Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Zambia

Labour Inspection Convention, 1947 (No. 81) (Ratification: 2013)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 2013)

The Committee notes the Government’s first report. In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 and Convention No. 129 in a single comment.

Labour law reform. The Committee notes the Government’s reference, in its report under the Labour Administration Convention, 1978 (No. 150), to an ongoing labour law reform. The Committee requests the Government to provide more information on the measures taken in the framework of the abovementioned reform, and where applicable, to supply copies of any adopted legislative texts in the framework of this reform in relation to labour inspection.

Articles 2(1), 3(1)(a) and (b), 13, 16, 17 and 18 of Convention No. 81. Labour inspection in the mining sector. The Committee notes the Government’s indication, in its report, that the Mines Safety Department (MSD) in the Ministry of Mines, Energy and Water Development is responsible for labour inspection in mines. It also notes that, according to the 2012 Decent Work Country Profile concerning Zambia, the MSD faces inadequate funding and therefore a shortage of staffing, transport and fuel resulting in its unsatisfactory performance and reactive role (often attending to emergencies after accidents have already occurred). According to the same source, safety standards in the mines are reported to have deteriorated since the onset of the global financial crisis between 2008 and 2009. This increase has been attributed to, inter alia: employment by mines of largely casual labour that is unqualified, long shifts being worked by fewer workers for specific jobs, and employing cheaper but unsafe mining methods.

In its last comments under the Safety and Health in Mines Convention, 1995 (No. 176), the Committee noted a downward trend in infringements detected and fines imposed during mines inspections in the period 2008–12. In these comments, the Committee also noted the indications of the Government that as a result of assistance provided by the ILO in 2011, mines inspectors are now better equipped to assess risks in the mining sector and to understand risk assessment reports provided by employers. However, it also noted the observations made by the International Trade Union Confederation (ITUC) that working conditions in the mining sector remained poor and that the efforts put forward by the Government to improve safety standards in mines are extremely limited and insufficient, with almost no inspections being conducted by the MSD and the absence of reliable statistics on mining accidents due to the under-reporting of accidents and other dangerous occurrences by companies in order to avoid fines. The Committee requests the Government to describe the budgetary means, human resources and material means available to the MSD. It further requests the Government to provide information on the activities carried out by the MSD in the mining sector (number of inspections, awareness-raising activities, etc.) and their outcome (such as the number of violations detected, the legal provisions concerned, the measures taken and the sanctions imposed, the cases notified to the social security institutions, etc.).

Articles 3(1)(b) and 13 of Convention No. 81 and Articles 6(1)(b) and 18 of Convention No. 129. Preventive activities of occupational safety and health inspectors. The Committee notes the reference of the Government to the powers of labour inspectors with executory force in the event of a threat to the safety and health of workers under the Factories Act and the Mines and Minerals Development Act. The Committee further notes that, according to the labour inspection profile on the website of the ILO, activities to prevent occupational accidents and diseases appear to be insufficient, which includes a lack of occupational safety and health (factory) inspectors and monitoring tools. The Committee requests the Government to provide detailed information on the preventive activities undertaken in the area of occupational safety and health, including: training provided to employers and workers by labour inspectors; public awareness-raising programmes; and the adoption of measures with immediate executory force in the event of imminent danger to the health or safety of workers.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties entrusted to labour inspectors. The Committee notes the Government’s indication that labour inspectors are also engaged in other tasks, such as administrative assignments. It further notes from the labour inspection profile available on the website of the ILO that labour inspectors are responsible for a wide range of activities other than labour inspection and that they spend about 75 per cent of their time in dealing with complaints and disputes. However, it also notes from the same source that following a reform in 2006, the role of labour inspectors was refocused on inspections.

The Committee wishes to recall that Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129 provide 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. In addition, it draws the attention of the Government to the guidance contained in Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which the functions of labour inspectors should not include that of acting as conciliators or arbitrators in proceedings concerning labour disputes and Paragraph 3 of Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), according to which the functions of labour inspectors in agriculture should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes except as a temporary measure. The Committee requests the Government to provide more detailed information on the additional duties assumed by labour inspectors (including the relevant legal provisions) as well as an estimate of the percentage of time spent on activities focusing on their primary labour inspection duties in relation to their other duties. It also requests the Government to take the necessary measures, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129, to ensure that any other duties entrusted to inspection officers do not interfere with the effective discharge of their primary duties.

