Chapter I

Evolution of the scope of labour inspection from 1947 to the present day: Towards broad coverage

16. The labour inspection instruments of 1947 apply to workplaces in industry and commerce where workers are employed. Those adopted in 1969 cover commercial and non-commercial agricultural undertakings and the Protocol of 1995 extends the application of Convention No. 81 to activities in what is termed the non-commercial services sector. The purpose of the Conventions and the Protocol is the establishment, for each sector covered, of a system of labour inspection. While the general principles relating to labour inspection, as set forth in Recommendation No. 20, (Endnote_1) were taken up in all of the instruments on the subject subsequently adopted by the Conference, the coverage of inspection has evolved from one instrument to the other.

17. While stipulating that each ratifying Member shall maintain a system of labour inspection in industrial workplaces (Article 1) and commercial workplaces (Article 22), the scope of Convention No. 81 is limited, on the one hand, by permitting a number of possible exclusions that are strictly defined in terms of branch of economic activity or geographical considerations and, on the other, by affording a considerable degree of flexibility through the manner in which it defines the workplaces and workers actually covered (Article 2, paragraph 1).

18. Under Article 2, paragraph 2, of Convention No. 81, national laws or regulations may exempt mining and transport undertakings or parts of such undertakings from its application. This does not mean, however, that the workers employed in these enterprises should not enjoy the same protection as other workers in industry. At the same session, the Conference adopted the Labour Inspection (Mining and Transport) Recommendation, 1947 (No. 82), which provides that each Member of the International Labour Organization should apply to mining and transport undertakings as defined by the competent authority appropriate systems of labour inspection to ensure the enforcement of legal provisions relating to conditions of work and the protection of workers while engaged in their work. (Endnote_2) In countries where specific structures are responsible for supervising conditions of work in mines and/or transport, provision is often made for the involvement of labour inspectors. (Endnote_3)

19. Under Article 25(1) of Convention No. 81, any Member may, by a declaration appended to its ratification, exclude Part II on labour inspection in commerce from its acceptance of the Convention. In its previous General Survey on the subject, the Committee of Experts observed that out of the 105 countries that had ratified Convention No. 81, only 18 had availed themselves of this possibility. Twenty years later, the Committee notes that this number has not changed. (Endnote_4) Such a declaration does not exempt the Member from indicating in its report on the application of the Convention the position of its law and practice in regard to the provisions of Part II, and it may be cancelled by a subsequent declaration (see Article 25(2) and (3)).

20. Under Article 29, paragraph 1, of Convention No. 81, large areas of the territory of a Member may be exempted from its application if the competent authority considers it impracticable to enforce its provisions by reason of the sparseness of its population or its stage of development. The competent authority may determine exceptions in respect of particular undertakings or occupations. Members must indicate the areas exempted as well as the reasons for its exemption in their first annual report under article 22 of the Constitution of the ILO. Members shall not subsequently extend such an exemption (paragraph 2), and shall indicate in subsequent reports any areas in respect of which they renounce the right to have recourse to the provisions of article 29 (paragraph 3).

21. Convention No. 81 does not define directly the workplaces to be covered by the labour inspection system. They are referred to in Article 2, paragraph 1, as those "in respect of which legal provisions relating to conditions of work and the protection of workers while engaged in their work are enforceable by labour inspectors". This allows each Member to restrict the scope of the Convention to the extent defined by national laws and regulations; a resolution adopted at the same session of the Conference invites Governments "to apply to all workers employed in industrial and commercial undertakings the legal provisions for the protection of workers which are enforceable by labour inspectors". (Endnote_5)

25. While Convention No. 81 provides many possibilities of restricting its scope, in the first two decades following its adoption, most countries have only excluded mining and transport enterprises from its application.

