Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Inspection Convention, 1947 (No. 81) - Fiji (Ratification: 2008)

The Committee notes that the Government’s report does not contain a reply to its previous comments, and that it basically contains the same information as its first report received by the ILO in 2011. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Repetition

Articles 10, 11, 20 and 21 of the Convention. Human and material resources of the labour inspection system. Availability of basic information essential to evaluate the implementation of the Convention in practice. The Committee notes the information provided by the Government on the practical difficulties encountered in the application of the Convention, including a large number of employers, overlapping national laws, lack of transportation means in light of the country’s geographical situation, lack of awareness, etc. The Committee recalls that according to Article 10 of the Convention, the number of labour inspectors should be evaluated in the light of the number of workplaces liable to inspection, the number of workers employed therein the material means placed at the disposal of the inspectors and the number and complexity of the legal provisions to be enforced. It also recalls its general observation of 2009 according to which the elaboration of a register of workplaces and enterprises liable to inspection containing data on the number and categories of men and women workers employed therein, is essential to evaluate the needs of the labour inspection service in terms of human and material resources. The Committee would be grateful if the Government would indicate the proportion of the national budget allocation to the labour inspection system as well as any measures taken or envisaged in order to determine the needs of the labour inspection system, notably through the establishment of a register of workplaces and enterprises liable to inspection containing data on the number of categories of men and women workers employed therein.

The Government indicates that annual reports have not been approved by Parliament and have therefore not been sent to the ILO. It further refers to a sample 2010 Annual Report drawn up on the basis of the information communicated regularly by the Labour Compliance Service and the Occupational Health and Safety Service to the Permanent Secretary, which was not received at the ILO. The Committee would be grateful if the Government would take steps to publish an annual report on the work of the labour inspection services in accordance with Article 20(1) of the Convention and send it to the ILO. If the reported difficulties with regard to the publication of the report persist, the Committee asks the Government to make every effort to communicate to the ILO statistical data and information on each of the subjects covered by Article 21(a)–(g) of the Convention to allow the Committee to assess the application of the Convention in practice.

Article 12(1)(a) of the Convention. Right of labour inspectors to enter freely workplaces liable to inspection. The Committee notes that, in accordance with section 19(2) of the Employment Relation Promulgation 2007, (ERP), the person entrusted with the control of conditions of work, “must not enter a private dwelling house without the consent of the occupier; (indent (a)) or on the occasion of a visit or inspection, must notify the employer or the employer’s representatives of his or her presence, unless there are reasonable grounds for believing that such notification may be prejudicial to the performance of his or her duties (indent (b))”. The Committee would like to draw the Government’s attention to the importance of explicitly giving effect in national legislation to the right of free entry into workplaces, in accordance with Article 12(1)(a) of the Convention. Therefore, national laws and regulations should be sufficiently clear and should leave no doubt that the sole condition for labour inspectors to enter an establishment is that they hold proper credentials. The requirement in law of prior consent of the employer in indent (a) of section 19(2) is an obstacle in this regard, even if indent (b) of this section provides for an alternative option, which poses no problem in relation to the requirements of the Convention. The Committee has emphasized on several occasions, that one of the purposes of the requirement of unrestricted entry is that inspectors should be enabled to observe the confidentiality required with regard to the purpose of the inspection if it is carried out in response to a complaint, and that they should be able to maintain the confidentiality of the source of the complaint (see paragraph 263 of the General Survey of 2006 on labour inspection,). Therefore, the Committee requests the Government to take the necessary measures to repeal indent (a) of section 19(2) of the ERP, so that the right of free entry into workplaces is unambiguously set out in law. The Government is requested to keep the ILO informed of progress made to this end and to supply a copy of the amended text once it is adopted. Please also furnish any relevant administrative decision or circular containing instructions ensuring the exercise of inspectors’ free right of entry into the workplaces under their supervision.

Part IV of the report form. The Committee would also be grateful if the Government would provide supplementary information on the application of the provisions of the Convention in practice, including information on:

• – the eventual amendments to the scope of the Employment Relation Promulgation 2007 (ERP) and the Health and Safety at Work Act (HSWA) to which the Government refers (Article 2 of the Convention);
• – any preventive activities carried out by labour inspectors (including in areas other than wages and salary issues) including in collaboration with the tripartite National Occupational Health and Safety Advisory Board, as provided for in Article 35(1)(c) of the HSWA (Articles 3(1)(a) and 5(b) of the Convention);
• – the assignment of any additional functions to labour inspectors (such as basic mediation services) and the proportion of activities devoted to such functions in comparison to their primary functions such as the supervision of provisions on conditions of work and the protection of workers (Article 3(2) of the Convention);
• – cooperation with the judiciary and the number and particulars of proceedings initiated by inspectors or in which inspectors act as prosecutors or as legal representatives of workers in accordance with section 18 of the ERP (Articles 5(a), 17 and 18 of the Convention);
• – the measures taken or envisaged to ensure that the status and the conditions of service of inspectors are such that they are assured of stability of employment and independence from any improper external influence (e.g. the legal basis, criteria and procedures followed for the renewal of fixed-term contracts, promotion and disciplinary proceedings; as well as the amount of wages and allowances for the different categories of labour inspectors) (Article 6 of the Convention);
• – initial and continuous training provided to labour inspectors with regard to their primary functions (number of participants, subjects, duration, etc.) (Article 7(3) of the Convention);
• – the number of women labour inspectors and, where applicable, any special duties entrusted to them, such as supervision and control in sectors with a predominantly female workforce (Article 8 of the Convention);
• – the number of inspection visits and the corresponding proportion of first inspections, follow-up inspections or unscheduled/surprise visits (Articles 10 and 16 of the Convention);
• – the financial, material and logistical resources and transport facilities available to the labour inspectorate and the procedures for the repayment of duty travel expenses (Articles 11 (1)(b) and 2 of the Convention).