Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Convention (n° 81) sur l'inspection du travail, 1947 - Sénégal (Ratification: 1962)

The Committee notes the observations made by the National Federation of Independent Trade Unions of Senegal (UNSAS) on the application of this Convention, received by the ILO on 2 June 2010.

Strengthening of the labour inspection system through the creation of a medical labour inspection service. Further to its previous comments in which it noted that a medical labour inspection service had been institutionalized by Decree No. 2006–1253 of 15 November 2006, the Committee notes that this body has still not been set up. The Committee would be grateful if the Government would indicate the reasons for the delay in implementing the text creating a medical labour inspection service and keep the Office informed of any concrete measures taken to give effect to that text.

Article 13(2)(b), of the Convention. Measures with immediate executory force in the event of imminent danger to the health or safety of the workers. In its previous comments, the Committee noted the need to revise the legislation to give full effect to Article 13(2)(b), of the Convention. It notes that, according to the Government, Decree No. 2006–1255 of 15 November 2006 does not prevent labour inspectors from adopting measures with immediate executory force in the event of imminent danger to the health or safety of the workers, including where no violation has taken place. Referring in this regard to sections 6–11 (concerning enforcement orders) and sections 18–22 (concerning urgent procedures and work stoppages) of that Decree, the Government states that inspectors have the power to adopt such measures regardless of the type of activity carried out by the enterprise concerned, but that it is nonetheless considering updating the Decree. However, the Committee notes that the labour inspector may apply to the judge for an urgent procedure under section 18 only in cases where a worker’s physical integrity might be seriously undermined as a result of a failure to observe the occupational safety and health legal provisions and regulations. Furthermore, under sections 19 and 20 of the same Decree, the labour inspector may order a work stoppage in the event of a serious and imminent danger resulting from a shortcoming in or failure of protection only in the case of establishments in which the staff are involved in construction work, public works or any other works on buildings, and only where the situation constitutes a violation of the legal provisions in force. The Committee is bound to emphasize that, in accordance with the letter and spirit of Article 13(2)(b), of the Convention, the exercise of this power should not be subject to any distinction based on the type of activity or work concerned. It requests the Government to refer to paragraph 112 of its 2006 General Survey on labour inspection.

The Committee therefore requests the Government once again to take steps to amend the legislation so that it is in full conformity with Article 13(2)(b), of the Convention, according to which labour inspectors should be able to order or recommend measures with immediate executory force in the event of imminent danger to the health or safety of the workers, regardless of the branch of activity, the type of work carried out and whether or not there has been a violation of the legal provisions or regulations.

Articles 18 and 21(e) of the Convention. Adequate nature and effective enforcement of penalties for violations. The Committee notes the figures on the action taken by labour inspectors (written observations (154), enforcement orders (20), reports (0), interruption of works (0) and urgent procedures (0)). It notes that the period covered is not indicated, which makes it impossible to assess the volume of activity of the inspection services over time or the type of violations reported. Furthermore, these figures are of no use in determining the action taken with a view to improving the level of application of the relevant legislation. The Government’s indication that four enforcement orders were issued in 2008 provides no further clarification and is not accompanied by any information establishing that penalties were imposed on the persons responsible for the violations reported. The Committee notes with concern that, according to the Government, no measures to update the scale of penalties are envisaged and that the only text applicable in this regard is Decree No. 62–017 PC/MFPT/DGTSS/TMO of 22 January 1962. Further to its previous comments concerning the need to ensure the dissuasive nature of the penalties, the Committee requests the Government to refer to paragraphs 291–306 of the abovementioned General Survey and to take measures as a matter of urgency to ensure the establishment of an effective system of penalties taking into account the nature and seriousness of the violation committed, as well as, according to the circumstances, the employer’s general attitude towards its legal obligations. The Committee requests the Government to describe the measures taken and to provide the most detailed figures possible on the violations reported, the measures implemented by labour inspectors and their impact in relation to the application of the legislation and occupational safety and health requirements.

Article 5(a). Cooperation between the labour inspection services and the justice system. The Committee notes that, according to the Government, the cooperation between the labour inspection system and the judicial system is in the process of being strengthened with a view to improving the processing of cases. The Government mentions, however, the difficulties encountered by the inspection services in accessing the registration system for court decisions, but points out that, in response to the Committee’s 2007 general observation, educational and informative training has been provided for labour inspectors and judges with a view to increasing awareness of the cooperation between the systems.

The Committee notes with regret that the information provided by the Government remains vague with regard to the content of the training and insufficient for the purpose of making any assessment of the impact of the measures taken. Furthermore, it is not even indicated whether measures aimed at facilitating access to court decisions by the labour inspectorate are envisaged.

