The ILO Labour Administration Convention, 1978 (No. 150) and its related Recommendation (No. 158) provide the basis for the development and operation of any modern system of labour administration. These two international instruments provide a most useful source of guidance and a standard against which any national labour administration can compare its orientation, role, scope, structures and functions, as well as actual performance.
Labour administration is concerned with the management of public affairs in the field of labour which, in its traditional sense, can be taken to mean all matters relating to the economically active human resource, in whatever sector. This is a broad concept, but supported by Convention No. 150, which defines labour administration as “public administration activities in the field of national labour policy”. Such activities would typically include the following:
- policy formulation involving the preparation of guidelines for new initiatives
- drafting of labour laws and regulations as a means of giving positive expression to labour policies
- planning of programmes, projects and activities in support of policy interventions
- policy shaping, involving drafting and inviting discussions on new initiatives
- policy implementation, involving the enforcement of labour laws, and the provision of advisory services as to how to comply with labour laws
- policy monitoring and evaluation
- providing information and raising awareness on matters of labour policy and labour laws.
From this comprehensive definition, it is apparent that labour administration may cover more than the responsibilities and activities of a typical ministry of labour (employment, social affairs and so on) in that the “field of labour policy may extend to various ministries, departments, parastatal agencies, or other public ministries outside labour”.
It is therefore necessary to think in terms of a labour administration system consisting of various components related to or interacting in the same way, to form a synergetic unity. The common unifying element is labour policy, and this includes all activities carried out under its purview. This will vary from one national system to another (for historical, political, economic, social or other reasons), but may typically include the following components: industrial relations, labour inspection, work safety, occupational hygiene, workers’ compensation, employment services, employment promotion, vocational training, guidance and counselling, trade testing and certification, personnel planning, employment and occupational information, foreign workers and work permits, social security, vulnerable and under-privileged groups, labour statistics, and indeed other elements.
From this it is apparent that a system of labour administration tends to be complex, that it requires coordination at all levels if it is to serve its purpose, and that it is dynamic in that, according to ILO Convention No. 150, it covers all “public administration bodies” and “any institutional framework” concerned with national labour policy. Finally, it becomes evident from this set of international standards that labour inspection should be an integral part of labour administration, and that in the field of labour protection (which includes but goes considerably beyond occupational safety and health) labour inspection is the operational instrument of any labour administration system to ensure compliance with national labour policy and legislation. To quote a former Director-General of the ILO: “Labour legislation without inspection is an essay in ethics rather than a binding social discipline.”
Two Levels of Labour Inspection
Labour inspection, as part of labour administration, as a rule is organized at two levels: field inspection offices devoted mainly to action, and the central authority devoted to policy development and monitoring, and to programme planning and management. The field services and the central authority must obviously work in close collaboration.
Labour inspection performs its functions of inspection and advice through the field services that constitute its foundation. These give it the advantage over other services of being in direct touch with the world of labour at the enterprise level—with the employers and workers, the active population of the country.
Conversely, carrying out inspections in enterprises puts the inspectorate in a position to provide the central administration with detailed information collected during visits or in meetings with the social partners and unobtainable otherwise, on the social climate, working conditions and the working environment or the difficulties of enforcing the legislation: the inadequacy of the deterrent action of the courts, problems with the regional authorities, pressure exerted by certain enterprises because of their economic role, and lack of coordination in the work of the various public services. The field services are also well placed to bring to light, as required by the international standards, defects or abuses not covered by the legal provisions.
Under ILO Convention No. 81 on Labour Inspection in Industry and Commerce (1947) (and, by virtue of Article 2, Mining and Transport), inspectors of local offices are required “to submit to the central ...authority periodical reports on the results of their inspection activities”. This provision, which is also contained in Convention No. 129 (Labour Inspection (Agriculture) Convention, 1969) leaves States a wide latitude to determine the form, content and frequency of the reports. The provision is essential, however, to ensuring continuous contact between the inspectors and the central body and to keeping the latter informed of the economic and social situation in the regions and allowing it to define and direct national inspection policy, as well as to compile an annual report on the activities of the inspection services for national distribution and in time with international obligations.
The central authority
The central authority directs the labour inspectorate (or, in the case of many federal countries, state inspectorates) and ensures its place in the administrative machinery of the ministry responsible for labour policy administration and of the state administration. Carrying out the tasks of inspection is not, in fact, dependent solely on the personal initiative of the inspectors, even though this remains of fundamental importance. Labour inspectors do not work in isolation; they are part of an administration and execute a set of national corporate objectives.
The first step in directing is to draw up a budget, have it adopted and administer it. The budget reflects the social choices of the government; its amount determines the scale of the means accorded the services. Consultation with the trade union organizations, which have an interest in the effectiveness of inspection, can be important from this point of view.
To direct is also to define a labour protection policy, to work out the principles for the work of inspection, to set an order or priority in accordance with the characteristics of the various branches of activity and the type of the enterprises and the results they obtain, to rationalize the activities (enforcement policy), to perfect the methods and programme, to encourage and coordinate the different services, to evaluate results and to make suggestions to improve the functioning of inspection.
It is the central authority that must give the external services sufficiently clear instructions to ensure the coherent and consistent interpretation of the legal provisions throughout the country. This is usually done by way of a comprehensive national enforcement policy, often (and preferably) designed in consultation with the most representative social partner organizations. Finally, it must manage the staff, see to training and refresher training (training policy), ensure independence and respect for professional ethics and periodically assess the work of the officials.
Under the terms of ILO Conventions Nos. 81 and 129, the central authority has to draw up an annual report, the essential elements of which are indicated in Articles 20 and 21, on the work of the inspection services. The publication of these reports within 12 months after the end of the year to which they relate allows the workers, the employers and the authorities concerned to become familiar with the work of inspection. The communication of these reports to the International Labour Office within three months of publication provides the material for an extremely useful study of the systems established and the results obtained in the member States and allows the competent services of the ILO to remind governments of their obligations, if need be. Unfortunately, this obligation, binding on all member States having ratified the Convention, in practice is all too often overlooked.
It remains for the central body to transmit the information received from the inspection services to the advisory bodies set up within the ministry (e.g., the national safety and health committee or the collective agreements board), to the ministries concerned and to the social partners. It also has to use this information itself and take the appropriate action, either in the work of inspection or in the drafting of laws and regulations. In all, this publication activity is a most useful means for the labour inspectorate to document its activities and achievements at the national and international levels.
ILO Conventions Nos. 81 and 129 provide that appropriate arrangements shall be made to promote cooperation between the labour inspection services and other government services or public or private institutions engaged in similar activities.
Collaboration with other labour administration services
Collaboration must first be established with the other labour administration services, both central and local. The problems dealt with by labour administration—working conditions, health and safety, wages, employment, labour relations, social security and statistics—are often closely linked and must be seen as a whole.
The central authority must exchange information and assist in preparing a common policy and common guidelines for decisions by the competent minister or ministers or by a central planning body. On the local scale, labour inspection must maintain regular contact, in particular, with the employment services, those dealing with foreign workers and those dealing with labour relations (when these come under specialized services).
In countries where there are different labour inspection services under the same ministry (as in Belgium) or attached to different ministries, very close collaboration must be arranged for the exchange of information, the specification of methods or procedures for action and the drawing up of common programmes of action. The effectiveness of work carried out by several services is directly linked to the quality of the cooperation between them, but experience shows that in practice such cooperation is very difficult to organize and time- and resource-consuming even in the best of circumstances. It therefore almost always tends to be a second-best choice. It also tends to render the necessary holistic approach to prevention as the primary objective of labour inspection very difficult.
