Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)

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



The Government provided the following written information.

The Government indicates that India has an elaborate system of labour legislation. The enforcement of the various labour laws has been prescribed under the relevant legislation and is secured through a system of labour inspectorates, both at the state and central levels. The system of inspections and follow-up action that exists in India includes prosecution in the criminal court of law. The mandate of the Ministry of Labour and Employment is to safeguard the interest of the working class while promoting a working environment conducive to inclusive growth and industrial harmony. India is a fast-growing nation with the largest proportion of youth population and thus the creation of decent jobs for all is the top priority for the Government. In this context, government policy is to create an enabling environment for growth and development which will create ample opportunities for decent work for all. The Government is committed to the principles of inclusive and equitable growth. Therefore, a correct balance in the policy environment needs to be achieved so that, while ensuring decent work for all, undue transaction costs and inefficiencies in the implementation of labour laws are eliminated to make the business environment competitive. In this endeavour, the Government is guided by the ethos of tripartite consultations involving government, employers’ and workers’ organizations. In its observation, the Committee of Experts refers to allegations made by the Centre for Indian Trade Unions (CITU), alleging that the Government proposes to exclude a great number of workers from basic labour laws. The Government reiterates that no such amendments to the scope of application of any labour laws have been enacted by the Government to exclude workers from the purview of labour laws. On the contrary, the Government is taking affirmative action, and proposes to expand the coverage of various labour laws. All the proposed amendments to labour laws are being discussed in appropriate tripartite forums, and only after consultations with all stakeholders are amendments carried forward. This is in accordance with the recommendations of the Second National Labour Commission. The objective of consolidation of labour laws is to ease the transaction costs of compliance, and not to relax compliance requirements. The Committee of Experts also refers to the proposed Small Factories (Regulation of Employment and Conditions of Service) Bill, 2014. The objective of the Small Factories Bill, 2014, is to have a comprehensive law consolidating all the essential provisions of existing labour acts into one piece of legislation so as to achieve effective compliance and enforcement for small factories employing fewer than 40 workers. By making compliance less burdensome and cost effective, it in fact encourages small units to register under the proposed Small Factories Bill. The draft bill, after due tripartite consultation, is presently under examination by the legislative department of the Ministry of Law and Justice. The Government appreciates the technical assistance provided by the ILO in the formulation of labour laws, particularly in the recent drafting of labour legislation (wages, industrial relations, safety and working conditions, and social security and welfare). The Government would be glad to avail itself of ILO technical assistance in the future whenever needed.

Regarding limitations in the inspection system prevalent in the country, it is submitted that the phrase “End of Inspector Raj” in this context does not mean an end of the inspection system, but is intended to mean an end of malpractices in the current inspection system. The Government wishes to make the inspection system efficient and transparent so that its effectiveness and consequently the compliance of labour laws can be improved. The Government is giving full effect to the provision of the Convention. The Government reiterates its commitment to the obligations contained in the Convention that workplaces shall be inspected as often and as thoroughly as necessary. There is no intent either to dilute this principle in theory or practice, or to relax the enforcement of the rule of law. Factories in all states are governed by the Factories Act and there is a similar set-up in all states under a chief inspector of factories. The statistics show that there has not been any drastic decline in the past few years, nor have there been serious imbalances in the number of inspections in the states. For instance, in 2014–15 under the provisions of the Contract Labour (Regulation and Abolition Act) 1970, a total of 2,729 inspections were carried out in the central sphere up to December 2014, and these inspections resulted in 1,634 prosecutions and 1,510 convictions. Similarly, 4,852 inspections were carried out under the Minimum Wages Act, 1948, which led to the detection of 179,958 irregularities in the payment of minimum wages and, consequently, 1,790 prosecutions were launched which resulted in 1,041 convictions.

In relation to labour inspection in special economic zones (SEZs), the Government indicates that the Special Economic Zones Act, 2005, does not preclude the applicability of labour laws in SEZs. Rather, section 49(1) of the SEZs Act, which deals with the power to modify different acts specifically states that such modifications should not apply to the matters relating to trade unions, industrial and labour disputes, welfare of labour including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old-age pensions and maternity benefits applicable in any SEZs. The Special Economic Zones Rules, 2006, lay down the procedure for the establishment of SEZs. These, among others, include the delegation of powers to the Development Commissioner under the Industrial Disputes Act, 1947, and other related acts in relation to the unit and the workmen employed in the SEZs, and also declare SEZs to be public utility services under the Industrial Disputes Act, 1947. The Government has not diluted the provisions of any labour laws and their enforcement for SEZs. Only in certain cases has the Development Commissioner of the SEZ (who is a senior government employee) been delegated the powers of a labour enforcement officer for ease of implementing and expediting enforcement activities. This does not in any way dispense with requisite labour inspection, as provided for under different acts. With regard to information technology (IT) and IT-enabled services (ITES) sectors, the central acts, such as the Minimum Wages Act, 1948, the Contract Labour (Regulation and Abolition) Act, 1970, the Payment of Wages Act, 1936, the Payment of Bonus Act, 1965, the Equal Remuneration Act, 1976, and the Payment of Gratuity Act, 1972, are applicable to these sectors. These establishments are inspected by the regular state government labour enforcement machinery like any other establishment. The working conditions in IT and ITES sectors are regulated by the provisions of the Shop and Commercial Establishment Act of respective state governments and ensured through inspection and through returns submitted by employers. The Committee of Experts has sought information on any amendments proposed to the Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988. This Act provides for the exemption of employers in relation to establishments employing a small number of persons from furnishing returns and maintaining registers under certain labour laws. The Government indicates, in this regard, that a series of tripartite consultations were undertaken on 23 January 2006, 22 June 2006, 1 March 2007, 15 March 2007 and 7 June 2007 prior to the introduction of the bill to amend this legislation, in 2011, which was subsequently passed by the Parliament on 28 November 2014. The amendment was notified on 10 December 2014.