Referring to its 2007 general observation, the Committee requests the Government to provide detailed information on the measures implemented to promote effective cooperation between the labour inspection services and the justice system, as well as on the impact of these measures in terms of court decisions.

Articles 6, 7, 10 and 11. Labour inspectorate staff, status and qualifications; means available for carrying out inspection duties. The Committee notes that the labour inspectorate is currently staffed by 57 inspectors and 63 controllers covering the entire country. The Government indicates in its report that the pay and career prospects of inspectors is a matter under consideration. According to the UNSAS, the working conditions of labour inspectors and controllers are clearly inadequate in view of the duties that they are required to carry out and they lack the necessary means of transport to carry out regular inspections of establishments. The Committee requests the Government to keep the ILO informed of the process of adopting the status and conditions of service of labour inspectors, as well as of any measures taken in this regard. It would be grateful if the Government would in any case take measures to ensure that the functions of labour inspector and controller are sufficiently appealing to attract and retain qualified persons within the inspection services and that the conditions of service of inspection staff are at least equivalent to those applicable to other categories of public officials with comparable duties and responsibilities, such as finance and tax inspectors.

The Committee also requests the Government to take the necessary measures to ensure that labour inspectors and controllers have the material resources and transport facilities required to carry out their duties and to keep the Office informed of any progress made in this regard, as well as any difficulties encountered.

Article 12(1)(a) and (2). Investigation powers of inspectors. In this regard, the Government refers to its reply contained in its previous report. The Committee is therefore bound to repeat its previous comments as follows:

The Government specifies in its report that, in both law and practice, labour inspectors and controllers are entitled to enter freely any workplace liable to inspection at any hour of the day and night, irrespective of whether or not collective work is being carried out there, as their right to enter an establishment does not depend on the nature of its work. However, according to section L.197(1) and (2) of the Labour Code, “labour and social security inspectors shall be authorized to enter freely, at any hour of the day, any workplace liable to inspection ... ” and “at night, in premises where collective work is being carried out”. The Committee therefore feels bound to request the Government once again to take the necessary measures to bring the labour legislation into conformity with Article 12(1)(a), of the Convention, to ensure that inspectors might freely enter establishments liable to inspection, irrespective of their type of activity, and not only during the day but also at night.

In its previous comments, the Committee had also requested the Government to amend section L.197(1), in fine, which states that “the head of the enterprise or establishment, or his representative, may accompany the labour and social security inspector during the inspection”, because it hinders the freedom of action to which the inspector should be entitled during his visit. While noting the Government’s comments that the fact of being accompanied during an inspection by the employer or his representative is a legal option open to the labour inspectors and controllers, the Committee nevertheless points out that the actual wording of this section of the Labour Code gives the choice to the employer (or his representative) and not to the inspector, although it should be for the inspector to decide whether or not to be accompanied during his visit in the exercise of his duties, as prescribed by the Convention. The Committee therefore requests the Government once again to take the necessary measures to amend the Labour Code so that the labour inspector might be authorized to decide whether the employer should accompany him on his visit or not, and that he might exercise his right to interrogate the staff alone, pursuant to Article 12(c)(i) of the Convention, thereby guaranteeing the respect of the principle of confidentiality with respect to the workers (Article 15(c)). Finally, noting that, according to the Government, the labour inspector is free to decide whether he notifies the employer or not of his visit, the Committee requests it to ensure that this right, as defined under Article 12(2) of the Convention, is given a legal basis.

Articles 10, 20 and 21. Basic information required to assess the functioning of the labour inspectorate in practice: statistics of industrial and commercial workplaces liable to inspection and number of workers covered. In its 2009 general observation, the Committee stressed the importance of keeping a register of the workplaces and enterprises liable to inspection, containing data on the number and categories of workers employed therein. The Committee requests the Government to take due account of its 2009 general observation and to provide the Office with information on the measures taken to ensure that a register of the workplaces liable to inspection is created as well as on the results achieved.

Articles 20 and 21. Annual report on the labour inspection activities. The Committee notes the preparation of an annual report by the labour statistics service. It reminds it of the dual obligation to ensure that the central labour inspection authority publishes an annual report and transmits that report to the ILO, as provided for by the above Articles of the Convention. The Committee requests the Government to take every measure necessary to ensure the publication and communication of such report by the central inspection authority within the prescribed time limits (in Article 20) and further reminds it that this report should contain the information required on the matters listed in Article 21. Part IV of the Labour Inspection Recommendation, 1947 (No. 81), contains very useful guidance on the manner in which this information could be presented so as to reflect, as faithfully as possible, the functioning of the labour inspectorate, including its strengths and weaknesses, and provide a basis for determining the budgetary, organizational and educational measures required to enhance its effectiveness.