Collaboration with the social security administration
In many countries, parts of the social security services, notably those responsible for workers’ compensation and occupational accident and disease insurance, deal with the prevention of occupational risks. Other specialized officials carry out checks in enterprises to see what health and safety measures must be applied. In some countries (Australia (New South Wales), Zimbabwe), the labour inspectorate is actually operated by the social security system. In others (France, Germany), they run a separate, parallel inspection system. In still others (Switzerland), the state labour inspectorate is reimbursed on a pro-rata basis for inspection activities devoted to occupational safety and health prevention at enterprises. Though social security officials’ actions are not directly backed, like those of labour inspection, by the authority of the State, except where they are civil servants, such as in New South Wales or Zimbabwe, they are accompanied by financial penalties in the form of increased contributions for enterprises with a high accident rate that do not act on the advice given. On the other hand, enterprises that make a real effort in prevention can benefit from reduced contributions or have loans on special terms to continue their work. These inducements and deterrents (bonus-malus system) obviously constitute an effective way of bringing pressure to bear.
Collaboration between services of social security and labour inspection is essential, but not always easy to establish, even though both usually but not necessarily come under the same ministerial department. This is largely due to the attitude of more or less independent administrations firmly attached to their prerogatives. When the controlling authority is fully effective, however and coordination is achieved, the results, particularly in terms of preventive action and cost control, can be remarkable.
Collaboration with the central authority must be evident in the exchange of information, the utilization of data and the joint preparation of programmes of prevention. Locally, collaboration can take various forms: joint inquiries (in the event of accidents, for example), exchange of information and the possibility of using the equipment of the social security services (often much better endowed from a financial point of view) for labour inspection.
Collaboration with research bodies, technical bodiesand experts
Labour inspection cannot remain isolated; it must make close contact with research bodies or universities to keep up with technological change and with progress in the social and human sciences, to obtain specialized information and to follow new trends. Collaboration must not be one-sided. Labour inspection has an important role to play with regard to research bodies; it can point out to them certain subjects for study and help them to test results in the field. Labour inspectorates are sometimes invited to participate in seminars or colloquia on social questions, or to provide specialized teaching. In many countries (e.g., the Federal Republic of Germany, the Russian Federation, or the United Kingdom) such collaboration, sometimes on a regular basis, is found to be of great value.
In the field of occupational health and safety, labour inspection must either approve or collaborate with the bodies approved for carrying out the technical verification of certain types of plant and equipment, where they exist (appliances under pressure, lifting gear, electrical installations). In other countries, such as South Africa, this is still largely done by the labour inspectorate itself. By calling on such external bodies regularly, it can obtain technical opinions and observe the effects of the measures recommended.
The problems faced by labour inspection today, especially in the technical and legal fields, are so complex that inspectorates could not fully ensure the inspection of enterprises without specialist assistance. Convention No. 81 requires States to take the necessary measures “to ensure that ...technical experts and specialists, including specialists in medicine, engineering, electricity and chemistry, are associated in the work of inspection ...for the purpose of securing the enforcement of the legal provisions relating to the protection ...health and safety ...and of investigating the effects of processes, materials and methods of work”. Convention No. 129 has a similar provision.
It remains true that the many aspects of working conditions are closely linked—recent research only goes to confirm this—and that labour inspection services must be able to deal with them as a whole. For this reason, the multidisciplinary approach, which makes it possible to combine the advantages of specialization and versatility where financial resources are adequate, appears especially promising.
Regional or departmental authorities
In almost all countries, the national territory is divided into a number of districts called by different names (regions, provinces, cantons, departments), themselves sometimes subdivided into smaller districts, in which the central authority is represented by senior officials (e.g., governors or prefects). The staff of the external services of the various ministries often come under these senior officials as regards the civil service rules and information on policy, and it is often their senior officials who install labour inspectors in their posts when they are appointed. Inspectors (or, if they exist, departmental, provincial or regional directors of labour) subsequently should keep these senior officials informed of any events that they should know about. Similarly, inspectors must collaborate with these officials to provide them, either directly or through their immediate staff, with any information that they require. Inspectors, however, should always come under their minister, generally the minister of labour, through their superior in the hierarchy (the departmental, provincial or regional director), as regards the content of their work, their manner of carrying it out, and their reporting on its results.
This can put labour inspectors in a delicate situation, for the officials representing the central authority are seldom well informed of the functions of labour inspection and they may be tempted, especially in certain disputes, to base their decision on considerations of law and order and social peace. Labour inspectors must stress the importance of the general application of the labour laws, where this is in question, and, if difficulties arise, they must refer the matter to their superiors.
Labour inspectors normally have regular administrative relations with the judicial authorities, whose support is essential for preventing infringements. In most countries, inspectors do not institute proceedings themselves—this is the prerogative of the public prosecutor’s office in the ministry of justice. When they note an infringement and they think it their duty to take it up against the employer, they draft a report of irregularity for the public prosecutor’s office. This report is an important document that must clearly establish the infringement, indicating the provision violated and the facts as observed by the inspector. The public prosecutor’s office generally has discretion either to act on the report and prosecute or to shelve the matter.
It can be seen not only how important it is to draft the report of irregularity, but also how desirable it may be for inspectors and officials of the public prosecutor’s office to meet, if only once. The labour inspector who reports an infringement has generally tried, before resorting to this measure, to use persuasion as a means of having the legal provisions respected. Officials of the public prosecutor’s office and judges are not always adequately informed of this, and it is often lack of knowledge of the inspectors’ working methods that leads them to pronounce trifling penalties or to shelve the case. For this reason, discussions between ministries are also essential at the highest level.
There are other circumstances in which labour inspectors may be in touch with the judiciary—for example, if a piece of information is requested of them for the preliminary investigation of a case or if they are called as witnesses during proceedings. It is important for them to receive communication of the complete text of judgements (including the reasons adduced), as soon as the judgements are handed down. This allows them to report the repetition of the offence, if the infringement continues; if the case is dismissed or the penalty given appears inadequate, it allows the inspectorate to request the public prosecutor’s office to appeal. Finally, communication is all the more useful if the judgement sets a precedent.
Labour inspectors may have occasion to maintain regular or sporadic contact with various other public authorities. They may be invited, for example, to cooperate with development planning services. Their role will then be to draw their attention to certain social factors and to the possible consequences of certain economic decisions. With regard to political personalities (mayors, members of parliament, party members), if labour inspectors should receive requests for information from them, for example, it is important that they should maintain the impartiality that must be their rule of conduct and display increased prudence. Procedures for relations with the police must also be established, for instance to control working hours in public road transport (only the police have the right to halt vehicles) or in case of suspected illegal immigrant labour. There must also be procedures, often lacking, to ensure inspectors the right of entry into workplaces, if necessary with the help of the police.
Relations with Employers’ and Workers’ Organizations
The labour inspection services naturally maintain close and regular relations with employers, workers and their organizations. Conventions Nos. 81 and 129, moreover, call on the appropriate authority to make arrangements to promote this collaboration.
Inspectors have contact in the first place with employers and workers in the enterprise, either during visits, or at meetings of bodies such as safety and health committees or works councils, or during conciliation meetings to prevent or attempt to settle disputes. Inspectors also have frequent contact with workers and employers outside the enterprise. Very often, they provide advice, information and opinions in their offices. Sometimes they preside over joint committees, for example to negotiate collective agreements or to settle disputes. They can also give courses on labour topics for trade unionists or heads of enterprises.
