Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)

Labour Inspection Convention, 1947 (No. 81) - India (Ratification: 1949)



The Government provided the following written information.

Tripartite consultation on labour laws amendments/enactment of new laws

India has an elaborate labour legislation system which operates through a federal structure. The country has ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) and tripartite consultations are an integral feature of the labour law reform process. Based on the recommendation of the Second National Commission on Labour, the Government has taken steps to broadly codify the existing 44 central Labour Acts into four Labour Codes, including: the draft Code on Wages; the draft Code on Industrial Relations; the draft Code on Social Security and Welfare; and the draft Code on Occupational Safety and Health, in relation to which drafts have been prepared, except for the Code on Safety and Working Conditions, for which the drafting is at an advanced stage. In accordance with the pre-legislative consultation policy of the Government, the draft Codes were uploaded on the website of the Ministry of Labour and Employment for a period of one month inviting suggestions from the public/concerned stakeholders. Subsequently, these draft Codes were also discussed in tripartite consultation meetings, involving representatives from the central trade unions, employers’ associations, state governments and relevant central ministries. The Government has also consulted the ILO on a continuous basis for obtaining relevant technical assistance. It may be noted that the abovementioned Codes have not been adopted yet and are at the consultation stage only. The Government is also continuously engaged in amending important legislations with a view to making labour legislations attuned to the emerging requirements. Tripartite consultations constitute an integral component in formulating the relevant amendments. Some of the major amendments undertaken by the Government during the period 2015–17 with tripartite consultation concerned the Child Labour (Prohibition and Regulation) Amendment Act, 2016, the Maternity Benefit (Amendment) Act, 2017, the Payment of Wages (Amendment) Act, 2017 and the Payment of Bonus (Amendment) Act, 2015. None of the legislation adopted has had any impact on the labour inspection system, or on the principles enshrined in Convention No. 81. The current national laws comply with the principles of Convention No. 81 and there is no intention on the part of the Government to move away from them. India has been taking, and would welcome in the future, technical assistance from the ILO in the legislative reform process.

The free initiative of labour inspectors to undertake labour inspections

As indicated in the last two reports submitted to the Committee of Experts in 2015 and 2016 and the report submitted to the Conference Committee in 2015, it shall be reiterated that no legislative amendments have been carried out to alter any of the existing provisions of the Acts that may dilute the provisions of Convention No. 81. Technology-driven governance reforms have been introduced to strengthen the system, provide for transparency and accountability in the enforcement of labour laws and reduce the complexity of compliance. The web-enabled setup has only provided for the prioritization of inspections in workplaces based on risk assessments. The new setup has not curtailed the powers of inspectors to undertake workplace inspections in case that an inspection is required. Moreover, except for some routine inspections (which do not even make up 10 per cent of the total of inspections) all other inspections are unannounced. In the case of routine inspections, prior notice may be given (at the discretion of the inspector) to enable the employer to produce records for verification. It is reconfirmed that where there is a complaint or information with regard to any labour law violation, the system allows for full discretion/freedom to undertake an inspection of such an establishment at any point in time as well as to initiate the actions prescribed in the corresponding laws. It is submitted for the consideration that the new system has enabled the inspectorates to better manage their inspection system and also to share the inspection information among agencies. A sizeable increase in the number of inspections is also witnessed since the launch of the new system. Details of the enforcement of various labour laws by the Central Labour Enforcement Agencies, including in relation to social security and safety in mines are provided in an annex to this submission. Thus, the new inspection scheme has not affected the role of labour inspectors to undertake labour inspections where they have reason to believe that a workplace is in violation of legal provisions or when they believe that workers require protection. We again reiterate that labour inspectors have complete discretion, in law as well as in practice, to initiate prompt legal proceedings without previous warning, where required.

Annual reports on labour inspection activities, and statistical information on labour inspections

Data is the basis for developing evidence-based policy initiatives. The Government has taken a number of steps over time to improve data on enforcement of labour legislation and labour inspection services. Data collection and reporting is done mainly by the Labour Bureau, a Department attached to the Ministry of Labour and Employment. The Government has also been obtaining technical assistance from the ILO to evaluate the data collection systems with a view to suggesting appropriate measures for improving their coverage and reliability. In fact, as requested by the Ministry, the ILO has undertaken an “Assessment of the Labour Statistics System in India” in 2014–15. The Labour Bureau receives statutory statistics relating to the central and state levels in the form of annual returns under various Labour Acts. In addition to these annual returns, monthly returns are being received on a voluntary basis. These statutory and voluntary returns are received under 11 Labour Acts in relation to which reports have been released by the Labour Bureau in 2013 and 2014. The Labour Bureau collects data on the enforcement of labour legislation in relation to the key legislation, i.e. the Factories Act, 1948, to be submitted through mid-year and annual returns. This data is compiled on an annual basis by the Labour Bureau and published as Statistics of Factories. The following statistics are attached to this submission: (1) detailed statistics for 2013, 2014 and 2015 in relation to 31 states/union territories concerning the number of factories inspected (under the Factories Act) and the number of factory inspectors; (2) information on the total number of labour inspectors in 2016 concerning some states; (3) information on the number of labour inspections undertaken in 2014–15, 2015–16 and 2016–17 as well as violations detected (concerning all Acts under the jurisdiction of the states) in relation to the states from which this information was available; and (4) statistics on occupational accidents for 2013, 2014 and 2015 in relation to some states/union territories. The Labour Bureau has undertaken a project concerning the strengthening and modernization of the system for the collection of statistics from the states and establishments through the induction of technology, which is in the development phase. Upon implementation, the system for the collection and compilation of statistics shall be made online to the extent feasible. This will enable the Bureau to collect and compile timely statistics in the future. We take note of the recommendation of the Conference Committee regarding the annual labour inspection report and the registers of workplaces liable to inspection. The Government is willing to seek the technical advice of the ILO on the matter.

