Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Labour Inspection Convention, 1947 (No. 81) - Togo (Ratification: 2012)

The Committee notes the Government’s first report, which was received on 1 September 2014.

Technical assistance. The Committee notes the technical assistance provided by the ILO in the framework of the time-bound programme relating to international labour standards financed by the Special Programme Account (SPA), as established by the ILO Governing Body at its 310th Session (March 2011). It notes that, in this context, a workshop was held in Lomé from 2 to 6 September 2013 for the purpose of identifying gaps in the legislation and difficulties with respect to application in practice, in relation to the provisions of Convention No. 81, the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Labour Administration Convention, 1978 (No. 150), with a view to bringing national law and practice into conformity with these Conventions.

The Committee notes with interest that the abovementioned technical assistance resulted in the adoption of a roadmap containing recommendations and a plan of action, together with a time line for the implementation thereof, and providing for the establishment of a monitoring committee. The Committee observes that the main components of the roadmap are as follows: (a) scope and functions of a labour inspection system placed under the supervision and control of a central authority, establishment of effective cooperation between the inspection services and other government departments and coordination of the bodies of the labour administration system; (b) status, conditions of service, recruitment, initial and further training of inspection staff and collaboration of duly qualified experts and technicians in the inspection services; (c) human and material resources for labour inspection, effectiveness of inspection visits and drawing up of annual reports; and (d) powers, prerogatives and obligations of labour inspectors, prosecution of offences, sufficiently dissuasive penalties, and cooperation with employers and workers or their organizations. The Committee hopes that the implementation of this plan of action will contribute towards the full application of the provisions of these three Conventions and that the Government will send information on all progress made in this respect.

Article 3 of the Convention. Impact of additional duties on the discharge of primary labour inspection duties. The Government indicates that, under section 183 of the Labour Code, apart from being assigned the duties covered by Article 3(1) of the Convention, labour inspectors are responsible for conducting inquiries into occupational risks and may be required by the Director-General of Labour to study economic and social trends, including issues relating to wages and prices, developments in professional relations, relations with professional bodies and contractual labour relations. The Committee also notes that section 183(3) of the Labour Code requires labour inspectors to assist employers and workers in reaching an amicable settlement in individual disputes. The Committee further observes that labour inspectors are assigned the duties of conciliation and arbitration in collective disputes, by sections 257 and 260 of the Labour Code, respectively. The Committee draws the Government’s attention to Article 3(1) of the Convention, which specifies labour inspectors’ primary duties, namely: (a) to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work; (b) to supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions; and (c) to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions. Article 3(2) provides 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 in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. Furthermore, Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), which supplements the Convention, states that the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes. The Committee requests the Government to take the necessary steps to ensure that the duties of conciliation, arbitration and the conduct of inquiries, referred to above, which are assigned to labour inspectors, do not interfere with the effective discharge of their primary duties, as provided for in Article 3(1), and that they can devote themselves fully to the latter.

Article 4. Placing of labour inspection under the supervision and control of a central authority. The Government states that the authority under whose supervision and control labour inspection is placed is the Director-General of Labour. The Committee requests the Government to send a copy of the organization chart of the labour inspection system.

Article 5(a). Effective cooperation between the inspection services and other government services and public or private institutions engaged in similar activities. The Government indicates that the Director-General of Labour ensures collaboration and cooperation between the inspection services and public or private institutions engaged in similar activities through written communications and the organization of meetings. While noting this information, the Committee draws the Government’s attention to paragraphs 150–162 of the 2006 General Survey on labour inspection, which underline the importance of establishing mechanisms for cooperation with various institutions and give examples of government institutions and departments with which cooperation for the effective operation of the inspection system might be promoted. The Committee asks that the Government provide information on any measures taken or envisaged in order to promote such cooperation between the inspection services and other government services and public or private institutions engaged in similar activities, and to send copies of any related documents or legal texts.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee observes that the Government has not provided any information on measures for giving effect to this provision of the Convention. It draws the Government’s attention to the guidance contained in Paragraphs 4–7 of Recommendation No. 81. The Committee asks that the Government send information on the steps taken to give effect to this provision of the Convention.

Article 6. Status and conditions of service of inspection staff. According to the Government, labour inspectors do not currently have a particular status and are governed by the General Public Service Regulations. Observing, however, that section 182 of the Labour Code provides that a decree shall establish the particular status of labour inspectors and controllers, the Committee asks the Government to provide information on the measures taken to give labour inspectors and controllers a particular status and to send copies of any relevant legal texts, if applicable.

