Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - India (Ratificación : 1949)

The Committee recalls that, at the 104th Session of the International Labour Conference in June 2015, the application of the Convention by India was discussed by the Committee on the Application of Standards (CAS), which requested detailed information from the Government in relation to the issues discussed. In this respect, the Committee previously observed with concern that most of the questions raised by the CAS had remained unanswered. The Committee notes that the Government provides replies in the present report in relation to some of the requests made by the CAS and the Committee.

Legislative reforms. In its comment published in 2011, the Committee noted the Government’s reference to the proposed re-examination of labour laws in order to ensure a “hassle-free” industrial environment and put an end to malpractices by inspection staff (“Ending Inspector Raj”). The Committee also noted the concerns raised by the International Trade Union Federation (ITUC) that the legislative bills introduced as of 2014 would have far-reaching consequences for labour inspection. While the Committee noted that the Government had not provided the explanations requested by the CAS on the impact of the proposed amendments to labour laws and regulations on the labour inspection system, it nevertheless welcomed that it had sought technical assistance from the ILO in relation to some draft labour laws being reviewed in the legislative reform. The Committee also reminded the Government of the request made by the CAS to ensure, in consultation with the social partners, that the amendments to the labour laws undertaken at the central and state levels comply with the provisions of the Convention, and encouraged the Government, with reference to its previous comments concerning the Factories Act and the Dock Workers (Safety, Health and Welfare) Act, to bring these laws into conformity with the requirements provided for in Articles 12(1)(a) and 18 of the Convention.

The Committee notes that, in reply to the Committee’s reiterated request for information concerning the proposed legislative initiatives in relation to labour inspection, the Government indicates in its report that the proposed draft legislation is at a very preliminary stage, as consultations with interested stakeholders, including tripartite constituents and the ILO are ongoing. The Government provides a table containing information on the tripartite meetings held in 2015 in relation to the draft Small Factories Bill, 2015, the draft Labour Code on Wages and the draft Labour Code on Industrial Relations and indicates that, in view of the ongoing consultations, it would be premature for the Government to affirm its position in relation to the proposed draft legislation. The Committee requests the Government, in line with the 2014 conclusions of the CAS, to ensure, in consultation with the social partners, that the amendments to the labour legislation comply with the principles of the Convention, and that the current legislative reform brings the national law into conformity with its requirements, where it is not yet in conformity with these principles.

The Committee requests the Government to provide information on the laws that are currently being revised, the tripartite consultations undertaken, and the progress made with the drafting, approval and submission of laws to Parliament. It also requests the Government to provide a copy of any legislative texts that have been adopted. The Committee finally requests that the Government continue to avail itself of ILO technical assistance in the ongoing legislative reform.

Articles 12, 16 and 17 of the Convention. Labour inspection reform, including the implementation of a computerized system to randomly determine the workplaces to be inspected. In its previous comment, the Committee noted the information provided by the Government on the introduction of a computerized system, which randomly determined which labour inspector would visit which factory based on information gathered from risk assessments. It noted the concerns raised in relation to this system by the Centre of Indian Trade Unions (CITU), which observed that labour inspectors no longer had the power to decide on the workplaces to inspect, and the ITUC, which observed that employers were notified in advance of inspections and penalties could only be imposed after an inspector had issued a written order and given the employer additional time to comply. The ITUC further indicated that the decision to rename inspectors as facilitators also implied that enforcement was not part of the objectives of the labour inspection system.

The Committee notes that the Government indicates that the computerized system has substantially improved the effectiveness of inspections, and has resulted in an increased number of inspections visits and improved enforcement activities (although, according to the Government, the relevant results need time to materialize). It also notes the Government’s explanations as requested by the Committee, on the criteria for the initiation of labour inspections, that there are four different types of inspections. First, “emergency inspections” are immediately carried out in the event of fatal or serious accidents, strikes and lockout, etc. Secondly, “mandatory inspections” are carried out during a period of two years in workplaces where “emergency inspections” were previously carried out and which are therefore entered as high-risk workplaces in the system. Thirdly, “inspections approved by the Central Analysis and Intelligence Unit (CAIU)” are carried out in workplaces with prima facie evidence of labour law violations (the CAIU takes a decision to enter such workplaces in the system on the basis of information gathered through labour inspection reports, the information contained in self-assessments, complaints and other sources). Fourthly, “operational inspections” are carried out in workplaces that are categorized as low risk, a certain number of which have to be carried out every year, which are randomly selected by the system.

In reply to these observations made by the CITU concerning the absence in the hands of labour inspectors of any power to initiate an inspection of their own accord to undertake inspections, the Government indicates that the system for the random selection of low-risk workplaces for inspections was introduced to avoid labour inspectors undertaking inspections on the basis of criteria other than a risk of non-compliance in workplaces (such as their own convenience or flawed, biased or arbitrary judgments). In reply to these observations of the ITUC concerning the prior notification of inspection visits, the Government explains that “emergency inspections” and “inspections approved by the CAIU” are carried out without prior notice, whereas “mandatory inspections” and “operational inspections” are carried out with or without prior notice upon decision by the regional head inspector. The Government adds that the decision to carry out inspections with or without prior notice is based on objective criteria (such as the practical need in some cases to give time to employers to prepare certain records and documents). The Committee notes that the Government has not provided a reply in relation to the other observations made by the ITUC concerning the possibility to initiate enforcement activities only after having given employers time to rectify a labour law violation. The Committee requests the Government to ensure that the free initiative of labour inspectors to undertake labour inspections where they have reason to believe that a workplace is in violation of legal provisions or where they believe that workers require protection (Article 12(1)(a) and (b)), is still possible in the new system. The Committee also once again requests that the Government provide information on the measures taken, in law and practice, to ensure that labour inspectors have the discretion under Article 17(2) to initiate prompt legal proceedings without previous warning, where required. Noting the Government’s indication that the number of inspections has increased and the enforcement activities have been enhanced, the Committee also requests the Government to provide relevant statistics to corroborate these statements.

