Labour Inspection Convention, 1947 (No. 81) - South Africa (Ratification: 2013)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 5(a) and 9 of the Convention. Effective cooperation and the association of duly qualified technical experts and specialists in the work of the labour inspection services. The Committee previously noted that Department of Labour associates “approved inspection authorities” (AIAs) in the work of the labour inspection services, responsible for controls in the area of occupational safety and health (OSH) and other specialist inspectors.

The Committee notes the organizational chart of the labour inspection services, provided by the Government in its report in response to the Committee’s previous request, which indicates that a Chief Directorate on OSH, reporting to the Inspector General, is responsible for OSH inspections. The Government refers to the powers and functions of inspectors, as set out in sections 28–30 of the Occupational Health and Safety Act (OHSA), including that inspectors have the special power to impose sanctions, pursuant to section 30 of the OHSA. The Government states that AIAs and other bodies in the field of OSH are part of the self-regulatory framework in order to provide expertise services to the business, and that they do not have the authority to inspect or investigate workplaces as inspectors unless instructed to do so by the chief inspector or provincial director. Moreover, the Government refers to the definition of AIA under section 1(1)(i) of the OHSA and provides the example of AIA inspection regulations on the accreditation for the inspection of electronic installations. The Government also states that AIAs and other bodies created by OHSA are audited periodically and monitored by both the Inspection and Enforcement Services Branch (IES) and the South African National Accreditation Services (SANAS). However, the Committee notes from the information in the 2018–2023 Decent Work Country Programme (DWCP) report that the shortage of qualified OSH inspectors has forced the Government to rely heavily on the outsourcing of OSH inspection services which are not well regulated. Emphasizing that labour inspection is a public function, and with reference to its comments below on Articles 10, 11 and 16, the Committee requests the Government to provide information on the measures it is taking to address the identified shortage of qualified OSH inspectors. The Committee requests the Government to provide further information on the role and activities of the AIAs, including on the interaction between these private entities and the OSH Directorate, on how possible conflicts of interest are avoided or monitored with respect to AIAs and the employers they inspect or investigate, and a list of such accredited AIAs. It also requests the Government to provide information on results of the periodical audit or monitoring carried out by the IES and the SANAS of the activities of AIAs.

Article 5(b). Effective collaboration between the labour inspection services and employers and workers or their organizations. The Committee previously noted the Government’s indication that the Department of Labour worked closely with bargaining councils, and it requested information on this collaboration.

The Committee notes from the information in the 2018–2023 DWCP report that a roundtable discussion by the IES and the Social Partners at the National Economic Development and Labour Council was held to discuss the implementation of the Convention and to begin a process of fostering greater collaboration around workplace compliance. The Committee further notes the indication in the DWCP that collaboration between the Government and the social partners in respect of inspections and workplace compliance still needs improvement. The Committee requests the Government to provide detailed information on the measures taken or envisaged to improve collaboration between the inspectorate and the social partners in respect of inspections and workplace compliance. In addition, the Committee once again requests the Government to provide further information on the collaboration of labour inspectors with bargaining councils.

Articles 6 and 7. Status and conditions of service of labour inspectors. Capacity of labour inspectors. The Committee previously noted the shortage of qualified labour inspectors owing to a high turnover of labour inspectors and the lack of suitably qualified candidates. The Committee notes the Government’s indication that, in order to address such a challenge, training opportunities, including overseas study travel, are provided to all staff, in particular juniors. The Government also indicates that it is in the process of establishing an academy for the inspectorate. In response to the Committee’s previous request on conditions of service, the Government indicates that the labour inspectors are paid at various salary levels linked to historical circumstances. As public sector employees, they are also provided with medical aid, a pension, a housing allowance, study subsidies, motor vehicles and IT equipment. However, the Government indicates that employees at the Department of Mineral Resources and Energy are paid at a higher level than OSH inspectors. Referring to its 2006 General Survey on labour inspection, paragraph 209, the Committee emphasizes the importance it places on the treatment of labour inspectors in a way that reflects the importance and specificities of their duties and that takes account of personal merit. The Committee therefore requests the Government to provide information on any measures taken or envisaged to review the conditions of service of labour inspectors, including their status compared with other public servants exercising similar functions. It also requests the Government to continue providing concrete information on the nature of challenges to attract, recruit and retain qualified labour inspectors and the measures taken or envisaged to address them. The Committee further requests the Government to provide further specific information on the content, frequency and duration of the training provided to labour inspectors, including progress with respect to the establishment of an academy for the inspectorate.