Article 5(a) and (b) of Convention No. 81 and Articles 12(1) and 13 of Convention No. 129. Cooperation with other private and public authorities exercising similar duties. Collaboration with workers and employers’ organizations. The Committee notes from the information in the 2012 Decent Work Country Profile that the Ministry of Information, Broadcasting and Labour collaborates with other institutions such as the MSD and the Zambia Environmental Management Agency (ZEMA) on health and safety issues. In its report under Convention No. 129, the Government further refers to an existing arrangement under the Tripartite Consultative Labour Council for the collaboration between the officials of the labour inspectorate and employers and workers, or their organizations. The Committee requests the Government to provide detailed information on the cooperation and collaboration of the labour inspection services with the MSD, the ZEMA and other private or public agencies (exchange of data, meetings, joint inspections, etc.). It also requests that the Government provide information on the collaboration between labour inspectors and the social partners within the Tripartite Consultative Labour Council (frequency of meetings, subjects discussed, outcome of such discussions, etc.).

Article 6 of Convention No. 81 and Article 8 of Convention No. 129. Status and conditions of service of labour inspectors. The Committee notes the indication of the Government that labour inspectors are governed by the terms and conditions of the service of civil servants. In this regard, it also notes the information in the 2012 Decent Work Country Profile that a great number of labour inspectors have left the services since 2005, the majority opting to join other ministries, which according to this profile is perhaps an indicator of the low budget allocation of the Ministry. Moreover, according to the labour inspection profile on the website of the ILO, labour inspectors receive low salaries and have insufficient career prospects resulting in poor motivation.

The Committee draws the Government’s attention to paragraphs 204 and 209 of the 2006 General Survey on labour inspection, which emphasize that the levels of remuneration and career prospects of inspectors have to be such that high-quality staff are attracted, retained and protected from any improper influence. The Committee requests the Government to provide an explanation for the retention issue referred to above. It further requests the Government to indicate the measures taken or envisaged to grant labour inspectors appropriate conditions of service, including their wages, allowances and career prospects, with a view to attracting suitable candidates, retaining them within the labour inspection services and assuring their independence from undue external influences.

Article 7 of Convention No. 81 and Article 9 of Convention No. 129. Recruitment and training of labour inspectors. The Committee notes the Government’s indication that labour inspectors are solely recruited based on their qualifications and, to a lesser extent, on their practical experience. It further notes the indication of the Government in its report under Convention No. 129, that the entry qualification for employment in the labour inspectorate is a first Degree in a Social Science and that the entry requirement for the Occupational Safety and Health Inspectorate is a first Degree in Natural Sciences (Chemical, Mechanical and Electrical Engineering).

The Committee also notes the indication of the Government that training programmes for labour inspectors are conducted through induction workshops and capacity-building programmes with the support from the ILO and other cooperating partners. Moreover, according to the Government, inspection schedules and forms have been designed to ensure the adequacy and thoroughness of inspections. The Committee requests the Government to provide further information on the training activities provided to labour inspectors (including on the subjects covered, the duration and frequency, and the number of participants of such training).

The Committee would also like to emphasize that the specific characteristics of work in the agricultural sector involve specific risks for workers, for example, risks related to the handling and use of dangerous chemicals and pesticides as well as agricultural machinery and therefore require that inspectors keep abreast of developments in this sector through continuous and adequate training. In addition, the Committee would also like to draw the Government’s attention to the guidance contained in Paragraphs 4–7 of the Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), on the minimum qualifications needed by labour inspectors called upon to work in the agricultural sector. The Committee requests that the Government provide further information on how it is ensured that the training provided for labour inspectors enables them to acquire and maintain the technical knowledge necessary to perform their duties adequately in the agricultural sector.

Article 9 of Convention No. 81 and Article 11 of Convention No. 129. Association of duly qualified technical experts and specialists in the area of occupational safety and health. The Committee notes the Government’s indication that the provisions of the Factories Act and the Mines and Mineral Development Act give effect to Article 9 of Convention No. 81 and Article 11 of Convention No. 129. The Committee requests the Government to specify the provisions referred to in the Factories Act and the Mines and Mineral Development Act. The Committee also requests the Government to provide information on the association of technical experts and specialists in the work of the labour inspectorate in practice, including the specific areas of expertise sought by the labour inspectorate (medicine, engineering, electricity, chemistry, etc.) and the manner in which these experts cooperate with occupational safety and health (factory) inspectors. The Committee also requests the Government to provide information on the association of duly qualified experts in the work of the labour inspection services in agriculture.

Articles 10, 11 and 16 of Convention No. 81 and Articles 14, 15 and 21 of Convention No. 129. Human resources of the labour inspectorate. Financial and material means. The Committee notes the information provided by the Government that 110 labour inspectors and 14 factory inspectors (specializing in occupational safety and health) are currently working within the labour inspection services. The Committee notes that the Government indicates that out of 53 district stations, only 22 have labour inspection and occupational safety and health offices and only nine of these offices have transport facilities. The Government further indicates that the frequency of inspections remains a challenge due to inadequate transport facilities and insufficient staff.