Articles 10, 16, 20 and 21. Availability of statistical information on the activities of the labour inspection services to determine their effectiveness and coverage of workplaces by labour inspection at the central and state levels. The Committee notes that, once again, no annual report on the work of the labour inspection services has been communicated to the ILO, nor has the Government provided the detailed statistical information as requested by the CAS. While the Committee welcomes the efforts made by the Government to provide information on the activities of the labour inspection services at the central and state levels aggregated in relation to ten different laws, in relation to 19 states (information for the same period of time was previously communicated by the Government in relation to 11 states), this information nevertheless does not allow the Committee to make an informed assessment on the application of Articles 10 and 16 in practice. The Committee notes that even basic statistical information in relation to the number of labour inspectors has not been provided, and recalls the previous observations made by the ITUC that, in many cases, the labour inspection services continued to be extremely understaffed. In this context, the Committee welcomes the Government’s indication that it is willing to seek technical advice from the ILO with a view to the establishment of registers of workplaces liable to inspection and the preparation of the annual labour inspection report. The Committee encourages the Government to take the necessary steps to ensure that the central authority publishes and submits to the ILO an annual report on labour inspection activities containing all the information required by Article 21 in relation to the central and state levels. Noting the Government’s intention to seek technical assistance for the establishment of registers of workplaces at the central and state levels and the annual labour inspection reports, the Committee encourages this endeavour, hopes that such assistance will be provided and requests the Government to provide information on any progress made in this regard.

The Committee requests the Government in any event to make an effort to provide statistical information that is as detailed as possible on the activities of the labour inspection services, including as a minimum, information on the number of labour inspectors in the different states, and the number of inspections undertaken at central and local levels.

Articles 10 and 16. Coverage of workplaces by labour inspections. Self inspection scheme. In its previous comments, the Committee noted the observations made by the CITU and the Bharatiya Mazdoor Sangh (BMS) which observed that there was an absence of any mechanism for the verification of information supplied through the self-certification scheme (which requires employers employing more than 40 workers to submit self-certificates). The Committee notes that self-assessments are among the sources of information used by the CAIU to draw a conclusion on a prima facie evidence of labour law violations, and a decision to enter the relevant workplace in the system for an inspection visit to be carried out. The Committee notes that the Government has not provided the requested explanation as to the arrangements for verification of the information supplied by employers making use of self-certification schemes. The Committee once again requests the Government to provide information on how the information submitted through self-certificates is verified by the labour inspectorate. Noting that the Government has not provided the requested information on private inspection services, the Committee also once again requests the Government, in line with the 2015 conclusions of the CAS, to provide information on the OSH inspections undertaken by certified private agencies, including the number of inspections, the number of violations reported by such agencies, and compliance and enforcement measures taken.

Articles 2, 4 and 23. Labour inspection in special economic zones (SEZs) and the information technology (IT) and IT-enabled services (ITES) sectors. In its previous comments, the Committee noted the Government’s indication that very few inspections had been carried out in the SEZs and in the IT and ITES sectors. It also noted the Government’s indication that while enforcement powers may be delegated to the Development Commissioner (a senior government employee) under the Special Economic Zones Rules, 2006, this does not weaken the enforcement of the labour law in any manner and has only been done in certain cases. On the other hand, it noted the observations made by the ITUC that trade unions in SEZs were largely absent in view of anti-union discrimination practices and that working conditions were poor, and that enforcement powers had been delegated to the Development Commissioners in several states (their central function of which is to attract investment).

The Committee notes that the Government has still not provided the detailed information on labour inspections in SEZs as requested by the CAS and the Committee, but that it has provided information in relation to the application of ten laws in four SEZs (previously this information was provided in relation to three SEZs). The Committee notes that in the absence of any comprehensive statistics, an assessment of the effective application of the labour law legislation in the SEZs and the IT and ITES sectors is not possible. The Committee therefore once again requests the Government to provide detailed statistical information on labour inspections in all SEZs (including on the number of SEZs and the number of enterprises and workers therein, the number of inspections carried out, offences reported and penalties imposed, and industrial accidents and cases of occupational disease reported).

The Committee also once again requests the Government to specify the number of SEZs in which enforcement powers have been delegated to Development Commissioners. In accordance with the request made by the CAS, the Committee once again requests the Government to review, with social partners, the extent to which delegation of inspection powers from the Labour Commissioner to the Development Commissioner in SEZs has affected the quantity and quality of labour inspections, and communicate the outcome of this review. The Committee also requests the Government to provide information on the number of workplaces in the IT and ITES sectors, and the inspections carried out in these sectors.

Articles 12(1)(a) and (b), and 18. Free access of labour inspectors to workplaces. The Committee notes that the Government has once again not provided the detailed information requested by the CAS on compliance with Article 12 of the Convention with regard to access to workplaces in practice, to records, to witnesses and other evidence, as well as the means available to compel access to such. Moreover, it notes that the Government has not provided the requested statistics on the denial of such access, steps taken to compel such access, and the results of such efforts. The Committee once again requests the Government to provide this information.