ILCCR: Examination of individual case concerning Convention No. 81, Labour Inspection Convention, 1947 Sri Lanka (ratification: 1956) Published: 2007


Description:(ILCCR Individual Observation)
Convention:C081
Country:(Sri Lanka)
Session of the Conference:96
Document:22
Subject classification: Labour Inspection
Subject: Labour Administration and Inspection
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Document No. (ilolex): 132007LKA081

A Government representative referred to the observation made by the Committee of Experts on action to improve the organization and operation of the inspection system. In that regard, he stated that the action had been carried out within the framework of the ILO technical assistance programme for revitalizing and restructuring the labour administration to meet the existing and emerging challenges of development. The changes implemented in the labour inspection system were not intended to undermine it, but rather to strengthen it further. As had been proposed in the ILO document on future directions for the Ministry of Labour Relations and Foreign Employment, an integrated labour inspection system was implemented with ILO assistance. Under that system, a general labour inspector was responsible for wages and working conditions, social security, safety in the workplace and occupational health. Neither inspections nor prosecutions had been reduced following the new system's introduction. However, under the new system, employers could be prosecuted for continued violations, as well as for ignoring corrective instructions given by inspectors. Inspections were supervised at the district level and review meetings were held regularly at the provincial level by the Commissioner General of Labour. The system's implementation was reviewed by ILO specialists, with the last review taking place in May 2007. Instructions were supplied on how to overcome the various difficulties encountered.

With regard to the observations on labour inspection staff, the Government had boosted their numbers. There were currently 674 inspectors, based in regional offices, depending on the number of establishments in each region. The system had been decentralized and for administration and better supervision of labour inspection, 12 provincial offices had been established. In addition, special team inspections were being undertaken, usually as a result of complaints, or as multidisciplinary inspections where all activities relating to labour, including occupational health and safety, were examined.

According to the Sri Lankan Central Bank's annual report, 63 per cent of workplaces were found in the informal economy. As with any country, Sri Lanka faced difficulties in addressing problems in that sector. However, under the new system, on the advice and guidance of the ILO, combined inspections were undertaken throughout the country in order to identify workplaces that failed to comply with labour legislation and did not contribute to the Employees' Provident Fund. Thirty per cent of new establishments had been identified and action was being taken to register them and ensure that they contributed to the Fund. However, it was too early to statistically demonstrate any progress made.

With regard to the observations on the appointment of both men and women to the staff of the labour inspectorate, Sri Lanka had made progress in recruiting both men and women. Increasing numbers of female officers were recruited to the labour inspectorate field offices and to supervisory posts. Some 35 per cent of the 674 inspectors were female. Those officers were working as effectively and efficiently as their male counterparts. Managers of both sexes had been trained with ILO assistance in labour inspection and gender sensitivity, and no notable difference had been observed between the officers in the course of their duties.

With regard to the right of labour inspectors to enter freely workplaces liable to inspection, the Government representative reiterated that workplaces in the export processing zones were not excluded from supervision by labour inspectors and that there was no restriction on entering those zones. All officers were issued with professional identification documents and had the right to enter workplaces freely, without the need to seek prior permission. In addition, some Department of Labour officers were based within the main export processing zones in order to facilitate dispute resolution by way of mediation.

The Board of Investment, the governmental organization responsible for managing the export processing zones, was a member of the National Labour Advisory Council, chaired by the Minister of Labour. Lanka Jathika Estate Workers' Union, which had made an observation, represented the trade unions as a member of the Council. The speaker presumed that the Committee of Experts was referring to an observation made by that trade union in 2003. In March 2004, the Board of Investment drew up the Labour Standards and Employment Relations Manual for the information of potential investors in export processing zones, which was adopted by the National Labour Advisory Council. It stated that the country's labour laws applied to all enterprises and that both the Ministry of Labour and Department of Labour were responsible for labour administration functions, including labour law enforcement and labour relations. Recognition of the role of both the Ministry of Labour and Department of Labour by the Board of Investment in enforcing legislation was a clear indication of the position regarding free access to the zones by inspectors.

With regard to the powers of injunction of labour inspectors, the Committee of Experts observed that labour inspectors were not sufficiently empowered to issue orders intended to remedy defects observed in plant layout or working methods that posed a potential threat to workers' health and safety. Such a matter should be handled by professionally or technically qualified officers, not by labour inspectors, who were expected to report such threats to the factory inspection officers or medical officers so that they could give the employer the required technical or medical advice. However, the Government would take suitable measures to address that issue in the new Occupational Health and Safety Act.

