Chapter IX. Ratification: difficulties and prospects

296. A number of governments have referred to difficulties which they consider likely, temporarily at least, to prevent ratification of Convention No. 81 and/or Convention No. 129; others have supplied information on their intention to ratify them.

I. Difficulties

A. Convention No. 81

297. Some governments state, in general terms, that they would have difficulties in ratifying the Convention. (Endnote 1) Others mention difficulties in connection with specific aspects of the Convention.

298. The Government of Burma has raised certain problems regarding scope. (Endnote 2) The Committee recalls in this respect that in view of the particularly flexible wording of Article 2, paragraph 1, of Convention No. 81, governments are free to determine which establishments are to be liable to inspection.

299. The Government of Botswana has asked whether the policy whereby employers who infringe the provisions of social laws and regulations must be warned before proceedings are taken against them is not to some extent inconsistent with the Convention. The Committee recalls that under Article 17, paragraph 2, of the Convention, it is up to the inspectors to decide whether to give a warning or advice instead of instituting or recommending proceedings. It consequently considers that the practice referred to by the Government is not necessarily contrary to Article 17 of the Convention, provided inspectors have the right to bring a matter before the judicial authority immediately when they consider this necessary for instance because of the seriousness of the infringement.

300. The Government of the Philippines has stated that the suspension of systematic inspection visits in that country constitutes one of the obstacles to ratification. The Committee is obliged to emphasise that this type of visit is essential for the operation of an efficient inspection service, in accordance with Article 16 of the Convention which provides that "workplaces shall be inspected as often and as thoroughly as is necessary.....". It therefore hopes that the Government will soon be able, in accordance with its expressed intention, to take the necessary measures for inspection visits to be resumed on a regular basis.

301. Furthermore, many governments consider that the shortage of human and material resources prevent their ratifying Convention No. 81. The Government of Botswana states that shortcomings in the inspection services are due mainly to the lack of skilled personnel and of adequate means of transport. According to the Government of the Congo, the labour inspection services do not yet have sufficient logistic and financial resources and their personnel do not enjoy the conditions of work and facilities that could make them independent of any undue outside influence. In Equatorial Guinea the Government considers that the sole difficulty that will remain after the adoption of the draft legislation on labour inspection will be the lack of the economic and human resources needed to establish an adequate infrastructure. The Government of the Philippines also refers to financial constraints, and the Government of Somalia to the general lack of available resources for developing the inspection services. According to the Government of Zambia, the difficulties reside in the lack of skilled personnel and of adequate transport; these matters will receive priority as soon as funds become available.

302. Finally, the fact that annual inspection reports are not published is mentioned by the Governments of Czechoslovakia and Somalia as an obstacle to ratification. (Endnote 3)

B. Convention No. 129

303. As in the case of Convention No. 81, some governments have referred in general terms to difficulties in respect of the ratification of Convention No. 129. (Endnote 4)

304. According to the Government of the United States, the federal structure of the State is one of the difficulties likely to delay or prevent the ratification of Convention No. 129, since labour inspection falls within the jurisdiction both of the federal authority and of the constituent States. As the Committee emphasised in its previous General Survey, in connection with Convention No. 81, it would seem that where the division of responsibility prevents the taking of measures of general application, the establishment or development of machinery for consultation between the federal inspection authorities and those of the federated units would contribute to overcoming this difficulty. (Endnote 5) So far several federated States have ratified Convention No. 81 and/or Convention No. 129. (Endnote 6)

305. For the Government of Austria one of the obstacles to ratifying the Convention is the scope of the inspection services in agriculture as regards the undertakings covered. (Endnote 7)

306. Several governments have mentioned certain problems in connection with Article 7 of the Convention as regards the organisation of labour inspection systems in agriculture. The Governments of Australia, Belize, Cameroon, Chad, Congo, Egypt and Mali see the fact that their inspection system applies to all economic sectors as an obstacle to ratification of the Convention. In this respect it should be recalled that the Convention suggests, in Article 7, paragraph 3, four possible structures for the inspection system in agriculture, ranging from a single labour inspection department responsible for all sectors of economic activity to a specialised inspection service. (Endnote 8) Consequently the implementation of Convention No. 129 does not necessarily imply the setting up of special inspection services for agriculture. Nor is it necessary, as the Government of Ecuador seems to think, for inspectors to devote themselves solely to inspecting agricultural undertakings. The Government of the United States points out that the existence of various statutes at the federal level on the protection of agricultural workers prevents all inspections being conducted by a central labour inspectorate. The Committee recalls in this respect that the very flexible wording of Article 7, paragraph 1, of the Convention, which provides for labour inspection in agriculture to be placed under the supervision of a central body "so far as is compatible with the administrative practice of the Member", makes it possible to take account of the special arrangements recognised as being necessary in national administrative practice.