With regard to the observation by the Committee of Experts concerning the self-certification system introduced in 2008 in the State of Haryana, the Government indicates that self-certification is fundamentally a support system to help employers ensure compliance with labour laws on their own and then to support the labour inspector at the time of inspection. This scheme does not entail any relaxation of statutory inspections by labour inspectors. The Government emphasizes that this self-certification is an additional requirement to the system of statutory labour inspections and is in no way a substitute to the main work of labour inspection. The Committee of Experts has sought information on the pay scales and code of conduct of labour inspectors. In India, the appointments of inspectors are notified in the Gazette and inspectors are deemed to be public servants, governed by relevant service conditions and conduct rules, and they take an oath of allegiance to the Constitution of India. All inspectors under the Factories Act, 1948, and the Dock Workers (Safety, Health and Welfare) Act, 1986, in major ports are appointed by a notification in the Official Gazette and as such their pay scales are the same as those applicable to other public officers such as tax inspectors. The pay scale of the inspector staff in all these organizations is 9,300 Indian rupees (INR) to INR34,800 + INR4,600 (GP) plus dearness allowance and other allowances as may be applicable. With regard to the observations of the Committee of Experts regarding free access of labour inspectors to a workplace and the recommendation of the Committee of Experts to amend the Factories Act, 1948, and the Dock Workers (Safety, Health and Welfare) Act, 1986, so that the rights of inspectors to enter workplaces freely is guarantee in law, the Government indicates that section 9 of the Factories Act, 1948, and section 4 of the Dock Workers (Safety, Health and Welfare) Act, 1986, already guarantee powers to inspectors to enter freely in workplaces and dockyards, etc. Thus amendment to the Factories Act, 1948, and the Dock Workers (Safety, Health and Welfare) Act, 1986, do not seem necessary. The Committee of Experts has further suggested removing all restrictions in practice, where they exist, with regard to the principle of the free initiative of labour inspectors to enter any workplace liable for inspection. The existing labour laws guarantee this power to inspectors already. In practice, too, the right and power of the labour inspection authority has not been curtailed by the Government. As regards the inspection system in state governments, the Central Government does, from time to time, advise state governments to enforce labour laws effectively and to have effective enforcement mechanisms. The Government has recently launched a major good governance initiative to improve labour enforcement mechanism in terms of transparency, accountability and ease of compliance with the ultimate aim of promoting industrial peace and harmony. The Government reiterates that the rights of the inspection authority have not been curtailed. The observation of the Committee of Experts also concerns the inadequacy of penalties under the Factories Act, 1948, and the Dock Workers (Safety, Health and Welfare) Act, 1986, and the delay in making the necessary amendments to these Acts to enhance penalties. The Government indicates that under the current provisions of these Acts, penalties consist of a fine or imprisonment, or both, depending on the nature of the violation. The Government is in the process of making certain amendments to the Factories Act, 1948, which, among others, include amendments with respect to provisions concerning penalties. Based on the inputs received from the stakeholders, the proposed amendments are under re-examination in the Ministry. The bill could not yet be passed due to a lack of consensus among various stakeholders on the proposed amendments. The Government is committed to the cause of labour in the developmental process and ensuring efficiency and transparency in the world of work. It reiterates its commitments towards international labour standards, as prescribed by the ILO, and particularly the Convention. It remains open to any technical assistance from the ILO as needed.

In addition, before the Committee, a Government representative said that the enforcement of the various labour laws was secured through a system of labour inspectorates, at both the state level and the central level, and included prosecution in the criminal courts. As a founding member of the ILO, India deeply respected the fundamental rights of all its citizens, as set out in the Constitution. The mandate of the Ministry of Labour and Employment was to safeguard the interests of the working class, while promoting a conducive working environment for inclusive growth and industrial harmony. The review and updating of labour laws was a continuous process and the Government was guided by tripartite consultations. In its report to the Committee of Experts, his Government would provide detailed statistics on the enforcement of labour laws from 2011 to 2014, as requested. He nevertheless emphasized that a decline in the number of inspections did not indicate a lack of enforcement of labour laws. During the periods 2012 to 2013 and 2013 to 2014, the number of convictions under the Contract Labour (Regulation and Abolition) Act had increased from 2,913 to 3,259, and the number of convictions under the Minimum Wages Act had increased from 4,954 to 5,074. Those statistics demonstrated that the Government was placing emphasis on quality and effectiveness of inspections. Concerning labour inspection in SEZs, the Government would provide detailed statistics regarding inspection activities, as requested by the Committee of Experts. The Government had recently launched a major good governance initiative to improve labour enforcement mechanisms in terms of transparency and accountability and, under a computerized inspection system, the selection of establishments for inspection would be based on transparent and intelligent criteria to avoid malpractices. That system was being designed to improve compliance with labour laws, and the rights of the inspection authority had not been curtailed. In conclusion, he expressed the commitment of his Government to the cause of labour in the developmental process and its deep respect for ILO labour standards, and he expressed appreciation for the ILO’s technical support.

