from the 2012 ILO needs assessment that changes to the Labour Code should be considered on an urgent basis by the legal office of MOLISA in the context of the current legislative reform in order to ensure that the level of sanctions for labour law violations is sufficiently dissuasive and that the obstruction of labour inspectors in the performance of their duties is clearly prohibited and accompanied by adequate penalties. The Committee requests the Government to indicate the legislative measures taken or envisaged in order to ensure that sanctions for labour law violations, including obstruction of labour inspectors, are sufficiently dissuasive and effectively enforced.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes with interest that the Government received ILO technical assistance in the form of a labour inspection needs assessment in March 2012 and that the recommendations made in the assessment correspond to a large extent to the Committee’s previous comments on the application of the Convention. The Committee requests the Government to indicate the steps taken or envisaged with a view to the progressive establishment of a labour inspection system which fully meets the requirements of the Convention and any steps taken or envisaged in order to obtain access to the necessary funds to this effect in the framework of international cooperation.

The Committee is raising other points in a request addressed directly to the Government.

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

Articles 1 and 3 of the Convention. Organization and development of the labour inspection system. The Committee notes the information provided by the Government concerning the relevant national legislation. In order to enable the Committee to assess the organization and functioning of the labour inspection system, the Committee would appreciate if the Government would provide a copy of Decree No. 31/2006/NĐ-CP of 29 March 2006 concerning offices responsible for labour inspection functions, as well as information on activities and results obtained through the implementation of the national programme on occupational protection, safety and health by the year 2010, provided for under Decision No. 233/2006/QĐ-TTg of 18 October 2006.

Article 2. Workplaces liable to inspection. Further to its request on this point, the Committee notes the Government’s reply indicating that the collection of data on enterprises liable to labour inspection is carried out annually by provincial departments of investment and planning, provincial tax departments, and by regional inspectors, and that the collected data are disaggregated by various categories. The latest statistics of 2009 indicate that there are more than 300,000 enterprises liable to inspection, most of which being small and medium‑sized enterprises, and including an increased number of private companies. While appreciating the Government’s clarifications, the Committee would be grateful if the Government would provide more detailed data based on the 2009 survey, disaggregated by the categories used in the Government’s survey.

Article 10. Inspection staff. The Committee notes the information provided by the Government that the Prime Minister issued Decision No. 1129/QĐ-TTg instructing the Ministry of Labour, Invalids and Social Affairs (MOLISA), the Ministry of Home Affairs and other agencies to assess the need to increase the number of labour inspectors (paragraph 1.d). Following this decision, the number of labour inspectors in some provinces, such as Ho Chi Minh City, Dong Nai and Binh Duong provinces, became 3.2 times as high as before. As a result, the total number of labour inspectors in the country increased from 359 in 2006 to 471 in 2008. In addition, the Government is planning to increase the number of inspectors in locations where there are many industrial zones, such as Hanoi, Ho Chi Minh City, Hai Phong, Da Nang, Binh Duong, Dong Nai. Furthermore, the Government has conducted pilot programmes to establish labour inspection systems at the district level in areas where many enterprises operate, such as Ho Chi Minh City. The Committee requests the Government to continue to provide information on measures taken or contemplated in order to ensure that the number of labour inspectors is sufficient to secure the effective discharge of their duties, as required in this Article of the Convention. In this connection, the Government is also requested to provide information on the results of the abovementioned pilot programmes for the district-level labour inspection system.

Article 6. Status and conditions of service of labour inspectors. The Committee notes the Government’s indication that labour inspectors are selected based on the criteria set under section 191(2) of the Labour Code and section 31 of Law No. 2/2004/QH11 of 24 June 2004 on inspection and that they are provided with necessary equipment and facilities. The Committee also notes with interest that they are paid usually 15–25 per cent higher than other public officials of the same rank and position. The Committee requests the Government to explain how labour inspectors are ensured of stable employment and independence of changes of government, and of other external influences, as required in this Article of the Convention.

