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2006, Labour Inspection: Chapter V - Labour inspection staff: Composition, status, conditions of service and standards of conductDescription:(General Survey) Convention:C081 Convention:P081 Convention:C129 Recommendation:R081 Recommendation:R082 Recommendation:R133 Subject classification: Labour Inspection Subject: Labour Administration and Inspection Document:(Report III Part 1B) Session of the Conference:95 Display the document in: French Spanish Document No. (ilolex): 252006G07 Chapter V Labour inspection staff: Composition, status, conditions of service and standards of conduct I. Basic principles 173. The effectiveness of labour inspection largely depends on the commitment of the public authorities to the effective implementation of measures to attract and retain a sufficient number of qualified and motivated staff. Conventions Nos. 81 and 129 contain criteria which should be taken into account for the purpose of determining the number of inspectors required (Article 10 of Convention No. 81 and Article 14 of Convention No. 129), and the measures needed to recruit and retain the staff required within labour inspection services (Articles 6 to 8 of Convention No. 81 and Articles 8 to 10 of Convention No. 129). A. Criteria for determining the number of inspectors required174. Both Conventions stipulate that measures should be taken to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspectorate, taking into account the importance of the duties which they have to perform, in particular: the number, nature, size and situation of the workplaces liable to inspection; the number and the range of categories of workers employed in such workplaces; and the number and the complexity of the legal provisions to be enforced. (Endnote_1)This number should be increased in case inspectors are called on to exercise additional functions not foreseen in Conventions Nos. 81 and 129. 175. In order to give full effect to these provisions, human resources allocated to the inspectorate should be determined on the basis of relevant information and clearly identified priorities for action. As the Committee has already noted, cooperation between the labour inspectorate and other institutions, public and private, can lead to a better knowledge of the labour inspectorate's human resources requirements. In view of this, measures must be taken to ensure that there is adequate up-to-date knowledge of the number and distribution of establishments and undertakings subject to inspection and the workers to be covered. B. GenderStatement of principle 176. Since the beginnings of the ILO, the provision of the Constitution regarding the organization of a labour inspectorate by each member State has stipulated that the inspectorate should include women. In the words of the Labour Inspection Recommendation, 1923 (No. 20), "while it is evident that with regard to certain matters and certain classes of work, inspection can be more suitably carried out by men, as in the case of other matters and other classes of work inspection can be more suitably carried out by women, the women inspectors should in general have the same powers and duties and exercise the same authority as the men inspectors, subject to their having had the necessary training and experience, and should have equal opportunity of promotion to the higher ranks". 177. Under the terms of Article 8 of Convention No. 81 and Article 10 of Convention No. 129, "both men and women" must be eligible for appointment to the inspection staff, and "special duties may be assigned to men and women inspectors, respectively". National practice178. The information provided by governments indicates that in general, there is no legal impediment that limits women's access to work as labour inspectors. Indeed, many countries indicate that their legislation gives women equal opportunity of access to employment as labour inspectors. (Endnote_2) In addition, the Government of Denmark indicates that, in recruitment, the principle of equal numbers of men and women in labour inspection teams is observed. Nevertheless, the Committee is concerned that the figures available show that, in many countries, labour inspection staff is still mostly male (Endnote_3) or does not reflect the proportion of women in the workforce. Furthermore, the proportion of women in the inspectorate is not always easy to interpret. (Endnote_4) In view of the important role for women in the labour inspection system, it is to be hoped that more steps will be taken to encourage the recruitment, training and promotion of women inspectors and to ensure that there is greater gender awareness throughout the inspection system. The role of women in labour inspection179. Although the instruments suggest that specific jobs could be assigned to women inspectors, only a few governments report such a practice. (Endnote_5) In Honduras, for example, women inspectors are in charge of inspections related to child labour and employment of women, health and safety conditions in workplaces and enforcement of the minimum wage. In Austria, they are assigned to inspecting general working and living conditions in undertakings where women and young people are in the majority. In Sri Lanka, there is a department dealing with matters related to women and children, run by a woman Commissioner of Labour. She is assisted by two other high-level labour civil servants, both of whom are also women. In Ghana, an Office of Women's Affairs was set up in 2001 in the Department of Labour and deals with women's problems at work (notably, sexual harassment). II. Qualifications required180. The responsibilities involved in labour inspection are such that the men and women who take them on must be recruited with due regard to their qualifications and the personal qualities needed for the performance of their duties. This means that labour inspectors must be recruited in accordance with suitable procedures. In addition, their employment must be governed by conditions of service and a status which ensure the stability they need to perform their duties in accordance with the legislation regarding their powers and responsibilities and without any improper external influence. A. Recruitment and initial training 181. According to Article 7, paragraph 1, of Convention No. 81, and Article 9, paragraph 1, of Convention No. 129, subject to any conditions for recruitment to the public service which may be prescribed by national laws or regulations, labour inspectors shall be recruited with sole regard to their qualifications for the performance of their duties. 182. The qualifications in question include, as in any profession, recognized technical skills and qualifications, but also the personal and psychological abilities needed to deal with a wide range of people and situations in a manner that is both firm and flexible. Some governments have mentioned the specific conditions required. (Endnote_6) These vary greatly from one country to another. For example, membership of an employers' or workers' organization bars access to the profession in Mexico, (Endnote_7) whereas it is a condition for employment in Luxembourg. 