The Worker members welcomed the opportunity to discuss this case as workers’ rights were poorly enforced in India in practice, in both the formal and the vast informal economy. Even in the formal economy, inspection in some areas was essentially non-existent. The Worker members were of the view that labour inspectors were often unable or unwilling to monitor compliance with national labour laws. In many cases, labour inspection bodies continued to be extremely understaffed. Labour inspectors were also prevented from entering factories, and collusion with employers was frequent. Labour inspection was thus largely incapable of ensuring respect for workers’ rights. The new laws proposed by the Government did not resolve those issues and instead threatened to worsen the situation by weakening labour inspection. As of 2014, the Government had introduced legislative bills which had implications not only for the content of substantive rights, but also far-reaching consequences for labour inspection. The draft Wages Bill was just one example. The Worker members believed that section 47 of the Wages Bill would profoundly change the system of labour inspection in a manner that was fundamentally inconsistent with the Convention. The primary concern with the proposal was that it depended entirely on self-inspection. The system would allocate work places for inspection randomly and the employer would be notified in advance of the inspection. Inspection systems based entirely on self-assessment and complaints were ineffective, as enterprises could provide false information and workers were unlikely to complain because of fear of reprisals. Instead, risk-based inspections, as part of a coordinated strategy, were essential to ensure that cases of non-compliance were detected where self-certification and complaints-based inspections were inadequate. Targeted inspections should therefore be given priority over complaints-based inspections. Furthermore, unannounced visits were an essential element of labour inspection, as companies that were notified of inspections could make efforts to appear to comply only on the day of the inspection. After the inspection ended, such firms would return to their poor or illegal practices. While supporting efforts to address corruption, this could be done by making inspectors subject to a supervisory body. Such a body could direct the work of inspectors so that inspections were targeted, rather than arbitrary, and thereby reduce the potential for improper conduct. In addition, section 47(4)(ii) of the Bill determined the powers of inspectors, with significant new limitations on inspection powers compared with existing Indian labour law. Finally, section 49(3) of the Bill envisaged that penalties would only be imposed after an inspector had issued a written order and given the employer additional time to comply. While that might be appropriate in some circumstances, penalties were required in all cases. If the new law was adopted, all incentives would be removed for employers to comply with the law. Employers would simply be able to violate the law and wait until a written order was issued, and then comply. Inspectors should have the power to issue a fine immediately, particularly in cases where violations were intentional or repeated, or where violations were serious or affected a large number of workers. The decision to rename inspectors as facilitators also led to the belief that enforcement was not part of the objectives of labour inspection.

In 2008, the SEZs Act had established a flexible legal framework as a means of attracting foreign direct investment. In India, SEZs were known for anti-union discrimination, with unions being strongly discouraged and thus rare. Moreover, workers were frequently not paid minimum wages, worked very long hours in order to meet stringent and unrealistic production targets, and were subjected to dismissal without justification or compensation. Health and safety in SEZs was frequently poor, which was in part due to the outsourcing of labour inspection. The SEZs Act provided that its provisions could not be invoked to amend labour legislation. However, although labour law could not be modified, state governments had in fact made substantial modifications through notifications and other administrative measures. For example, the Government of Punjab had delegated the powers of the Labour Commissioner, who was responsible for the enforcement of labour laws outside SEZs, to the Development Commissioner. It had also decided that a self-certification system would be applied in respect of labour laws. In addition, all units set up in SEZs were declared “Public Utility Services” under the Industrial Dispute Act, which made the exercise of the right to strike nearly impossible. Normally, Indian labour legislation vested the Labour Commissioner with the authority to enforce labour laws. In SEZs, this authority was vested with the Development Commissioner, whose central function, unlike that of the Labour Commissioner, was to ensure that SEZs were able to attract investment and generate earnings. In addition, for inspections relating to health and safety, units in SEZs could obtain inspection reports from accredited agencies, which meant that this important function was outsourced to private actors. The Worker members feared this would increase the likelihood of industrial disasters. The Worker members were of the view that the current legal reforms posed significant concerns in relation to compliance with the Convention and risked undermining compliance with national labour laws. Furthermore, over a decade of experience of SEZs provided ample evidence that the fact that the legal framework allowed the zone authorities rather than the Labour Commissioner, to enforce the law meant that violations of labour legislation in SEZs had predictably become rife, with little possibility of remedying such violations. Further reliance on self-certification schemes would only further weaken the enforcement powers of the Government and leave workers without effective recourse. The Worker members urged the Government, in consultation with the ILO and the social partners, to review the impact of these various schemes and to make the necessary reforms in law and practice to ensure that workplaces were inspected effectively in accordance with the Convention.