Article 7(3). Training of labour inspectors. The Committee notes the information provided by the Government that the Central Labour Inspectorate organized a workshop in 2008 to report on the tasks of the year, to train inspectors on the “self-inspection” questionnaire software and to clarify issues regarding the labour legislation. The Government adds that the inspection office of MOLISA regularly organizes skills training courses for inspectors, including those conducted in 2008 and 2009 on international labour standards and their implementation in the national context. The Committee requests the Government to continue to provide particulars about types of training programmes offered to labour inspectors, the number of inspectors who participated in those programmes, and any practical results obtained.

Articles 12(1) and 16. Rights of free entry of inspectors to workplaces liable to inspection and freedom to carry out inspections. Further to its comments on this point, the Committee notes the information provided by the Government; in particular, that approximately 20 per cent of the total number of labour inspections in 2008 were surprise visits conducted in order to address urgent matters. The Committee requests the Government to provide additional details on these surprise visits, including the nature of the problems. It would also be grateful if the Government would continue to provide information on the practical application of section 187(1) of the Labour Code under the terms of which inspectors have the right to conduct investigations in the workplace at any time and without previous notice, and send copies of any relevant regulations, if applicable.

Articles 5(b), 12(c), 13 and 17 of the Convention, and Part II, Paragraphs 4 and 5, of Recommendation No. 81. Extent of the collaboration of employers and workers with labour inspectors. The Committee notes the Government’s indication that the use of “self-inspection” forms would strengthen the assessment of the implementation of the labour legislation at the enterprise level because the forms would provide additional input. The Government adds that the form would enhance the position of inspectors as they would be able to provide advice promptly or identify undertakings for which inspection visits would be the most effective. In this connection, the Committee recalls paragraph 278 of its General Survey of 2006 on labour inspection, in which it indicated that, while recognizing the advantage of self-risk assessment by enterprises that all the stakeholders in the enterprise actively work together to enforce the relevant legal provisions, specially trained and appointed public servants should nonetheless still be responsible for inspecting conditions of work (sections 186 and 187 of the Labour Code). The Committee is therefore of the view that even with results of “self-inspection” obtained, they can only be additional sources of information, and that labour inspectors should still be solely responsible for verifying the implementation of the labour legislation, and their technical advice should be based on the results of inspections. The Committee is therefore bound to ask the Government to indicate the manner in which it is ensured that labour inspectors enjoy the rights and privileges provided for in the abovementioned provisions of the Convention and the Labour Code and that “self-inspections” would only be complementary and would not replace labour inspections. It also requests it to transmit sample copies of the completed questionnaires on “self-inspection”, as well as detailed and documented statistical information on the results of the application of the “self-inspection” system, including the number and nature of contraventions of the labour legislation identified, contents of the advice given by inspectors, sanctions imposed and legal proceedings instituted.

Articles 20 and 21. Annual report on the work of the inspection services. The Committee notes the Government’s indication that the Government receives, on an annual basis, periodic reports from central and local labour inspectorates. In this connection, it recalls that Article 20 of the Convention requires that the central authority publishes an annual general report on the work of the inspection services under its control within a reasonable time after the end of the year to which it relates. The Committee therefore continues to encourage the Government to take all necessary measures to ensure that the data and information required under Article 21 of the Convention are collected, processed and compiled into an annual general report published in a timely manner and communicated to the ILO. The Committee would like to recall the possibility to request the technical assistance of the ILO to this end.

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

1. Articles 1 and 3 of the Convention. Organization and development of the labour inspection system. In its previous comments, the Committee noted the establishment of a labour inspection system within the Ministry of Labour, Invalids and Social Affairs (MOLISA) by Decree No. 29/2003/ND-CP of 31 March 2003. In its 2006 report, the Government indicated that Decision No. 01/2006/QD-BLDTBXH concerning inspection activities and appointing inspectors for the provinces had been adopted on 16 February 2006. The Committee also refers to the adoption by Decision No. 233/2006/QD-TTg of 18 October 2006 of a national programme until 2010 for the protection of workers and occupational safety and health, one of the aims of which is to strengthen the capacities of the labour inspection system, and also the adoption of Decree No. 31/2006 of 29 March 2006 on the organization and working of inspection in the areas of labour, invalids and social affairs. The Government is requested to provide a copy of Decree No. 31/2006 and supply information on the measures taken to implement the above programme and on their impact at the provincial and national levels.