Labour Inspection and the Workers
As it is the clear and daily responsibility of labour inspectors to ensure the protection of the workers, it is inevitable that inspectors and workers should have extremely close relations. First of all, the individual worker can make a direct approach to the inspectors to ask for advice or to consult them on some question. Relations are most frequently established, however, through trade union organizations, shop stewards or workers’ representatives. As the purpose of trade unions is to defend and represent workers, their role is generally essential.
This set of relations, varying in form with the country and with the problem at issue, is discussed in the chapter Labour Relations and Human Resources Management. It should be recalled that the international standards—Conventions Nos. 81 and 129 and the Protocol of 1995 to Convention No. 81—lay down the principle of collaboration, both with the employers and the workers: the competent authority must “make appropriate arrangements to promote ...collaboration between officials of the labour inspectorate and employers and workers or their organizations”. It should also be noted that relations between the labour inspectorate, the employers and the workers cannot be separated from labour relations as a whole and are necessarily marked by the fact that labour inspection forms part of a socio-economic system that differs from country to country.
Collaboration can be established in various ways, in particular through direct relations or through bodies set up within the enterprise for representation or participation. Other forms of collaboration are practised on a departmental or regional scale in certain countries, in accordance with various procedures.
One of the basic functions of labour inspection as described in Article 3 of ILO Convention No. 81 is to provide information and advice to employers and workers, who can ask the inspectors for their opinions on problems that come within their competence and also ask them to take action. The workers can address a complaint or a request for opinion or action (visiting a workplace, for example) to the inspectorate through the trade unions; although labour inspectors remain free to act or not and to choose the form of their action, workers and their organizations have a certain initiative in the matter of inspection.
Relations between labour inspection and representative or participative bodies within the enterprise
This is probably the most obvious and the most regular form of collaboration. Because of workers’ experience and familiarity with work, they are particularly well placed to detect problems arising in working conditions, especially regarding safety and health, and to suggest remedies. It is normal for them to be consulted and associated in the study and solution of problems and in decisions that concern them. These principles, which call for dialogue and participation within the enterprise, call no less naturally for an exchange of information and collaboration with the labour inspectorate.
One of the most usual bodies for participation within the enterprise is the safety and health committee. This committee, which includes the representatives of the employer and the workers, continues in its own sphere the work of the labour inspectorate. The workers’ representatives are normally the most numerous. Committee coordinators are generally the heads of the enterprises or their representatives, which helps to ensure that the decisions taken by the committee will be followed by action. Technical experts, including occupational physicians and safety officers, assist the committee if possible. For its more important meetings the committee can also call on the labour inspector and the engineer of the social security services. The safety and health committee can and indeed should make the rounds and pay very regular visits to workplaces to detect hazards, draw the attention of the management to safety and health problems or address complaints to it about such matters, suggest improvements, verify the action taken on earlier decisions, carry out inquiries in the event of occupational accidents and take the initiative in introducing the workers to the basic prevention of occupational hazards and in improving their knowledge and making the whole staff of the enterprise, from the top of the hierarchy to the bottom, participate in the fight against occupational accidents and diseases.
In many countries, the members of the safety and health committee have the right to accompany labour inspectors on their visits. Experience shows that, where safety and health committees work well, collaboration with the labour inspectorate is common practice. Other representative bodies, the works councils or committees, which have a wider competence, play the same role of extension. Many problems relating to the application of labour legislation can be solved in this way: appropriate solutions can be found that go further than enforcing the letter of the texts, and it is only in difficult cases that the labour inspector is called in.
In many countries, the legislation provides for the appointment in the enterprise of staff representatives or shop stewards, who deal with conditions of employment and working conditions, among other things, and can maintain a dialogue with the employer. All sorts of problems can be brought up in this way that would not otherwise come to light. These problems can often be solved without the help of the labour inspector, who intervenes only if difficulties arise. In certain countries, staff representatives are entrusted with presenting complaints and observations relating to the application of legislation to the inspectorate. The inspectors often have the right and sometimes the obligation to be accompanied by staff representatives during their visits. Elsewhere, workers’ representatives must be informed of the visits of the inspectors and sometimes also of their observations or findings.
A highly important task of labour inspection is to maintain conditions such that the representative or participative bodies can function normally. One is to ensure the observance of trade union rights, the protection of workers’ representatives and the smooth running of the work of these bodies, in conformity with the legal provisions. Labour inspectors have a very important role to play in ensuring that the representative and participative bodies have a genuine existence and carry on useful activities, and this is one of the main areas in which they can give advice.
Participation in Inspection Duties
In some countries, the legislation explicitly provides for the involvement of workers’ representatives—trade unions, shop stewards or elected representatives—in labour inspection duties in certain circumstances.
Compulsory consultation of trade unions
In Italy, in certain cases specified by law, the labour inspectorate is obliged to seek the opinion of the trade union organizations before adopting a provision. Frequently, too, when the ministry of labour provides explanations for labour inspectors on the interpretation and application of the laws, these explanations are also communicated to the trade union organizations by way of circulars, briefings or meetings. In accordance with ministerial instructions, the labour inspectors’ visits must be preceded and followed by meetings with the trade unions, which are entitled, moreover, to see the reports of the visits. This latter practice is followed in more and more countries, often required by law, and has proved a most effective tool against unethical behaviour or negligence on the part of certain inspectors.
In Norway, the Act of 4 February 1977 respecting Workers’ Protection and the Working Environment lays down in certain of its provisions that the inspection services shall allow workers’ representatives to express their opinion before the Inspectorate makes a decision.
Participation and direct intervention of workers’ representatives
The participation of the social partners in inspection has been strengthened in various countries, especially in the Nordic countries.
In Sweden, the Working Environment Act of 19 December 1977 provides for the establishment of a safety committee which shall plan and supervise safety activities, and for the appointment of one or more workers’ safety delegates with wide powers of inspection and access to information. They are authorized to order work to be suspended when they consider a situation to be dangerous, pending a ruling by the labour inspection service and despite opposition by the employer. No penalty can be imposed on a delegate whose decision to have the work suspended is not confirmed by the labour inspector, and the employer cannot claim any compensation for the suspension from the delegate or trade union organization.
Similar provisions on the appointment and duties of safety delegates appear in the 1977 Act of Norway. This Act also provides for the establishment, in all enterprises employing 50 or more persons, of a working environment committee, which participates in the planning and organization of safety and can make decisions; the coordinator of this joint committee changes annually, being elected alternately by the employers’ and the workers’ representatives, and casts a vote.
In Denmark, the organization of safety inspection, based on cooperation between workers and the employer in the enterprise, has been clarified and strengthened, a greater role being given to the trade union representatives. The basic principle underlying the Act of 23 December 1975 respecting the Working Environment is that the responsibility for ensuring occupational safety must be decentralized and, ultimately, assumed in full by the enterprise—and that most problems can and must be solved there, without external intervention.
Workers’ Role in the Inspection of Working Conditions and the Working Environment: International Trends
In general, it would seem that the participation of the workers in the inspection of working conditions and the working environment will continue to increase, particularly in countries that have introduced “self-inspection regimes” or internal control, such as some of the Nordic countries. Any such regimes depend on strong workers’ organizations and their active involvement in the underlying audit process at the enterprise level, which is the centrepiece of any such “self inspection”. It is in this direction that many trade union organizations are moving. The determination of these organizations, whatever their leaning, to participate in the examination and application of measures to make working conditions and the working environment more human has been documented in many recent international meetings.
In particular, the election of safety representatives to represent the workers in the enterprise in all matters of safety and health protection is essential. These officials should receive appropriate training at the expense of the enterprise. They should have the necessary time to carry out inspections and have the right to stop any work that seems to them dangerous, pending verification by the public authorities (in principle, the labour inspectorate).