183. Impartiality, integrity and discretion are, in any case, essential qualities of a labour inspector and fundamental to gaining the support of the social partners for the principles and objectives of labour inspection. According to Article 7, paragraph 2, of Convention No. 81, and Article 9, paragraph 2, of Convention No. 129, the means of determining the capacities of prospective inspectors must be determined by the competent authority. In the Committee's opinion, appropriate and in-depth interviews of applicants for the position of labour inspector, conducted in accordance with principles of fairness and objectivity, are the best way for the competent authority to select the most suitable candidates. 184. Article 7, paragraph 3, of Convention No. 81 and Article 9, paragraph 3, of Convention No. 129, stipulate that inspectors must be adequately trained. The Labour Inspection (Agriculture) Recommendation, 1969, (No. 133), states, moreover, that candidates for senior positions in the labour inspectorate should be in possession of appropriate professional or academic qualifications or have acquired thorough practical experience in labour administration (Paragraph 5), and that candidates for other positions in the labour inspectorate should, if the level of education in the country allows, have completed secondary general education, supplemented, if possible, by appropriate technical training, or have acquired adequate administrative or practical experience in labour matters (Paragraph 6). 185. In most countries, candidates for the position of labour inspector, as for other positions of comparable level in the public service, must have a university degree and sit competitive examinations. (Endnote_8) 186. A growing number of countries, in addition to requiring basic, initial training, also require specific supplementary theoretical and practical training for new candidates. (Endnote_9) B. Further training187. Performance of the various duties involved in labour inspection requires a reasonable familiarity with various aspects of the law, economics and social sciences, and of the industries in which inspectors conduct inspections and give advice and information to employers and workers. A thorough knowledge of increasingly sophisticated and powerful information tools is required in an increasing number of countries for the management and evaluation of the statistical data that is needed for inspection systems to function well. In addition, between the adoption of the 1947 and 1969 instruments, observations showed that initial basic training, even when consolidated through additional training during a probationary period, was not sufficient to maintain the skills required by the labour inspectors to perform their increasingly complex duties. Developments in technology and methods of work in all sectors of the economy have been accompanied by a constant growth in knowledge of the impact of these factors on occupational health and safety and on productivity. The importance of advanced training for inspectors in the course of their employment has become obvious. It has led to the adoption of relevant national legislation as well as, at the international level, Article 9, paragraph 3, of Convention No. 129, which stipulates that labour inspectors must be provided with further training in the course of their employment, other than the training appropriate for the exercise of their functions already foreseen in Article 7, paragraph 3, of Convention No. 81.
188. Apart from a few exceptions, governments do not regularly communicate detailed information on the further training of inspectors. (Endnote_10) Specific training is given to inspectors in response to specific requirements in some countries. (Endnote_11) On the basis of information provided to it, the Committee is given to understand that, particularly in the least developed countries, labour inspection staff more often than not receive only limited initial training, and have little opportunity to receive any in-service training. Experience acquired individually may then offset the lack of training opportunities. Training in some specific subjects is provided to labour inspectors in some countries under bilateral agreements. 189. In this respect, one employers' organization considers that the ILO should conduct a study into the problems that affect systems for further training of inspectors. (Endnote_12) 190. The Government of Croatia deplores the impact on staff training opportunities of the lack of available funds, in the context of frequent changes to legislation and regulations, and the introduction of new technologies in the world of work. In Belarus, according to the Government, conditions of service combined with the general economic situation is causing inspectors to desert the inspectorate. In developing countries, the lack of funds is the major obstacle to institutional and regular staff training; as a result, in some cases outside organizations (Endnote_13) or regional bodies have been set up for this purpose. The ILO has actively participated in such initiatives in Africa, Asia, Latin America and the Caribbean thanks to the support given by international financial donors. (Endnote_14) In a number of countries, training courses are also arranged by the ILO itself, or with its assistance. (Endnote_15) The national labour inspectorate of Poland has concluded cooperation agreements with relevant bodies in Bulgaria, Serbia and Montenegro and Ukraine with a view to exchanging information on their respective experience and progress, in particular as regards recruitment and training of inspectors. 191. Some countries indicate that inspectors are trained especially to investigate child labour. (Endnote_16)
192. There is little information available on the training of inspectors in the field of equality and anti-discrimination and in particular equal remuneration. The Committee has on a number of occasions drawn attention to the need for inspectors to understand and to be fully trained on the application of the principle of equal pay for men and women for work of equal value in order for them to properly carry out their primary functions in this important area. (Endnote_17) III. Composition of labour inspection staffA. Numbers 193. Labour inspection involves various categories of staff. In central offices and in branch offices, technical and administrative staff, administrative assistants, secretaries, receptionists and maintenance staff all work side by side. Only those staff who do work that is an integral part of inspection duties, as defined by the instruments, can generally be called labour inspectors, although they may in fact have a different job title. Some staff may be given responsibility for labour inspection missions, either as inspectors or as assistants to the inspectors, although they do not fulfil all of the conditions required by the Conventions. 