Self-certification and Occupational, Safety and Health (OSH) inspections undertaken by certified private agencies

India has replied in detail to the observations made by the Committee of Experts concerning the self-certification scheme during the 2015 session of the Conference Committee, which has been noted by the Committee of Experts in its latest comments. We again reiterate that the self-certification scheme has been launched by some states, and that in no case has it ever substituted the labour inspection system. It is a scheme to encourage voluntary and simpler compliance, without compromising the rights of workers. Establishments availing themselves of the self-certification scheme are not exempted from the inspection process. Where security deposits are prescribed with the self-certification, the scheme provides for their forfeiture whenever a violation is detected. India does not follow the system of private inspection services. The Government reaffirms its commitment to safeguard the interests of the working class while promoting a conducive working environment for inclusive growth and industrial harmony.

Delegation of inspection powers in special economic zones (SEZs) and statistical information on labour inspections in SEZs

There are seven SEZs zones in the country. In four zones, no powers have been delegated to the Development Commissioners of SEZs, whereas in another zone, which covers ten states, powers have been delegated only by one of these ten states. In two zones, powers have been delegated, while in one of these zones, no powers have been delegated under the Factories Act (which governs OSH regulations). Laws that are administered centrally have not been delegated in any of the zones. The Government has provided detailed statistics to the last Conference Committee and to the Committee of Experts in 2016 on inspections under various labour laws in individual states and SEZs, including on the number of inspectors, the number of units and the workers employed therein. This information is reiterated. The statistics on the enforcement of labour laws in SEZs where powers were delegated to the Development Commissioners is provided in an annex to this submission. In respect of the SEZs, where powers have not been delegated to the Development Commissioners, statistics are included in the inspection statistics of the different states, as no separate statistics are maintained. As recommended by the Conference Committee, the Government, in a tripartite meeting held on 30 May 2017, reviewed with the social partners whether the delegation of inspection powers from the Labour Commissioner to the Development Commissioner in SEZs has affected the quantity and quality of labour inspections. Representatives of the Department of Commerce, the Government of India, officers from the SEZs and state governments were also present in this meeting. Reiterating their commitment for fundamental principles and rights at work, the employer representatives appreciated the single window system for compliance under labour laws and encouraged the Government to promote voluntary compliance mechanisms. The employers’ representatives and state governments also expressed satisfaction concerning the present arrangements in relation to the delegation of inspection powers, while workers’ representatives, in general, expressed that not only the rights of workers in SEZs, but also in other workplaces should be protected. One workers’ representative did not agree with the views expressed by the representatives of the SEZs and the employers that the delegation of powers is working satisfactorily. However, he did not corroborate these statements with any statistics or specific instances. Accordingly, it was decided that the Government will institutionalize a system of regular review of the implementation of labour laws in SEZs. IT and ITES companies are registered under the states’ Shops and Establishment Acts and inspections therein are carried out by the state authorities, as the case may be and are included in the overall state’s statistics. No separate statistics are maintained for the IT/ITES sectors.

Free access of labour inspectors to workplaces

Reference is made to various labour laws providing for labour inspection powers. These laws provide that denying/preventing inspectors from accessing premises or records is an offence. Section 353 of the Indian Penal Code also provides that preventing public servants from discharging their duties (including denying them access) is a criminal offence. There are no cases in which labour inspectors have not been able to access workplaces for inspections, hence the question of relevant statistics does not arise. The labour inspectors have the authority to avail themselves of assistance by the Police to compel access to workplaces, records or evidence whenever they face any concern. Labour inspectors can also initiate prosecutions in relation to persons denying them access to workplaces. It is reiterated that labour inspectors are guaranteed free access 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) of Convention No. 81).

