ILO-en-strap
NORMLEX
Information System on International Labour Standards
NORMLEX Home > Country profiles >  > Country comments > Texts of comments: India

Comments adopted by the CEACR: India

Adopted by the CEACR in 2021

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and the Government’s reply thereto.
Articles 6 and 7 of the Convention. Status and conditions of labour inspectors. Welcoming the significant increase in the number of labour inspectors at the states’ level within the last two years indicated in the Government’s report, the Committee requests the Government to provide information on the status and conditions of service of labour inspectors. It also requests the Government to provide information on the qualifications required for labour inspectors and the relevant recruitment process, as well as the training provided to them.
Articles 10, 12 and 16 of the Convention. Coverage of workplaces by labour inspections. Self-inspection scheme. The Committee notes the Government’s reiterated indication, in response to the Committee’s previous request, that self-certifications do not replace labour inspections, but complement them by encouraging voluntary compliance. The Government adds that the examination of the relevant records facilitates the work of labour inspectors by allowing them to understand the issues before making an inspection. The Committee also notes the Government’s indication that start-ups may be subject to inspection only when a very credible and verifiable complaint of a violation is submitted in writing and approval has been obtained from at least one level senior to the inspecting officer. The Committee also notes the concerns expressed by the ITUC that in the self-assessment based inspectorate system, which includes the assessment of compliance with labour standards by employers and the reporting of these results, labour inspectors will not be able to conduct labour inspections unless there is a complaint. The Committee notes from the statistical information provided that at the central level, all inspections are unannounced and that there is a high number of unannounced inspections in relation to the 14 (of the 36) states for which the Government has provided information. The Committee requests the Government, in line with the 2019 conclusions of the Committee on the Application of Standards, to ensure that the operation of the self-certification scheme does not impede or interfere with the powers of labour inspectors, as provided for in Articles 12 and 16 of the Convention. The Committee also requests the Government to continue to provide information on the number of routine visits and unannounced visits in all states, and to clearly indicate the visits that were made following the receipt of a complaint, as well as to indicate the number of inspections performed of start-ups.
Articles 12(1)(a) and (b), and 18. Free access of labour inspectors to workplaces. The Committee notes that the Government has not provided a reply in response to its previous request concerning Articles 12(1)(a) and (b), and 18. The Committee therefore once again requests the Government to provide information on any cases where police assistance was requested by a labour inspector or was necessary in order for a labour inspector to access a workplace and to indicate the number of cases brought in that respect under section 353 of the Penal Code for obstructing labour inspectors in the performance of their duties, the outcome of such cases and the penalties.

C081 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.
Repetition
The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 16 September 2020. The ITUC states that, as part of the response to the COVID-19 pandemic, a number of states (including Uttar Pradesh, Madhya Pradesh, Rajasthan and Gujarat) have made changes to their labour laws by way of amendments, ordinances or executive orders, bypassing tripartite consultations and parliamentary debates. The ITUC states that the changes, based on the extraordinary measures provisions of the Factories Act 1948, gravely undermine workers’ rights and leave them without protection, in particular with regard to working hours, safety and health and wages. The ITUC also expresses concern about the provisions adopted in the state of Madhya Pradesh that exempt “non-hazardous factories” from routine inspections by the Labour Commissioner, and permit these factories to submit third-party certification regarding compliance instead. The ITUC states that this exemption is a violation of the Convention and will endanger the health and safety of workers. The Committee requests the Government to provide its observations in this respect.
In addition, the Committee notes that the Occupational Safety and Health (OSH) and Working Conditions Bill, previously noted by the Committee, was adopted in September 2020. The Committee proceeded with the examination of the application of the Convention on the basis of the new legislation adopted (see Articles 12 and 17 below), as well as on the basis of the information at its disposal in 2019.