Article 7. Conditions of recruitment and training for labour inspectors. The Government states that labour inspectors are recruited by national competition. For categories A1 and A2, inspectors must respectively have a master’s degree in law, geography, psychology or sociology, or an equivalent diploma, and “baccalauréat”. They must also undertake training in labour administration at the National School of Administration (ENA). Moreover, at the time of entry into service, inspectors must serve a probationary period for training purposes. Measures have also been taken to enable them to take further training in international standards, social dialogue, social protection and occupational safety and health. This capacity building is done at international training venues such as the International Training Centre of the ILO (ITC–ILO) and the African Regional Centre for Labour Administration (CRADAT) in Cameroon. Delocalized training also takes place in the country. The Committee requests that the Government provide information on the conditions governing the recruitment of labour controllers. It also asks the Government to state whether controllers, like labour inspectors, receive training on entry into service and subsequent training in service. The Committee further requests the Government to provide information on the training activities implemented for inspection staff during the period covered by the Government’s next report, specifying, in particular, the number of participants, the subjects covered and the length of the training.

Article 8. Male and female inspection staff. The Committee asks the Government to clarify whether women, as well as men, can be appointed as inspection staff and to provide information on the respective levels of representation of both sexes within the inspection services.

Article 9. Duly qualified technical experts and specialists. The Committee notes that section 188(2) of the Labour Code provides that labour inspectors shall have the authority to request opinions and advice, if necessary, from doctors and technical experts, particularly as regards occupational safety, health and hygiene requirements. The Committee asks the Government to provide information on the measures taken to ensure in practice that technical experts and specialists are associated in the work of inspection.

Article 10. Number of labour inspectors and their geographical distribution. The Government indicates that there are 79 inspectors in category A1 and one inspector in category A2 and that they are distributed according to geographical criteria. The Committee notes that, according to the provisions of the Labour Code, particularly section 182, the corps of officials responsible for labour inspection is composed of inspectors and controllers. The Committee requests the Government to provide information on the number of inspectors and controllers, indicating how many of them are assigned technical or special duties, and their geographical distribution.

Article 11. Material resources and transport facilities for labour inspectors and reimbursement of expenses. According to the Government, vehicles have been purchased to facilitate travel for labour inspectors. The Committee notes that, under section 182 of the Labour Code, labour inspectors must be provided with the necessary material and financial resources to ensure their independence and the performance of their duties. The Committee requests that the Government provide information on the number of vehicles available to labour inspectors for professional travel and on the geographical distribution of these vehicles. It also asks the Government to supply information on the measures taken by the competent authority to provide labour inspectors with local offices, suitably equipped in accordance with the requirements of the service, and accessible to all persons concerned (Article 11(1)(a)), and to reimburse labour inspectors for any travelling and incidental expenses which may be necessary for the performance of their duties (Article 11(2)).

Article 12. Powers of labour inspectors to investigate. The Committee notes that section 188(1) of the Labour Code gives effect to Article 12(1)(a)–(b) of the Convention. It also notes that, under section 188(4) of the Labour Code, labour inspectors are assigned the powers provided for in Article 12(1)(c)(i), (ii) and (iv) of the Convention. However, the Committee notes that, under section 188(1) of the Code, at the start of the inspection, inspectors must notify the head of the undertaking or workplace or his deputy, who may accompany them during their inspection. The Committee requests the Government to take the necessary measures to ensure that labour inspectors are expressly assigned the power provided for in Article 12(1)(c)(iii) of the Convention, namely to enforce the posting of notices required by the legal provisions. It also requests the Government to take the necessary steps to ensure that section 188 of the Labour Code is brought into conformity with Article 12(2) of the Convention, which provides that, on the occasion of an inspection visit, inspectors shall notify the employer or his representative of their presence, unless they consider that such a notification may be prejudicial to the performance of their duties. The Committee asks the Government to send copies of any relevant legal texts.