2. Article 2. Workplaces liable to inspection. The national programme for the protection of workers indicates that the country has more than 160,000 enterprises, most of them small and medium-sized enterprises, and that this number and also that of family enterprises is constantly increasing. Emphasizing once again that it is essential that industrial and commercial workplaces liable to inspection are identified in order to determine the human and material resources which are necessary for an effective functioning of the system, the Committee requests the Government to indicate whether the census of enterprises is periodically updated and, if so, to indicate the geographical distribution of the types of workplaces covered by the inspection system, according to their size, the work performed and the number of workers employed therein.

3. Article 10. Inspection staff. According to the information supplied by the Government in 2007, the total number of inspection officers and inspectors in 2006 was 309 for the whole country. The Committee notes with interest that MOLISA decided at the end of 2006 to appoint 16 new inspection officers and inspectors at a central level and that the Government plans to increase the number of inspection staff in provinces which have a high-density labour force. The Committee requests the Government to continue supplying information on the distribution of inspection staff in relation to the number of workplaces and workers covered.

4. Article 6. Status and conditions of service of labour inspectors. The Committee notes that pursuant to section 191(2) of the Labour Code, as revised in 2002, MOLISA is responsible for defining criteria for the recruitment, appointment, transfer, dismissal and revocation of inspectors. Section 31 of Act No. 2/2004/QH11 on inspection, enacted by the Order of 24 June 2004, sets forth general criteria for the appointment of “administrative” inspectors and “specialist” inspectors (loyalty, ethics, honesty, possession of a university diploma, professional qualifications in the area of inspection, etc.), but does not contain any provisions on their conditions of service. The Committee requests the Government to indicate the manner in which stability of employment is ensured for labour inspectors (men and women), to supply further details of their conditions of service (including remuneration and career progression) and to send copies of the relevant legislation.

5. Article 7. Training of labour inspectors. The Committee notes the detailed information supplied by the Government on the training activities (courses and seminars), materials and documents which have been available to labour inspectors in the context of the cooperation project with the ILO on “Safe Work and Integrated Labour Inspection”. It also notes that activities to reinforce labour inspectors’ qualifications in occupational safety and health are planned in the context of the national programme for the protection of workers and a new technical cooperation project with the ILO. Noting the particular efforts made by the Government with regard to the training of labour inspectors in occupational safety and health, the Committee would be grateful if the Government would continue supplying information on the activities undertaken in this area and the impact thereof.

6. Article 12, paragraph 1, and Article 16. Right of free entry of inspectors to workplaces liable to inspection, and freedom to carry out inspections. In its previous comments, the Committee noted that Decree No. 61/1998/ND-CP of 15 August 1998 on the inspection and monitoring of enterprises and Implementing Directive No. 22/2001/CT-TTg of 11 September 2001 on the reorganization of inspections and of monitoring of enterprises laid down restrictions on inspections which are contrary to the Convention. In reply, the Government pointed out that these texts simply aimed to avoid the proliferation of visits within the same enterprise and that, in addition, their effect had been limited by the revision in 2002 of certain provisions of the Labour Code (sections 185, 186 and 191) and also by the Act of 2004 on inspection. While acknowledging that rationalization and planning of inspections is a necessity, the Committee recalls that labour inspectors must nevertheless be able to enter freely and without previous notice any workplace liable to inspection, as provided for by Article 12, paragraph 1(a), if they consider it necessary, in order to be able to carry out inspections as often and as thoroughly as possible, in accordance with Article 16. The Government is requested to supply further details on the practical application of section 187(1) of the Labour Code, under the terms of which inspectors have the right to conduct investigations in the workplace at any time and without previous notice, and to send copies of any relevant regulations, if applicable.