307. Articles 16 and 18 of the Convention concerning the inspectors' powers constitute one of the reasons why ratification is not contemplated in some countries. The Government of Austria states that the Agricultural Workers' Act does not give inspectors the right to question persons other than those working in the undertaking or the operator of the undertaking. However, as the Government states, in so far as it is possible to question other persons in the undertaking under the Act respecting general administrative procedure, it would seem to the Committee that Article 16, paragraph 1(c)(i) can be considered to be applied. The Government of New Zealand states that inspectors can exercise their power of entry provided for by the Agricultural Workers' Act and by the Shearers Act, only in the presence of the employer or his representative or after having informed them, which would be incompatible with Article 16 of the Convention. In this connection the Committee recalls that Article 16, paragraph 3, of this instrument lays down the principle that on the occasion of an inspection visit inspectors must notify the employer or his representative, and the workers or their representatives, of their presence unless they consider that such notification may be prejudicial to the performance of their duties. It is thus only in exceptional situations that an inspector will decide not to inform the employer of his presence -- for example, if he has reasons to think that the employer might conceal certain evidence. Furthermore, the same Government states that the obligation set forth in Article 18, paragraph 4 of the Convention -- according to which the defects noted by the inspector when visiting an undertaking and the orders he makes or has made to remedy them must be made known to the employer and the workers' representatives -- is contrary to section 6(3) of the Agricultural Workers' Act, which stipulates that an inspector may not disclose any information he acquires in the exercise of his functions except "for the purposes of this Act and the exercise of his functions". The Committee considers that the inspector's duty to inform persons directly concerned, and particularly the workers or their representatives, of any dangerous situation discovered in an undertaking falls within the normal exercise of the duties incumbent on the inspection services and is in no way contrary to Article 20(b) of the Convention which requires inspectors to observe professional secrecy. Finally, the Government of Japan refers to divergencies between the Convention and national laws and regulations as regards the powers of inspectors as reasons for the delay in ratification.

308. The implementation of Article 20(a) of the Convention which provides that inspectors are prohibited from having any interest in undertakings under their supervision, is also considered by the Government of Austria to be an obstacle to ratification. However, as the Government states, in so far as the general obligation for administrative bodies to refrain from exercising their functions and to apply to be replaced in matters in which they or their relatives have an interest applies to inspectors in agriculture in respect of undertakings under their supervision, it seems to the Committee that the aim sought by this provision of the Convention can be considered to have been achieved.

309. Two Governments have mentioned the question of penalties as being likely to prevent ratification of the Convention. According to the Government of Austria, the obstruction of inspectors in the exercise of their duties is not punishable in certain Länder. The Government of the Philippines states that it is studying the possibility of introducing realistic penal sanctions for employers who, as is often the case, object to or delay inspection visits.

310. However, as in the case of Convention No. 81, the main obstacle to the ratification of Convention No. 129 lies in the inadequacy of financial, human and material resources of inspection services in practice. Difficulties of this kind have been reported by the Governments of the following States: Barbados, Belize, (Endnote 9) Burundi, India, Philippines, (Endnote 10) and Somalia. Some Governments have stated that these difficulties were aggravated because of the vast size of the country (India) or its terrain (Greece). (Endnote 11)

II. Ratification prospects

311. A number of governments have stated that they are considering ratifying Convention No. 81 and/or Convention No. 129. The information on ratification prospects will be examined according to whether it concerns both Convention No. 81 and Convention No. 129, or only one of these instruments.

A. Conventions Nos. 81 and 129

312. According to information from the Government of Benin, Convention No. 81 has been submitted for ratification to the competent authority; there do not seem to be any difficulties regarding ratification of Convention No. 129. The Government of the Ivory Coast states that the ratification of both Conventions is being considered.

313. The Government of Czechoslovakia states that ratification of Conventions Nos. 81 and 129 will depend on whether or not it is decided to publish annual labour inspection reports. The Government of China states that the question of ratifying Conventions Nos. 81 and 129 is being studied.

B. Convention No. 81

314. The Government of Brazil has reported that the difficulties inherent in the application of Convention No. 81, which led to its denunciation, (Endnote 12) have been overcome and that the Under-secretariat for Labour Protection has given notice that it is in favour of ratifying the instrument. (Endnote 13) The Government of Nepal states that ratification of the Convention has been proposed.

C. Convention No. 129

315. The Government of Zaire states that the Executive Council proposes to request ratification of the Convention.

316. According to the Government of Gabon, the agricultural sector is one of its priorities; consequently ratification of the Convention will be considered in due course. The Government of Mauritius states that it is examining the possibility of ratifying the Convention.

317. Two Governments have expressed their intention of overcoming difficulties in the way of ratification: the Government of Cyprus states that it was necessary to update the laws and regulations in force and to improve and complete certain administrative and institutional structures before the Convention could be ratified. It adds that it is working towards this end in co-operation with the employers' and workers' organisations. According to information from the Government of India, the question of ratifying Convention No. 129 was recently discussed by the Tripartite Committee on Conventions. Although the Convention cannot be ratified at this stage, the Committee in question has agreed that measures should be taken to meet the requirements of this instrument with a view to its eventual ratification. Finally, the Government of Malaysia states that in-depth studies are necessary before the Convention can be ratified.

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

Legislation

See related national legislation from Natlex

Austria: Agricultural Workers' Act

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