Article 13. Power of labour inspectors to issue injunction orders. Under section 171 of the Labour Code, where conditions exist that are dangerous for workers’ health or safety and are not covered by the legal texts specified in section 169 of the Code – namely, the Decree of the Council of Ministers establishing conditions and general measures for occupational safety, health and hygiene, and the Order of the Minister of Labour, adopted further to the opinion of the Advisory Committee on Occupational Safety and Health – the employer is served with a compliance order by the labour inspector and ordered to take remedial action. The compliance order is dated and signed, specifies the infringements or dangers observed and establishes the time limits for taking remedial action. Moreover, under section 187 of the Labour Code, in an emergency, the labour inspector can draw up an infringement report without previously issuing a compliance order and can also impose immediately enforceable measures to avert any serious and imminent danger. The employer may appeal against this decision to the competent judicial authorities, which must issue a ruling within eight days. However, the labour inspector can propose a financial arrangement to the offending party, the procedures for which are determined by a joint order of the Ministers of Labour and Finance. If the offending party refuses to comply with the financial arrangement within three months, the infringement report is referred to the Public Prosecutor with a view to prosecution. The Committee requests that the Government specify the effect of the appeal procedure referred to above, and to send copies of the legal text implementing section 187 of the Labour Code regarding the measures that a labour inspector can order to avert a serious and imminent danger as well as the Decree of the Council of Ministers and the Order of the Ministers of Labour and Finance adopted pursuant to section 169 of the Labour Code.

Article 14. Notification of industrial accidents and cases of occupational disease to the labour inspectorate. The Committee notes that, under section 172 of the Labour Code, the employer is required to notify the labour inspectorate within 48 working hours of any industrial accident or case of occupational disease recorded in the undertaking. The procedures for this notification are established by the legislation governing occupational accidents and diseases. The Committee asks the Government to provide copies of the legislative text establishing the procedures for the notification of industrial accidents and cases of occupational disease to the labour inspectorate.

Article 15. Standards of conduct for labour inspectors. The Committee notes that section 185 of the Labour Code gives effect to Article 15(a) of the Convention and that a penalty for infringement of this section is laid down by section 294 of the Code. It also notes that section 184 of the Code provides that inspectors are obliged to observe professional secrecy (Article 15(b)), on pain of the penalties established in section 176 of the Penal Code, and that they swear an oath before the Appeal Court not to reveal, even after leaving the service, any manufacturing secrets or working processes which may come to their knowledge in the course of their duties. Section 184 of the Labour Code also stipulates that inspectors must treat as absolutely confidential any complaint bringing to their notice a defect in installations or a breach of the legal provisions. The Committee asks the Government to clarify whether the penalty established by section 176 of the Penal Code is applicable to labour inspectors, even after they have left the service. It also requests that the Government ensure that section 184 of the Labour Code is supplemented by a provision obliging labour inspectors not to disclose to the employer or his representative that an inspection was undertaken further to a complaint and imposing a penalty in the event of non-compliance with these obligations.

Article 16. Frequency and thoroughness of inspections. The Committee requests the Government to state the measures taken or envisaged to ensure that inspections are carried out as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.

Article 17. Freedom of labour inspectors to decide the measures to be taken towards employers for infringements of the legal provisions. The Committee observes that, under section 186 of the Labour Code, inspectors are empowered to report infringements of the legal and regulatory provisions. Before drawing up the infringement report, the inspector serves a compliance order on the head of the workplace. The compliance order must describe the infringements that have been observed and establish the time limits for taking remedial action. If the time limit expires without compliance by the employer, the inspector draws up the infringement report (section 187 of the Labour Code). The Committee asks the Government to take measures to ensure that labour inspectors are free to decide whether to give warning and advice instead of instituting or recommending proceedings, in accordance with Article 17(2) of the Convention.

Article 18. Effective enforcement of adequate penalties. The Committee notes that the Labour Code establishes penalties for violations of the legal provisions enforceable by labour inspectors and for obstruction of labour inspectors and controllers in the course of their duties. The Committee requests that the Government provide information on infringements observed during inspections, specifying the legal provisions to which they relate, and also the penalties imposed.

Articles 19, 20 and 21. Periodic reports and annual report on the work of the inspection services. According to the Government, labour inspectors submit to the central inspection authority periodic reports of a general nature on the results of their work. The Committee observes that no periodic report or annual report has been communicated. The Committee requests that the Government send copies of periodic reports submitted to the central authority by labour inspectors. It also asks the Government to ensure that an annual report containing information on each of the subjects listed in Article 21 is published and sent to the ILO, in accordance with Article 20.