194. Although information on the number of labour inspectors or inspection staff is regularly sent to the ILO, it is nevertheless difficult to evaluate it in the light of the relevant provisions of the Conventions. In particular, there is a lack of information that would make it clear to what extent the number of practising inspectors is decided upon using the relevant criteria. In addition, the variety of names for the different inspection staff referred to by the instruments makes it very difficult to make any comparison. (Endnote_18) 195. While indicating that the number of its inspection staff has recently been increased, the Government of the Central African Republic observes that, because of insufficient funds, it is not possible to pay inspectors' travelling expenses, and the major labour inspection activity is the settlement of labour disputes. In this regard, the Committee is bound to draw to the attention of governments the principle that the number of labour inspectors must be determined with due regard for the material means at their disposal, in accordance with Article 10(b), of Convention No. 81 and Article 14(b), of Convention No. 129. (Endnote_19) B. Collaboration with specialists and technical advisers196. In order to be effective, inspection of workplaces must permit the detection of potential hazards so that measures can be determined to eliminate or reduce them as far as possible. Such inspections often require a high level of expertise and is thus a matter for specialist technical advisers. Inspectors must collaborate with such technical advisers or experts in order to carry out technical inspections for which their own qualifications are not sufficient. This is provided for in Article 9 of Convention No. 81 and in Article 11 of Convention No. 129. Convention No. 81 specifically states that duly qualified technical experts and specialists, including specialists in medicine, engineering, electricity and chemistry, should be associated with the work of inspection for the purpose of securing the enforcement of the legal provisions relating to the protection of the health and safety of workers while engaged in their work, and for the purpose of investigating the effects of processes, materials and methods of work on the health and safety of workers. 197. In the last few decades, the backgrounds of such staff have diversified, while individual inspection teams have become increasingly highly specialized in a wide range of fields, especially medicine, ergonomics and psychology, particularly in the industrialized countries. 198. National conditions permitting, it is desirable that such technical advisers or specialists be integrated into the labour inspection teams. (Endnote_20) The Government of Greece indicates that almost one-third of its labour inspection staff consists of university graduates in engineering, medicine and science. In Denmark, the inspection team includes technical advisers and specialists in psychology, ergonomics, pharmacology and physiotherapy. When these specialists are not a part of the labour inspectorate, their role is to give technical advice, drawing the attention of the labour inspectors to their expert findings and making recommendations with a view to rectifying potentially hazardous situations. (Endnote_21) 199. In many countries, medical labour inspection services have been institutionalized. (Endnote_22) Medical inspectors generally have the same power and responsibilities as labour inspectors, within their field of expertise, (Endnote_23) but this is not always the case, and the extent of their activities may be limited by legislation. For example, in Benin, a medical inspector cannot serve an injunction or prepare a report on a violation, as these may only be done by a labour inspector after he or she has seen the medical inspector's report. (Endnote_24) 200. Under Article 8, paragraph 2, of Convention No. 129, Members may include in their system of labour inspection in agriculture officials or representatives of occupational organizations, whose activities would complement those of the public inspection staff. The persons concerned must be assured of stability of tenure and be independent of improper external influences. The practical application of this stipulation cannot be evaluated owing to a lack of information. IV. Status and conditions of service of labour inspection staffA. Stability and independence 201. Under Article 6 of Convention No. 81 and Article 8, paragraph 1, of Convention No. 129, labour inspection staff must be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of improper external influences. 202. As the Committee emphasized in its previous General Survey on labour inspection, inspectors cannot act in full independence, as required by their functions, if their service or their career prospects depend on political considerations. (Endnote_25) This may be a particularly sensitive issue if there is a hierarchy of reporting in the inspectorate, which may inhibit effective implementation of the role of inspectors. 203. As can be seen from the preparatory work on Convention No. 81, public servant status was considered necessary for inspection staff as it was the status best suited to guaranteeing them the independence and impartiality necessary to the performance of their duties. As public servants, labour inspectors are generally appointed on a permanent basis and can only be dismissed for serious professional misconduct, which should be defined in terms that are as precise as possible to avoid arbitrary or improper interpretations. A decision to dismiss an inspector, like any other decision to apply a sanction with serious consequences, should be taken, or confirmed, by a body offering the necessary guarantees of independence or autonomy with respect to the hierarchical authority and in accordance with a procedure guaranteeing the right of defence and appeal. 204. It is vital that levels of remuneration and career prospects of inspectors be such that high-quality staff are attracted, retained, and protected from any improper influence. 205. In general, labour inspectors are covered by the general public service conditions of service, by the provisions of general labour law or, in many countries, by special regulations that also apply to certain categories of permanent state officials. (Endnote_26) Inspectors are sometimes state employees, without being regarded as civil servants. (Endnote_27) In Malta, for example, inspectors are appointed for a period of three years, which is automatically renewed if their performance is considered satisfactory. The Government is confident of the effectiveness of this recruitment practice in guaranteeing inspectors' stability of employment. 206. In Luxembourg, labour inspectors, as officials appointed by the Ministry of Labour from a list proposed by the most representative trade unions, are sometimes suspected of being biased because of their union affiliations. However, they only perform certain inspection duties and, in particular, they cannot draw up violation notices, official reports or injunctions, being the prerogative of the central authority. Some inspections are carried out by officials of the former Department of Customs and Excise Duty, who have retained their status and rights as officers of the police force, and who are empowered to carry out occupational safety inspections and to impose fines, particularly in the construction and road transport sectors. The revision of the conditions of service, recruitment methods, training and functions of labour inspection staff was recommended by a tripartite international mission carried out under the auspices of the ILO in 2002. The objective of such a revision is to bring these aspects into line with the principle of independence enshrined in Article 6 of Convention No. 81. 207. The Committee notes that labour inspectors experience particularly difficult working conditions in the majority of developing countries. 208. The instruments do not mention the level of remuneration of labour inspectors. However, this matter is implicitly covered by the principle of conditions of service under Article 6 of Convention No. 81 and in Article 8 of Convention No. 129. It is the Committee's opinion that this principle covers remuneration, career prospects and respect for their duties on the part of the Government.