In addition, before the Committee, a Government representative referred to the constitutional structure of India, consisting of a federal setup and a defined distribution of powers between the centre (that is, the federal government) and the states (that is, the provincial governments), in which the centre and the states had concurrent powers to legislate and enforce labour laws. He said that India had a very elaborate system of labour legislation, which was secured through a system of labour inspection, both at the central level and the level of the states. Reviewing and updating labour laws was a continuous process to bring them in tune with the emerging needs of a globalized and knowledge-based economy, and included tripartite consultations. The issue of the scope and objectives of the legislative amendments and reforms made by the Government had been discussed during the 2015 session of the Committee. In this respect, he wished to reiterate the observations already made that no amendments to the scope of application of any labour laws had been enacted by the Government to exclude workers from the purview of labour laws. In fact, the Committee of Experts had not referred to any specific legislative action that had in any way diluted the provisions relating to labour inspections or the protection of workers, as provided for under the Convention. India followed the process of tripartite consultations in all its legislative reform initiatives. All proposed amendments to labour laws, or proposals for new laws, were discussed in appropriate tripartite forums, and only thereafter were the proposals carried forward. In this respect, he also referred to the written information that had been provided by the Government to the Committee on progress in respect of various laws that had been passed or were currently under consideration. Recalling the intervention made during the 2015 session of the Committee, he wished to add that the proposed Small Factory Bill and the proposed amendments to the Factories’ Act were also being re-examined and reviewed by the Government afresh. The Office had provided technical assistance and inputs on the proposed legislative changes, especially on the draft Labour Codes. The Government remained committed and would also welcome future ILO technical assistance. As stated in the written information provided by the Government to the Committee, none of the legislation that had been adopted had any impact on the labour inspection system, or on the principles of the Convention. Concerning the free initiative of labour inspectors to undertake labour inspections, the Government was committed to the obligations in the Convention that workplaces should be inspected as often and as thoroughly as necessary. Labour inspectors had full discretion in law and practice to undertake inspections of workplaces at any point of time, as well as to initiate the action prescribed in law, without previous warning with respect to statistical information on labour inspection activities, the statistics requested by the Committee of Experts had been provided in the annex to the written submission of the Government to the Committee. He recalled that, in view of the federal structure of the country and the sovereignty of the states, which were mostly responsible for the subject of “labour”, there was no statutory mechanism for the states to furnish data to the central government. However, the Labour Bureau collected and compiled data on various labour-related matters from the states on a voluntary basis. In this respect, he referred to the written information provided to the Committee on a project for the strengthening and modernization of the system for the collection of statistics by the Labour Bureau. In relation to the absence of data on inspections in special economic zones (SEZs) by the states and in the information technology and information technology-enabled services (IT/ITES) sector, he explained that the Labour Bureau was currently not in a position to gather such data, but that there was indeed a need to strengthen the collection and compilation mechanism to enable such analyses, and ILO technical assistance in this respect would be welcome. Concerning the self-certification scheme, as already stated during the discussion of the case by the Committee in 2015, this scheme did not entail any relaxation of or substitute for statutory inspections, and workplaces remained subject to inspection, despite having subscribed to the self-inspection scheme. With reference to the delegation of inspection powers in SEZs, he emphasized that there had not been full delegation of labour inspection powers to the Development Commissioners in all SEZs, as further detailed in the written submission of the Government. Moreover, the delegation of powers in the zones in which it had been done had not diluted enforcement in any manner. It should be reiterated that Development Commissioners, who were very senior government officers, were fully responsible for the enforcement of labour laws in the SEZs, and could perform this duty without any conflict of interest. He also emphasized that a tripartite meeting had been held as requested by the Committee of Experts on whether the delegation of powers in SEZs had affected the quantity and quality of labour inspections. In this respect, he also reiterated the information provided in the written statement that the social partners had mostly considered that the delegation of powers was working satisfactorily. As indicated in the written submission, a regular review of the implementation of labour laws in the SEZs would be developed in due course. Working conditions in the IT/ITES sector were regulated by the provisions of the Shop and Commercial Establishment Act of the respective state governments. These establishments were inspected through regular labour inspections like any other establishments. However, as described above, the current data collection system did not permit the extraction of specific data concerning the IT/ITES sector, which was why the Government had been unable to provide such data. Concerning the free access of labour inspectors to workplaces he also reiterated the information provided in the written submission that labour inspectors were granted this right and there had not been any cases where they had not been able to access workplaces for inspection. He concluded that the substantive issues raised in the case had been adequately responded to by the Government in a series of communications since 2015. The last comments made by the Committee of Experts had not concerned non-compliance with the Convention, but had been primarily limited to seeking more information and statistics. In the absence of any substantive issue, he felt that this case should not continue to be examined by the Committee, and should be closed. The Government remained committed to labour welfare and the protection of labour rights and was willing to continue to avail itself of ILO technical assistance to achieve the objective.