27. Convention No. 129 reflects the will of member States to ensure, through a legally binding instrument, protection of the greatest possible number of workers in a sector that is extremely diverse, not only in terms of the legal status as regards the ownership of farms, but also in respect of the forms of the employment relationship. Under Article 4, the system of labour inspection in agriculture shall apply to agricultural undertakings in which employees or apprentices work, however they may be remunerated and whatever the type, form or duration of their contract. Under Article 1, paragraph 1, the term "agricultural undertaking" means undertakings and parts of undertakings engaged in cultivation, animal husbandry, forestry, horticulture and the primary processing of agricultural products by the operator of the holding – an unlimited list that is left open to "any other form of agricultural activity". The idea of optimal coverage is even more explicit in paragraph 2 of the same Article, which stipulates that no agricultural undertaking shall be excluded from the national system of labour inspection. However, it also provides that, where necessary, the competent authority shall, after consultation with the most representative organizations of employers and workers concerned, define the line which separates agriculture from industry and commerce. Under paragraph 3 of the same Article, it is for the competent authority to settle the question in any case in which it is doubtful whether an undertaking or part thereof is one to which the Convention applies.

31. Article 5, paragraph 1, of Convention No. 129 provides that any Member may, in a declaration accompanying its ratification, undertake also to cover by labour inspection in agriculture one or more categories of persons working in agricultural undertakings who are not already covered under Article 1, i.e. tenants who do not engage outside help, sharecroppers and similar categories of agricultural workers; persons participating in a collective economic enterprise, such as members of a cooperative; and members of the family of the operator of the undertaking, as defined by national laws or regulations. In the absence of such a declaration, Members bound by the Convention are still required to indicate in their reports to the Office on the application of the Convention to what extent effect has been given or is proposed to be given to the relevant provisions (Article 5, paragraph 3).

33. Following a suggestion made by the Committee of Experts in its General Survey on labour inspection published in 1985, (Endnote_16) the Governing Body of the International Labour Office decided at its 258th Session (1993) to include in the agenda of the 82nd Session (1995) of the International Labour Conference an item on extending the Labour Inspection Convention, 1947 (No. 81), to activities in the "non-commercial services sector", most branches of economic activity being already covered by international standards on labour inspection. (Endnote_17)

34. The preliminary report prepared by the Office for the 82nd Session of the Conference contains a number of useful elements for identifying the services targeted by the instrument envisaged for adoption. Rather than providing a universal definition, it lists a wide range of services and activities that might be covered, under a new instrument, by the system of labour inspection established in accordance with Convention No. 81. Given the specific national situations cited by Members in their replies to the Office questionnaire on the subject, an indicative list of services and activities in what is termed the "non-commercial" services sector was proposed. It includes public administration (national, regional or local), which, depending on the country, consists of national (federal) ministries and their administrative services; provincial/regional/federal governments and administrations; district/local/municipal administrations; the armed services; police and other public security services, prison services; fire brigades and other rescue services, which are generally not in the commercial or industrial sector; and often education services, such as universities and tertiary colleges, secondary and primary schools; health services including national and local hospitals and clinics, laboratories and pharmacies; postal services and telecommunications; railways and other public road, air and water transport services (covered in principle by Convention No. 81 but often excluded from its coverage by national law or practice); public utilities such as gas, water and electricity supply, refuse collection and disposal and other essential services; welfare and social services; cultural and recreational services such as theatres, parks, leisure centres, zoos, museums, libraries, religious institutions and charities.

39. Under Article 2 of the Protocol, a Member which ratifies it may, by a declaration appended to its instrument of ratification and after consultation with the social partners, exclude wholly or partly from its scope essential national (federal) government administration, the armed services, whether military or civilian personnel, the police and other public security services, and prison services, whether prison staff or prisoners when performing work, if the application of the Convention to any of these categories would raise special problems of a substantial nature (paragraphs 1 and 2).

42. Only ten of the 135 countries bound by Convention No. 81 have ratified the Protocol (Endnote_18) and information sent to the ILO on measures taken to give effect to it in law and in practice is still scarce. Moreover, the Committee observes that despite the flexibility of its provisions, most countries have expressed some concerns with regard to ratification prospects, and the obstacles referred to often lie in the difficulty of identifying the activities, enterprises and services covered by the instrument. The Committee has, however, noted the interest in ratification expressed by some employers' and workers' organizations. (Endnote_19)

Endnotes

Cross references
Constitution: Article 22
Survey reference:251985G12 General Survey 1985