The Employer members indicated that this case was fundamentally one of a Government not providing the Committee of Experts with the necessary statistics and information, as required under the Convention. Referring to the 2009 general observation of the Committee of Experts concerning the Convention, which stated that “However advanced it may be, a country’s labour legislation is liable to remain a dead letter if there is no system of labour inspection to enforce it, not only in law, but also in practice”, the Employer members encouraged all governments, in the same way as the Committee of Experts, to maintain and keep up to date a central database of statistics showing the number of workplaces liable to inspection and the number of workers employed in them. The Employer members noted with some disappointment that some of the information requested by the Committee of Experts had been first requested in 2004 and 2009. They appreciated the challenges faced by the Government in respect of labour inspection in view of its federal system and elaborate system of labour legislation. It had a range of labour inspectorates at both the central and state levels. According to a presentation by the Assistant Labour Commissioner for India in 2011, India had one of the highest numbers of labour laws in the world. At the central level, the Chief Labour Commissioner was responsible for enforcing labour legislation regarding working conditions to the extent that central government was the appropriate government. Based on the most recent information provided by the Government in 2014, and referred to by the Committee of Experts, the division of responsibility between central government and state government for labour inspection under various enactments in India was far from clear. The Employer members agreed with the Committee of Experts that in view of the limited information provided, there had been a reduction at the central level in the number of inspections under the legislation in question, the number of irregularities identified and the number of convictions. However, they did not agree that it could automatically be inferred from such limited information that there was a breach of Articles 10 and 16 of the Convention. Detailed information and analysis of that information was required before such an observation could be made. With regard to the information concerning the state level, where much inspection took place, the Employer members agreed with the Committee of Experts that it was not possible to properly assess the functioning of labour inspection at all, as the information provided was extremely limited.

The Employer members welcomed the detailed information provided by the Government, which provided a basis for moving forward with the introduction of a system of inspection that was in compliance with the Convention, in particular with Article 10 (number of inspectors) and Article 16 (frequency of inspection). They urged the Government to use the outcome of the discussion to demonstrate its commitment to work in close cooperation with the ILO in compliance with its Article 22 reporting obligations. They supported and commended the Government of India in its stated aim of removing malpractice from its system of labour administration and inspection. This was the malpractice of burdensome and unnecessary bureaucracy. Removal of such bureaucracy was necessary to create an enabling environment for both sustainable business and internal and external investment. It was well known how far and how quickly the Indian economy had developed, which was now the eighth largest economy in the world. India not only attracted high levels of investment from overseas, but was also a major investor in the global economy. At the same time, the challenges facing the Indian economy and society were huge. It had the second largest population in the world and over 50 per cent of its population were under the age of 25. To continue to develop its economy to meet such demands, the Government was seeking to improve the ease of doing business in India, including the ease of investment. Despite the breathtaking advances of the Indian economy, India traditionally ranked low on recognized standards on the ease of doing business. The Employer members noted the Government’s observation that “ending Inspector Raj”, meant removing malpractice to create such an environment. Labour inspectors had been identified by business as being sometimes overbearing and obsessed with form filling and bureaucracy. This was a reputation that undermined the ability of inspectors to do their job. The Employer members however cautioned against any reform of labour administration and inspection which might undermine the ability of the Government to comply with its obligations under ILO Conventions, including Convention No. 81. They urged the Government to combine reform of labour administration with investment in its regulatory structures and, in that regard, to draw upon the country’s wealth of expertise in its renowned IT sector. They also expressed a further note of caution. One of the responsibilities of state labour inspectors was the enforcement of the Child Protection (Prohibition and Regulation) Act 1986, which prohibited employment under the age of 14 in hazardous occupations. This Act formed one of the cornerstones of the present legal regime on child labour in India. The Employer members were therefore very concerned that no information had been made available to the Committee of Experts on the number of inspections and prosecutions under this extremely important Act at the state level. To be clear, the Employer members were not saying that state labour inspectors were not seeking to enforce the Act, as they were not aware of any complaint from the Worker members in this regard. They urged the Government to give priority to the compilation of statistics on child labour inspections. Finally, they urged the Government to have particular regard to child labour issues in building the capacity of the labour inspection system and to fulfilling its reporting obligations under the Convention.

The Worker member of India said that the Government had enacted the SEZs Act in 2005 and had then introduced the policy on National Manufacturing Investment Zones under which areas were specified where labour laws would not be implemented or enforced. In those areas, one development commissioner would be specially empowered to deal with labour problems at his discretion, while there would not be inspectorates, conciliation proceedings, tribunals or labour courts. This in turn had raised the fear that the role of trade unions would cease, and in fact, only a few unions had been registered in these areas and the exploitation of workers had increased. However, more and more anti-union practices by both the Government and employers had been stopped by trade unions. Such situations had led to the forming of the Joint Front of Central Trade Union Organizations comprising all the central trade unions, a historical development in the history of the Indian labour movement. The Government had intended to amend unilaterally almost all the important labour laws relating to working conditions, wages, industrial relations and social security, without tripartite consultation. The withdrawal of labour inspection was proposed, in violation of Articles 10 and 16 of the Convention and self-certification had been proposed, in violation of Articles 6, 12(1) and 18 of the Convention. These proposals had given rise to strong protests by the Joint Front of Central Trade Union Organizations throughout the country. The Government claimed that it had taken initiatives to amend the labour legislation in order to allow for rapid industrialization, employment generation and the attraction of foreign direct investment. All such acts were contrary to the 2002 recommendations made by the 2nd National Commission on Labour, which was a tripartite body. Following strong protests by trade unions, the Government had started discussions in tripartite forums and had given assurances that it would not be taking any unilateral action. He called on the Government to refrain from amending any laws that would result in the violation of Convention No. 81 or other Conventions, to strongly punish employers for any violation of labour laws and any exploitation of workers, and to ensure that job security, wage security and social security were guaranteed.

