Chapter IV. Powers and obligations of labour inspectors

I. Inspection powers

156. In order to give labour inspectors the necessary legal means to enable them to carry out their duties, Conventions Nos. 81 and 129 both provide for certain powers to be conferred on them. These are: (a) supervisory powers -- the right of free entry to establishments liable to inspection and the right of free inspection; and (b) powers of injunction enabling the inspectors to order the necessary measures to be taken (or to cause such orders to be issued) to remedy defects observed during an inspection.

A. Supervisory powers

(a) Right of free entry

(i) Establishments officially subject to supervision by the labour inspectorate

157. In accordance with Article 12, paragraph 1(a), of Convention No. 81 and Article 16, paragraph 1(a), of Convention No. 129, inspectors with proper credentials must be authorised to enter workplaces liable to inspection, without previous notice, at any hour of the day or night. These provisions aim expressly at giving labour inspectors the possibility of supervising, without prior warning and at any time, establishments liable to inspection.

158. The unexpected nature of the inspection visit is the best guarantee of effective supervision. The inspector must be able to enter undertakings without warning the employer or his representative in advance, especially when it is to be feared that prior notice might result in the concealment of an infringement. Subject to certain exceptions, (Endnote 1) all countries recognise the principle of the inspection being carried out without prior warning, whether this is expressly stated in the texts (Endnote 2) or is part of the inspector's general terms of reference.

159. Once they have reached the workplace, in accordance with Article 12, paragraph 2 of Convention No. 81, inspectors must notify the employer or his representative of their presence "unless they consider that such a notification may be prejudicial to the performance of their duties". Convention No. 129, which contains a similar provision in Article 16, paragraph 3, further requires "workers or their representatives" to be notified also. Although it is very difficult for the inspector not to notify the employer of his arrival in the workplace -- even if only for practical reasons -- it is unusual for laws and regulations to make this notification compulsory. (Endnote 3) In the vast majority of countries the inspector is free to decide for himself.

160. With regard to the time of the inspection, laws and regulations in several countries, in accordance with Conventions Nos. 81 and 129, establish the inspectors' right to make their visit either "at any hour of the day or night" (Endnote 4) or, more generally, "at any time". (Endnote 5)

161. In several countries, however, inspection is authorised only during working hours or while the undertaking is in operation. (Endnote 6) Thus restricted, the inspectors' power of entry does not enable them to ascertain whether workers are being unlawfully employed outside normal working hours. In addition, it is often easier to check the state of certain machines when they are not in use and therefore more effective to inspect them when the undertaking is not operational.

162. Moreover when, as is the case in some countries, (Endnote 7) the inspectors' powers of entry are defined in general terms without reference to the actual hours of inspection, it would be desirable for laws and regulations to be supplemented in order to establish clearly the inspectors' right to enter undertakings "at any hour of the day or night" in accordance with the above-mentioned provisions of Conventions Nos. 81 and 129. This aim might be achieved, for example, by means of administrative circulars or instructions.

163. The principle according to which labour inspectors must be empowered to enter establishments liable to inspection at any time must be applied sensibly. That is why Paragraph 9 of Recommendation No. 133 recommends that the activity of labour inspectors during the night should be limited to those matters which cannot be effectively controlled during the day. In this line of thought, laws and regulations in many countries provide for labour inspectors to have the right to enter establishments "at any reasonable time". (Endnote 8)

164. In so far as it is up to the inspector to decide whether or not a night visit is "reasonable" and this right is clearly recognised in the country's administrative or legal practice, a clause to this effect does not appear to be contrary to the spirit of the Conventions on labour inspection. Experience has shown, moreover, that even in countries where the laws and regulations establish the right of inspectors to enter "at any hour of the day or night", inspection visits generally take place during working hours, those outside working hours being confined to special cases such as those mentioned in paragraph 161.