The Employer members recalled that the application of the Convention had previously been examined by the Committee in 2015 and on numerous occasions by the Committee of Experts in the last ten years. The examination of this case in 2017 was in fact a continuation of issues that had been dealt with by the Committee two years ago. While cases on the Convention often concerned the total failure of labour inspection, this case was being examined due to the fact that the Government had failed to provide information in reply to the 2015 conclusions of the Conference Committee or to the comments of the Committee of Experts. They understood India’s federal structure, with its central and state governments, but this structure did not justify that the procedure to provide the information requested by the Committee. The Employer members therefore recalled each point that had been raised by the Committee in its 2015 conclusions, highlighting that the Government had failed to provide information on almost all of the following points. With respect to detailed statistical information covering, at the central and state levels, all the matters set out in Article 21 of the Convention with a view to demonstrating compliance with Articles 10 and 16, and specifying as far as possible the proportion of routine and unannounced inspections and information in relation to the proportion of routine and unannounced visits in all SEZs. With respect to the arrangements for the verification of information supplied by employers making use of self-certification schemes, no information had been provided by the Government. With reference to the division of the responsibility of labour inspection between the state and central spheres for each law and regulation in question, no information had been provided by the Government. In relation to the requested explanation with reference to the relevant statistics, the extent to which the number of labour inspectors at the disposal of central and state government inspectorates were sufficient to ensure compliance with Articles 10 and 16 of the Convention, no information had been provided by the Government. With respect to detailed information on compliance with Article 12 of the Convention regarding access to workplaces, records, witnesses and other evidence, as well as the means available to require such access, no information had been provided by the Government. With reference to health and safety 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, no information had been provided by the Government. Furthermore, in relation to the review, with the social partners, of the extent to which the delegation of inspection authority to Development Commissioners in SEZs had affected the quantity and quality of labour inspections, the Government had submitted information on a relevant tripartite meeting that had been held in May 2017. The Employer members recalled that the information provided had in fact been requested two years ago. With respect to ensuring that amendments to the labour laws, in consultation with the social partners, undertaken at the central or state level, complied with the provisions of the Convention, making full use of ILO technical assistance, the Government had indicated that this matter was in progress. The Government had now provided detailed statistics, but the information provided by the Government in its written submission had been received late. The Employer members emphasized that inclusion on the shortlist of cases to be discussed at the Committee should not have to be necessary to ensure the provision of the information requested by the Committee. When the Committee requested a Government to supply information, it expected to receive this information in a timely manner. They concluded that the Committee had started its session with the discussion of cases of serious failure by member States to respect their reporting obligations. The case of India appeared to be a similar case, as information had been requested two years ago and not provided in time. While there seemed to have been progress and the case could be closed, they called on the Government to continue to avail itself of ILO technical assistance with respect to the legislative reform.

The Worker members recalled that the Committee had last discussed the case in 2015, following the Government’s proposal to radically reform the labour inspection regime, to end the so-called “Inspector Raj”. In its conclusions, the Committee had requested detailed information, including labour inspection statistics, to better assess the efficacy of the labour inspection system. The written information provided by the Government to the Committee did not meet the requests made by the Conference Committee and the Committee of Experts. The Worker members aligned themselves with the comments made by the Employer spokesperson and the lack of information provided by the Government of India. They therefore requested the Government once again to explain its actions, which significantly weakened rather than strengthened the labour inspection regime, in clear violation of the Convention. They emphasized that only a committed, systematic effort by an expanded labour inspectorate could make a difference with regard to the widespread violations of labour laws in the country, including the very large number of child labour, forced labour, working time, occupational safety and health, and equality issues. The Worker members congratulated the Government of India on its recent ratification of the child labour Conventions, although this had not automatically been translated into concrete changes on the ground for working children. The Labour Inspectorate had an important role in changing the practice of employing children, and in ensuring that the new standards are in fact implemented. This required the strengthening of the Labour Inspectorate.

The Worker members reiterated their concerns as to the adoption of the legislation which had been pending for a long time, including the draft Small Factories Bill, 2015, the draft Labour Code on Wages, and the draft Labour Code on industrial relations. Those reforms would undermine the independence of inspectors in carrying out their duties and remove the potential for free access to workplaces without prior notice, which was essential for proper scrutiny of workplace conditions. They remained concerned that labour inspectors no longer had the power to decide which workplaces to inspect since the computerized system (the Shram Suvidha Portal) randomly determined the workplaces to be inspected based on information gathered from risk assessments. Employers were notified in advance of some categories of inspections (so-called optional inspections). Penalties could only be imposed after an inspector had issued a written order and given the employer additional time to comply. The Government’s explanation that emergency inspections were immediately carried out in the event of fatal or serious accidents and mandatory inspections were carried out in the two years following such accidents, merely served to highlight the failure of the inspection regime to prevent those accidents from occurring in the first instance. Labour inspectors needed to have free access to workplaces without prior notice and be able to administer adequate penalties for violations of the legal provisions or for the obstruction of inspectors in the performance of their duties. There should be detailed records of instances denial of access or obstruction.