The Committee notes the observations made by the Council of Indian Employers (CIE), received on 30 August 2019, and the observations made by the International Trade Union Confederation (ITUC), received on 1 September 2019, as well as the Government’s reply in relation to the observations made by the ITUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion in the Conference Committee on the Application of Standards (CAS) of the International Labour Conference, at its 108th Session (June 2019), on the application of the Convention, and the conclusions adopted. The conclusions of the CAS called upon the Government to: (i) ensure that the draft legislation, in particular the Code on Wages, and the OSH and Working Conditions Act, is in compliance with the Convention; (ii) ensure that effective labour inspections are conducted in all workplaces, including the informal economy and in all Special Economic Zones (SEZs); (iii) promote collaboration between officials of the labour inspectorate and employers and workers, or their organizations, in particular when it comes to the implementation of inspection reports; (iv) increase the resources at the disposal of the central and state government inspectorates; (v) ensure that labour inspectors have full powers to undertake routine and unannounced visits and to initiate legal proceedings; (vi) pursue its efforts towards the establishment of registers of workplaces at the central and state levels; (vii) provide detailed information on the progress made with respect to measures taken to improve the data collection system, enabling the registration of data in all sectors; (viii) ensure that the operation of the self-certification scheme does not impede or interfere with the powers in functions of labour inspectors to carry out regular and unannounced visits in any way, as this is only a complementary tool; (ix) submit its annual report on labour inspection to the ILO; and (x) provide information on the number of routine and unannounced visits, as well as on the dissuasive sanctions imposed against infractions to guarantee the enforcement of labour protections in practice. The CAS also invited the Government to accept a direct contacts mission and to elaborate a report in consultation with the most representative employers’ and workers’ organizations on progress made in the implementation of the Convention in law and practice. The Committee notes with concern the statement in the Government’s report that it does not accept any direct contacts mission.
Articles 2 and 4 of the Convention. Labour inspection in SEZs. In its previous comments, the Committee noted the Government’s earlier indication that few inspections had been carried out in SEZs, and that Development Commissioners continued to exercise inspection powers in some SEZs. The Committee notes the observations of the ITUC expressing concern that the power of labour inspectors are being exercised by Development Commissioners who have a responsibility to promote investment in SEZs. The Committee also notes the observations made by the CIE that some of the SEZs have jurisdictions in more than one state, and that due to this administrative difficulty, Development Commissioners have been appointed to oversee the functioning of the SEZs. The CIE adds that Development Commissioners have been given full powers to enforce the labour laws through labour inspectors deputed by the local governments.
The Committee notes the Government’s indication, in response to the concerns expressed by the ITUC, that the deputed labour inspectors from the states work independently, are paid by the states and may conduct inspections on their proper initiative without prior intimation to the Development Commissioners. The Committee further notes the Government’s indications, in reply to the Committee’s request to ensure that effective labour inspections are conducted in all SEZs, that the number of inspections has increased substantially in the last three years. In this respect, the Committee notes with interest from the statistical information provided by the Government, an increase in the number of inspections undertaken in six of the seven SEZs from 2016–17 to 2018–19: from 0 to 62 in Falta Kolkata; from 26 to 30 in Vishakapatnam; from 46 to 105 in Mumbai; from 16 to 30 in Noida; from 368 to 2,806 in Kandla; and from 189 to 222 in Chennai. The number of inspections undertaken in the SEZ Cochin went from 22 to 18 over the same period. The Committee notes however, that the number of penalties imposed remained low, and in three out of the seven SEZs, no penalties were imposed during this period. The Committee requests the Government, in line with the 2019 conclusions of the CAS, to ensure that effective labour inspections are conducted in all SEZs. Welcoming the information already provided, the Committee requests the Government to provide more detailed statistical information on the number of labour inspectors responsible for inspections in these zones, the number of inspection visits, the number and nature of offences reported, the number of penalties imposed, the amounts of fines imposed and collected, and information on criminal prosecutions, if any. It also requests the Government to continue to provide information on the number of enterprises and workers in each SEZ. The Committee further requests the Government to provide up-to-date information indicating in which SEZs labour inspection powers have been delegated to Development Commissioners, including the specific powers so delegated and how inspections are carried out in those SEZs.
Articles 4, 20 and 21. Availability of statistical information on the activities of the labour inspection services at the central and state levels. Availability of statistics in specific sectors. The Committee notes the Government’s reference, in reply to the Committee’s previous request for an annual labour inspection report, to the 2018–19 report published by the Ministry of Labour and Employment, which contains statistical information on inspection activities at the central level (including the number of labour inspections, the number of irregularities detected, the number of prosecutions and convictions, as well as the number of accidents in mines). Concerning the state level, the Committee notes the statistical information on labour inspection activities provided by the Government with its report (including on the number of labour inspections in 14 states, and the number of violations detected, prosecutions and penalties imposed in 15 states). Finally, the Committee welcomes the information available on the Shram Suvidha web portal at the Ministry of Labour and Employment concerning the information on registered workplaces in nine states and the information that discussions are ongoing with other states concerning the integration of information into the portal. The Committee also notes the observations made by the ITUC that the statistical data provided does not allow for an assessment of the effective operation of the labour inspection services. The Committee urges the Government to pursue its efforts to ensure that the central authority (at the central level or the state levels), publishes and transmits to the ILO annual reports on labour inspection activities containing all the information required by Article 21. In line with the 2019 conclusions of the CAS, the Committee encourages the Government to pursue its efforts towards the establishment of registers of workplaces at the central and state levels. In this regard, the Committee also once again requests the Government to provide detailed information on the progress made with respect to measures taken to improve the data collection system enabling the registration of data in all sectors.