(ii) Other premises

165. The definition of undertakings subject to inspection varies according to the scope of the various systems of labour inspection. (Endnote 9) Various means, such as the compulsory notification of undertakings for registration purposes, enable the said undertakings to be identified. (Endnote 10) There may be undertakings that genuinely believe themselves to be exempt from inspection and which have not been registered because there has been no notification to the competent authorities. It is in order to deal with this type of situation that Convention No. 81, in Article 12, paragraph 1(b), and Convention No. 129, in Article 16, paragraph 1(b), specify that inspectors must be empowered to enter by day any premises which they may have reasonable cause to believe to be liable to inspection. The above-mentioned provisions of Conventions Nos. 81 and 129 do not generally run into implementation difficulties. The few divergencies that have been noted in national laws and regulations seem to be more a matter of form than of any intention to reduce the powers of the inspector, given the general nature of the mission entrusted to him.

(iii) Private home of the operator of the undertaking

166. Because of the special situation of agriculture, where the private home of the operator of the undertaking is likely to be a workplace, Article 16, paragraph 2, of Convention No. 129 establishes a reservation vis-à-vis inspectors' powers of entry by specifying that labour inspectors may not enter the private home of the operator of an agricultural undertaking "except with the consent of the operator or with a special authorisation issued by the competent authority".

167. Although the information furnished by governments is not always explicit on this point, it would seem that, where they exist, constitutional guarantees establishing the principle of inviolability of the private home should make it possible to ensure the observance of this provision. Several governments have stated that inspection staff were not authorised to enter private homes on an agricultural undertaking or that they could do so only in the circumstances provided for in the Convention. (Endnote 11) Some social laws and regulations also contain provisions to this effect. (Endnote 12)

(iv) Guarantee of the right of free entry

168. Labour inspectors' right of free access is reinforced by laws and regulations through certain safeguards, either preventive or punitive in nature, which stress the importance of this right. In the first category, some laws and regulations provide that the labour inspector has the right to be accompanied on an inspection visit by a police officer. (Endnote 13) Sometimes this right stems from more general provisions requiring the authorities to assist the staff of the inspection services. (Endnote 14) In some countries, moreover, inspectors have the powers of police officers. (Endnote 15) The second category of safeguards consists of the statutory penalties laid down for impeding labour inspectors in the performance of their duties and will be considered in Chapter VI under penalties.

(b) The right of free inspection

169. Once they are on the premises of the undertaking, labour inspectors are entitled, as stipulated in Article 12, paragraph 1(c), of Convention No. 81 and Article 16, paragraph 1(c), of Convention No. 129 to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed. To this end, they must be able to interrogate the employer or the staff of the undertaking, to require the production of certain documents, to enforce the posting of certain notices and to remove for the purposes of analysis samples of materials used.

(i) Interrogation

170. In accordance with Article 12, paragraph 1(c)(i), of Convention No. 81 and Article 16, paragraph 1(c)(i), of Convention No. 129, laws and regulations in most countries contain provisions conferring on labour inspectors the right to interrogate both the employer and the staff of the undertaking in the course of an inspection visit. Some laws even provide that the labour inspector may call the employer and staff of the undertaking to his office. (Endnote 16) As the Committee emphasised in its previous survey, (Endnote 17) it is important that inspectors should be able to avail themselves of their powers in respect of interrogation either alone or in the presence of witnesses, as is mentioned explicitly in many legal provisions. (Endnote 18) It is also essential, moreover, although not always specified by law, that this power of the inspectors should be extended in practice to other persons in the undertaking, as provided for in Convention No. 129. (Endnote 19)

(ii) Inspection of documents

171. In the vast majority of countries, inspectors have the right to require the production of books, registers and other documents whose keeping is prescribed by law in order to see that they are in conformity with the legal provisions, as is stipulated in Article 12, paragraph 1(c)(ii), of Convention No. 81 and Article 16, paragraph 1(c)(ii), of Convention No. 129.

172. On the other hand, provision is not always made for the inspector to be able to make extracts from such documents (Endnote 20) although such a right may arise from the powers attributed in general terms to inspectors for carrying out their duties. (Endnote 21)

(iii) Enforcement of the posting of notices

173. The posting of certain notices such as works rules, time schedules, instructions for the use of certain dangerous equipment, etc. is often prescribed by national laws and regulations with a view to informing employers and workers of their respective rights and duties and to preventing any disputes in the matter.