The Worker members expressed their concern at the rights of workers in SEZs, where working conditions were quite poor, especially as trade unions remained largely absent because of anti-union discrimination practices. The situation had worsened following the delegation of enforcement powers to Development Commissioners in several states, under the SEZ Rules, 2006. That represented a clear conflict of interest in light of their central function to attract investment. The legal framework in SEZs allowed the zone authorities rather than the Labour Commissioner to enforce the law. There had been an increase in violations of labour legislation, without the more effective safeguards of enforcement powers by state authorities. Accordingly, they urged the Government to effectively reform the labour inspection system in SEZs to ensure that workplaces were inspected in line with the provisions of the Convention. The Worker members also remained concerned that the labour inspectorate was extremely understaffed. According to the latest available statistics of the Directorate General Factory Advice Service and Labour Institutes, which dated from 2011, for a total of 325,209 registered factories there were only 743 inspectors and the number of injuries stood at 29,837, of which 1,433 has been fatal. Child labour and other abuses of workers’ rights remained endemic in the garment sector, especially where factories were outsourced components of a global supply chain. It was clear that the labour inspection regime was incapable of protecting workers in all states and all industries. They urged the Government to hire an appropriate number of inspectors for the size of the workforce, and to ensure that they received the adequate training and the tools necessary to carry out inspections effectively. The Government’s reliance on self-inspection as a means of law enforcement was also a matter of concern. The very purpose of the labour inspection regime was subverted, as there was no mechanism for the verification of the information supplied. Yet self-assessments were among the primary sources of information used by the Central Analysis and Intelligence Unit, which monitored employers’ compliance with labour standards. There should be an independent means of verification by public inspectors, as opposed to self-certification by employers, who clearly had no incentive to report. They supported the call of the Committee of Experts for the Government to provide information on how self-certificates were verified by the labour inspectorate, as the written information provided to the Committee had not provided a response to that question. Regarding coverage of workplaces by inspectors, in line with the 2015 conclusions of the Conference Committee, and as requested by the Committee of Experts, the Worker members also called for proper scrutiny of occupational safety and health (OSH) inspections which were undertaken by certified private agencies. The function of OSH inspections should remain with the public authorities to secure effective recourse when violations occurred. Proper scrutiny also meant that the Government should provide statistics on the number of inspections, the number of violations reported by such private agencies, and the compliance and enforcement measures taken. The lack of information prevented the Committee of Experts from assessing the capacity of the inspection regime to ensure the effective application of the legal provisions concerning the protection of workers through an adequate number of labour inspectors and labour inspections. Unfortunately, the evidence showed that the labour inspection system was inadequate to achieve this purpose. There was a need for a discussion with the Government on the expansion of the Labour Inspectorate. Inadequate statistical information meant that it was not possible to determine accurately whether inspections were being carried out, whether workers had access to a remedy and whether employers were sanctioned when appropriate. The Worker members called on the Government to fully implement the conclusions and provide the requested information to the Committee Experts in time for its next report.

The Employer member of India explained that the Indian labour market was characterized by widespread informality, many medium-sized and small enterprises, and a Start-up Hub which was the largest in the world. At the same time, governance of work was traditionally jarred by rigid labour laws and a cumbersome regulatory regime. Recent legislative decisions (including a complete ban on child labour, the increase in the number of weeks of paid maternity leave and initiatives in relation to the payment of wages) were an indication of the country’s commitment to protect and promote labour rights and welfare. Care was also taken to provide for formal employment.

Indian employers wished to indicate that the initiatives taken by the Government in recent years had basically been undertaken to address certain needs. First, to overcome the problem of the multiplicity of labour laws, the Government had proposed the consolidation of labour laws into four codes to cover: (a) wages; (b) industrial relations; (c) social security; and (d) occupational safety and health. Tripartite discussions had already been held with regard to wages and industrial relations, and the corresponding legislative procedure was under way. The views of the social partners on the draft code on social security had also been obtained. Second, to address the issue of compliance costs and create a conducive environment for business growth. Complex and cumbersome filing procedures and documentation had been simplified through digitization, including the creation of a digital platform known as the “Shram Suvidha portal”, the reduction in the number of returns and records to be maintained and the promotion of online transactions. The governance reforms, in turn, had incentivized workplaces to adhere to the compliance regime more scrupulously. The Government had already provided detailed statistics regarding the labour inspections carried out under the new regime. The Government’s submissions on the issue of labour law compliance in SEZs deserved particular attention. The primary objective of SEZs was to promote industrial activity which could generate huge investments, as well as large-scale employment. The tripartite review in May 2017 of the effectiveness of labour governance in SEZs had found that the system worked satisfactorily. The limited delegation in SEZs had in no manner created an escape route for employers from fulfilling their obligations towards workers. The self-certification scheme for voluntary compliance together with strict monitoring was a progressive step towards promoting responsibility and ethics among employers. In the understanding of the Indian employers, self-certification had not substituted sovereign labour inspections. Moreover, in their understanding, there had not been any legislative decisions to dilute any labour inspection provisions. Indian employers had always contributed to the tripartite consultation process and appreciated the efforts of the Government to find the optimum solution to all issues which were discussed. The Committee was requested to take note of these facts, and set aside the case.

The Worker member of India noted the Government`s submission and recalled that the world of work had been changing at an unprecedented speed. Conventional employment was already outdated, and the speed of technological evolution limited the life span of an industry and resulted in demographic shifts in production. While the world had seen tremendous economic progress, this had not always resulted in an equitable share of benefits, and had led to widening inequalities, a rise in informality and the loosening of labour market institutions. In addition, the extremely elaborate legislative framework, and its implementation, had created a gap in the realization of workers’ rights. While noting the information provided by the Government on inspection services and staff, and its willingness to engage with the ILO for technical assistance, limitations in the availability of data persisted. Although acknowledging the importance of creating an environment conducive to economic development, the spirit of the Constitution revolved around principles of social justice and non-discrimination, and labour rights were non-negotiable. He noted the information provided on the issue of enforcement and the compliance of SEZs with labour laws, as well as the Government’s intention to organize a tripartite consultation to review the situation in SEZs. He further welcomed the institutionalization of a monitoring mechanism in SEZs to ensure compliance. The Government should continue to hold tripartite consultation, recognizing the long history of trade unions in India and their noteworthy contributions to shaping its labour policies. Partners who contributed to the growth of India demanded their rightful share, and he requested the Committee to take note of the information provided by the Government in a positive manner.