B. Remuneration 209. In its last General Survey on labour inspection, the Committee noted that the sometimes very low level of labour inspectors' salaries, combined with the absence of career prospects, could cause inspectors to turn from the labour inspectorate towards other, more prestigious sectors of the public service or the private sector. (Endnote_28) The Committee observes that, in most developing countries, labour inspectors are no more likely to enjoy working conditions that will encourage them to remain in the inspection service than they were 20 years ago, particularly because of the effects of structural adjustment. Although the Committee is aware of the severe budgetary restrictions governments often face, it is bound to emphasize the importance it places on the treatment of labour inspectors in a way that reflects the importance and specificities of their duties and that takes account of personal merit. 210. In Africa, the majority of the countries bound by the Conventions report a lack of human and financial resources. The Government of Mali indicates that a labour inspector's basic salary is calculated using the same salary scale as that used for other public servants. However, the bonuses they may receive bear on comparison with those paid to officials in the Departments of Finance or Public Works. The Government notes that this situation is pushing inspectors to do unofficial paid work, to accept gratuities and even to lose their sense of commitment and to become biased; the Government therefore plans to grant them an additional bonus so that they will be protected from any improper external influence. There is a lack of adequate statistical information on levels of remuneration of inspectors and, in turn, on the practical effect given to legislation, which is generally in conformity with the principles of the Conventions. (Endnote_29) In a report on the results of ILO technical assistance between 2001 and 2005, the Ministry of Labour of Mauritius has announced, among other improvements, an upgraded status for labour inspection staff and the creation of new job descriptions corresponding to different levels of remuneration. 211. In Latin America, the conditions of employment of labour inspection agents are generally characterized by inadequate levels of remuneration. (Endnote_30) As a result, labour inspectors look for other sources of income, such as a second job, more often than not with a private sector employer. The Committee considers that having more than one position concurrently, even when inspectors are prohibited from having any dealings with a case which is directly or indirectly linked to their private activities, as is the case in Uruguay, (Endnote_31) interferes with the performance of inspection duties. (Endnote_32) In Bolivia, according to the Government, labour inspectors do not, in practice, enjoy conditions of service that guarantee them the stability of employment and independence required by Convention No. 81. This prompts them to supplement their very low salaries by taking on other work to meet their families' basic needs. (Endnote_33) 212. The Republic of Korea has adopted a law, which will come into force in 2006, to authorize the setting up of public service unions. The implementation of this law should help to improve labour inspectors' conditions of service. 213. In Europe, the level of remuneration of labour inspectors varies greatly from one country to another. The new members of the European Union are making a considerable effort to endow labour inspection with the human resources needed to carry out their duties and to give inspectors the conditions of remuneration and career development that might keep them within the inspection system. In Latvia, the law provides for inspectors to receive, apart from their monthly salary, various benefits, such as family benefits, travel allowances, special bonuses for extra work or for especially difficult working conditions, as well as costs of training for professional development and study leave. (Endnote_34) 214. When inspectors do not receive remuneration commensurate with their responsibilities, the labour inspection itself is devalued. In carrying out their duties, inspectors may then find themselves treated with disrespect which detracts from their authority. Their low standard of living can also expose inspection officials to the temptation of treating certain employers leniently in exchange for favours. The Committee's attention has been drawn on a number of occasions to the unfavourable treatment of labour inspectors especially compared with that of tax inspectors or even that of temporary officials employed as labour inspectors. (Endnote_35) 215. In some countries, measures have been adopted to motivate or protect inspectors. For example, in Saudi Arabia, under the terms of a government recommendation, the most effective inspection offices are given awards and privileges. C. Career prospects216. Career prospects that take into account seniority and personal merit are essential to attract and especially to retain qualified and motivated staff in labour inspectorates. This essential aspect of human resources management is widely recognized in industrialized countries and stability of staff and their prospects for promotion and development are therefore guaranteed. In developing countries, the general economic and social conditions particularly affect all levels of responsibility in the labour administration. Even when legal provisions guarantees attractive professional career development, there is often only limited practical implementation. 217. The Committee does not possess very solid information on the way in which labour inspectors' career development occurs worldwide. While it is true that the relevant instruments do not contain specific guidelines on the matter, the fact is that the complexity of labour inspection duties and the degree of responsibility that they involve require incentives including attractive career prospects that are at least as favourable as those for other public servants in the same country doing work of similar complexity and with similar responsibilities. 218. In countries where labour inspectors' conditions of service are very precarious, mistrustful attitudes as to their integrity, rather than any concern to keep them in the service, appear to underlie their career management. For example, in some Latin American countries, inspectors are transferred at very short notice and without any consideration for the negative effects of such transfers on their family and social life. (Endnote_36) In a number of countries, inspectors nonetheless benefit from certain guarantees of employment stability. Thus, in Japan, dismissal of a labour inspector must be authorized by the Council for Dismissals. (Endnote_37) In El Salvador, a labour inspector can only be dismissed by a judicial decision after adversarial proceedings, (Endnote_38) although majority of labour inspectors are employed under one-year fixed-term contracts. 219. In the Committee's opinion, the competent authority at a national level should be concerned to ensure that labour inspectors are treated with the respect their everyday responsibilities entitle them to, with due regard to the social importance of their duties. They should be able to expect career prospects that value their seniority, enthusiasm and commitment, and any unprofessional conduct on their part, depending on how serious it is, should be penalized in accordance with formal procedures which protect them from arbitrary decisions. 