7. Article 5(b) and Part II, Paragraphs 4 and 5, of Recommendation No. 81. Collaboration between the labour inspectorate and employers and workers or their organizations. Distribution of roles and responsibilities. The Committee notes the adoption of Decision No. 02/2006/QD-BLDTBXH of 16 February 2006 on the use of a “self-inspection” form. This involves the employer (institution or individual) replying to a questionnaire and sending it, with his or her signature and that of the trade union, where the latter exists, to the Labour Inspectorate. The Committee notes that labour inspectors must help the employer to fill in the form and that they can ask the latter to take action in cases of violation of labour law. In its report sent in 2007, the Government states that questionnaires have already been sent to 9,647 enterprises and that nearly 4,000 questionnaires, out of the 4,455 returned, have been processed. While recognizing the usefulness of active involvement of the social partners in the system for monitoring the application of the legislation, the Committee nevertheless emphasizes that it is essential that labour inspectors continue to have sole responsibility in this field. To this end, inspectors have rights and powers which are defined by Article 12, paragraphs 1(c) and 2, and Articles 13, 17 and 18 of the Convention and they are bound by professional rules as defined by Article 15 to perform their duties with the necessary impartiality and authority. The credibility and effectiveness of any labour inspection system depend not only on inspectors’ capacity to advise employers and workers on the best way to apply labour legislation, but also on their having the possibility to take action against violations by means of orders having immediate executory force or to be implemented within a prescribed deadline, by means of warnings or prosecutions or even, where necessary, by the imposition of appropriate penalties. In this respect, the Committee notes that new subsection 5 of section 186 of the Labour Code provides that one of the duties of labour inspectors is to take action within the limits of their competence, or request the competent authorities to take action against violations of labour legislation. Section 192 also states that any contravention of the Labour Code will be penalized, according to its seriousness, by a warning, a fine, the closure of the enterprise or even prosecution; and section 195 leaves it for the Government to determine administrative penalties for violations of labour legislation. The Committee requests the Government to state the manner in which it is ensured that labour inspectors continue to enjoy the rights and privileges defined by the Convention and by the above sections of the Labour Code and to send copies of some of the completed questionnaires on “self-inspection”. It would be grateful if the Government would also supply detailed statistical information on the results of the practical implementation of the “self-inspection” system described in its report, in terms of violations reported, letters of formal notice, and penalties imposed and actually applied, together with any relevant documentation.

8. Articles 20 and 21. Annual report on the work of the inspection services. The Committee emphasizes that the annual general report on the work of the inspection services, the publication of which is prescribed by Article 20 and the content defined by Article 21, gives an overview of the working of the system, thereby enabling its strengths and weaknesses to be identified. It notes that the programme for the protection of workers contains information on the subjects which must be included in such a report, for example, statistics of industrial accidents and occupational diseases (Article 21(f) and (g)). The Committee strongly encourages the Government to ensure that the collection and processing of information required on the other subjects specified by Article 21 are organized by the central inspection authority on the basis of periodic reports on the work of the inspection offices placed under its control with a view to the publication of an annual report and the transmission thereof to the ILO.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Articles 20 and 21 of the Convention. Annual inspection report. With reference to its observation, the Committee notes that the situation described in the report on the work of the labour inspectorate in 2002 is characterized by a general failure to comply with the legislation for which labour inspectors are responsible for the enforcement and the incapacity of inspectors to exercise adequate enforcement to remedy the situation. The Committee further notes that the information contained in the report is insufficient to serve as a basis for any evaluation of the level to which the Convention is applied. It is indispensable, if a newly established labour inspection system is to be operational, for a census of all industrial and commercial workplaces liable to inspection to be undertaken and regularly reviewed. Indeed, this is an essential prerequisite for any decision of a budgetary nature concerning the resources to be made available for the progressive achievement of the objective of the State labour inspectorate. The Committee therefore hopes that measures will be adopted rapidly to set in motion this preliminary work and that an annual inspection report containing the information required under each item of Article 21(a) to (g) will soon be published and communicated to the ILO.