Another Worker member of India expressed growing concern at workplace safety and health violations that had resulted in numerous deaths. The Government had not only refused to follow up on the conclusions of the Committee in 2015, but, had continued to elaborate a computerized system to generate inspection schedules. Through its circular of 25 June 2014, the Central Labour Commissioner had set up a Central Analysis and Intelligence Unit responsible for a computerized inspection system, which did not include OSH inspections and was based on self-certification, the receipt of complaints and a list of defaulters. Labour inspectors were now redesigned as “facilitators” and contrary to the indications made by the Government, trade unions had not been part of any tripartite consultation mechanism; moreover they no longer had a role in labour inspection. The written information provided by the Government had not been made available to the social partners prior to its submission, and they had therefore not been consulted on the information provided. Inspection in the SEZs had been virtually abolished. In many SEZs, labour authorities had been divested of their powers in favour of Development Commissioners under the Ministry of Commerce, rather than the Ministry of Labour. On 30 May 2017, a tripartite meeting had been called to ease ILO pressure. During the meeting, a report had been presented that revealed that Development Commissioners in one year had only undertaken 14 inspections in an SEZ employing 251,000 workers. The statement in the written information provided by the Government that only one worker had been critical of the devolution of powers to Development Commissioners did not reflect the truth. Indeed, the Government had refused to consider documents that had been presented by the Worker member during the meeting. Development Commissioners had been actively refusing the registration of trade unions on the basis of self-invented laws. They also passed on information about initiatives that had been taken to form trade unions, enabling the owners in SEZs to harass workers involved in those initiatives. Contrary to the Government’s statement, the Shops and Establishment Act had not been extended to the IT and ITES sectors, nor had any labour inspections yet been established covering these sectors. As the Committee had unsuccessfully encouraged the Government to comply with the Convention, it was necessary to investigate the real situation on the ground.

The Government member of the Islamic Republic of Iran thanked the Government for the information provided on the latest situation concerning the application of the Convention. A number of legislative reforms were ongoing to create an enabling environment for economic growth and job creation. In this respect, it was positive that the Government was working closely with the ILO to ensure that the legislative reforms were consistent with ILO Conventions. Moreover, the Government had provided detailed information and statistics on the labour enforcement system, both at the central and state levels. The Government was encouraged to continue availing itself of ILO technical assistance. He called on the Committee to give due consideration to the information and clarifications provided by the Government.

The Worker member of Malaysia indicated that Indian workers continued to be vulnerable to precarious conditions, including occupational health and safety issues, and remained victims of labour law violations. Effective application of labour laws depended on effective labour inspection, yet, to this day, there were workers that were excluded from labour inspection, for example those working in agriculture, the informal economy, health care services or workers not categorized as teaching staff in teaching institutions, one of the largest sectors of the Indian economy. The Government had manipulated labour inspection in SEZs, such as Noida in the state of Uttar Pradesh, where the Labour Office had closed, and issues have since been managed by Development Commissioners, who had only performed 17 inspections per year in a sector with 352 industries. The Labour Office had reopened for just one year following the comments made by the ILO supervisory bodies, but was again closed in 2016. Given that the IT sector fell within the scope of the Shops and Establishments Act, no labour inspections had been carried out in the sector. Noting that the Government reiterated that no legislative amendments had been carried out to alter legal provisions that might dilute the application of the Convention, the speaker stated that this information was incorrect. Labour inspection was already watered down, and completely unavailable in several sectors. The Government’s planned codification of 44 labour acts would exclude workers employed in establishments with less than 40 workers from the 16 laws related to trade unions, and therefore from labour inspection. Noting that such thresholds were not supported by the Committee of Experts, she called on the Committee of Experts to address expediently this matter by investigating the real situation on the ground, and urged the Government to walk the talk by complying with the Convention.

The Government member of Sri Lanka indicated that since the examination of the application of the Convention by India in the Committee in 2015, the Government had complied with the comments of the Committee of Experts and had provided detailed information on the steps it had taken to give full effect to the provisions of the Convention in law and practice. In this regard, the Government had taken steps to broadly codify 44 central labour acts into four labour codes. However, those initiatives were still at the consultation stage. The Government had followed a proper consultative process in this regard in the form of social dialogue, giving effect to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). She was of the view that codifying labour Acts into simplified forms and giving full effect to national labour laws and ILO Conventions that India had ratified would help to promote employment generation and also to address effectively the issues of compliance. Moreover, there seemed to be no negative impact on the labour inspection system as a result of legislation that had been adopted. She considered that the Government of India had adequately responded to the substantive issues that had been raised, thus giving effect to the principles enshrined in the Convention.