The Employer member of India indicated that Indian enterprises were subject to multiple labour laws, cumbersome and time-consuming compliance procedures and high-handedness by the inspectorate. There were ongoing efforts to reduce avoidable administrative burdens such as the amendment of the Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988, was one such example. Similarly, in order to check high-handedness by inspectors, some of the state governments only allowed visits with the prior permission of senior officials. He considered that the requirements of Convention No. 81 had not been compromised or diluted in any way. The Government had started to take several measures to boost the industrial sector in order to improve the country’s competitiveness and employment growth. That followed a number of measures, such as amending the Apprentices Act, 1988, the Factories Act, 1948, and the Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988, the drafting of the Small Factories (Regulation of Employment and Conditions of Services) Bill, 2014, and the launching of the Shram Suvidha Portal, which enabled inspectors to track compliance by units in their area. He indicated that the hallmark of these measures was to facilitate industrial activity and to protect workers. He was of the view that, while the excessive power enjoyed by inspectors might have increased the chances of corruption, as mentioned in the All India Manufacturers’ Organisation (AIMO) communication, their independence and integrity, as envisaged under Article 6 of the Convention, could not be guaranteed by higher pay scales. It was true that the adequacy of remuneration and the equivalence of pay scales with those in compatible categories of other public services was important. Referring to Article 12(1)(a) of the Convention, which conferred unfettered powers to enter the workplace, he recalled that absolute power corrupted absolutely. Moreover, the requirements of compliance could be fully met if visits were regulated by senior officials in the ministry. The advancement of technology had brought a new dimension to the system of reporting compliance and of governance issues; physical record-keeping and inspections had given way to the e-filing of returns and e-governance. Online compliance reports provided sufficient material as a basis for the Government’s opinion about inspections, which would need to be carried out on a selective basis. As had been explained by the Government representative, he reiterated that there were no efforts to exclude workers from the coverage of any statute, but only to do away with excessive bureaucratic exercise by having recourse to technology. In light of these submissions, he hoped that the Committee would take a lenient view of the case.

The Government member of Japan believed that everyone could agree that labour inspection was essential for labour law compliance at the workplace and for worker protection. He noted the information provided by the Government that the scope of application of labour legislation had not changed and that the right and power of inspectors to enter workplaces freely was guaranteed in both law and practice. He encouraged the Government to make efforts, based on tripartite consultations and with ILO technical assistance, to improve labour law compliance at the workplace and to protect workers, while promoting economic growth and the creation of decent jobs.

The Worker member of Indonesia indicated that respect for and the implementation of labour rights were fundamental in creating decent working conditions. Due to the multiplicity of labour laws, the existence of a poorly integrated inspection system, the absence of adequate transport and communications facilities, and the geographical spread of establishments, inspection coverage was hugely difficult. Based on Indian Labour Bureau data on the 2012 Annual Review of the implementation of the Minimum Wage Act, 1948, inspectors had been expected in 2012 to cover an estimated 2,428 establishments each. He observed that labour inspection was thus largely incapable of ensuring workers’ rights. With regard to regulation, he indicated that a self-certification system had been introduced in a few states (such as Punjab, Gujarat and Maharashtra), making inspection mandatory every five years under a clutch of labour laws, provided that the employer had self-declared compliance with those labour laws. Self-certification had been implemented in certain sectors, such as the SEZs, IT and ITES, and National Manufacturing and Investment Zones (NMIZs). Moreover, in the case of SEZs, government responsibility had been shifted from the Labour Department (specialized) to the Development Commissioner (non-specialized). In some states, inspections were only carried in selectively covered sectors. In Uttar Pradesh, inspections could not be carried out without prior permission from a labour commissioner or a district magistrate. In some states, third-party accredited inspections were carried out. He denounced the Government’s intent to unilaterally amend almost all of the important labour laws relating to service conditions, wages, safety, industrial relations and social security. The withdrawal of labour inspection had been proposed and the introduction of self-certification, both of which were in violation of the Convention. No one would deny the importance of labour inspection in protecting workers’ fundamental rights and enabling the enforcement of labour legislation. India therefore needed to comply with the Convention.

The Government member of Fiji noted the allegations of the CITU that the Government was in violation of its obligations under the Convention when it announced in September 2014 the introduction of a computerized system for the identification of companies that would be inspected. However, he emphasized that such a decision had been taken with the aim of improving transparency and accountability in the labour inspection system. Despite the complexity of the Indian labour law system, it appeared that the Government was committed to the enforcement of such laws, including through criminal prosecution. He emphasized that the Government had also expressed its willingness to receive ILO technical assistance in order to ensure the compliance of its legislation with ILO Conventions. He called upon the Committee to give time and space to the Government to undertake reforms of its labour inspection system and encouraged the Government to avail itself of ILO technical assistance.

