Chapter VI. Proceedings and penalties

253. The credibility of any inspection service, however, well organised, risks being seriously compromised unless it is supported by an appropriate system of penalties in the event of contravention of the labour legislation. For this reason both Convention No. 81 and Convention No. 129 contain certain provisions designed to ensure the effective application of penalties for violation of the legal provisions for whose enforcement the labour inspectors are responsible.

I. Choice of the action to be taken in the event of non-compliance

254. Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provide that persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt proceedings without previous warning. There are, however, two derogations from this principle. On the one hand, national laws or regulations may make exceptions "in respect of cases in which previous notice to carry out remedial or preventive measures is to be given". On the other hand, "it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings".

255. In many countries labour inspectors have full powers to decide on the action to be taken with regard to the cases of non-compliance which they have detected. This discretion generally derives from the absence of special provisions respecting proceedings, although certain laws and regulations make more or less detailed provision for the different remedies available to inspectors in such cases, such as warnings, oral or written observations, injunctions, or statements of non-compliance. (Endnote 1) However, when the inspector detects a dangerous situation in the undertaking as a result of non-compliance with a legal provision on occupational safety and health, he may not, in certain countries, initiate the penalties procedure unless he has ordered the person responsible for the undertaking to take the necessary measures of compliance. (Endnote 2) In such cases an injunction also serves as a warning. This is a derogation from the rule provided for by Article 17 of Convention No. 81, and Article 22 of Convention No. 129, but it is a derogation authorised by the very terms of these provisions.

256. However, the available information shows that, generally speaking, labour inspectors prefer in practice -- except in cases of wilful or serious non-compliance, culpable negligence or flagrant ill will -- to resort to advice and persuasion before instituting or recommending proceedings.

II. The initiation of proceedings

257. When persuasion and previous warning have proved ineffective it is necessary to resort to the coercive measures provided for by law.

258. In certain countries, the inspector is empowered to bring the matter before the courts himself; (Endnote 3) one government indicated in this connection that the agreement of the head office of the department of labour had to be obtained beforehand. (Endnote 4)

259. This situation is, however, far from being the rule. For this reason Article 23 of Convention No. 129 provides that, when labour inspectors are not themselves authorised to institute proceedings, "they shall be empowered to refer reports of infringements of the legal provisions directly to an authority competent to institute such proceedings". While in a number of countries the national laws and regulations recognise the right of labour inspectors to refer reports of infringements directly to the public prosecutor or any other competent body, (Endnote 5) in others the reports made by the inspectors are transmitted through the official channels. (Endnote 6) To the extent that the higher authority reviews the merits of the inspector's action in a way which might prejudice his taking initiatives, doubts arise as to the conformity of such a practice with Article 23 of Convention No. 129. In any case, it is indispensable for the period of transmittal of the reports to be as short as possible if the proceedings are to be effective.

III. Penalties

260. Under Article 18 of Convention No. 81 and Article 24 of Convention No. 129, adequate penalties for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties must be provided for by national laws or regulations and effectively enforced.

261. This principle appears to be recognised by virtually all the countries in which the social legislation provides for penalties both for infringement of the legal provisions and for obstructing inspectors. (Endnote 7) The penalties consist either of fines or prison sentences, and very often a combination of both. In some countries, however, the labour legislation merely prescribes a fine. (Endnote 8) None the less, when the infringement constitutes an offence owing to the circumstances in which it was committed, the penal legislation applies automatically.

262. Infringements of social legislation are also likely to cause prejudice to the workers. Experience has shown that they often hesitate to insist on their rights, whether for fear of reprisals from the employers or because of lack of information. It is therefore interesting to note that certain national laws and regulations make express provision for the right of the inspector to represent the workers before the courts. (Endnote 9)

263. It is natural for the competent national authorities to decide on the nature and severity of penalties. However, the Committee wishes to stress that it is essential for the effectiveness of inspection services that penalties should be fixed at a sufficiently high level to have a dissuasive effect. It is the exemplary nature of penalties which will in large measure determine the way in which undertakings heed the advice or warnings of the inspectors. It would be decidedly regrettable if employers preferred to pay fines because they found them more economical than taking often costly occupational safety and health measures or paying workers wages on time. For this reason, when the penalty consists of a fine, the rate of the fine should be periodically reviewed. This is not always the case, but it is a particularly important point which should not be over looked.

264. In most cases the penalties are pronounced by the judicial or administrative authorities, although in some countries the inspector or his responsible chief is authorised to impose fines. (Endnote 10)

265. The application of Article 18 of Convention No. 81 and Article 24 of Convention No. 129 presupposes that adequate penalties must not only be provided for by national laws or regulations but also "effectively enforced".

266. The information available indicates that labour inspectors sometimes hesitate to use the powers relating to the institution of proceedings which have been conferred upon them or to resort to injunctions, either because of economic considerations or because they prefer to have recourse to persuasion, particularly in cases where the legal provisions respecting occupational safety and health are especially complex and difficult to enforce. As a number of ILO mission reports and certain workers' organisations have suggested, this is a matter to which governments might give some thought.

267. Moreover, the Committee has noted that the judicial authorities, whether the public prosecutor or judges, may tend to minimise the importance of infringements of social legislation. Thus, the public prosecutor's office, which is responsible for taking decisions on the desirability of proceedings, will often decide to shelve an application for the imposition of a penalty. In this respect it is interesting to note that, in one country, the reports of labour inspectors on cases which are declared closed are transmitted to a specialised service of the Ministry of Employment and Labour, which may decide to impose an administrative fine, if necessary. (Endnote 11) The courts, too, may hesitate to impose penalties exceeding the minimum fixed by the legislation. Furthermore, the procedure is often very slow. This situation, which has aroused concern among many labour inspectors, appears to be due mainly to a lack of awareness of social problems on the part of the judicial authorities and to the absence of contacts between them and the inspection services. This is also a matter to which thought should be given. In certain countries, moreover, measures have already been taken or are under study to secure closer collaboration between the public prosecutor's office and the labour inspectors. (Endnote 12) The Committee considers it highly desirable that inspectors should be kept regularly informed of the judicial action taken on reports of non-compliance. This obligation is prescribed by certain national laws and regulations, but it is not clear whether it is always respected in practice. (Endnote 13) Furthermore, in countries where inspectors are not authorised to conduct proceedings before the courts, it would be useful to improve information available to magistrates on labour inspection problems, for instance during their training period or by the organisation of symposia.

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

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