Trade union participation in the determination of the criteria governing the use of dangerous substances and products is another essential criterion. The workers’ representatives should have a real influence on the management process regarding the use of dangerous substances, the choice of materials, the working out of production methods and the protection of the environment. In general, trade unions and workers’ representatives should have the right to participate, both on the national scale and at the workplace, in the protection of the health and safety of their members.
The ILO’s Occupational Safety and Health Convention, 1981 and Recommendation (Nos. 155 and 164 respectively) show a similar trend. The Convention states that occupational safety, occupational health and the working environment must be the subject of a “coherent national policy”, formulated, implemented and periodically reviewed “in consultation with the most representative organizations of employers and workers”. The two instruments, which lay down the principles of this policy and indicate the measures that must be taken on the national scale and in the enterprise, call on States to secure the enforcement of laws and regulations concerning occupational safety and health and the working environment by an appropriate system of inspection, to furnish guidance to employers and workers and to impose penalties in the event of infringements.
The provisions that are of the greatest interest to labour inspection and local trade union officials are those dealing with the enterprise. The Convention contains the following passages:
(1)workers ...cooperate in the fulfilment by their employer of the obligations placed upon him;
(2)representatives of workers in the undertaking cooperate with the employer in the field of occupational safety and health;
(3)representatives of workers in an undertaking are given adequate information on measures taken by the employer to secure occupational safety and health and may consult their representative organizations about such information provided they do not disclose commercial secrets;
(4)workers and their representatives in the undertaking are given appropriate training in occupational safety and health;
(5)workers or their representatives and, as the case may be, their representative organizations in an undertaking ...are enabled to enquire into, and are consulted by the employer on, all aspects of occupational safety and health associated with their work; for this purpose technical advisers may, by mutual agreement, be brought in from outside the undertaking;
(6)a worker reports forthwith ...any situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health; until the employer has taken remedial action, if necessary, the employer cannot require workers to return to work. …
The Recommendation (No. 164) that accompanies the Convention naturally contains much fuller and more detailed provisions concerning the whole matter of working conditions and the working environment. It specifies, among other things, what should be provided for workers’ representatives to enable them to carry out their task: training, information, consultation, time during paid working hours, association in decisions and negotiations, access to all parts of the workplace, possibility of communicating with the workers and freedom to contact labour inspectors and to have recourse to specialists. The representatives should “be given protection from dismissal and other measures prejudicial to them while exercising their functions in the field of occupational safety and health”.
The provisions of the Convention and the Recommendation as a whole, on which governments and the social partners have reached general agreement on the international scale, are a pointer to the general direction not only of trade union action within the enterprise in respect of working conditions and the working environment but also of the work of labour inspection.
It is clear that cooperation between heads of enterprises and workers or their representatives will develop simultaneously with the strengthening of participation by the workers in the supervision of their working conditions. The role of labour inspection will then become essentially an advisory role in a system in which the social partners participate actively. Labour inspection will also have the task of supervising the smooth running of the machinery for cooperation within the enterprise, without ever abandoning its function of inspection in situations where violations call for inspection or in the workplaces—becoming fewer no doubt but remaining numerous for some time (in particular small and medium-sized enterprises) where such cooperation has not yet been firmly established. The external check of labour inspection will remain indispensable, even in countries where the social dialogue is the most advanced and the consciousness of occupational hazards the keenest. It will remain the principal tool in more effectively securing the protection of workers.
The Purposes of Inspection
Many different forms and systems of labour inspection exist throughout the world. Beyond their differences, however, they all have common basic purposes that determine the broad functions of inspection. What are these purposes? ILO Convention No. 81, which has acquired virtually universal status through its ratification by almost 120 member States, defines them in Article 3 as follows:
The functions of the system of labour inspection shall be:
(1)to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons and other connected matters, in so far as such provisions are enforceable by labour inspectors;
(2)to supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions;
(3)to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions.
The wording is both strong and flexible, and marks out a vast field for the activities of labour inspection. The obligation is placed on labour inspection “to secure the enforcement of the legal provisions”. These terms were chosen carefully by the authors of the Convention, who did not wish to speak simply of “supervising” or “promoting” the application of the legal provisions, and they clearly state it is the duty of labour inspection services to obtain effective application.
What are these provisions? According to the Convention, in addition to laws and regulations, they include arbitration awards and collective agreements upon which the force of law is conferred and which are enforceable by labour inspectors. These provisions form the common basis for the work of all the inspectors in a country and the guarantee for enterprises and workers against what is arbitrary, unfair and unjust. The role of labour inspectors is not to promote their own ideas, however noble these may be, but to make sure that the legislation in force is carried out (i.e., to be the faithful and active instrument of the competent authorities of their country—the law-makers—in the field of labour protection).
Reference to the legal provisions might appear to restrict the scope of the inspectors in so far as they are not empowered to enforce every improvement in working conditions that seems desirable to them. In fact, one of the functions of labour inspection is “to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions”. This function is given the same priority as the function of enforcing the legislation, and it makes labour inspection an instrument of social development by according it a right of initiative in labour protection.
The scope of labour inspection varies from country to country, with the extent and nature of the legislation in force, with the powers conferred on the inspectors by the State, and with the field covered by the system. The powers of the inspectors may be general and relate to all legislation dealing with working conditions and the working environment; they may on the other hand be restricted to certain matters—for example, safety and health or wages. The system can cover all sectors of the economy or only some of them; it can cover the whole of the national territory or only part of it. Convention No. 81 covers all these situations, so that the tasks of the national inspection services can be narrowly restricted or extremely wide, depending on the country, and still meet the international definition of the purposes of inspection.
Among international standards, those concerning labour inspection appear to be indispensable to the formulation, application and improvement of labour legislation. Labour inspection is one of the driving forces behind social progress, since it ensures the implementation of established social measures (provided of course that it has the means to do so) and brings to light the improvements that may be made to them.
The Functions of Inspection
It has been seen that the purposes of labour inspection, as defined above, are made up of three main tasks: the enforcement of legislation mainly through supervision, the supply of information and advice to employers and workers, and the supply of information to the competent authority.
Inspection is based essentially on visits to workplaces liable to inspection, and it aims, by observation and discussion, first at establishing the situation and then at promoting (by methods to be discussed below) and actually ensuring the application of the legislation for purposes of prevention.
Inspection must not be directed towards the systematic repression of lapses: its aim is to have legislation applied, not to catch offenders. It is, however, essential for inspectors to be able, if need be, to resort to coercive measures by drawing up a report with a view to the infliction of penalties severe enough to be deterrent. If there are no penalties or if penalties do not produce the desired result within a reasonable period, labour inspectors lose all their credibility, and their work loses all its effectiveness This is especially the case when labour inspection has to refer to civil courts for improvement notices and sanctions.
It is obvious that the aim of inspection is the future protection of workers through the ending of dangerous or irregular situations. In the field of safety and health, inspection operates at three stages. Before the construction of a factory, the fitting out of a plant or the manufacture of a machine, for example, it ensures, from the planning stage, conformity with the relevant legislation. This preliminary check will be followed by the normal inspection carried out during visits to workplaces. Lastly, in the event of accident, supervision will take the form of an inquiry intended mainly to prevent repetition of the accident.
Inspection can take various forms depending on the inspection system adopted by the country and its precise purpose. In the field of occupational safety and health, inspection is based mainly on visits to workshops and other places of work. In that of hours of work, wages and child labour, inspectors must demand the records that the enterprise is obliged to keep, and check their accuracy. In the field of freedom of association, inspectors must verify, in accordance with the legal provisions, that the elections laid down are held correctly, that the trade union can carry out its legal activities and that there is no discrimination against its members.