220. The Committee notes that labour inspectors in Australia are covered by a collective agreement for all matters related to their status and conditions of employment, as are other public servants in the Department of Employment and Workplace Relations. This agreement sets out the rules for salary fixing and salary rises, compensation for the use of private vehicles for official purposes, and flexible working time arrangements, defines mechanisms for rational use of skills, fixes rates and the means of payment of monetary and other benefits, superannuation, and so forth. As balancing work and personal life is considered a right, various flexible working arrangements and a wide range of leave entitlements are available to public servants. 221. Recognition, reinforcement and rational use of employees' skills are achieved through performance-related incentives for teams or individuals and through opportunities for professional and career development. D. Physical safety of labour inspectors222. In some countries, apart from inadequate remuneration and unsatisfactory conditions of employment, problems of physical safety can also seriously affect the inspectorate's work. It is unfortunately not uncommon for inspectors to be threatened, insulted and even attacked physically by employers who object to their presence at certain workplaces. Inspection reports or the media have drawn attention to incidents which vary in seriousness. The Government of Colombia has explained that inspection visits to agricultural undertakings are rare because of the Government's inability to guarantee the physical safety of inspectors in some regions which are in effect war zones. Violence against inspectors reached an extreme in Brazil and in France in 2004 when labour inspectors who were visiting agricultural undertakings were killed. (Endnote_39) V. Obligations of labour inspectors223. As a means of counterbalancing the important powers with which they are entrusted for the discharge of their duties, inspectors have to be bound by obligations to ensure that they carry out their duties with complete independence, discretion and impartiality and that they enjoy the trust of both employers and workers. Article 15 of Convention No. 81 and Article 20 of Convention No. 129 provide that, subject to such exceptions as may be made by national laws or regulations, labour inspectors shall be prohibited from having any interest in the enterprises under their supervision, or from revealing any information protected by industrial or commercial property rights and that they shall treat as confidential the source of complaints and give no intimation to the employer of any link which may exist between a complaint or denunciation and the inspection carried out. As these principles are set forth in very general terms, it is the responsibility of the competent national authorities to define in specific terms the concepts of interest, secrecy and confidentiality and, where appropriate, the exceptional circumstances under which labour inspectors may or should be exempted from the obligations and prohibitions established or under which they could be attenuated to maintain the objectives of labour inspection. 224. It should be noted that in many countries the national legislation takes up in their entirety the ethical obligations set out in the two Conventions. (Endnote_40) These obligations may also be established in regulations, (Endnote_41) as well as in codes of conduct (Endnote_42) or ethical codes, (Endnote_43) the legal scope of which is uncertain.
A. Prohibition of any direct or indirect interest 225. Under the terms of Article 15(a) of Convention No. 81 and Article 20(a) of Convention No. 129, labour inspectors shall be prohibited from having any direct or indirect interest in the enterprises under their supervision. This principle is set out in law in most countries and is applicable to inspectors either by reason of their status as public officials or under the specific provisions determining the functions of labour inspectors. However, the Committee has noted that the concept of "direct or indirect interest" is rarely defined with sufficient precision to enable it to assess the exact scope of the prohibition. In certain countries, the prohibition of having any direct or indirect interest is confined to certain specific situations which only partially cover the circumstances in which labour inspectors might be influenced by considerations of a personal nature in the discharge of their duties relating to an enterprise. For example, in Croatia, a labour inspector is not allowed to carry out inspections in an enterprise in which she or he or a member of her or his close family is involved in the management or has any interest whatsoever. (Endnote_44) 226. The prohibition on having any direct or indirect interest is intended, in the legislation in many countries, to cover advantages that are essentially of a material and/or financial nature. It applies in many countries to the offering of presents or services by employers or workers. (Endnote_45) 227. The Committee considers in this respect that the term "any direct or indirect interest" should be understood as also covering any personal interest of a psychological, emotional, political or other nature by an inspector which could reasonably be perceived as likely to compromise the integrity of her or his professional conduct in relation to certain enterprises. The notion of interest should therefore be defined in national legislation so as not only to prevent situations of clear conflict of interest, such as participation in the management of the enterprise, either directly, or through an intermediary, the purchase of shares or financial involvement, or an interest in the use of a patent or brand name, but also to allow the identification of any other situation which could be reasonably perceived as likely to have an undue influence on the discharge of the inspector's functions. 228. Such a definition would have the advantage of being sufficiently precise to provide guidance to labour inspectors, on the one hand, and the competent authority, on the other, on cases in which direct or indirect interest is prohibited and to facilitate the enforcement of this prohibition and enhance the integrity of the inspection system. The shortage of information on the practical scope of the prohibition placed upon inspectors from having an interest in enterprises under their supervision would appear to reflect shortcomings in the relevant legislation. The governments of some countries have occasionally reported transfers to prevent risks of corruption to which inspectors may have been exposed. The Committee firmly encourages governments to take measures to supplement the legislation so as to guarantee to employers and workers that any violation by a labour inspector of her or his obligation not to have any direct or indirect interest can be prosecuted and penalized. B. Professional secrecy229. During their inspections, inspectors have access to information in respect of which employers have a legitimate interest in maintaining its confidentiality. Under the terms of Article 15(b) of Convention No. 81 and Article 20(b) of Convention No. 129, 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. 