The Worker member of France indicated that, according to a 2014 report on global investments, published by the United Nations Conference on Trade and Development, India was the third most attractive country for foreign direct investment. However, it was far from being a paradise for workers’ rights. Governed by the Special Economic Zones Act, 2005, SEZs were really rights-free zones, where labour inspection held no sway. The law defined production units within SEZs as “Public Utility Services”, meaning strikes were illegal. The management of SEZs had been transferred from the Ministry of Labour to the Development Commission, which was responsible for ensuring that attracted sufficient investment and generated profits. She said that labour inspection was non-existent in SEZs, and that no legal action could be taken against an employer in the event of occupational injury or illness. Safety and health laws did not apply to SEZs. The system of self-certification, which over-simplified administrative procedures, prevented any supervision by the labour authorities. The situation was not without consequences for working conditions and unionization in SEZs. According to a report published jointly by the Centre for Research on Multinational Corporations and the India Committee of the Netherlands entitled Flawed Fabrics, occupational illnesses were increasing, wages were very low and the working week was 50 to 70 hours. The problem included psychological and sexual harassment, as well as dismissals without justification or compensation. Maternity protection was non-existent in SEZs, workplaces were unhealthy and workers were sometimes beaten. These conditions amounted in practice to modern slavery. Workers who were ill were fired without compunction and replaced by healthy workers. Workers had no written contract and subcontracting practices were widespread. In order to remain competitive on the global market, labour costs were being cut and the pressure to obtain orders from multinational enterprises in global supply chains was being transferred to workers, who were assigned daily production targets that were ever more demanding. Despite the proclamation in the ILO Constitution that labour was not a commodity, the fact that it was impossible to supervise working conditions in Indian SEZs seemed to suggest that that was exactly the premise on which global trade operated via supply chains.

The Government member of China expressed appreciation for the information provided by the Government and its goodwill and endeavour to create a favourable economic environment to generate decent employment. He observed that the amendments to the labour laws had been ongoing and, in this framework, encouraged the ILO to provide technical assistance to the Government. He believed that the introduction of the computerized system would help secure the independence and integrity of labour inspectors.

The Worker member of the Netherlands said that more labour inspection was needed, as the majority of workers in India were not covered by adequate labour inspection. The Government was facing many challenges, such as child labour, bonded labour, the lack of a minimum wage, as well as serious occupational safety and health risks in many sectors. However, the measures proposed by the Government undermined the capacity of labour inspectors to secure the enforcement of legal provisions relating to all of these challenges. The self-certification system differentiated between SMEs with fewer than 40 employees and larger companies. A system of self-certification without effective verification of the data as proposed for small enterprises, was not likely to provide reliable information. The majority of SMEs in India operated in the informal economy. For every registered small company, 17 were unregistered and would not therefore complete the self-certification form. Companies with fewer than 40 employees were not therefore covered by labour inspection. She emphasized that fraudulent practices had occurred when visits were announced. For example, she referred to testimonies of working children having to stay in the backroom when inspections had been announced and of workers being provided with safety gear during the inspection day only. Unannounced visits were necessary, also because in a complaints-based system of announced visits, the inspectorate could not guarantee the privacy of the complainant. Moreover, the Government proposed to replace inspectors by facilitators or advisers, which might undermine their authentic inspection function and the independent competence of inspectors to impose fines. In conclusion, she drew the Committee’s attention to the situation of workers in rural areas and in the informal economy who lacked the protection of the labour inspectorate. She called for labour inspection to be extended to those workers, including home-based workers and domestic workers.

The Government member of the Russian Federation indicated that he had carefully considered the report of the Committee of Experts and expressed appreciation for the information provided by the Government representative of India. He added that the labour inspection system in India, as it was now, could comply with the requirements of the Convention. The amendments to the labour legislation, which had been considered by the Committee of Experts, had gone through tripartite discussions with a view to improving and ensuring compliance with national legislation and increasing the efficiency and transparency of the labour inspection system. He welcomed the information provided by the Government that laws also applied to SEZs. He expressed his satisfaction with regard to the cooperation of the Government with the ILO and trusted that this cooperation would continue.

The Government member of the Bolivarian Republic of Venezuela welcomed the Government’s stated commitment to comply with Convention. He noted with satisfaction the information presented concerning strengthening the labour inspection system at the state and central levels. He observed that the legislative reforms proposed sought to create an environment that was conducive to economic progress and which promoted opportunities for decent work. Bearing in mind the Government’s positive stance and the efforts it had made, he considered that the Committee should take account of the positive aspects to be understood from the explanations and arguments the Government had presented. He trusted that the Committee would be objective and balanced in its conclusions, which would enable the Government to consider and evaluate them in relation to its compliance with the Convention.

The Government member of Bangladesh thanked the Government representative for the information provided on the application of the Convention and noted the progress made in developing its labour inspection system and the related legal framework for its implementation. He invited the Government to continue its efforts to promote labour rights through an effective labour inspection system and called on the ILO to provide the necessary technical assistance in this regard.

The Government member of Myanmar noted with satisfaction the detailed information and statistics provided by the Government representative on the labour inspection system, at both the central and provincial levels. She also welcomed the governance initiatives aimed at bringing transparency and accountability to the labour inspection system, without undermining the authority and responsibilities of the labour inspectorate. It was every government’s duty to safeguard the interests of workers while promoting a conducive working environment for inclusive and equitable growth. Noting the social security schemes adopted, she indicated that the legislative reforms proposed by the Government sought to create an enabling environment for economic progress and aimed to promote opportunities for decent jobs for its expanding labour force. The Government should be encouraged to continue its technical collaboration with the ILO. In conclusion, she invited the Committee to consider the information provided by the Government with regard to the observation of the Committee of Experts.