In their work of inspection, inspectors can call on certain sources of assistance (see preceding section on collaboration), either to get a better understanding of the situation (supervisory bodies, appointed experts, the accident prevention departments of social security funds, bodies within the enterprise such as the safety and health committee), or to extend their own work (staff representatives, the above-mentioned prevention departments, employers’ and workers’ organizations). The action of inspectors is discontinuous, and something permanent must be found in the enterprise to carry it on.
Information and advice for employers and workers
The function of supplying information and advice to employers and workers has a clear aim, in the words of Convention No. 81: to indicate “the most effective means of complying with the legal provisions”. Like the function of inspection, it contributes to ensuring the application of the legislation. Information and advice complement inspection, since, as noted above, the labour inspector’s task is not solely coercive.
Accordingly, the effects of the necessarily brief acts of inspectors may endure at the workplace. The advice and information provided by inspectors are thus directed towards the future. Inspectors cannot restrict themselves to carrying out a sort of retrospective supervision to ensure that everything is in order: they have to give advice about the measures to be taken to ensure labour protection, to explain the legal requirements concerning the payment of wages, to indicate where and how medical examinations can be carried out, to demonstrate the importance of limiting work hours and to discuss existing or potential problems with the employer. Authoritative opinion holds that the inspectors who get the best results are those who devote most of their efforts to educational work at the workplace among management or its agent and the workers’ representation. This is current practice in countries such as the Federal Republic of Germany, the United Kingdom, the Scandinavian countries and many others.
Because of its educational nature, the function of supplying information and advice can exert an influence beyond the case in question and play a part in prevention: its effects can be felt on other, similar, or even different, cases and can entail improvements going further than the legal requirements.
Information and advice during visits to workplaces
It is almost inevitable, as has been noted more than once above, that the function of inspection, which is performed mainly during visits to workplaces, should involve the provision of information and advice. Labour inspectors have to answer any questions that employers, their assistants or the workers’ representatives may ask. It is just as natural for them to give opinions and explanations. In fact, the provision of information and advice is so much bound up with the function of inspection that it is difficult to distinguish one from the other. However, the proper balance between advisory and supervisory intervention is a matter of considerable national and international debate. Typically, it is the centrepoint of any comprehensive and coherent national enforcement policy statement.
Information and advice at labour inspection offices
Labour inspectors should be easily accessible, and the doors to their offices should be wide open to anyone wishing to consult them, lay a problem before them or address complaints to them about given situations. Their attitude should always be guided by the same concern: to promote an intelligent and fuller observance of the legal provisions.
A connection must be made between these activities and the handling of individual disputes. These concern as a rule the application of the laws or regulations and, in some countries, take up much of the time of the inspection staff, including that of the inspectors. The problem raised by activities of this type has been settled by Conventions Nos. 81 and 129, which tolerate them only if they do not interfere with the effective discharge of the primary duties of inspectors or prejudice their authority or impartiality. A number of countries consider that this is a question of adequate staffing and that the organization should be large enough to allow inspectors to carry out their other duties properly as well.
To inform and advise are tasks of an educational nature, in so far as the information and advice given are intended not only to be acted on to the letter in a given situation but also to be understood and absorbed, to be convincing and, in short, to have a wide and lasting effect. The provision of information and advice can also take the form of courses, lectures or talks, as suggested, moreover, in Recommendation No. 81. These activities clearly make it possible to reach a wide audience, to explain both the letter and the spirit of labour legislation and to ensure that it is better understood, better accepted and, therefore, better applied. For example, in Norway there is a national training committee made up of representatives of the labour inspection service and of the employers and workers.
Dissemination of information
Ignorance of the social legislation and failure to recognize its underlying purpose and its usefulness are among the greatest obstacles faced by labour inspection, particularly in developing countries. There is no need to stress the great utility of every measure that helps to promote the dissemination of information on labour legislation. Nothing should be neglected in this field, in which employers’ and workers’ organizations can also play an important role. Mention may be made here of the work of the information services of the United Kingdom Health and Safety Executive, which collect and disseminate a great deal of information (a library, documentation and translation service are available; radio and television programmes are prepared, exhibitions arranged, and so on).
Informing the competent authority
This function is often underestimated or neglected. It is nevertheless explicitly mentioned by ILO Conventions Nos. 81 and 129: labour inspection has an obligation “to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions”. This obligation imposed on labour inspection as a whole, from the most junior inspectors to their highest superiors, completes the terms of reference that make labour inspection an active agent for social progress. The inspectors’ knowledge of labour problems and of the workers’ situation, especially concerning the protection guaranteed to the workers by the social laws and regulations, puts them in a position to keep the authorities informed.
In many countries, the labour inspection services are entrusted with other tasks. Conventions Nos. 81 and 129 admit this situation but specify that “any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice ...the authority and impartiality which are necessary to inspectors in their relations with employers and workers”.
The economic field
Economic and social questions are often closely linked. Owing to the contacts it maintains with the world of labour and the information it collects in the normal course of its work, the labour inspection service possesses a large amount of information of a social nature (occupational safety and health, the position of women workers and young workers, the state of labour relations, the conclusion and signature of collective agreements) or economic nature (number of enterprises, numerical strength of staff, hours of work carried out, average wages paid in different sectors of activity, requirements in skilled labour in the various economic sectors or geographic regions, and so on).
It is not surprising that the authorities in many countries have considered making use of so valuable a source of information, in particular in drawing up development plans. The labour inspectorate, by its nature objective and serious, can certainly supply such information and thus contribute to the administration and development of the country.
Labour relations: conciliation and arbitration
The international Conventions make no provision for either conciliation or arbitration to be entrusted to the labour inspection services. The Labour Inspection Recommendation, 1947 (No. 81), however, explicitly excludes them, for, by carrying them out, labour inspectors risk their independence and impartiality. Conciliation and arbitration are thus not dealt with here. In many countries, however, these functions, particularly conciliation, are in fact entrusted to the labour inspection services. Since the adoption of Recommendation No. 81 in 1947, this question has always given rise to discussion. The Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), moreover, is less definite than Recommendation No. 81, for it accepts the participation of labour inspectors in the settlement of labour disputes, as a temporary measure, where no special bodies exist for the purpose of conciliation.
Protection of workers’ representatives
The Workers’ Representatives Convention, 1971 (No. 135), which is supplemented by Recommendation No. 143 of the same year, provides that
Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.
Some countries require employers to obtain union agreement or a court authorization before they can dismiss a workers’ representative. In other countries, including France and the countries in the French administrative tradition, the dismissal of shop stewards or elected staff representatives is subject to authorization by the labour inspection service (unless the works council is in agreement, needless to say an extremely rare occurrence). In making their decisions labour inspectors must try to establish whether faults imputed by employers to the workers’ representatives are or are not linked to their union activities, as defined by law and precedent. If so, they will reject the dismissal; if not, they will allow it (provided, of course, that the charges against the persons concerned are sufficiently serious).
Supervision in the field of employment
In many countries, especially those following the French administrative system, labour inspection services play an important role in the field of employment, particularly in checking terminations of employment. In France, in the event of a request for mass terminations, the labour inspection officials have the task of checking the way in which the consultation procedure has been followed, the validity of the reasons given to justify the terminations and the extent of the measures to be taken for resettlement and compensation. After examining the financial position of the enterprise or the employment market, the labour inspector can in theory refuse the terminations (in fact, this appears to happen in only about 5% of cases).