Articles 10 and 11. Material means and human resources at the central and state levels. The Committee notes with interest the Government’s indication, in response to the Committee’s request to increase the resources at the central and state government inspectorates, that more than 574 labour inspectors have been recruited at the state levels in the last two years, bringing the total number of labour inspectors to 3,721. The Government adds that at the central level, the number of labour inspectors is 4,702. The Committee also notes the information provided by the Government in relation to the central level and 19 states on the transport facilities or transport allowance provided, as well as on the available material resources.
The Committee notes the statement of the CIE that the use of technology, information and communications technology in particular, has contributed to promoting compliance. The Committee also notes the observations made by the ITUC that the human and material resources of the labour inspectorate are inadequate. It notes the Government’s reply that inspectors at the central government level and in most states are provided vehicles for conducting inspections. In line with the 2019 conclusions of the CAS, the Committee requests the Government to continue to take measures to increase the resources at the disposal of the central and state government inspectorates, and to provide information on the concrete measures taken in that respect. It also requests the Government to continue to provide information on the number of labour inspectors, material resources and transport facilities and/or budget for travel allowances of the labour inspection services at the central level and for each state, and to provide statistical information on the workplaces liable to inspection at the central level and state levels.
Articles 12 and 17. Free initiative of labour inspectors to enter workplaces without prior notice, and discretion to initiate legal proceedings without previous warning. The Committee previously requested the Government to ensure that, in the ongoing legislative reform, any legislation developed be in conformity with the Convention. The Committee notes the Government’s indication, in response to this request, that the Code on Wages was adopted in August 2019. The Committee notes that pursuant to section 51(5)(b) of the Code on Wages, labour inspectors entitled “inspectors-cum-facilitators” may inspect establishments “subject to the instructions or guidelines issued by the appropriate Government from time to time”. It further notes that the Code on Wages provides that inspectors-cum-facilitators shall, before the initiation of prosecution for an offence, give employers an opportunity to comply with the provisions of the Code within a certain time limit through a written direction (section 54(3)).
In addition, the Committee notes the adoption of the OSH and Working Conditions Code on 28 September 2020. The Code provides that, subject to rules made, inspector-cum-facilitators may enter any place which is used, or they have reason to believe is used, as a work place and inspect and examine the establishment and any premises, plant, machinery, article, or any other relevant material (section 35(1) and (2)). The Committee notes that while the Code also gives inspectors-cum-facilitators and other appropriately authorized officers the power to enter workplaces at any time during normal working hours or at any other time deemed necessary, it requires them to give notice in writing to the employer prior to undertaking a survey (section 20(1)); and with respect to inspections in mines (section 41), to provide at least three days before conducting inspections (for the purpose of surveying, levelling or measuring any mine or any output therefrom), except in emergency situations pursuant to a written order from the Chief Inspector-cum-Facilitator. The Committee further notes that section 110 provides that an inspector-cum- facilitator shall not initiate prosecution proceedings against an employer for any offence in Chapter XII of the Code (on offences and penalties), and shall give an opportunity to comply with relevant provisions of the Code within a period of thirty days from the date of notice giving opportunity, and, if the employer complies with such provisions within the period, no such proceeding shall be initiated against the employer. Section 110 further provides that the period of notice does not apply in the case of an accident or if it concerns a violation of the same nature repeated within a period of three years from the date on which the first violation was committed. In addition, the Committee notes the statistics provided by the Government concerning the number of convictions and penalties imposed at the central level and for 11 states for the period of 2016–19.
The Committee recalls that under Article 12(1)(a) of the Convention, 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 it further recalls Article 17 of the Convention provides that, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give a warning or advice instead of instituting or recommending proceedings. The Committee requests the Government to take measures to ensure that labour inspectors are empowered, in law and practice and in line with Article 12(1)(a) and (b) of the Convention, to make visits without previous notice. In this respect, noting that the Code on Wages provides for inspections subject to the instructions or guidelines issued by the appropriate Government, the Committee urges the Government to ensure that the instructions issued fully empower labour inspectors in accordance with Article 12(1)(a) and (b) of the Convention. The Committee also requests the Government to provide further information on the meaning of the term “survey” in section 20 of the OSH and Working Conditions Code, and to indicate whether labour inspectors are required to provide notice of all inspections in writing under the Code. It also urges the Government to take the necessary measures to ensure that labour inspectors are able to initiate legal proceedings without previous warning, where required, in conformity with Article 17 of the Convention. In this respect, it requests the Government to provide further information on the meaning of the term “inspectors-cum-facilitators,” including the functions and powers of officials performing this role. Noting the statistics already provided, the Committee requests the Government to provide information on the number and nature of offences reported, the number of penalties imposed, the amounts of fines imposed and collected, and information on criminal prosecutions, if any.