230. As public officials, inspectors are normally bound by a general obligation of discretion by virtue of the provisions governing the public service, and also very frequently by the specific provisions applying to the functions of labour inspectors. (Endnote_46) The obligation of discretion is established in certain countries by the oath that inspectors have to make before taking up their duties. (Endnote_47) 231. The exceptions to the obligation of secrecy provided for in the national legislation in certain countries essentially cover cases in which the notification of information to the police or judicial authorities, among others, is necessary to prosecute a violation. 232. As the legitimate interests of employers have to be safeguarded by protection that is of a permanent nature, the obligation of secrecy is maintained for labour inspectors after they have left the service. The Committee has on occasion drawn the attention of certain governments to the need to amend the legislation in this respect. 233. The scope of the obligation of secrecy, as provided for by the Conventions, differs in the various countries. For example, in Bosnia and Herzegovina it extends in general to data and information obtained by labour inspectors during the course of their duties, and particularly information relating to manufacturing processes and other specific characteristics covered by the law. In France, it covers labour inspectors, labour controllers, doctors and safety engineers and applies to manufacturing secrets and, in general terms, working processes. 234. The obligation of secrecy is frequently enforced through penalties. Nevertheless, the Committee does not have at its disposal sufficient information on the effect given in practice to legal provisions establishing penalties for inspectors who are in breach of the obligation of secrecy. C. Confidentiality of the source of any complaint235. Under the terms of Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129, labour inspectors shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and shall give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. 236. Compliance with this obligation is a prerequisite for the effectiveness of labour inspection. Without confidentiality, workers might hesitate to turn to the labour inspectorate through fear of reprisals. 237. According to the information available, compliance with this obligation does not raise any particular difficulties. However, its limitations are revealed in specific situations in which the investigation of individual cases makes it necessary to divulge the identity of the complainant. (Endnote_49) In such cases, it is admitted that the need for effective action to protect the victim has to prevail over the concern for confidentiality.
EndnotesEndnote 1In Switzerland, according to section 79.3 of Ordinance No. 1 of 10 May 2000 respecting the Labour Act, the numbers of inspectors for each of the cantons are fixed according to federal guidelines depending on the number of workplaces and the amount and complexity of the work. Endnote 2Australia (for example, Western Australia: Equal Opportunity Act, 1984; Northern Territory: Anti- Discrimination Act). In Fiji the Public Service Commission has adopted the principle of equality of opportunity in employment, which encourages the recruitment of women and men as inspectors in equal numbers; Haiti (section 432 of the Labour Code); Syrian Arab Republic (Act determining the status of public servants). Endnote 3In Austria, overall, 22.8 per cent of inspectors were women in 2001, but only 0.5 per cent of those for the transport industry; in Cameroon, there were 9 women out of 58 inspectors in 2004; in Mexico, 24 out of 218; in Eritrea, just one out of 19. Endnote 4In South Africa, 41.9 per cent of the workforce is made up of women; in Chile, 50 per cent; Mongolia, 36.5 per cent; Sweden, 40 per cent. Endnote 5In Switzerland, according to section 79 of Ordinance No. 1 of 10 May 2000 respecting the Labour Act (OLT 01), the cantons ensure that women inspectors investigate, or are called upon to deal with, matters that specifically affect women workers. Endnote 6In Brazil, a candidate must have full political rights, have fulfilled his military and electoral obligations, and be in good physical and mental health. In Cameroon, a candidate must be in good physical and mental health; in China, uprightness, honesty, diligence and integrity are the qualities required under section 2 of the Regulations on labour inspection. In Slovakia, according to section 1 of the Act on labour inspection of 8 February 2000, the candidate must have a clean police record; the same condition applies in Romania, according to section 50 of Act No. 108/1999; in Luxembourg, according to section 7 (3) of the Act of 4 April 1974; and in Latvia, according to section 7 of the State Civil Service Law. Endnote 7Section 546 of the federal Labour Act. Endnote 8In Canada in the provinces of Alberta and New Brunswick; in France; in Japan training is carried out at the Labour College of the Japan Institute for Labour Policy and Training; in Lebanon labour inspectors must have passed their final exams in the social and cultural affairs department of the National School of Administration, in accordance with Decree No. 112/59 of 12 June 1959. Endnote 9In Austria, according to the BGBL Ordinance, No. 670/1990, initial training of labour inspectors is supplemented by several courses prior to their official appointment: organized group courses (4-6 weeks) at a workplace for their specialization; an individual practical placement at a workplace (3-8 months depending on the inspector's specialization); basic and specialized courses (3-5 weeks) and a preparation course for the final exam (eight weeks). In Belgium, under the Royal Decree of 20 September 1963 concerning the professional training of Ministry of Social Affairs employees, trainee inspectors attend a 12-month training course which includes classes, lectures, and revision in preparation for the final competition. In Bulgaria, candidates for a position as a labour inspector must go through a one-year probationary period after which they sit a final examination in order to be permanently appointed. Afterwards, they undergo a compulsory training course given by senior inspectors on the application of legislation relating to labour inspection. In Cameroon the required basic training is done at the National School of Administration and Justice, in the labour department, or in foreign or international schools, the list of which is determined by Order No. 133/CAB/PR of 2 June 1977. During their career labour inspectors receive further training in the form of courses, seminars, and even university study, under the auspices of the African Regional Labour Centre (CRADAT). The Government of Denmark indicates that new labour inspectors must follow a specific training programme that includes training at the labour inspectorate's regional office, a three-day general introductory course on the organization and role of the National Authority for the Working Environment, and on relevant legislation, a training course specifically dealing with basic knowledge of issues related to the working environment, and finally, a visit to other departments of the National Authority for the Working Environment. In Honduras, once inspectors have been appointed, their training is supplemented by practical and theoretical training overseen by experienced labour inspectors who assess the capacities of the new inspectors, a one-day