Still in the field of employment, labour inspectors are often mandated to ensure that the principle of non-discrimination is observed during recruitment or termination (prohibition of any discrimination based on such factors as race, sex, religion, political opinion, nationality and family situation). They supervise the activities of temporary employment agencies to prevent the negative effects that the development of precarious forms of employment, in particular temporary work, may have on wage earners. The economic problems and unemployment prevailing in many countries lead to increased supervision relating to the struggle against clandestine employment and the regulation of foreign labour or overtime, for example.
Labour inspection can be entrusted with tasks other than those mentioned above, such as keeping a watch on the protection of the environment against pollution from enterprises, or on fire prevention in premises open to the public. These functions, which sometimes only the labour inspection service is in a position to fulfil, do not come directly within its province and they must not interfere with its main functions of protecting workers in the enterprise.
The Different Systems of Inspection
Labour inspection services differ from country to country, but it is possible to distinguish two main systems: those that cover all sectors of activity and those that have specialized departments for each sector (mining, agriculture, manufacturing, transport and so on). The purpose of inspection may also vary with the inspection service: safety and health, working conditions, wages and labour relations. A distinction may similarly be made between systems whose officials enforce the statutory provisions in all the fields covered and those that have sections specialized in accordance with the purpose of inspection. In some countries, certain tasks of inspection are entrusted to local communities, and countries with a mining industry generally have a special system for this sector.
Structure of the systems
Competence as regards the sector of activity
In some countries, there is a single labour inspection system competent for all sectors of economic activity. If mining, which in almost all countries comes under the corresponding ministry (there are exceptions: Mexico, for example), is disregarded, this system is found in European countries such as Luxembourg, Spain or Switzerland. It is also found in many African and Asian countries. The French-speaking countries of Africa, for example, have inspection systems that come under the ministry of labour and cover all branches of activity.
The advantage of this system is that it gives the inspectorate and, above it, the ministry of labour a general view of the different sectors, the problems of protecting wage earners often being similar. Moreover, in countries with limited resources, this system makes it possible to reduce the number of visits needed to supervise different activities. In other countries, a specialized inspection service exists for each sector of activity, coming under the ministry concerned.
At the end of the nineteenth century, most European countries had a body to deal with questions of labour legislation, generally attached to a ministry, such as the ministry of the interior or the ministry of industry and commerce. In the years preceding the First World War, autonomous ministries of labour were established with the task of enforcing the labour legislation through a specialized public administration. This explains why, in certain branches of activity, supervising the observance of the laws protecting workers has remained among the functions of the ministerial department previously competent.
Between these two extremes—a single inspection system under one ministry competent to deal with all sectors of activity and many specialized sectoral services coming under several ministries—there are intermediate systems in which one inspection service deals with a few sectors only, or several inspection services come under one and the same ministry.
For several years a trend has been developing towards grouping the inspection services under the control of a single authority, generally the ministry of labour, both because the problems that arise in most of the sectors are very similar if not identical and because this makes for more efficient and more economical administration. A unified and integrated system increases the opportunities open to the government in the prevention of occupational hazards and the legal protection of the workers.
In 1975, France unified the main inspection services, the whole of the inter-ministerial body thus established being governed by identical conditions of service, coming under the Ministry of Labour. In 1975, the United Kingdom also decided to group its health and safety inspection services (there had been seven separate services under five different ministries) under the Health and Safety Executive. With the creation of this Executive, the Factory Inspectorate, the other inspection services (and successively even those for the exploitation of offshore oil and gas and public transport), the Employment Medical Advisory Service and other official bodies carrying out work in prevention all became part of a single institution responsible to a single ministry, the Department of Employment. (However, this Department was dissolved in 1995, and labour inspection now comes under the Department of Environment, a trend that can also be observed in other countries—e.g., Germany.) The concern to coordinate efforts in prevention and in the improvement of working conditions in the face of increasingly complicated legislation has also led other countries to entrust the supervision of the effect given to the laws on labour protection to a single inspection body, generally coming under the ministry of labour.
Competence as regards the purpose of inspection
The labour inspection services are responsible for ensuring that the legal provisions are observed in many fields: health and safety, working conditions, wages and labour relations.
In certain countries—for example, Belgium, Italy and the United Kingdom—the inspection system includes services specialized in accordance with the purpose of inspection. In Belgium, there are the following services: a technical inspectorate for prevention and safety in the enterprise; a medical inspectorate, dealing with health and hygiene; an inspectorate concerned with social legislation, dealing with conditions of employment (wages, hours of work and so on); an inspectorate to supervise the payment of social contributions; and officials dealing with questions of labour relations. In systems of this type, although the different services are specialized in particular fields, they are generally competent for all economic sectors.
The specialization of labour inspectors is an attempt to respond to the increasing complexity of the tasks of inspection. Advocates of specialization hold that an inspector cannot possess enough knowledge to deal with all the problems of workers’ protection. Specialization is such in certain countries that working conditions, in the broad sense of the term, can come under four or five types of inspection in the same enterprise.
Other countries, however, have a single system under which officials are competent for all questions relating to labour inspection. This is the situation in Austria, Germany and the French-speaking countries of Africa, for example; the latter, for obvious reasons, did not embark on the costly organization of several specialized bodies and thus have a single inspectorate under the ministry of labour. In such cases, the inspectorate is responsible for all the tasks that have to be carried out in the enterprise, the inspector or supervisor being the only representative of the ministry to deal with it.
This system has the advantage of giving inspectors a comprehensive view of labour problems, which are often interdependent, and avoids a proliferation of inspections and a lack of coordination; but it may be wondered how far inspectors can carry out so extensive a programme in view of the increasing complexity of the legal and technical problems.
There is an intermediate solution, consisting in a system under which labour inspectors are competent in many fields but have sufficient technical knowledge to recognize danger situations and call in specialists in medicine, engineering and chemistry, as provided by Convention No. 81. This is the situation in France. Another example is provided by the United Kingdom, where the general inspectors in the field of safety and health call upon inspectors who are specialists in the very technical branches (electricity, chemistry, atomic energy) when particular problems arise. Labour inspection then has a tendency to become multidisciplinary; in Denmark and other Nordic countries, as well as the Netherlands, it has actually become multidisciplinary, with district inspection teams made up of inspectors (who have received technical training), engineers, physicians, psychologists, lawyers and ergonomists. The introduction of multidisciplinary teams allows the coordinators to have a general view of the various aspects of working conditions and to base their decisions on a synthesis of the opinions expressed. The cost of such an organization is high, but it is very effective, provided that the work of the various specialists is satisfactorily coordinated.
The bringing together of established inspection services in a number of countries, or at least the closer coordination of their activities, may be explained by the close relations between the different aspects of working conditions. Such measures meet the wishes both of the officials responsible for supervision and of the workers and unions. Workers grappling with difficulties do not see why they should have to get in touch with several officials, each competent to deal with a different aspect of the problem, and to explain their situation repeatedly, perhaps with a great waste of their working time. The concern of the unions is to improve the effectiveness of labour inspection and to facilitate contacts between it and their members.
Functions of Local Communities
A few States still call upon local communities either to help the labour inspection services carry out their tasks or even to perform inspection functions in the place of the state services.
For instance, in Sweden, the Working Environment Act of 19 December 1977 entrusted the enforcement of its provisions and of the regulations issued under it to the Workers’ Protection Board and to the labour inspection service, under the supervision and direction of this Board. The Act calls on each commune, in consultation with the labour inspection service, to appoint one or more supervision officers to assist the inspection service in carrying out its task, generally by supervising enterprises employing fewer than ten persons and not using machinery. All communes have to submit an annual report to the inspection service on the way in which this supervision has been exercised.