The Ministry of Labour Relations and Manpower and the Ministry of Healthcare and Nutrition, with assistance from the World Health Organization, were working together to further strengthen occupational health and safety. The principal objective was to explore the possibility of assigning the task of researching health and safety issues in the workplace to medical personnel. The speaker hoped that the measure would assist in overcoming the shortage of qualified occupational health and safety officers.

With regard to travelling allowances for officers, inspectors were entitled to use a vehicle as a condition of their employment. They received a loan to purchase a vehicle and were paid mileage at the prevailing rates applicable to all government officers. They were paid through the government budgetary allocations and separately for any work undertaken relating to the Employees' Provident Fund. The Lanka Jathika Estate Workers' Unions made their observations using 2003 as a point of reference but, between 2003 and 2007, the upper limit of the travelling allowance paid to officers had almost doubled. In that context, the speaker stressed that the proper planning and management of visits by the inspectors was equally as relevant as the sum paid. That matter was addressed during the introduction of the new system.

With regard to dissuasive sanctions, Sri Lanka had revised its penalties - both fines and imprisonment - under the Employment of Women, Young Persons and Children Act. Action was being taken by the committee appointed to update labour legislation to revise penalties under all other labour legislation. The speaker expressed the hope that it could be finalized by the end of 2007.

With regard to statistics and the publication of the annual report on labour inspection activities, action was being taken to duly collect and analyse the data. That information could be included in the next report under the Convention.

The Employer members thanked the Government for the detailed and useful information presented. The Committee of Experts had dealt with the application of the Convention by Sri Lanka almost every year since 1992, while the Conference Committee had dealt with the case in 1997 and 1999. The Committee of Experts had noted progress in a number of areas: with ILO assistance the restructuring of the labour inspection service had continued and more emphasis was now being laid on prevention and improvements than on sanctions and enforcement. Four female labour inspectors had been appointed. New occupational safety and health legislation was being prepared and a new institute on occupational safety and health had been established. Further, the penalties for infringements of the Employment of Women, Young Persons and Children Act had been increased. Currently 30 per cent of new workplaces were covered by labour inspection.

The Employer members felt that considerable progress in the application of the Convention had been made. However, they also stressed that a number of issues remained unresolved and further information was necessary on various points, such as indications regarding the number of labour inspectors in relation to the number of workplaces to be inspected. Regarding the issues relating to the Employees' Provident Fund, the Employer members stated that those were matters not directly related to the Convention. The funding of labour inspection was a responsibility of the State. They also drew attention to the Committee of Expert's request to ensure effective implementation of the legislation with regard to access to workplaces, including in export processing zones. Finally, the Employer members recalled the need to provide further information on the provision of travelling allowances to labour inspectors and compliance with the requirements concerning annual inspection reports. Welcoming the document on future directions for Sri Lanka, they noted the measures taken so far which illustrated that the Government was committed to applying the Convention.

The Worker members observed that the application of the Convention to Sri Lanka had been addressed before, in 1997 and 1999. Points of divergence between national practice and the Convention's provisions had been noted at that time, particularly with regard to labour inspection staff, the frequency of inspections and the publication of annual reports on labour inspection activities. The Committee had stressed specifically the need for inspections concerning the provisions of the labour legislation protecting children and adolescents against exploitation in export processing zones. In countries exposed to the most drastic effects of trade liberalization, effective enforcement to ensure respect for social standards was essential for protecting workers. Currently, the results were mixed. Reports were indeed being published annually by the labour inspectorate, preventive activities were beginning to appear, new legislation concerning occupational safety and health was being drafted, both men and women were beginning to be employed in the labour inspectorate, an institute had just been established for health and safety in the workplace and the amount of fines had finally been adjusted. However, with regard to certain fundamental issues, results remained unsatisfactory, or at least, difficult to corroborate given the lack of statistics. Were there sufficient numbers of labour inspectors? Were employers paying their contributions? Would the principle of free access to all establishments liable to inspection finally be respected in legislation? Would the prerogative of the labour inspectorate to suspend any activity in case of imminent danger finally be expressed in legislation? A specific response to each of those issues should be supplied to the Committee of Experts. Decent work also depended on efficient and effective labour inspection. Respect for international labour standards relied upon strong labour inspection. That principle took on even greater significance in the export processing zones. They should not be exempt from the rule of law, only recognizing the rule of total flexibility. Labour inspection should enjoy the means necessary for accomplishing, including in those zones, the mission set forth in Convention No. 81, particularly if the eradication of child labour were to become a reality.