course on investigation techniques, in particular, and seminars. Latvia indicates that new inspectors receive 240 hours of additional training upon their appointment. The Government of Mauritius indicates that intensive practical and theoretical training is provided for inspectors in the different departments of the Ministry in charge of labour, and, for some of them, at the ILO International Training Centre. In the United Kingdom, in addition to an initial degree, occupational health and safety inspectors undergo additional training over two years, under the supervision of experienced inspectors, which includes specialized theoretical courses to obtain a postgraduate diploma in occupational health and safety. In addition, all inspectors over the course of their careers undergo in-service training to update their knowledge and skills. Inspectors working in agriculture receive specific training in order to better understand this sector and its specific risks. Endnote 10The annual report on labour inspectorate activities sent by France regularly mentions, apart from the legal provisions relating to the recruitment methods and conditions of inspectors, statistical and thematic information on in-service training (including training for trainers) provided to inspectors by the National Institute of Labour, Employment and Professional Training's central and regional offices. An information system on labour inspection was established in 2000 and required specific training for all inspectors in the inspection system. In Portugal and Spain, detailed information, particularly on the types of training courses, the subjects, and the number of participants, is published in the annual inspection report. In the Dominican Republic labour inspectors must regularly participate in training courses given at the School for Technical Labour Training. In Finland training courses are organized by the inspectorate and inspectors can participate in internal or external training courses. In Hungary, specialized in-service training is organized by the National Inspectorate for Occupational Safety and Labour. The Government of Lebanon indicates that training sessions are regularly organized for inspectors, in collaboration with the ILO, the Arab Labour Organization and UNICEF. Inspectors who are engineers and doctors receive specialized training with the collaboration of specialized educational institutions. The Government of Malaysia indicates that labour inspectors can undergo specific training courses privately, within the National Institute for Occupational Health and Safety, or university courses related to their duties. The Government of Mexico indicates that inspectors at federal and local levels receive in-service training. The Government of the Philippines indicates that complementary theoretical and technical training courses are organized by the National Center of Occupational Safety and Health. In Romania, professional development courses for a minimum of seven days per year are organized by the National Institute of Administration or other recognized institutions. In particular, a national programme on occupational safety and health for inspectors has been developed for 2002-07. With regard to this, 60 inspectors have received training as instructors and information methods have been developed. Endnote11For example, in El Salvador, in addition to in-service training on applicable national and international standards, inspectors receive training on new labour relations. In Morocco, the Government states that a training course on freedom of association, collective bargaining and industrial relations has been held. The Government of Cape Verde indicates that labour inspectors have been trained, in particular in the procedures for taking action on violations of labour legislation. Endnote 12The Portuguese Confederation of Tourism. Endnote 13For example, in Kuwait, an agreement between the Ministry of Social Affairs and the Institute of General Applied Education provides for the organization of training courses for inspectors, who will also be permitted to participate in courses and seminars organized by the Regional Arab Centre for Labour Administration. In Yemen, the Government indicates that it wishes to organize training courses in coordination with the Arab Labour Organization. Endnote 14The African Regional Centre for Labour Administration in French-speaking African countries (CRADAT); the African Regional Labour Administration Centre in English-speaking African countries (ARLAC); the Asian and Pacific Regional Centre for Labour Administration, for Asian and Pacific countries (ARPLA); the Inter-American Centre for Labour Administration for Latin-American countries (CIAT); the Caribbean Labour Administration Centre (CLAC). Endnote 15For example, in Benin and Burkina Faso. ILO support has also been requested by the Governments of Bolivia and Cuba. A workshop on the role of labour inspection, particularly in the field of occupational health and safety, was organized in Mauritius in collaboration with the African Regional Centre for Labour Administration (ARLAC). Some inspectors from Jordan received training at the ILO International Training Centre in Turin. Endnote 16For example, Argentina, El Salvador, Kenya, United Republic of Tanzania, Turkey and Uganda. Endnote 17Training on equal remuneration is currently being undertaken in Togo, Slovakia, Romania and Portugal, and on discrimination in general in Argentina and Mexico. Endnote 18For example, in 2001 in Belgium, 45 social inspectors comprising ten directors and 145 social supervisors divided into two categories worked at the Ministry of Social Affairs, Public Health and the Environment; 25 inspectors and 122 supervisors worked at the National Office for Social Security; and 30 inspectors and six supervisors at the National Institute for Health and Disability Insurance. Bulgaria had 355 inspectors in 2004; Cameroon had 75 in 2000; China had 43,000, of whom 19,000 were full time and 24,000 part time in 2004; Denmark had 714 inspectors, 440 of whom were in regional offices in 2000; Finland had 389 inspectors and supervisors in 2004. In France a comparative study of 2001 showed that the numbers in inspection services had fallen by 9.7 per cent over 15 years, even though there had been a 26 per cent increase in the number of workplaces liable to inspection. Greece had 1,048 inspectors in 2003; Honduras had 115 inspectors, including 14 in occupational health and safety in 2003; in Malaysia the figure of 279 given for 2003 covered all staff, regardless of their duties; Malta had five public servants monitoring employment contracts and working conditions in 2001; Mongolia had 73 inspectors, Mexico 218 inspectors, the Philippines 208, and Romania 1416 in 2004; Slovenia had 106 employees in labour inspection, 76 of whom were authorized employees and 73 of these were full time in 2001. Endnote 19The technical services of the ILO responsible for labour inspection consider that the number of labour inspectors in relation to workers should approach the following: for industrial market economies: 1/10,000; for rapidly industrializing economies: 1/15,000; for transition economies: 1/20,000; for least developed countries: 1/40,000. Endnote 20In Finland the majority of labour inspectors possess specialized skills in specific fields, such as industrial plants, industrial chemistry or technology. In Malaysia, where the inspection staff includes engineers, industrial