174. Article 12, paragraph 1(c)(iii), of Convention No. 81 provides that the inspector is empowered "to enforce the posting of notices required by the legal provisions". Laws and regulations in several countries contain provisions expressly giving effect to this provision in the Convention, (Endnote 22) although this is not always the case. It may nevertheless be considered that such a right derives, failing any specific provisions, from the task entrusted to the inspection services of verifying compliance with labour regulations in general, including the requirements relating to the posting of notices. (Endnote 23) This is probably one of the reasons why Convention No. 129 has not taken up the corresponding provision in Convention No. 81 in respect of the posting of notices, apart from the fact that agricultural workers do not generally work on the premises but are dispersed all over the estate.

(iv) Inspection of materials and substances used

175. In accordance with Article 12, paragraph 1(c)(iv), of Convention No. 81 and Article 16, paragraph 1(c)(iii), of Convention No. 129, inspectors must be empowered to take or remove for purposes of analysis samples of products, materials and substances used or handled, subject to the employer or his representative being notified.

176. The importance of these provisions, which have a double aim, must be emphasised: firstly, the inspector must check that certain substances that are forbidden by laws and regulations are not being used in the undertaking; secondly, he may, where he has doubts as to the harmful nature of certain less familiar products, take samples away to have them analysed.

177. In so far as the taking of samples constitutes an infringement of the employer's property rights, entitlement to do so must be expressly stipulated in a legal text, as is the case in many countries. However, it is not always possible from the information furnished by governments to ascertain whether this power of the inspectors is in fact established by a specific provision. (Endnote 24)

178. In view of the discretionary powers of inspectors as regards the taking of samples, certain guarantees have to be observed. In particular, the employer or his representative must be notified. This guarantee is found in the laws and regulations of most countries which contain a provision concerning the taking of samples. But even where no such obligation is provided for, one can imagine that inspectors will not fail to keep the employer informed even if only in the interests of good relations. (Endnote 25) In order to avoid any subsequent disputes, the legislation in some countries provides that the sample must be divided into three, the first part being handed to the employer or his representative, the second retained by the inspector for future comparison and the third to be analysed. (Endnote 26)

B. Powers of injunction

179. An inspection service lacking the necessary powers to enjoin undertakings to take the measures called for to remedy defects observed during an inspection visit would not be very effective. That is why both Convention No. 81 and Convention No. 129 seek to endow labour inspectors with certain powers of injunction. These powers are of two kinds. on the one hand, in accordance with Article 13, paragraph 2(a), of Convention No. 81 and Article 18, paragraph 2(a), of Convention No. 129, (Endnote 27) inspectors must be empowered to make or to have made orders requiring such alterations to the installation or plant, to be carried out within a specified time-limit, as may be necessary to secure compliance with the legal provisions relating to the workers' safety. On the other hand, in accordance with paragraph 2(b) of Article 13 of Convention No. 81 and Article 18 of Convention No. 129, inspectors must be able to order the taking of measures with immediate executory force in the event of imminent danger to the health or safety of the workers. Convention No. 129 specifically stipulates that these measures must be able to include the halting of work. It should be noted that the inspector must be empowered to order the taking of measures with immediate executory force whether or not a legal provision has been infringed.

180. To take account of the differences noted in the laws and regulations and administrative practice of States, both Conventions authorise the waiving of the above general rule by stipulating that "where the procedure ... is not compatible with the administrative or judicial practice of the Member, inspectors shall have the right to apply to the competent authority for the issue of orders or for the initiation of measures with immediate executory force".