2. Articles 12 and 16. Right of inspectors to enter workplaces freely and the frequency of inspections. The Committee notes that the limits imposed by the provisions of Decree No. 61/1998/ND-CP, of 15 August 1998 (sections 3 and 7), and by implementing Order No. 22/2001/CT-TTg, of 11 September 2001, on the right of inspectors to enter workplaces, are in complete contradiction with the requirements of the above Articles of the Convention and the achievement of the objective established for any inspection system. The Government is therefore requested to take measures rapidly to amend the legislation so as to empower inspectors to enter workplaces freely, in accordance with the requirements of Article 12, namely at any hour of the day or night in any workplace liable to inspection (paragraph 1(a)) and, to enter by day any premises which they may have reasonable cause to believe to be liable to inspection (paragraph 1(b)). The Committee would be grateful if the Government would keep the Office informed of any progress achieved or any difficulty encountered in this respect.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous observation which read as follows:

The Committee notes the Government’s report for the period ending 31 May 2003, the annual inspection report for 2002 and the report covering 2002 of the inspection services of the province of Binh Duong.

Establishment of an integrated inspection system. With reference to its previous comments, the Committee notes with satisfaction that, in the context of the national ILO/Viet Nam project on SafeWork and integrated labour inspection, a labour inspection system which also covers occupational safety and health has been established by the Decree of 31 March 2003 of the Ministry of Labour, Invalids and Social Affairs (MOLISA). The Committee also notes that a new Department of Inspection has been established within the MOLISA by Decree No. 1118 of 10 September 2003 and that a training programme for labour inspectors has been established within the context of the above project. It would be grateful if the Government would provide a copy of the Decree and supply detailed information on the training planned within the context of the programme referred to above.

The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. Articles 20 and 21 of the Convention. Annual inspection report. With reference to its observation, the Committee notes that the situation described in the report on the work of the labour inspectorate in 2002 is characterized by a general failure to comply with the legislation for which labour inspectors are responsible for the enforcement and the incapacity of inspectors to exercise adequate enforcement to remedy the situation. The Committee further notes that the information contained in the report is insufficient to serve as a basis for any evaluation of the level to which the Convention is applied. It is indispensable, if a newly established labour inspection system is to be operational, for a census of all industrial and commercial workplaces liable to inspection to be undertaken and regularly reviewed. Indeed, this is an essential prerequisite for any decision of a budgetary nature concerning the resources to be made available for the progressive achievement of the objective of the State labour inspectorate. The Committee therefore hopes that measures will be adopted rapidly to set in motion this preliminary work and that an annual inspection report containing the information required under each item of Article 21(a) to (g) will soon be published and communicated to the ILO.

2. Articles 12 and 16. Right of inspectors to enter workplaces freely and the frequency of inspections. The Committee notes that the limits imposed by the provisions of Decree No. 61/1998/ND-CP, of 15 August 1998 (sections 3 and 7), and by implementing Order No. 22/2001/CT-TTg, of 11 September 2001, on the right of inspectors to enter workplaces, are in complete contradiction with the requirements of the above Articles of the Convention and the achievement of the objective established for any inspection system. The Government is therefore requested to take measures rapidly to amend the legislation so as to empower inspectors to enter workplaces freely, in accordance with the requirements of Article 12, namely at any hour of the day or night in any workplace liable to inspection (paragraph 1(a)) and, to enter by day any premises which they may have reasonable cause to believe to be liable to inspection (paragraph 1(b)). The Committee would be grateful if the Government would keep the Office informed of any progress achieved or any difficulty encountered in this respect.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report for the period ending 31 May 2003, the annual inspection report for 2002 and the report covering 2002 of the inspection services of the province of Binh Duong.