The Worker member of Australia stated that there were workplaces in India where labour inspection either did not occur or occurred rarely. In order to increase foreign direct investment by multinational corporations, SEZs were consciously structured to promote the non-implementation of labour laws. Domestic labour standards, including the labour inspection requirements of the Factories Act 1948, did apply inside SEZs, where labour inspection was almost entirely absent in practice. Entrusting the implementation of labour laws to the Development Commissioner within each SEZ rather than the Labour Commissioner of the Factories Act, 1948, permitted a regime free of labour inspection. Moreover, state governments had empowered the Development Commissioner to entrust the function of labour law compliance to a delegated person. For example, the Uttar Pradesh Government had empowered the Development Commissioner to call for inspection by any external agency for the safety and health of workers in any SEZ premises. As the primary role of Development Commissioners was to drive production within in the SEZ under its responsibility, the health and safety of workers within them might be considered a conflicting and lower priority. Examples also showed that the labour department was actively dissuaded from conducting inspections in SEZs, such as in the state of Andra Pradesh. The fact that entry into the zones was restricted in practice made the prospects of an unannounced inspection very unlikely. The separate administration of labour law within SEZs effectively meant that they were unregulated by labour inspection, which had dire consequences for workers. In this respect, he referred to a number of examples concerning unsafe and unhealthy working conditions in SEZs, and the consequences for the workers.

Taking into account the continued failure of the Government to provide adequate information on labour inspection in SEZs, and the fact that this matter had been before the Committee on a number of occasions, to the speaker stated that a direct contacts mission was necessary.

The Government member of Turkey welcomed the efforts made and the measures taken by the Government with a view to simplifying practices and reducing the regulatory burden through tripartite consultations on labour inspection. He appreciated that the Government had provided detailed information and statistics on labour inspections under various laws and regulations regarding working life. He encouraged the Government to continue working closely with the ILO to establish an institutionalized inspection system which would facilitate the regular supply of information. Taking into account the information that had been provided, and noting that the Government was ready to accept ILO technical assistance, he was of the view that the Committee should not continue to examine this case.

The Worker member of Brazil expressed concern at the seriousness of the case, which showed how important it was for the international trade union movement to be united and to work together. Furthermore, she deplored the Government’s failure to provide the information needed for the Committee and the supervisory mechanism to function properly. The information supplied by the Government in Document D.9 should be examined with care. The document had not been shared with the unions and had been drafted without prior tripartite consultation, and was therefore questionable. Moreover, the lack of statistics in Document D.9 meant that there was no basis for comparison. In that regard, she encouraged the Government to hold tripartite consultations and to provide the information requested by the Committee of Experts. However, the real problem lay in the fact that there was no effective labour inspection system. The basic function of labour inspection was to avoid accidents at work by preventing, and restricting practices that endangered the life and health of workers. The introduction of a computerized system to select workplaces at random for inspection was very problematic, as it undermined the freedom of action of inspectors. Moreover, it used a flawed and limited database that did not include all workplaces, which meant that, if a factory was not included in the database, it would never be selected for inspection.

She therefore considered that the Government was in violation of the Convention, which should be reflected in the Committee’s conclusions.

The Government member of Bangladesh welcomed the progress made by the Government in complying with the Convention. He appreciated the process of labour law reforms initiated in order to ensure the protection of workers as well as to promote investment and generate quality employment opportunities. Tripartite consultation had been an integral part of the process of legislative reform, in compliance with ILO Conventions. The initiatives taken by the Government did not aim to curtail the authority of the labour inspectorate, but to make the inspection mechanism more transparent and accountable. Inspection mechanisms based on a computerized system would make inspections more objective and targeted. He welcomed the decision taken by the Government to establish an institutionalized system to review the enforcement of labour laws in SEZs. The ILO should continue providing development cooperation and assistance to the Government to complete the ongoing reform process and to further promote labour standards in line with the Conventions, particularly Convention No. 81. Finally, he called on the Committee to take into account the significant efforts made by the Government to address the issues raised by the Committee of Experts.

The Government member of the Russian Federation had studied the Committee of Experts’ observation on the application of the Convention in detail and thanked the Government for its submission. Recalling that the Government of India was a founding member of the ILO, he noted the continued commitment of the Government to labour standards and its efforts to encourage tripartite dialogue. He welcomed the Government’s coordination and cooperation with the ILO with regard to legislative reform, and he noted its openness to address the comments of the supervisory bodies. Explanations and clarifications had been provided by the Government, and it was therefore to be expected that regular information would be received in the future and that the Government was committed to working in this way.