(a) Formal notice with immediate effect

181. The power to order measures with immediate executory force in the event of imminent danger to the life or health of workers is provided for in the laws and regulations of several countries though not to the same degree as formal notice with a time-limit. (Endnote 28)

182. In an increasing number of countries the laws and regulations confer directly on the inspectors, (Endnote 29) or in some more limited cases their superiors, (Endnote 30) the right to order measures with immediate executory force in case of imminent danger to workers' health or safety. Where the laws and regulations do not endow inspectors with direct powers of injunction the decision may, as authorised by paragraph 3 of Article 13 of Convention No. 81 and paragraph 3 of Article 18 of Convention No. 129, be incumbent on other authorities to whom the inspector has to apply. Frequently this is a judicial authority. (Endnote 31) In cases where the powers of injunction lie with the courts, it is important that the inspectors should be able to obtain a decision very quickly. In this respect it is interesting to note that the laws and regulations in some countries provide that the judicial authority may order the taking of the measures applied for without having heard the employer. (Endnote 32)

183. Although in some countries the nature of the measures with immediate executory force is not defined, (Endnote 33) the laws and regulations in several countries contain specific provisions on the matter. For example, to safeguard the workers' safety many laws provide for machinery, equipment and installations to be taken out of service, for work to stop and for establishments to be partly or completely closed. (Endnote 34)

(b) Formal notice with a time-limit

184. Many laws also provide for the power to give employers notice to take, within a prescribed time-limit, the measures necessary to remedy the defects observed during an inspection visit. Often, the competent authority (inspector, judicial authority, or other) is the same as in the case of formal notice with immediate effect. However, in some countries, inspectors are themselves authorised to issue a notice to take measures within a time-limit, even though they cannot directly order immediate executory measures for which they would have to apply to judicial or administrative authorities. (Endnote 35) As a rule, the notice must be given, or at least confirmed, in writing. The time-limit is generally left to the discretion of the inspectors who in setting it will take account of the seriousness of the situation and of the importance of the work to be carried out, although some regulations establish minimum time-limits.

185. In some countries, however, in certain sectors at least, no procedures exist whereby the employer can be given formal notice that he must, within a certain time-limit, make the necessary changes to remedy defects that have been noted. (Endnote 36)

(c) Appeals against inspectors' decisions

186. Laws and regulations generally provide the possibility of appealing against decisions taken by inspectors within the framework of their powers of injunction in order to avoid misuse of these powers. Sometimes the appeal is made to the senior inspection authority, (Endnote 37) and in other cases to a judicial authority. (Endnote 38) The methods of appeal and the period within which they may be made vary according to the country.

187. The effect of the appeal is sometimes established in the text itself, which provides for the inspectors' powers but frequently general rules of procedure are applied, which explains why information on the subject is not always available. In the case of formal notice with a time-limit, the appeal often has a suspensive effect, which appears to be justified by the fact that the measures ordered by the labour inspector are not, in this case, of an emergency nature. (Endnote 39) But in the case of measures with immediate executory force, the Committee considers that the appeal should not have a suspensive effect; this is explicitly stated in certain laws and regulations. (Endnote 40) As the Committee has had occasion to emphasise in certain specific cases, the injunction with immediate effect is designed to protect workers against imminent danger; this aim cannot be achieved if the execution of an injunctive measure ordered by an inspector can be postponed by the lodging of an appeal.

(a) Notifying the employer and workers' representatives

188. Article 18, paragraph 4, of Convention No. 129 provides that "the defects noted by the inspector when visiting an undertaking and the orders he is making or having made ... shall be immediately made known to the employer and the representatives of the workers".

189. This provision aims at associating the workers' representatives in the supervisory process so that they may exert a certain degree of pressure and thus avoid delay in the execution of the measures ordered by the inspector. The provision takes account of the special character of agricultural undertakings, which are often at some distance from the inspectorate's offices, and could in fact be usefully applied in other sectors of activity.