In this regard, the Committee notes from the information provided by the Government under Convention No. 150, that in 2015 only 0.01 per cent of the national budget was allocated to the labour administration services. The Committee further notes from the indications in the 2012 Decent Work Country Profile that the enforcement of the national legislation is severely constrained by inadequate funding. The Committee requests the Government to take measures to identify and allocate the financial resources necessary to meet the needs of the labour inspection services in terms of human resources (including for occupational safety and health inspections) and material means in all district offices.

The Committee also notes from the 2012 Zambia Labour Force Survey Report available on the Internet that the majority of employed persons were working in agriculture (52.2 per cent). In this regard, the Committee also notes that information provided by the Government that out of 53 district stations, only 22 have labour inspection and occupational safety and health offices and only nine of these offices have transport facilities. It further notes from the information in the 2012 Decent Work Country Profile that the district offices are poorly funded, inadequately staffed and have no occupational hygiene laboratories and equipment.

With reference to paragraph 255 of its 2006 General Survey on labour inspection, the Committee recalls that transport facilities are of particular importance for the effective exercise of the functions of the labour inspectors to reach agricultural undertakings in remote areas. It would also like to emphasize the importance for labour inspectors in agriculture to have at their disposal appropriate protective equipment to protect them from typical hazards in this sector (exposure to chemical products or pesticides, etc.). The Committee requests the Government to provide information on the human and material means of the labour inspection services in agricultural areas (number of labour inspectors, number of offices and detailed description of the material means at their disposal, including transport facilities).

Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. Free access of labour inspectors to workplaces liable to inspection at any hour of the day or night without prior notice to carry out investigations. The Committee notes that section 6 of the Employment Act, section 7 of the Factories Act, section 26 of the Occupational Safety and Health Act and section 126 of the Mines and Minerals Development Act provide for the powers of investigation of labour inspectors. It notes that none of these provisions explicitly stipulate that labour inspectors are empowered to enter workplaces without prior notice. In this regard, the Committee would like to refer to its indications in paragraphs 263 et seq. of its 2006 General Survey on labour inspection, where it emphasized that unannounced visits enable the inspector to enter the inspected premises without warning the employer or his or her representative in advance, especially in cases where the employer may be expected to attempt to conceal a violation, by changing the usual conditions of work, preventing a witness from being present or making it impossible to carry out an inspection.

The Committee further notes that three of these Act provide for different restrictions in relation to the timing of inspections, for example, certain examinations can only be undertaken “by day” (pursuant to section 6(2)(b) of the Employment Act), or “at reasonable times” without defining the term (pursuant to section 125(2) of the Mines and Minerals Development Act), or labour inspectors may only enter enterprises “with a warrant”, “at any reasonable time” without defining the term (pursuant to section 26(1) of the Occupational Safety and Health Act). The Committee recalls that, in paragraph 270 of its General Survey on labour inspection, it emphasized that the conditions for the exercise of the right of free entry to workplaces laid down by Conventions Nos 81 and 129 are intended to allow inspectors to carry out inspections, where necessary and possible, to enforce the application of legal provisions relating to conditions of work. It further indicated that the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped. It finally emphasized that it should be for the inspector to decide whether a visit is reasonable, noting that obviously, inspections should only be carried out at night or outside working hours where this is warranted. The Committee requests the Government to indicate the measures taken to bring the abovementioned sections of the Employment Act, the Factories Act, the Occupational Safety and Health Act and the Mines and Minerals Development Act into conformity with Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129.

Article 14 of Convention No. 81 and Article 19 of Convention No. 129. Notification of industrial accidents and cases of occupational disease to the labour inspectorate. The Committee notes that sections 76 et seq. of the Factories Act provide for the notification of industrial accidents and cases of occupational diseases to the labour inspectorate. It further notes that section 85 of the Mines and Minerals Development Act provides for the notification of accidents and dangerous occurrences to the Director of the MSD (but does not for the notification of occupational diseases). In this regard, the Committee also recalls that the ITUC, in its 2014 comments under the Safety and Health in Mines Convention, 1995 (No. 176), alleged that companies under reported occupational accidents and other dangerous occurrences. The Committee requests the Government to indicate the provisions providing for the notification of cases of occupational diseases that occurred in the mining sector. It further requests the Government to provide information on any practical difficulties encountered and the measures taken or envisaged to improve the functioning of the reporting mechanism concerning occupational accidents and diseases in practice. The Committee also requests that the Government provide information on the legal provisions governing the notification of occupational accidents and diseases in agriculture.