The Government representative made observations in relation to the different comments raised during the discussion. With regard to the observations made on the non-availability of statistics, he wished to refer to the reports sent in 2015 and 2016 containing the statistics as required by the Convention. Moreover, the reports that the Government provided to the Committee of Experts had been circulated to all the social partners. That report contained much statistical data, including on the number of labour inspectors in many states, the number of labour inspections undertaken, and the number of labour inspections in SEZs. With reference to the labour law reforms, he explained that Indian labour laws dated back to the 1920s and therefore had to be updated to meet current requirements and developments in the world of work. The social partners were part of the consultations on this legislative review and it was expected that, based on the recommendations made during the review, the labour laws would be strengthened. While many comments had been made in relation to these drafts, violations of the Convention was simply not possible at the current stage, as the labour laws were still under review. He emphasized that labour inspection was a public function in India and that no private inspections had been introduced at the central level or the level of the states. Regarding the verification of the information supplied through the self-certification scheme, it should be clarified that self-certification was different from inspection, and that self-inspection was by no means a form of private inspection or replaced labour inspections in any way. The self-inspection scheme only provided statements by employers on the compliance with provisions of labour laws, and in some cases were accompanied by a security deposit. Workplaces would continue to be subject to the normal labour inspection system and self-certification was only an additional mechanism for compliance. In relation to SEZs, he wished to indicate that in the reports provided by the Government to the Committee of Experts, statistical information had been provided in relation to particular SEZs. He reiterated that there were seven economic zones, of which four zones had not delegated inspection powers. Normal inspections would continue in these four economic zones. Moreover, in the zones in which inspection powers had been delegated to the Development Commissioner, OSH inspections continued to be undertaken by the inspection services of the states. At the moment, only minimal delegation had taken place, and it would be seen in future how such delegation worked. The Government had undertaken the tripartite reviews as suggested by the Committee of Experts and it would continue to ensure that in the future the rights of workers were ensured. Finally, in relation to the issues relating to OSH, it followed from the statistics provided in 2015 and 2016 showed that industrial accidents were decreasing. He concluded that the Government remained committed to the principles of the Convention so as to ensure the protection of workers and compliance with labour standards. Moreover, the Government endeavoured to promote labour welfare through enhanced social security, and to undertake labour reforms through appropriate tripartite consultation. It would continue to work closely with the ILO to ensure conformity with international labour standards.

The Worker members recalled that, on 2 September 2016, over 100 million workers across India had participated in a national strike to protest against the Government’s anti-worker policies. Their demands included the strict enforcement of all basic labour laws. The system as presented by the Government representative seemed perfect. For rights to be exercised, they needed to be protected through an efficient public labour inspection system, and information on inspections had be published regularly and made readily available, as provided for by the Convention. However, the Government was not complying with these obligations, and the labour inspection system was in a state of transition in the wrong direction. It was therefore important for the Committee to issue firm conclusions so that the Government had political guidance, with a preventive approach. The Government could start by implementing the technical assistance provided regarding the draft Small Factories Bill, 2015, the draft Labour Code on wages, and the draft Labour Code on industrial relations.

The Government should also adopt the following measures: ensure effective labour inspections in all SEZs, and provide detailed information on the number of routine and unannounced visits, as well as on the dissuasive fines imposed in the event of violations; promote collaboration between the officials of the labour inspectorate and employers and workers or their organizations, in particular with respect to inspection reports; ensure draft legislation in conformity with the Convention; provide information on the measures taken to ensure the discretion of labour inspectors to initiate prompt legal proceedings without previous warning; provide information on the verification by the labour inspectorate of the information provided by employers through self-certification, in particular in relation to health and safety inspections; provide information explaining the division of responsibilities for labour inspection between the state and central governments for each law and regulation in question; provide information explaining, by reference to the relevant statistics, on the extent to which the number of labour inspectors at the disposal of central and state government inspectorates was sufficient to ensure compliance with Articles 10 and 16 of the Convention, and submit the information to the Committee of Experts; and continue to avail itself of ILO technical assistance in relation to those recommendations.

The Employer members recalled that there were various reasons why a Government could be called before the Committee, even in cases where it had not provided information on the application of the Convention in time, which was the main reason why this case had been selected. The discussion covered a wide range of issues, many of which went beyond the scope of the Convention. It was expected that the discussion of the case would, in future, encourage the Government to provide timely information in response to any requests made by the Committee. They suspected that the same conclusions would be reached by the Committee, but that the conclusions adopted would be stronger than in 2015. They urged the Government to provide detailed and reliable information, as requested, including on the various aspects of labour inspection and the ongoing labour law reform.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed.

Taking into account the discussion, the Committee called upon the Government of India to:

- ensure that effective labour inspections are conducted in all SEZs, and provide detailed information about the number of routine and unannounced visits as well as the dissuasive fines imposed against infractions;

- promote the collaboration between officials of the labour inspectorate and employers and workers or their organizations, in particular when it comes to the implementation of inspection reports;

- increase the resources at the disposal of the central and state government inspectorates;

- ensure that draft legislation is in conformity with the Convention.

The Committee requested the Government to provide detailed information, including statistical information, to the Committee of Experts on:

- the measures taken to ensure that labour inspectors have the discretion to initiate prompt legal proceedings;

- how the information submitted by employers through self-certificates is verified by the labour inspectorate, in particular in relation to health and safety inspections;

- the division of the responsibility of labour inspection between the State and central spheres for each law and regulation in question.

The Committee invited the Government to continue to avail itself of ILO technical assistance in relation to these recommendations.