Articles 10, 11 and 16. Sufficient number of labour inspectors and adequate coverage of workplaces by labour inspection. Material conditions. The Committee previously noted that the IES is underfunded and understaffed. It requested the Government to provide information on the needs determined by the Department of Labour in terms of the budgetary and human resources for the effective discharge of the labour inspection functions and on any efforts undertaken to meet these needs.

The Committee notes the Government’s indication that there is a shortage of budget and human resources, in particular in relation to the recruitment of inspectors in the field of employment equity. Due to the funding reduction, the planned recruitment of 200 interns in the field of employment equity did not take place. The Government states that funding will be further reduced over the next three years. However, the Government also states that the Department of Labour will recruit 500 additional OSH inspectors (175 currently), financed by the Compensation Fund for occupational injuries and diseases. It further indicates that the work of newly recruited inspectors will primarily focus on OSH in small and medium enterprises and informal economy, and that there will be a greater focus on the occupational medicine and hygiene over the next ten years. The Committee notes that, according to the information of the Annual Report of the Department of Labour, the number of inspectors decreased from 1,452 in March 2015 to 1,412 in March 2019. It further notes that the number of inspections carried out increased by 21 per cent from 181,548 in 2014 to 218,919 in 2018. The Committee requests the Government to continue to provide information on the measures it is taking to address the identified budgetary and human resources shortage, in order to ensure the effective discharge of the labour inspection functions, and to provide information on any results achieved. It requests the Government to continue providing information on any efforts undertaken to meet these needs so as to achieve a sufficient coverage of workplaces by labour inspection. In particular, the Committee requests the Government to provide information on the follow-up to the planned recruitment of 500 additional OSH inspectors, including information on the procedures for their recruitment and the induction training planned.

Article 12(1)(a) and (b). Free access of labour inspectors to workplaces liable to inspection at any hour of the day or night. The Committee previously noted that section 65(1) of the Basic Conditions Employment Act (BCEA) provides that labour inspectors may only enter workplaces “at any reasonable time”. It notes the Government’s explanation that “reasonable time” is not a constraint in that an inspector may enter any workplace at any time within its existing operating time. The Government states that, if the business operates from Monday to Friday, it will not be reasonable for the inspector to enter the workplace on Saturday or Sunday, or if the business operates during the day, it would not be reasonable to inspect at night. The Government further states that this is addressed in the Standard Operating Procedure (SOP) for inspectors. The Committee recalls that Article 12(1)(a) of the Convention provides that labour inspectors shall be empowered to enter freely and without previous notice “at any hour of the day or night” any workplace liable to inspection, and Article 12(1)(b) provides that labour inspectors shall be empowered to enter “by day” any premises which they may have reasonable cause to believe to be liable to inspection. Referring to its 2006 General Survey on labour inspection, paragraph 270, the Committee recalls that it should be for the inspector to decide whether the timing of a visit is reasonable, such as when checking for violations that concern abusive night work conditions in a workplace officially operating during the daytime, but that obviously inspections should only be carried out at night or outside working hours where this is warranted. The Committee requests the Government to take the necessary measures to bring the national law and practice into conformity with the requirements set out in Article 12(1)(a)–(b) of the Convention. Pending the adoption of such measures, it requests the Government to provide further information on the conditions under which inspectors may enter the workplace outside of the operating time of the business concerned, and to provide a copy of the Standard Operating Procedure referenced by the Government.

Article 15(c). Obligation concerning the confidentiality of the source of a complaint and the fact that an inspection visit was made in consequence of a complaint. The Committee previously noted the absence of relevant provisions in the national legislation regarding the principle of confidentiality set forth in Article 15(c) of the Convention. The Committee notes the Government’s statement that inspectors are not permitted to reveal the source of any complaint, and that employers may obtain such information through an official process under the Promotion of Access to Information Act (PAIA), or apply for a court ruling if not granted under the PAIA. The Government also states that, in the context of a broader policy change, access to such information is possible only with the involvement of legal services. The Committee recalls that, by virtue of Article 15(c) of the Convention, labour inspectors shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions 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, and further recalls that without such absolute confidentiality workers might hesitate to turn to the labour inspectorate for fear of reprisals. The Committee once again requests that the Government take the necessary measures to ensure the principle of confidentiality set forth in Article 15(c) of the Convention. It requests the Government to provide information on any progress made in this regard.