Article 15 of Convention No. 81 and Article 20 of Convention No. 129. Obligations of labour inspectors. The Committee notes that the Government has not provided information in relation to the application of these Articles of the Convention. It notes that section 7 of the Employment Act gives effect to the obligations of labour inspectors as provided for in Article 15(a) and (b) of Convention No. 81 and Article 20(a) and (b) of Convention No. 129, but that this Act does not reflect the principle of confidentiality provided for in Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129. On the other hand, it also notes that sections 10 of the Factories Act and 29 of the Occupational Safety and Health Act do reflect the principles provided for in Article 15(b) and (c) of Convention No. 81 and Article 20(b) and (c) of Convention No. 129, but do not give effect to the prohibition of labour inspectors to have any direct or indirect interest in the undertakings under their supervision provided for in Article 15(a) of Convention No. 81 or Article 20(a) of Convention No. 129. The Committee requests that the Government provide information on whether both labour inspectors (entrusted with the application of the Employment Act) and occupational safety and health inspectors (entrusted with the application of the Factories Act and Occupational Safety and Health Act) are bound by the obligations as provided for in Article 15 of Convention No. 81 and Article 20 of Convention No. 129. In this regard, it requests the Government to provide information how effect is given to these obligations in practice should they not be provided for in law (for example, training of labour inspectors to not reveal the source of a complaint, the oath taken by occupational safety and health inspectors to reveal any conflict of interest, etc.).

Articles 19, 20 and 21, in conjunction with Article 5(a) of Convention No. 81 and Articles 25, 26 and 27, in conjunction with Article 12 of Convention No. 129. Publication and communication to the ILO of annual labour inspection reports. The Committee notes that no annual labour inspection report has been received. It also notes that the Government does not provide any information on how effect is given, or is envisaged to be given to Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. The Committee notes however the Government’s indication that labour inspectors are required to submit inspection reports to the Departments of Labour and Occupational Safety and Health Services at the headquarters of the Ministry. It also notes that sections 11 and 87 of the Factories Act provide for the maintenance of a register of factories at the labour inspectorate.

In this regard, the Committee would like to draw the Government’s attention to its general observation of 2010, where it emphasized the benefits to be derived from drawing up and publishing an annual report on the work of the labour inspectorate. When well prepared, the annual report offers an indispensable basis for the evaluation of the results in practice of the activities of the labour inspection services and, subsequently, the determination of the means necessary to improve their services. In this context, it also recalled that the ILO supervisory bodies, including the Committee of Experts, based on all the information contained in the annual report, are able to provide support to governments in the most relevant manner possible in the implementation of the commitments deriving from the ratification of the Convention. The Committee would also like to draw the Government’s attention to its general observation of 2009, in which it emphasized the importance of establishing and updating a register of workplaces and enterprises liable to inspection and the number of workers employed therein, which would provide the central labour inspection authorities with the data that are essential to prepare the annual report. The Committee requests that the Government provide information on the steps taken to enable the central labour inspection authority to fulfil its obligation to publish and transmit to the ILO an annual report containing complete information on all the subjects listed in Article 21(a)–(g) of Convention No. 81 and Article 27(a)–(g) of Convention No. 129. The Committee also requests the Government to provide information on the availability of a register of factories, and where applicable, the efforts undertaken to establish a register of all workplaces liable to inspection, including through inter-institutional cooperation between the labour inspection services and other government bodies and public or private institutions (tax services, social security bodies, technical supervisory services, local administrations, the judicial authorities, occupational organizations, etc.) in possession of relevant data (Article 5 of Convention No. 81 and Article 12 of Convention No. 129). In this regard, the Committee also wishes to emphasize that the Government may avail itself of the technical assistance of the Office for this purpose.

Issues specifically concerning labour inspection in agriculture:

Article 5(3) of Convention No. 129. Extension of the labour inspection system to self-employed agricultural workers. The Committee notes the Government’s indication in its report that no declaration has been submitted to cover the categories of persons enumerated in Article 5(1). However, the Committee notes also the indication of the Government in its report under Convention No. 150, that while the current legislation does not cover the categories of workers mentioned in Article 7 of that Convention (that is: (a) tenants who do not engage outside help, sharecroppers and similar categories of agricultural workers; (b) self-employed workers who do not engage outside help, occupied in the informal sector as understood in national practice; (c) members of cooperatives and worker-managed undertakings; and (d) persons working under systems established by communal customs or traditions), reforms are being undertaken to extend coverage of social security to informal workers. The Committee therefore requests that the Government indicate to what extent it is envisaged to give effect to the provisions of the Convention in respect of one or more categories of persons referred to in Article 5(1), namely: (a) tenants who do not engage outside help, sharecroppers and similar categories of agricultural workers; (b) persons participating in a collective economic enterprise, such as members of a cooperative; and (c) members of the family of the operator of the undertaking, as defined by national laws or regulations.