190. On the whole, national laws and regulations provide more or less explicitly that defects noted in the course of an inspection visit must be notified to the employer or his representative. However, it has not always been possible, from the information available, to determine whether the workers' representatives were also to be informed. It may nevertheless be assumed that the inspector will inform the representatives of safety and health committees or safety delegates, where they exist, in the course of his discussions with them, as is explicitly laid down in certain regulations. (Endnote 41) Furthermore, the laws and regulations in several countries prescribe that the findings of inspection visits must be recorded in a special register that is to be kept in the undertaking for consultation by inspectors. (Endnote 42) Where workers' rep-representatives have access to this register, the provisions of paragraph 4 of Article 18 of Convention No. 129 can be considered to have been respected. Workers could also be given information by the posting of notices, as the law of one country provides. (Endnote 43) One government, however, has stated that defects noted by the inspectors were not normally brought to the attention of the workers' representatives. (Endnote 44) Difficulties have also been encountered on this point by some governments bound by Convention No. 129. (Endnote 45)

191. Articles 12 and 13 of Convention No. 81 and Articles 16 and 18 of Convention No. 129 concerning the powers of inspectors are of fundamental importance. In this respect the information available shows that although in very many countries the inspectors are endowed with the necessary powers, in others the laws and regulations give only partial effect to these provisions. It is nevertheless encouraging to note that since the last General Survey several states bound by one or other of these instruments have taken measures to ensure their implementation on these points following comments made by the Committee. (Endnote 46)

II. Obligations of inspectors

192. As a balance to the extended powers conferred on inspectors, it is only normal that they should have certain obligations. To maintain their impartiality and independence they are forbidden to have interests in the undertakings placed under their supervision (obligation of detachment). Moreover, they have obligations of discretion in respect both of the undertaking and employers (professional secrecy) and of the workers (discretion as to the source of complaints). These obligations are stipulated in Article 15 of Convention No. 81 and Article 20 of Convention No. 129, subject to such exemptions as national laws and regulations may prescribe.

A. Detachment

193. Both Article 15(a) of Convention No. 81 and Article 20(a) of Convention No. 129 provide that labour inspectors are prohibited from having any direct or indirect interest in the undertakings under their supervision. The importance of the principle of the detachment of labour inspectors is generally recognised by governments. Some socialist countries have nevertheless stated that these provisions have no relevance in view of the economic system in force. (Endnote 47)

194. In most countries, inspectors are prohibited from having interests in the undertakings under their supervision by specific provisions governing the labour inspection services, although the general rules of the public service may also contain provisions applicable in this field. (Endnote 48) Many countries have adopted wording that is identical or similar to that of the labour inspection Conventions. (Endnote 49) Others, on the contrary, list cases of prohibited interest. (Endnote 50) These include participation in the management of the undertaking, either directly or through another party, the acquiring of shares or financial interests or even, as is the case in some countries, having an interest in the use of a patent (Endnote 51) or a trade mark. (Endnote 52) This latter method has the advantage of enabling inspectors and the competent authority to have a clearer idea of the cases of "interest" that are prohibited.

195. It would be desirable for measures to be taken to verify that inspectors are complying with their obligation of detachment. Only a few governments have sent information in this respect. In some countries the inspector, like all other officials must, upon appointment, inform the competent authority of all his financial interests in the undertakings of the country. If the authority considers that the interests might come into conflict with the official's public duties or might have any influence on his duties, it will require him to divest himself of these interests to such extent as it may direct. (Endnote 53) In another country it is ascertained, when duties are being assigned among inspectors, that the latter have no direct or indirect link with the undertakings placed under their supervision. (Endnote 54)

196. In the event of breach of duty by inspectors, as public officials they are normally subject to disciplinary penalties which, if they refuse to divest themselves of the prohibited interests, should be able to result in their dismissal. Specific provisions to this effect are sometimes included in laws and regulations. (Endnote 55) In some countries the laws and regulations provide that an inspector must not inspect an undertaking in which he has an interest. (Endnote 56) Although not explicitly stated in the labour inspection Conventions, it goes without saying that the obligation of detachment extends to offers of gifts or services made by employers or workers. As a rule, acceptance of such offers by an inspector renders him liable to penal sanctions for corruption.