Articles 20 and 21. Publication and communication of annual labour inspection reports. Following its previous comments, the Committee notes the Annual Reports of the Department of Labour contain information on the staff of the labour inspection service (Article 21(b)), the number of labour inspection visits undertaken (Article 21(d)), the number of improvement notices, compliance orders, and referrals to the courts (Article 21(e)), and the number of reported industrial accidents (Article 21(f)). The Committee also notes the Government’s indication that it is taking measures to improve the collection of information and that the annual reports with all the information required will be made available in the future. The Government indicates that the information on occupational injuries and diseases will also be made available through the statistics of the Compensation Fund. The Committee further notes from the information in the 2018–2023 DWCP report that while there have been efforts to improve the collection of inspection data including through electronic means, the use of information and communications technologies has been less than optimal and serious failures in the management of new technologies are often experienced. Therefore, the need to improve the capacity of the IES to collect and analyse data and statistics becomes critical to produce evidence-based interventions that can enhance workplace compliance. The Committee requests the Government to continue its efforts to ensure that the central authority publishes and communicates to the ILO an annual report on labour inspection activities containing all the information required by Article 21, including information on the statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(b)), and statistics of occupational diseases (Article 21(g)). In this regard, the Committee also requests the Government to provide information on the measures taken or envisaged to improve the collection of inspection data, including through electronic means.

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

The Committee notes the Government’s first report.

Articles 4, 5(a) and 9 of the Convention. Organization and functioning of the labour inspection system, effective cooperation with other government services engaged in similar activities and association of duly qualified technical experts and specialists in the work of the labour inspection services. The Committee notes the information provided by the Government in its report that the supervision and control of the labour inspection system is assumed by the Inspection Enforcement Services of the Department of Labour. The Government indicates that in addition to cooperation with the inspection bodies responsible for control and enforcement activities in the mining and transport sector, the Department of Labour associates so-called “approved inspection authorities” (AIAs) responsible for controls in the area of occupational safety and health (OSH), and other specialist inspectors in the work of the labour inspection services.

The Committee notes from the information in the 2010–14 Decent Work Country Programme (DWCP) that South Africa had established an integrated inspectorate and had embarked on a process of modernizing and restructuring its labour inspectorate. The Committee requests the Government to provide an organizational chart of the labour inspection services, and to supply information on whether the Inspection Enforcement Services of the Department of Labour have a unit responsible for OSH, or whether the Inspection Enforcement Services depend entirely on the association of approved inspection authorities (AIAs) and other technical experts and specialists for controls in the area of OSH. In this respect, the Committee also requests the Government to provide more information on the status and conditions of service of the AIAs and where applicable, how they differ from those of labour inspectors. It also requests the Government to provide information on whether the modernization and restructuring of the labour inspectorate is still ongoing and provide information on any steps taken in this process.

Article 5(b). Effective collaboration between the labour inspection services and employers and workers or their organizations. The Committee notes the Government’s indication that the Department of Labour is working closely with the bargaining councils, which are composed of employers’ organizations and trade unions, in the control and enforcement of “other” laws. In this respect, the Committee notes that the Minister of Labour may designate any person appointed as designated agent of a bargaining council, to perform any of the functions of a labour inspector to secure the collective agreements of the bargaining council, among other things through conducting inspections and investigating complaints (according to section 63(1)(a) of the Basic Conditions of Employment Amendment No. 75 of 1997 (as amended), read in conjunction with section 33 of the Labour Relations Act No. 66 of 1995 (as amended)). The Committee requests that the Government provide further information on the collaboration of labour inspectors with bargaining councils. As the Government has only provided succinct information on the collaboration as provided for in Article 5(b), the Committee requests the Government to provide information on other forms of collaboration, such as the forms of collaboration described in Paragraph 6 of the Labour Inspection Recommendation, 1947 (No. 81).

Articles 6 and 7. Status and conditions of service of labour inspectors. Capacity of labour inspectors. The Committee notes the information provided by the Government that labour inspectors are governed by the Public Service Act. The Committee notes from the information contained in the 2010–14 DWCP that the shortage of qualified labour inspectors owing to a high turnover of labour inspectors and the lack of suitably qualified labour inspectors in the country was a problem during the establishment of the DWCP and at the time impacted on the capacity of the labour inspectorate to effectively conduct inspections.