The Government member of the Islamic Republic of Iran indicated that the detailed information and statistics provided by the Government showed that considerable achievements had been made with regard to the labour inspection system. The Government had proposed a series of legislative reforms with the aim of creating an enabling environment for economic growth and job creation. He welcomed the fact that the Government had been working closely with the ILO to ensure that the legislative reforms were consistent with ILO Conventions. He endorsed the measures taken by the Government to improve its legislation, and encouraged the Government to continue on that path. In conclusion, he hoped that the information and clarifications provided by the Government would be taken into account by the Committee.

The Government member of Singapore welcomed the steps that India had proposed to demonstrate its commitment to the Convention. He noted that the proposed consolidation of labour laws did not exclude any workers from the purview of the laws and that the proposed amendments had been discussed with the tripartite stakeholders. The good governance initiative launched by the Government would improve labour enforcement in terms of transparency, accountability and ease of compliance. Moreover, the Government was committed to strengthening its labour framework through the recent drafting of its Labour Code in the areas of wages, industrial relations, safety and working conditions, social security and welfare with the technical assistance of the ILO. He encouraged the Government to continue to its efforts to ensure adequate enforcement, including inspection, and called upon the Government to continue to seek further ILO assistance in fulfilling its obligations under the Convention.

The Government member of Ghana, while referring to the Government’s statement that it had not enacted any law to exclude certain workers from the purview of labour inspection, considered it to be a clear indication of the Government’s commitment to provide comprehensive social protection to all workers. He urged the Government to continue working in collaboration with the ILO and to adopt amendments to its labour legislation in order to meet the current development challenges. The Government should continue to engage in discussions with stakeholders to find solutions to the grey areas of the Acts of 1948 and 1986, as identified by the Committee of Experts.

The Government member of Kuwait, also speaking on behalf of the member States of the Gulf Cooperation Council, valued the efforts made by the Government and the social partners to implement the Convention and welcomed the measures already adopted. The Convention constituted the framework within which countries adopted new labour inspection systems that were essential for the correct implementation of international labour standards. He invited the Government to avail itself of ILO technical assistance and to continue its efforts to implement the Convention.

The Government representative reiterated the Government’s commitment to complying with the Convention. Its intention to engage in ILO technical assistance was essentially to ensure that the legislative process remained consistent with the Convention. India was also participating in an ILO study on enhancing labour administration performance specifically focussing on the capacity of labour administration to promote compliance with labour laws. Many of the observations made during the discussion were more apprehensions than actual facts. Turning to the proposed bills, which were still under consultation, he emphasized that inputs and advice from various stakeholders had been considered at the time of analysing the bills. He gave assurances that the obligations arising out of the Convention would be fully taken into consideration when finalizing the bills. In relation to labour inspection in SEZs, he said that SEZs were not void of labour inspection. For example, during the labour inspection conducted in the SEZs of Noida, which consisted of 27 units, the labour inspectors had detected 15 violations of labour issues and penalties had been imposed on ten units in SEZs. Referring to the allegation of the conflict of interest concerning the duties of the Development Commissioner in SEZs and his inspectorates, he clarified that they were government officials whose duty was not only to ensure investment in SEZs, but also to maintain industrial relations and to ensure compliance with labour laws.

Another Government representative emphasized that India was a country characterized by a high population, multi-plurality, multi-lingualism and multi-ethnicity. These characteristics, along with its federal government structure, made governance difficult and complex. However, several initiatives in the area of labour had taken place since the new Government took office. Labour inspections were now carried out in a free, fair and transparent manner. All information regarding the administration of labour legislation was made available to the public, which would enable any citizen to question the decisions of the Government, as well as issues related to the inspections conducted. He emphasized that inspection reports were placed on the Government’s public website. However, labour inspectorates were understaffed. The Government was therefore making use of technology, and more work was therefore carried out through technology than the mere presence of inspectors. Turning to corruption issues, he indicated that inspectors were accountable for their acts and that the conduct of labour inspection according to principles of transparency was not tantamount to a violation of the independence of inspectors. He added that the Cabinet had recently approved a ban on child labour. No child under the age of 14 could be employed, which constituted a big step forward for the country. Finally, with regard to challenges in the informal sector, he indicated that the Government was in the process of issuing a smart card for each worker in the informal economy, which would give them access to basic life, health and pension insurance. In conclusion, he hoped that with ILO technical assistance the Government would be able to achieve progress and provide safe and secure working conditions for each worker in the country.

The Worker members indicated that this was an important case, as many workers were affected by the decisions of the Government on the functioning of the labour inspection system. It was clear that self-certification schemes were not effective and constituted a flagrant violation of the Convention. The elimination of the so-called “Inspector Raj” had resulted in the suppression of many labour inspectors. Turning to SEZs, they observed that labour inspection functions in SEZs were delegated to zone authorities which did not have an interest in enforcing labour laws. SEZs had therefore become union free zones where fundamental rights and labour standards were violated and impunity reigned. They added that in some SEZs health and safety inspections had been privatized, which gave rise to concern about the adequacy of inspections and the risk of industrial catastrophes. While recognizing the Government’s efforts to attract foreign direct investment, it could not be tolerated that the method adopted was based on a promise not to enforce labour laws effectively, which had already been the strategy of previous governments. The message was therefore sent out to workers that their fundamental rights were not worth protecting. This was something of an invitation to other governments to take inspiration from this approach. In conclusion, the Government should be urged to ensure that the amendments made to the labour laws were in full compliance with the Convention and were developed in consultation with the social partners. To this effect, it should avail itself of ILO technical assistance. The Government should provide a comprehensive report to the 2015 session of the Committee of Experts.