Notably in Italy, the law of 23 December 1978 to reform the health system decentralized responsibility for public health, including occupational hygiene and safety, to the regional and local health authorities. The local health units, designated by the communal authorities, deal with everything concerning public health: hospital administration, organization of local health services, health and safety in enterprises and so on. This reform thus withdraws from the labour inspection service, a state service coming under the Ministry of Labour, the function for which it was originally established.
The transfer of the functions formerly carried out by the labour inspection service in safety and health to local health units has resulted in the creation of two labour inspection services: one coming under the Ministry of Labour, which continues to supervise the application of the social laws and regulations (wages, hours of work, paid leave and so on) and to carry out a few tasks related to safety and health (verification of ionizing radiations, supervision of the railways in collaboration with railway officials and so on) and another competent to deal with most safety and health questions, which is an integral part of the National Health Service and is based on municipal bodies, namely local health units.
In Uganda, a major decentralization drive has also brought the labour inspectorate, though not the factory inspectorate, under the direct responsibility of the local (district) authorities. These few examples are, however, exceptions and do not constitute the rule. They also raise serious doubt as to compatibility with important standards in the relevant ILO Conventions (notably Convention No. 81, Article 4), which stipulate that labour inspection should be placed under a central authority.
Labour Inspection in Mines
Almost all countries with a mining industry have an inspection system for this sector based on the system that has been operating for several generations in the old mining countries of Europe—Belgium, France, the Federal Republic of Germany and the United Kingdom.
The existing systems have two major characteristics in common. While the supervision of working conditions on the surface remains the province of the labour inspectorate, the inspection of safety and health underground, except in a few countries (for example, Mexico), is the responsibility of the mining engineers, who form a specialized body. Furthermore, all these systems associate miners’ delegates, more or less closely and with varying powers, in labour inspection at the worksite.
Powers and Duties of Labour Inspectors
Right of free entry and investigation
The first power of the inspector—without which there would obviously be little inspection—is that of visiting enterprises. The provisions of Convention No. 81 (repeated in Convention No. 129, which applies to agriculture) regarding this power are as follows:
Labour inspectors provided with proper credentials shall be empowered:
(1)to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection;
(2)to enter by day any premises which they may have reasonable cause to believe to be liable to inspection.
During the drafting of the international standards, there was a great deal of opposition to the institution of the right to enter workplaces. Obstacles have not been lacking either to the incorporation of this right in national laws. In particular, it was argued that it was an unacceptable breach of the right of ownership. The possibility of entering establishments at any time was the subject of special resistance, but it is quite obvious that inspectors can establish the illegal employment of workers, where it exists, only by carrying out verifications at unusual hours. In practice, the right of entry is normal in all countries with inspection services.
This issue (and others related to powers of inspection) was again the subject of intense debate at the 1995 Session of the International Labour Conference, which dealt with the issue of labour inspection in the non-commercial services sector. The Conference adopted a “Protocol to extend Convention No. 81” to that sector, and essentially reaffirmed the fundamental powers of inspectors, while allowing for certain exceptions and restrictions, for instance for national security reasons or in the light of specific operational exigencies, for workplaces under the authority of the armed services, police services, prison services, fire and other rescue services, and so on (see Articles 2 to 4 of the 1995 Protocol in ILO 1996).
Under Conventions Nos. 81 and 129, inspectors must be authorized “to carry out any examination, test or enquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed”, which implies, in the words of the two instruments, the right to interrogate, alone or in the presence of witnesses, the employer or the staff, the right to require the production of any books, registers or other documents the keeping of which is prescribed by national laws or regulations, and the right to take samples for purposes of analysis. These rights are generally recognized, although in certain countries restrictions may be imposed on the consultation of financial documents.
It thus seems that, with rare exceptions, the supervising powers of inspectors are accepted and no longer meet with flat opposition. The possibility of calling in the police, which is provided for in most laws, is no doubt a sufficient deterrent, provided effective procedure to this end has been established between the different ministries concerned.
These powers, of course, are subject to the same limitations as any others. If exercised indiscriminately, they could ultimately produce a result opposite to that desired. These rights are accorded to inspectors so that they may exercise them intelligently and, as experience has shown, their ability to do so depends largely on the quality of their training.
Powers of injunction
Convention No. 81 states that “Labour inspectors shall be empowered to take steps with a view to remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to the health or safety of the workers”. This provision is repeated in almost the same words in Convention No. 129, which also covers the use of dangerous substances, because, no doubt, of the increasingly widespread use of chemicals in agriculture.
If labour inspection were devoid of the means to rectify irregular situations found in enterprises, its effectiveness would obviously be limited. It is largely by the real extent of these powers, the manner in which they are carried out and the consequences of the warnings and orders that the effectiveness of the inspection services can be gauged.
Though the two Conventions as well as the Protocol stress the importance in principle of the powers of injunction, they both leave governments a certain latitude. After providing that inspectors “shall be empowered to make or to have made orders” requiring the necessary measures to be taken, alterations to be carried out within a specified time limit, or measures with immediate executory force—they go on to provide that where this procedure is not compatible with the administrative or judicial practice of the State, inspectors can “apply to the competent authority for the issue of orders or for the initiation of measures with immediate executory force”. Account had to be taken of the impossibility, under the constitutions of certain States, of entrusting such powers to an administrative authority. The powers of the inspectors thus tend to vary from country to country even in those States that have ratified ILO Convention No. 81.
With a view to “remedying defects observed”, the inspector can either draft an order allowing the employer a specified period in which to rectify matters or require immediate measures to be taken in the event of imminent danger. The latter power is available to inspectors in more and more countries: mention may be made of Belgium, the Federal Republic of Germany, Japan, the United Kingdom, the Scandinavian countries, South Africa and many others that have reformed their occupational safety and health legislation in the 1980s and early 1990s. In other countries, such measures may still have to be ordered by the courts; but the time it takes for the court to give its decision and for that decision to be executed causes a delay during which an accident may happen. Furthermore, judges in civil courts are often not specially trained in labour protection matters, and are often found to be insensitive to violations; fines tend to be low; and these and many other factors which tend to undermine the authority of the inspectorates have reinforced the trend away from court proceedings for even minor violations including criminal proceedings to administrative proceedings over which the inspectorates have more effective control. To reduce this delay, certain countries have instituted an emergency procedure that allows the inspector to apply to the presiding judge at any time, even at home, for an order with immediate executory force.
Right of appeal
It is obvious that the mandatory decisions taken by the inspector are generally subject to a right of appeal by the employer, for provision should be made for the prevention or rectification of all possible abuses. Appeals, as a rule, are suspensory in respect of orders with a time limit, but non-suspensory in respect of orders with immediate executory force, in view of the imminent danger they are aimed at.
Action taken on infringements
“Persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning.” This strict principle laid down in Convention No. 81 and repeated in Convention No. 129 is, nevertheless, tempered in two ways. Firstly, “exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given”. Secondly, “it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings”.
The second of these provisions gives inspectors complete freedom of choice. In each case, they must determine what means—advice, warning or legal proceedings—will best ensure that the law is observed. The choice must fit in with a plan that they have specially adapted to the nature of the enterprise and with a sequence of aims arranged in order of importance.
If inspectors decide on legal proceedings, they can either place the matter before the courts themselves (as in countries in the British administrative tradition) or recommend legal proceedings to the public prosecutor or the judiciary (this is the most common situation). Labour inspectors then draw up reports, which are treated as authentic, depending on the country, either until they are disproved or until their authenticity is challenged before the courts.