197. Article 15(a) of Convention No. 81 and Article 20(a) of Convention No. 129 nevertheless provide for exceptions that "may be made by national laws or regulations" to the obligation of detachment. It is important that no exception that might be authorised should undermine the principle of the obligation of detachment. In this respect, one government stated that the requirements of Article 15(a) of Convention No. 81 would be considered to be of crucial importance when authorising exceptions to the obligation of detachment prescribed by law. (Endnote 57)

B. Professional secrecy

198. Through their supervisory activities, inspectors naturally acquire information of an economic nature which the undertaking may wish to keep confidential. This is why Article 15(b) of Convention No. 81 and Article 20(b) of Convention No. 129 provide that labour inspectors "shall be bound on pain of appropriate penalties or disciplinary measures not to reveal, even after leaving the service, any manufacturing or commercial secrets or working processes which may come to their knowledge in the course of their duties".

199. As public servants, inspectors are in principle bound by the general obligation of secrecy by the provisions of the rules governing the public service which apply to state officials, (Endnote 58) although special provisions, generally using the terms of Convention Nos. 81 and 129, have frequently been adopted for labour inspectors. (Endnote 59) In a large number of countries this obligation has been explicitly included in the oath that must be taken by labour inspectors before they take up their duties; this shows how much importance is attached to this principle. (Endnote 60) Exceptions are sometimes provided for to take account of service requirements, as is authorised by Convention. (Endnote 61)

200. In the event of breach of professional secrecy, inspectors are liable to disciplinary penalties in accordance with the procedure in force in the public service, without prejudice to civil or penal penalties. (Endnote 62)

C. Discretion as to the source of complaints

201. In accordance with Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129, labour inspectors are required to treat as absolutely confidential the source of any complaint bringing to their notice a defect of breach of legal provisions and to give no intimation to the employer that a visit of inspection was made in consequence of such a complaint. This is a fundamental duty, respect for which is indispensable for the labour inspector's work. All too often, for fear of possible reprisals, workers are reluctant to draw the attention of the inspection services to situations in the undertaking that are dangerous to life and health. For the same reasons they often refrain from reporting infringements of legal provisions that might have a detrimental effect on them.

202. Although at the beginning some difficulties in implementation were reported by governments, it would seem that this provision of Conventions Nos. 81 and 129 is now observed in most countries which have ratified the instruments. Since the Committee's last General Survey, many of these countries have supplemented their laws and regulations by provisions requiring labour inspectors to preserve secrecy regarding the source of complaints. (Endnote 63) Nevertheless, some countries still seem to be encountering difficulties in making this a legally binding obligation. (Endnote 64) Since the consequences could be particularly serious for the workers if inspectors did not observe their obligation to preserve secrecy, the Committee recalls that it is absolutely necessary for this obligation to be established in a legal provision or, failing that, in a regulation or administrative text such as a circular, directive or instructions sent to the labour inspectors -- as has been done in some countries to give effect to the comments of the Committee of Experts. (Endnote 65) As regards countries that are not bound by either of the labour inspection Conventions, it has not always been possible from the information communicated by governments to determine whether the obligation to preserve secrecy as to the source of complaints was explicitly laid down in national laws and regulations. (Endnote 66) In one country it is even provided that employers are entitled to be informed of the name of the complainant and of the nature of the complaint. (Endnote 67) In another country, the inspection order which the inspector has with him must mention that the visit is being made following a complaint. (Endnote 68)

203. The obligation to preserve secrecy as to the source of complaints may sometimes, as is authorised by the Conventions, be subject to certain exceptions. The laws and regulations in several countries authorise the divulging of the complainant's name with his express agreement, (Endnote 69) as well as for the purposes of legal proceedings. (Endnote 70)

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Endnote 29

Endnote 30

Endnote 31

Endnote 32

Endnote 33

Endnote 34

Endnote 35

Endnote 36

Endnote 37

Endnote 38

Endnote 39

Endnote 40

Endnote 41

Endnote 42

Endnote 43

Endnote 44

Endnote 45

Endnote 46

Endnote 47

Endnote 48

Endnote 49

Endnote 50

Endnote 51

Endnote 52

Endnote 53

Endnote 54

Endnote 55

Endnote 56

Endnote 57

Endnote 58

Endnote 59

Endnote 60

Endnote 61

Endnote 62

Endnote 63

Endnote 64

Endnote 65

Endnote 66

Endnote 67

Endnote 68

Endnote 69

Endnote 70

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35