The Committee is raising other matters in a request addressed directly to the Government.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

C122 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Socio-economic impact of the COVID-19 pandemic. Response and recovery measures. The Committee notes the devastating effects the pandemic has had on health, lives and livelihoods in India. In this context, the Committee recalls the broad guidance provided by international labour standards. It draws the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which is a useful guide for the formulation and implementation, in consultation with the most representative organizations of employers and workers, of inclusive measures to promote full, productive and freely chosen employment opportunities and decent work as an effective response to the deep-rooted socio-economic effects of the crisis.  The Committee invites the Government to provide updated information on the impact of the pandemic on the implementation of the employment policies and programmes adopted with a view to guaranteeing the objectives of the Convention, especially in relation to the most vulnerable population groups. It requests the Government to provide updated information on the impact of the COVID-19 pandemic on the labour market, statistical information, disaggregated by age, sex and occupational sector, on the size and distribution of the labour force, rates of employment, unemployment and under employment and the size of the informal economy.
Articles 1 and 3 of the Convention. Formulation and implementation of a National Employment Policy. Consultation with the social partners. In its previous comments, the Committee requested information on the development of the National Employment Policy (NEP) in consultation with the social partners, as well as disaggregated data on the impact of increased budgetary allocations on employment creation. The Government reports that the drafting process for the National Employment Policy, initiated in 2013, is still under way, in consultation with stakeholders. The Government adds that discussions have been held with key stakeholders in respect of the draft NEP, as well as with the ILO Office. It indicates that a revised draft NEP is being prepared and will be shared with stakeholders before being finalized. With respect to consultations with the tripartite partners, including consultations within the Indian Labour Conference, the Government indicates that the latter is the highest-level tripartite consultative committee to advise the Government on labour-related issues. The Indian Labour Conference has held 46 sessions since its establishment in 1942, with the most recent session having taken place in 2015. The Government indicates that, during its 45th session in 2013, following consultations among the representatives of workers’ and employers’ organizations and Central and State governments, the Committee on Measures to Improve Employment and Employability recommended that the National Employment Policy be finalized as a matter of priority. Noting that no session of the Indian Labour Conference has been held since 2015, the Committee hopes that the National Employment Policy will be adopted in the near future and reiterates its request that the Government provide a copy once it is adopted. The Committee also requests the Government to provide concrete, updated information on the nature, content and outcome of consultations held with representatives of employers’ and workers’ organizations concerning the formulation, updating and implementation of the National Employment Policy, as well as other active employment policies and programmes at the central and state level. The Committee further requests the Government to provide detailed updated information on the manner in which the perspectives of persons affected by the employment-related measures implemented are taken into account in the development and implementation of active employment policy measures.
Labour market trends. The Committee previously requested the Government to provide updated disaggregated statistical data on trends in labour force participation, employment, unemployment and underemployment, as well as information on the national labour market information system and the production of timely employment data to help design more effective employment policies.
The Committee notes the information provided by the Government in respect of the annual Periodic Labour Force Surveys (PLFS) carried out by the National Sample Survey Office. It notes the detailed labour market statistics information provided by the Government in the PLFS reports on the situation and trends of labour force participation, employment and unemployment, in both the formal and informal economies, disaggregated by age, sex, skills, disadvantaged group, state and economic sector. In particular, the Committee notes that the 2018–19 PLFS report shows that the labour participation rate increased slightly from 36.9 per cent in 2017–18 to 37.7 per cent in 2018–19, while the unemployment rate decreased from 6.1 per cent to 5.8 per cent during the same period. The Committee requests the Government to continue to provide updated detailed information on the situation and trends of labour force participation, employment, unemployment and underemployment. The Government is further requested to indicate the manner in which the information compiled from the PLFS reports is utilized in the design and implementation of employment policies at national and provincial level.
Article 2. Implementation of employment programmes and employment services. The Committee notes with interest the information provided by the Government regarding the implementation of various programmes as well as their impact during the reporting period, targeting young persons and workers in the informal sector. The Government reports that during the reporting period (2017–19), the Prime Minister’s Employment Generation Programme (PMEGP) generated 309,043 jobs. Moreover, the National Urban Livelihoods Mission (NULM) provided assistance to 295,406 beneficiaries to establish micro enterprises. In addition, the Deen Dayal Upadhyaya Grameen Kaushalya Yojana (DDU–GKY), which is part of the National Rural Livelihoods Mission and focuses on the employment of rural youth between the ages of 15 and 35 from poor families, placed a total of 271,316 participants in employment. The Committee requests the Government to continue to provide detailed updated information on the impact of the employment programmes being implemented throughout the country, in both urban and rural areas, including statistical information, disaggregated by sex and age, on the number of jobs generated and the number of beneficiaries placed.