Establishment of an integrated inspection system. With reference to its previous comments, the Committee notes with satisfaction that, in the context of the national ILO/Viet Nam project on SafeWork and integrated labour inspection, a labour inspection system which also covers occupational safety and health has finally been established by the Decree of 31 March 2003 of the Ministry of Labour, Invalids and Social Affairs (MOLISA). The Committee also notes that a new Department of Inspection has been established within the MOLISA by Decree No. 1118 of 10 September 2003 and that a training programme for labour inspectors has been established within the context of the above project. It would be grateful if the Government would provide a copy of the Decree and supply detailed information on the training planned within the context of the programme referred to above.

The Committee is addressing a request directly to the Government on certain matters.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Referring also to its observation, the Committee would draw the attention of the Government on the following points.

Articles 19, 20 and 21 of the Convention. Periodical and annual reports on inspection activities. Noting that the periodical reporting system from the provincial branches to the national inspectorate are not operating effectively enough, and that copies of annual inspection reports have not been transmitted to the ILO, the Committee requests once again the Government to take appropriate measures so that periodical reports will be submitted regularly to the central authorities by the inspection services and an annual report will be published and communicated as prescribed in these provisions of the Convention.

Adoption of a new Labour Code. The Committee has taken note of information from the sources available to the ILO that the revised Labour Code was passed in the National Assembly and proclaimed by the State President in April 2002, and that it will come into force on 1 January 2003. The Committee hopes that the Government will send to the ILO a copy of the new Labour Code and regulations adopted under the Code.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

With reference to its previous comments, the Committee notes the Government’s report for the period ending 2001.

Articles 7, 10, 11, 16 and 18 of the Convention. Effective labour inspection. With respect to its previous comments on necessary conditions for effective inspection, the Committee notes with interest the ILO/Viet Nam national project entitled "Safe Work and Integrated Labour Inspection (ILO/VIE/00/MO1/GER)" launched in November 2001. It also notes that through the said project, the Government strives to establish and effectively operate an integrated state labour inspectorate and to prepare and implement a comprehensive labour inspector training and staff development policy and programme. The Committee requests the Government to provide in the next report detailed information on the measures taken in this regard and on the progress made.

The Committee is addressing a direct request to the Government on other points.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report as well as the attached documents.

Recalling that in accordance with Article 8 of the Convention, both men and women shall be eligible for appointment to the inspection staff and that, where necessary, special duties may be assigned to men and women inspectors respectively, the Committee would be grateful if the Government would indicate, as appropriate, the proportion of women in the total inspection staff and the special duties which may be assigned to them.

The Committee notes that, according to the Government, the difficulties faced by inspectors in the exercise of their duties are caused by the inadequate resources and facilities made available to them (Article 11); the inappropriate nature of their training and qualifications (Article 7); the shortage of inspectors (Article 10) and the impossibility of applying effectively the sanctions which are provided under legislation (Article 18). The Government states that the 322 inspectors working in 1999 under the aegis of the Ministry of Labour, War Disabled and Social Affairs (MOLISA) have 38,000 public and private enterprises and some hundreds of small informal sector enterprises to inspect. Consequently, the frequency of inspections cannot be satisfactory in regard to the requirements of Article 16 and the inspections concentrate as a priority on premises where activities entail high risk factors. The Committee notes that certain categories of inspectors fall within the control of the Ministry of Health. It would be grateful if the Government would supply supplementary information on the total number and distribution geographically and by category of labour inspectors, including those working under the aegis of the Ministry of Health, and to indicate, furthermore, whether measures are taken or envisaged to provide the inspectorate with an adequate number of appropriately qualified staff as well as the material resources needed for it to perform properly the duties incumbent on it.

The Committee notes that the inspection services of only 40 out of the 60 provinces have submitted periodical reports as laid down in Article 19. It also notes the lack of an annual report on the inspection services as prescribed in Articles 20 and 21. Recalling that the abovementioned periodical and annual reports are an essential instrument for appreciating the operation of the inspection services, the Committee requests the Government to take appropriate measures so that, in accordance with the provisions cited above, periodical reports will be submitted regularly to the central authority by the inspection services and an annual report will be published and communicated within the time limits prescribed.