The Committee notes from the information in the 2015–16 annual report on the activities of the Department of Labour (available on the website of the Department of Labour) that both retaining inspectors and finding suitable, specialized candidates continues to be a challenge. In this respect, the Committee recalls its indications made in paragraph 204 of its 2006 General Survey on labour inspection that levels of remuneration and career prospects of inspectors be such that high-quality staff are attracted, retained and protected from any improper influence. The Committee requests the Government to provide information on the conditions of service of the labour inspectors (wages and allowances, career prospects, etc.) in comparison with other public servants exercising similar functions, such as tax inspectors. It also requests that the Government provide explanations on what are the challenges to attract, recruit and retain qualified candidates (such as more favourable conditions in other government services, unsafe working conditions, etc.) and any measures taken to address them.

Articles 10, 11 and 16. Sufficient number of labour inspectors and adequate coverage of workplaces by labour inspection. Material conditions. The Committee notes the Government’s indication that there are 959 labour inspectors working within the Inspection Enforcement Service (including nine provincial chief inspectors, 27 specialist inspectors across all sectors, 72 principal inspectors and 850 general inspectors). The Committee notes the conclusions drawn in a report sent by the Government on the practical application of the Convention, that the labour inspection services are underfunded and understaffed. In this respect, the Committee also notes from the information in the 2015–16 annual report on the activities of the Department of Labour that, over the medium term, the Department plans to increase the number of inspections. However, according to the information in that report, there is currently no budget to recruit additional labour inspectors with a view to cover the needs in terms of the necessary human resources to function more effectively and to ensure that at a minimum the workplaces under supervision are inspected thoroughly and with sufficient frequency. The Committee requests that the Government provide information on the needs determined by the Department of Labour in terms of the budgetary and human resources for the effective discharge of the labour inspection functions, in relation to the criteria provided for in Article 10(a)(i)–(iii), (b) and (c). It also requests that the Government provide information on any efforts undertaken to meet these needs so as to achieve a sufficient coverage of workplaces by labour inspection.

Article 12(1)(a) and (b). Free access of labour inspectors to workplaces liable to inspection at any hour of the day or night. The Committee notes that section 65(1) of the Basic Conditions Employment Act (BCEA) provides that labour inspectors may only enter workplaces “at any reasonable time”, whereas Article 12(1)(a) provides that labour inspectors shall be empowered to enter freely and without previous notice “at any hour of the day or night” any workplace liable to inspection, and Article 12(1)(b) provides that labour inspectors shall be empowered to enter “by day” any premises which they may have reasonable cause to believe to be liable to inspection.

The Committee recalls its indications made in paragraph 269 of its 2006 General Survey on labour inspection that the term “reasonable time” without defining the term constitutes a limitation to the scope of the prerogative in Article 12(1) concerning the timing of visits of inspections. The Committee further emphasized, in paragraph 270 of this General Survey, 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 therefore requests the Government to bring the national legislation into conformity with the requirements set out in Article 12(1)(a)–(b).

Article 15(c). Obligation concerning the confidentiality of the source of a complaint and the fact that an inspection visit was made in consequence of a complaint. The Committee notes that the BCEA does not require that labour inspectors shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions 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. The Committee requests the Government to take measures to give a legal basis to the principle of confidentiality set forth in Article 15(c).

Articles 20 and 21. Publication and communication of annual labour inspection reports. The Committee notes that no annual report on the activities of the labour inspection services was received. The Committee notes however the information in the 2015–16 annual report on the activities of the Labour Department available on the Labour Department’s website which also contains statistical information on labour inspection and enforcement. The Committee moreover notes the statistical information provided by the Government in a report on the practical application of the Convention, including: the staff of the labour inspection service (Article 21(b)), the number of labour inspection visits undertaken (Article 21(d)), the number of improvement notices, compliance orders, and referrals to the courts (Article 21(e)), and the number of industrial accidents (Article 21(f)).

The Committee notes from the information in the 2010–14 DWCP report that the insufficient data gathering, information and communication system had been recognized as a challenge with regard to the capacity of the inspectorate to effectively perform inspections. According to that report, the inadequate use of electronic means of reporting and data collection also makes it difficult to assess compliance for the purposes of strategic planning and setting priorities. Noting that a significant number of statistical data on labour inspection is already available, the Committee requests that the Government take the necessary steps to ensure that the central authority publishes and communicates to the ILO an annual report on labour inspection activities containing all the information required by Article 21, including information on the statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(b)), and statistics of occupational diseases (Article 21(g)). In this regard, the Committee also requests the Government to provide information on whether the Government has undertaken efforts to improve the collection of inspection data, including through electronic means.