Conventions Nos. 81 and 129 state that “adequate penalties for violations of the legal provisions ...shall be provided for by national laws or regulations and effectively enforced”. While all national laws provide penalties for violations, all too often these are not “adequate”. Fines, the amount of which is often fixed when the corresponding legal provisions are adopted and remains unchanged for years, are so light as to have hardly any deterrent value. If the court pronounces imprisonment, it is generally through a suspended sentence, though the sentence may be enforced in the event of a repetition of the offence. The courts always have full discretion. Here it must be clearly recognized that the will of a government to enforce the laws and regulations protecting workers can be judged by the weight of the penalties prescribed and the way in which they are applied by the courts.
Opposition to the performance of the tasks of labour inspection or contestation of the authority of the State is generally severely punished by national laws and regulations, which in addition must provide for the possibility of calling in the police force. In fact, it is rare for heads of enterprise to practise obstructive tactics.
In the words of Conventions Nos. 81 and 129, labour inspectors “shall be prohibited from having any direct or indirect interest in the undertakings under their supervision”. In most countries, this prohibition is set out in the conditions of service for civil servants and in special provisions.
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”. Inspectors are generally bound to secrecy because of their status as civil servants, in accordance with the legal provisions applicable to the civil service. This obligation is often included in the written undertaking that they have to sign or the oath that they have to swear on taking up their duties. They promise to observe secrecy, not only for the period of their employment, but for life.
Discretion regarding the source of complaints
Inspectors “shall treat as absolutely confidential the source of any complaint, 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”. This obligation arises from the dual concern to protect workers who have made complaints and to render the inspector’s work more effective. It is binding. Like the preceding obligations, it is generally the object of a legal provision or a clause in the conditions of service of inspectors and normally appears in the undertakings that they give during their swearing in.
Independence of inspectors
This entails both an obligation placed on the inspectors and a guarantee accorded them. Conventions Nos. 81 and 129 provide that “the inspection staff shall 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 changes of government and of improper external influences”, such as those that certain unscrupulous heads of enterprise or certain political elements might try to exert.
Preventive Labour Inspection
At the end of the twentieth century, many institutions in the field of labour and social policy which often originated, such as labour inspection, in the nineteenth, very much concerned with and interested in the function of prevention, are undergoing profound, rapid and dramatic changes. These changes are due to a combination of internal and external factors—political, social, economic, administrative and technological. They will have a profound impact on the respective role, scope and functions of these institutions, their relationships with each other and with their principal clients as they head into the twenty-first century. It is necessary to understand and analyse the nature of these changes, the way they affect the capacity, performance, impact and relationships of the principal actors, and the social reality in which they operate.
Prevention in the context of labour protection, and the role of labour inspection in this regard, is referred to in numerous international labour standards (e.g., ILO Conventions Nos. 81, 129, 155, 174 and others). However, the instruments on labour inspection (Conventions Nos. 81 and 129, and Recommendations Nos. 81, 82 and 133), while generally conducive to and promoting principles of prevention, specifically address the issue only at the pre-workplace stage (cf. paragraphs 1 to 3 of Recommendation No. 81 and paragraph 11 of Recommendation No. 133).
Since the adoption of these labour inspection standards (of which in particular Convention No. 81 on labour inspection in commerce and industry has acquired universal character through its ratification by almost 120 ILO member States), the concept of prevention has changed substantially. To speak of prevention implies first of all a determined effort to avoid incidents, accidents, disputes, conflicts and so on. However, what has occurred and has been the subject of intervention and sanctions is much more readily documented, measured and valorized than what has been avoided. How does one measure the number and effect of accidents that did not take place? And how does one show evidence of effectiveness and efficiency as a result, and as proof of achievement?
Today, preventive orientation as a social and labour policy paradigm aims at the broad goal of enabling individuals to lead a long, productive and healthy life, and thereby also to reduce the exponentially growing costs for the different elements of social security to individuals, to enterprises and to society. Furthermore, prevention in the world of work is identified more and more not only by short-term advantages but as supporting and sustaining working capacity, productivity and quality, security of employment and so on, and is therefore increasingly seen as a decisive prerequisite for an individual to lead a dignified life in society. Prevention is thus defined as a holistic “open” or pluralistic concept aimed at avoiding a multiplicity of social, technical, medical, psychological, economic and other hazards, and whose effectiveness depends increasingly on the recognition, analysis and consideration of early indicators.
The very considerable ILO experience in cooperation with its worldwide constituents over the last decade shows that the shift from a relatively rigid concept of reactive control to one of anticipatory prevention invariably leads to substantive progress in labour administration activities and in results obtained. But this body of experience has also shown the difficulties in achieving this indispensable evolution and in maintaining its orientation against a host of diverse impeding factors.
Furthermore, for any policy of prevention to be effective requires the participation of all the parties and individuals directly concerned. It must therefore often pass through the involvement of organized social partner representatives and their commitment to any such initiatives. The pursued prevention objectives must, additionally, be fully integrated into the system of objectives of the enterprises concerned. This in turn includes the active participation, indeed leadership, of management. Such conditions are far from being fulfilled worldwide or indeed even in the most industrially advanced market economies.
Added to that, the budgetary constraints now weighing on governments everywhere (in developing and developed countries alike), and therefore on the means available to labour administrations and their field services and labour inspection (indeed often disproportionately so), risk jeopardizing or weakening any such policy (re)orientations, as they are, at least initially, costly in time and resources and, as already mentioned, difficult to measure and therefore to justify.
However, in industrialized countries the economic and social costs of non-prevention are everywhere growing out of hand, to financially unaffordable and politically unacceptable levels. To this must be added the growing recognition of the general insufficiency of corrective ex post factum intervention. This has led to the conclusion that the preventative elements of any system of social and labour protection absolutely have to be reinforced. In consequence, a broad discussion at the national and international levels has begun with a view to developing valid, practical concepts for preventive labour inspection.
The increasingly rapid pace of change and innovation in all aspects of the world of work—social relations, work organization, production technology, conditions of employment, informatics, new hazards and so on—creates a mounting challenge for labour inspectorates. Inspectors must not only keep abreast of developments in more and more complex, divergent and increasingly specialized fields necessary for their competence, they must, in fact, anticipate trends and developments and be able to rapidly identify and understand their consequences in terms of labour protection, and thus to develop and implement new strategies for prevention.
In the world of work, labour inspection is one of the most (if not the most) important instruments of state presence and intervention to design, stimulate and contribute to the development of a culture of prevention in all aspects under its purview: industrial relations, general conditions of work, occupational safety and health, social security. For inspectorates to successfully accomplish this primary task they must reorient their policies, influence reform of legislation, of methods, relations and so on towards developing a preventative capacity, internally and externally. This concerns both the policies and methods which the inspection authority must pursue, as well as the methods of inspection at workplaces to be adopted by inspectors.
Major determining factors in this context are the challenges and pressures on labour inspection from the economic, political and administrative context. These are generally described by concepts such as deregulation, privatization, structural adjustment and market testing. These policies tend in practice to make the work of labour inspection more difficult and complex, although they may also provide a driving force for innovation. They regularly, however, tend to exacerbate the usually already chronic resource deficiencies. Labour protection, therefore, must also look for alternative resources for the development of its own contribution to prevention.
Ultimately, the aim is to develop a comprehensive, sustained “prevention culture” in workplaces (and society), taking into account the dynamics of change in social relations within the enterprise, the challenges to traditional notions of authority and legitimacy which arise from changes in attitudes, in work organization and so on, the generally higher (and still rising) levels of training and education among both employers and workers, new forms of participation which create an enabling environment and so on. All these require new forms of cooperation by the labour inspectorate with employers and workers and other institutions, not only as regards enforcement of labour protection standards and regulations, but in view of achieving comprehensive compliance with the preventive objectives of new protective social and labour policy and legislation.