The Worker members therefore felt that further efforts were expected on the part of the Government in terms of improving the legislation and its application, in collaboration with the country's social partners and, if necessary, with ILO technical assistance.

The Worker member of Sri Lanka said that the question of labour inspection was intertwined with enforcing labour laws, and proper implementation: inspection and enforcement had to be considered together. In his view, there was a widening gap between law and practice which was primarily due to the lack of political will and commitment on the part of the Sri Lankan authorities. Labour inspection in the public sector was non-existent. Industrial relations in the public sector depended on political patronage and there was no independent dispute settlement mechanism. In addition, the lack of inspection of wages and of a national wage determination mechanism had given rise to wage disparities and wage discrimination in both the public and private sectors. The current state of labour inspection and the implementation and enforcement of legislation demonstrated that the measures taken by the Government had been tardy. There was no inspection of overtime hours, which had been increasing drastically, and had affected the health of workers, especially in the export processing zones. Moreover, the overtime worked was not voluntary thus causing the country to fall into the category of countries practicing forced labour.

The speaker further pointed to problems in the area of freedom of association, especially with regard to public servants, and regretted that the authorities were still to take meaningful steps to implement the proposals for legislative reform made by the tripartite workshop, held in 2002, to give effect to the freedom of association Conventions. In addition, he indicated that the current state of emergency had had an impact on labour inspection and that the ongoing war with the Tamil Tigers had led to a situation where a significant sector of the Sri Lankan working class had been kept outside the labour movement. The shortcomings in the application of the Convention had a long history where little progress had been made both in law and in practice.

The Government member of Finland speaking on behalf of the Government members of Denmark, Finland, Iceland, Norway and Sweden considered that the role of Convention No. 81 was paramount. It was a priority Convention, intended to ensure safe working conditions. Besides occupational health and safety, labour inspection also contributed to fair terms of employment. Therefore, in addition to preventing discrimination in employment and child labour it contributed to decent work. She urged the Government to provide adequate and appropriate resources and powers to the labour inspection as well as to ensure access to workplaces without prior permission. This was particularly important in export processing zones where workers often belonged to the most vulnerable groups such as women and young persons. The Government was asked to ensure that the legislation included adequate sanctions that were sufficiently dissuasive, and that the legislation was effectively enforced.

The Worker member of Australia highlighted the essential link between labour inspection and the capacity to enforce labour law. Enforcement of labour law in Sri Lanka was weak. It was, however, recognized that labour inspection had been effective in addressing child labour and occupational health and safety - two critical aspects of the labour situation in Sri Lanka.

The Government's future plans for labour inspection focused on prevention and improvement rather than enforcement and penalties. The Government should be asked as requested by the Committee of Experts to elaborate on the practical consequences of its plans, given that even where inspection had been undertaken, follow-up was often lacking, and cases for prosecution were excessively delayed. The speaker sought further information and accompanying statistical data to verify activities promoting occupational health and safety, especially under the new Institute on Occupational Health and Safety in relation to labour inspection.

She stated that the monitoring and follow-up of inspections was deficient, and the legislation relating to access to workplaces in the free trade or export processing zones (EPZs) was not compatible with the Convention. The effectiveness of the inspection system needed to be seriously addressed, so as to prevent measures concealing a violation of a legal provision, and to explicitly authorize inspectors to enter workplaces freely. The Labour Department needed to be further encouraged to promote labour standards, most especially in EPZs, through its labour education programme, and to engage the social partners in that programme.

Even more fundamentally, there was a need to acknowledge that there had been widespread violations of trade union rights in Sri Lanka's EPZs. The Labour Ministry rarely became involved in EPZs, since the zones were managed by the Government's Board of Investment (BOI). In the export garment sector, there was a factory inspection service, and the BOI took priority over the Labour Ministry in setting wages and conditions. The Labour Commission, under pressure from the BOI, had failed to prosecute employers who refused to recognize trade unions, or enter into collective bargaining with them, which had major implications for labour legislation as a whole. Although union recognition constituted a serious problem in the EPZs, the Free Trade Zone and General Services Employees' Union (FTZGSEU) of the National Workers Congress, representing garment workers, had managed to organize.