health specialists and doctors. In Kuwait, a certain number of inspectors are qualified in particular sectors, such as electricity or mechanics. Endnote 21In Bahrain, the Government indicates that specialists in occupational health and safety from the Health Ministry go with the inspectors on each visit. In Romania, according to section 8 of Act No. 188/1999, the use of specialists or specialized agencies is governed by the inspectorate's regulations on the organization of its work. In Tunisia, according to section 176 of the Labour Code, collaboration with technical specialists is only permitted in situations where there is a risk to health and safety. Endnote 22For example, in Chad, France, Guinea, Republic of Korea, Mauritania, Morocco and Tunisia. Endnote 23In Cameroon, according to section 111 of the Labour Code; in Mauritania, according to section 284 of the Labour Code; in New Zealand, according to section 35 of the Health and Safety in Employment Act, No. 96, 1992; in Kenya, according to section 51 of the Employment Act No. 2/1976. Endnote 24Section 8 of Decree No. 008 of the Ministry for the Public Service, Labour and Administrative Reform. Endnote 25Paragraph 136 of the 1985 General Survey. In addition, as has already been pointed out, officials or representatives of occupational organizations who might participate in the labour inspection system in agriculture should be assured of similar guarantees of stability of tenure and independence (Article 8, paragraph 2, Convention No. 129). Endnote 26In Algeria, Decree No. 91-44 of 16 February 1991 on the special status applicable to labour inspectors; in Austria, in accordance with Annex I of the Civil Service Regulations of 1979, BGBl No. 33; in Benin, Decree No. 85-375 of 11 September 1985 regarding the special status of the whole staff of the labour and manpower departments. In Bolivia, since the adoption of the Ministerial resolution No. 340/87 of 26 November 1987 regarding the regulations of the labour inspectorate, the latter constitutes a national technical authority of the public service and comes under the Ministry of Labour; public servant status is ensured under section 35 of the Labour Inspectorate Regulations. In Bosnia and Herzegovina, under the State Administration Act and the Act concerning labour inspection. In Brazil, under Act No. 8112 of 11 November 1990. In the Congo public servant status for labour inspectors is established under section 152 of Act No. 6/96 of 6 March 1996. In Greece, according to Act No. 2639/98 and the Public Service Code adopted by Act No. 2683/99. In Lesotho, under section 12 of the Labour Code Order; in Lebanon, under Decree No. 112 of 12 June 1959, labour inspection staff are public servants subject to public service conditions of service; in Mali, according to section L.292 and subsequent sections in the Labour Code; in Nicaragua, according to the Public Service and Administration Careers Act of 2003, and its implementing regulation; in Tunisia according to Decree No. 891 of 30 May 1990. Endnote 27In the Philippines and Singapore, for example. Endnote 281985 General Survey on labour inspection, para. 148. Endnote 29For example, in Benin, section 35 of Decree DC 85-375 of 11 September 1985 respecting the particular status of the labour administration service. Endnote 30This is the case in Bolivia where a labour inspector's monthly salary is equivalent to about US$165; in Brazil, where even the salaries of managerial positions are low; in Guatemala, where overtime is not paid; in Paraguay, where salaries are said to be insufficient, about US$350, according to the Latin American Confederation of Labour Inspectors. Endnote 31Act No. 16226 of 29 October 1991 to abrogate section 495 of Act No. 15809 of 10 November 1987. Endnote 32Report III (Part 1A) of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 90th Session, 2002, pp. 256-257. Endnote 33The Association of Uruguayan Labour Inspectors (AITU) draws attention to discrimination in terms of labour inspectors' salaries compared with officials in other inspection services, such as tax inspectors; in its opinion, this highlights the weakness of labour inspection staff. Endnote 34Sections 23 to 32 of the State Civil Service Law of 7 September, 2000. Endnote 35In Argentina. Endnote 36Particularly in Costa Rica. Endnote 37Section 97(5) of the Labour Standards Act, as revised on 4 July 2003. Endnote 38Decree No. 459 of 8 March 1990. Endnote 39In Brazil, an association of labour inspectors, the AGITRA, alleges a lack of government commitment to guaranteeing minimum conditions for the safety of inspectors while performing their duties; and complains of political interference. In France, labour inspectors and supervisors reacted to this by calling on the Government to ensure their profession the respect necessary for it to assert its authority in the eyes of the general public and particularly of employers by providing for legal action against persons who insult and slander labour inspectors. In the context of the European Union, the Senior Labour Inspectorates Committee (SLIC) examined inspection-related incidents and acts of violence perpetrated against labour inspectors. Endnote 40In Belgium, sections 12 and 13 of the Act of 16 November 1972 on labour inspection; Royal Decree of 2 October 1937; Brazil, section 35 of the Labour Inspection Regulations; Denmark, section 3 of the Public Administration Act on prohibitions and section 79 of the Working Environment Act; Finland, sections 5, 6 and 7 of Act No. 131/1973 on the supervision of occupational safety and health; Japan, articles 103 and 104 of the National Public Service Law and article 105 of the Labour Standards Law; Lesotho, section 14(3) of the Labour Code. Endnote 41Nicaragua: the relations between labour inspectors and the enterprises under their supervision are governed by the Regulations on labour inspectors, Decree No. 13-97 of 27 February 1997. Endnote 42For example, in Australia. Endnote 43For example, in Malta, the Ethical Code for public officials includes all the ethical rules set out in the Conventions. Endnote 44Section 17 of the Act on labour inspection. Endnote 45In China, it is prohibited for labour inspectors and those close to them to use their influence to obtain money, presents or services from employers or workers under their supervision. In Guatemala, the acceptance of a present from an employer, employees or trade unions makes the labour inspector liable to dismissal (section 281(k) of the Labour Code); in Mexico, it is prohibited for labour inspectors to receive presents or payments from workers, employers or their representatives. Endnote 46For example: Bahrain, in section 151 of the Labour Law for the private sector of 1976; Benin, in section 268 of the Labour Code; Burkina Faso, in section 219 of the Labour Code of 1992; Cameroon, in section 106 of the Labour Code; Luxembourg, in section 24 of the Act of 4 March 1974; Mali, in section L293 of the Labour Code; Morocco, in section 531 of the Labour Code; Slovakia, in section 12(2) of the Act on labour inspection. Endnote 47For example, in Hungary. Endnote 48For example, in Guatemala, inspectors who are in breach of the obligation of secrecy are liable to summary dismissal (section 281(k) of the Labour Code). The same applies in Honduras (section 612 of the Labour Code). Endnote 49This situation is referred to, among others, by France and New Zealand.
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