The Employer members observed that this discussion demonstrated the fundamental need for social dialogue covering the concerns addressed by the Committee of Experts with regard to the impact of the self-certification scheme; the guarantee that workplaces could be inspected as often and as thoroughly as necessary to ensure effective application of the legislation, including the protection and promotion of the principle of the free initiative of labour inspectors to enter any workplace liable to inspection; labour inspections in SEZs and the impact of dispensations conceded by the development commissioner on labour inspection; and the needs of the informal sector. To this effect, the Government should avail itself of ILO technical assistance for the development of a system of labour inspection as set forth in the Convention, taking into consideration the federal government structure of the country. In this regard, special attention should be paid to the implementation of Articles 10 and 16 of the Convention concerning the adequacy of the number of inspectors and the frequency of inspections. The Government should be requested to provide to the 2015 session of the Committee of Experts information on relevant statistics, including SEZs, in order to show whether the number of inspectors at the disposal of the central and state government inspectorates was sufficient to ensure compliance with the Convention. It should also provide information on the current proposals for amendments to labour legislation and its regulations, as well as information on all laws and regulations, including those relating to health and safety, that required inspection of workplaces covered by the Convention.

Conclusions

The Committee noted the oral and written information provided by the Government representative on the issues raised by the Committee of Experts and the discussion that ensued. They related to: the need for a sufficient number of labour inspectors and adequate labour inspections at the central and state levels including in the formal and informal economy; the review and consolidation of a number of labour laws; the introduction of a “self-inspection scheme”; the need to ensure unrestricted access of labour inspectors to workplaces without prior authorization; the free initiative of labour inspectors to conduct labour inspections without previous notice considering the generation of computerized lists identifying the companies to be inspected; the effective application of labour laws in SEZs and the IT and ITES sectors; the effective enforcement of sufficiently dissuasive penalties; and the availability of statistics as required under the Convention to enable an assessment of the functioning of the labour inspection system.

The Committee noted the information and explanations provided by the Government representative that there were no proposed legislative amendments to exclude a large number of workers from the protection of basic labour laws; that the inspection system did not provide for limitations in terms of the number and thoroughness of inspections and the enforcement of the legal provisions, but that this system was designed to increase accountability and reduce arbitrariness. Self-certification by employers was an additional means to ensure compliance, but was not a substitute for labour inspections. The Government also indicated that the Special Economic Zones Act, 2005, did not preclude the application of labour laws in SEZs and that the Development Commissioner responsible for their enforcement had the necessary independence despite his additional role of attracting foreign investment. Moreover, the IT and ITES sectors were subject to labour inspections in the same way as other sectors. The Committee also noted the Government’s indications that the ILO technical assistance had been highly appreciated in the framework of the current legislative reforms and that it was willing to continue to avail itself of ILO technical assistance.

Taking into account the discussion, the Committee requested that the Government:

• Provide, in relation to the Convention, the following information before the next meeting of the Committee of Experts in 2015:
  • 1. Detailed statistical information covering at the central and state levels all the matters set out in Article 21 (including the number of staff of the respective labour inspectorates) with a view to demonstrating compliance with Articles 10 and 16 of the Convention and specifying:
    • (a) as far as possible the proportion of routine to unannounced visits; and
    • (b) information in relation to the proportion of routine and unannounced visits in all SEZs.
  • 2. An explanation as to the arrangements for verification of information supplied by employers making use of self-certification schemes.
  • 3. Information explaining the division of the responsibility of labour inspection between the state and central spheres for each law and regulation in question.
  • 4. Information explaining, by reference to the relevant statistics, the extent to which the number of labour inspectors at the disposal of central and state government inspectorates are sufficient to ensure compliance with Articles 10 and 16 of the Convention.
  • 5. Detailed information on compliance with Article 12 of the Convention with regard to access to workplaces, to records, to witnesses and other evidence, as well as the means available to compel access to such. Provide statistics on the denial of such access, steps taken to compel such access, and the results of such efforts. This includes SEZs, the information for which should be separated from general information.
  • 6. Detailed information on 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.
• Review, with social partners, the extent to which delegation of inspection authority from the labour commissioner to the development commissioner in SEZs has affected the quantity and quality of labour inspections.
• In consultation with the social partners, ensure that the amendments to the labour laws undertaken at the central or state level comply with the provisions of the Convention, making full use of ILO technical assistance. Additionally, provide detailed information explaining all current proposals to labour laws and regulations that impact upon the system of labour inspection at the central and state level.

The Government representative said that the Government had taken note of the Committee’s conclusions. The Government would provide all the requested information and statistics for the Committee of Expert’s next session. He reiterated the Government’s commitment to all ILO Conventions, particularly Convention No. 81, to continue to strive to achieve decent work conditions for all workers.