The speaker believed that the capacity of labour inspectors and inspector supervisors needed to be improved by means of training for inspectors in data collection, follow-up and monitoring skills as well as in the use of information collected for initiating legal proceedings. She denounced the serious violations in the EPZs in terms of working hours, overtime, wage rates and non-payment of wages, and the growing wage gap between men and women. The cost of living was so high that many workers were compelled to work excessive hours under poor conditions in EPZs, with serious implications for safety, productivity and costs to workers' families in case of injury or illness. The Government needed to take responsibility for the health and safety of workers by applying the full range of measures available to the labour inspectorate.

Legal action against errant employers was often slow, since the Labour Department often failed to file complaints against employers alleged to have engaged in unfair labour practices. As there was no time limit on bringing cases to court, the cases were delayed until the union had been weakened or disbanded. According to the Labour Department, there were "instructions" for filing complaints within 30 days, but those were not enforced, as demonstrated in the 2006 Annual Survey of the International Trade Union Confederation.

While Sri Lanka benefited from the United States Generalized System of Preferences (GSP Plus) in recognition of its record on the observance of labour rights, the speaker concluded that the Government still had a long way to go in terms of enforcement of existing laws. Prevention of occupational accidents and injuries, and improvement of labour conditions depended on the willingness and capacity to identify and address the existing problems. Compliance with the Convention was important to improve the quality and coverage of the information collected, the action taken and the realization of decent work.

The Government representative thanked the Worker and Employer members for their observations which he hoped would contribute to strengthening the labour inspection system in Sri Lanka. The requested statistics on labour inspection would be submitted on time in order to be examined by the Committee of Experts. Furthermore, the Government representative highlighted the support of the ILO for restructuring and revitalizing Sri Lanka's labour administration system and the importance of ILO technical assistance.

The Employer members thanked the Government for the constructive debate and encouraged it to continue to make further progress with the assistance of the ILO. It was particularly important that the annual labour inspection reports analysed relevant developments and inspection results, and that those reports were provided to the ILO. In addition, information on the other measures taken should also be submitted to ensure that the Convention was being implemented.

The Worker members stated that, while the particulars provided so far by the Government showed that some progress had been made, especially in the legislative field, information was still needed to be able to appreciate the reality of those developments. It was with respect to export processing zones that clarifications appeared most necessary. The Worker members requested the Government to supply information enabling an assessment of the extent to which labour inspection henceforth exercised effective enforcement and prevention, and hoped that such labour inspection activities would soon be regulated by a legislative framework finally meeting the requirements of the Convention. They reiterated the particular importance of labour inspection activities in export processing zones, as well as of the principle of freedom of access of labour inspectors to all workplaces, as provided for in Article 12 of the Convention.

Conclusions

The Committee took note of the statement made by the Government representative as well as the discussion that took place thereafter. It noted the observation made by the Committee of Experts concerning the lack of information about labour inspection staff in terms of numbers and qualifications; the infrequency of inspection visits; and the character of sanctions; the lack of information about transport facilities and means; the administrative and legislative obstacles hindering the freedom of inspectors to enter establishments; the lack of information about powers of labour inspectors; and the need to publish an annual inspection report containing the statistics required under the Convention.

The Committee noted the detailed information provided by the Government representative on the restructuring of the labour inspection system, with ILO assistance, the efforts to develop the prevention side of labour inspection aimed at promoting the qualifications of labour inspection staff, and at increasing the number of female and male labour inspectors.

While noting the declaration made by the Government on the absence of any restriction on the right of access by inspectors to establishments in export processing zones, and its confirmation that the system of administration was decentralized to allow better supervision of its operation, the Committee requested the Government to communicate to the ILO precise and detailed information on the relevant legal provisions, and of their practical application. It further requested the Government to communicate to the ILO a copy of the instruments providing for the doubling of the allocation of professional travel expenses of labour inspectors, and to explain the reimbursement procedure of expenses claimed by inspectors.

The Committee requested that the Government ensure that the legislation is modified so as to give effect to the provisions of Article 13 relating to the powers of injunction, and to communicate to the ILO information on progress achieved to that end, and provide a copy of any relevant draft text or final text.

The Committee also requested the Government to ensure the publication of an annual inspection report containing all legislative and practical information required under Article 21 of the Convention, and its communication to the ILO within the deadline provided for in Article 20. It expressed its hope that detailed information on inspection activities on child labour would also be included in such a report. It requested the Government to submit a full report to the Committee of Experts for its next session this year.
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