Specific groups. The Government reports on the implementation of the National Career Service (NCS) project, which provides a variety of employment related services to groups in vulnerable situations, such as career counselling, vocational guidance, as well as information on skills development courses, apprenticeships, internships and other opportunities. As of July 2019, more than 10.3 million jobseekers were registered in the NCS Portal. There are 25 NCS centres for the Scheduled Castes and Scheduled Tribes (ST/SC) operating in the different states and union territories. These centres provide persons belonging to the ST/SC with services to enhance their employability through coaching, counselling and training programmes, including one year of computer training and of computer hardware maintenance training for interested ST/SC candidates. The Committee notes that there are 21 NCS centres that provide services to persons with disabilities, including informal skills training. In addition, a stipend is available from the NCS centres to encourage persons with disabilities to participate in training and reduce their commuting and other expenses. However, the Committee notes that, according to the concluding observations on the initial report of India by the Committee on the Rights of Persons with Disabilities (CRPD) in October 2019, only 37 per cent of persons with disabilities have access to employment, and the employment quota of 4 per cent of persons with disabilities is not sufficiently implemented (CRPD/C/IND/CO/1, paragraph 56(a) and (c)). The Committee requests the Government to continue to provide information on the nature and impact of services provided by NCS centres and other measures taken to promote sustainable employment and decent work for disadvantaged groups, including the number of persons placed in employment through such services and the type of employment in which they are placed.
Employment of women. The Committee notes the information provided by the Government on legislative reform and policy initiatives undertaken to increase the participation of women in the labour market. The Maternity Benefit (Amendment) Act adopted in 2017 extended paid maternity leave from 12 weeks to 26 weeks and provides for mandatory crèche facilities in establishments with 50 or more employees. The 2019 Code on Wages prohibits gender discrimination in matters related to wages and recruitment of employees for the same work or work of a similar nature. Moreover, to enhance the employability of women, trainings are provided through a network of Women Industrial Training Institutes, National Vocational Training Institutes and Regional Vocational Training Institutes. As of July 2019, 3.1 million female jobseekers were registered in the NCS portal, with one NCS centre exclusively providing services to women with disabilities. In addition, a number of measures are being undertaken to promote women’s entrepreneurship, such as the provision of collateral-free concessional loans, the formation of cooperatives through self-help groups and the creation of online marketing platform. However, the Committee notes that a significant gap persists in labour participation rates between men (50.3 per cent) and women (15.0 per cent), as reflected in the 2018–19 PLFS report. Moreover, about four times more women work as helpers in household businesses (30.9 per cent) compared with men (7.6 per cent). The Committee further notes that, in its 2019 concluding observations in relation to India, the Committee on the Rights of Persons with Disabilities (CRPD) expressed concern about the multiple and intersecting discrimination faced by women and girls with disabilities, particularly those with intellectual or psychosocial disabilities and those living in rural areas (doc. CRPD/C/IND/CO/1, October 2019, paragraph 14(a)). The CRPD observed with concern that only 1.8 per cent of women with disabilities have access to employment (doc.CRPD/C/IND/CO/1, paragraph 56(a) and (c)). The Committee requests the Government to strengthen its efforts to increase the active participation of women in the labour market and their access to sustainable employment, particularly for those facing multiple and intersecting discrimination. It also requests the Government to provide information on any measures taken to raise awareness of the need for men and women to share family responsibilities, with a view to facilitating women’s access to the labour market. In this respect, the Government is requested to provide updated comprehensive information, including disaggregated statistical data, on the nature and impact of measures taken to promote women’s access to full, productive, freely chosen and lasting employment.
Formalization of informal workers. The Committee notes the information provided by the Government concerning the Pradhan Mantri Rojgar Protsahan Yojana Programme (PMRPY), launched in August 2016. The PMRPY provides incentives to employers for job creation and seeks to bring a large number of informal workers to the formal workforce. The PMRPY targets workers earning up to Rs. 15,000 per month. Under this scheme, the Government pays the employers’ full contribution of 12 per cent of new employees’ salary to the Employees’ Provident Fund and the Employee’s Pension Fund for a period of three years. As of 31 March 2019 (the deadline for registration of beneficiaries), 162,268 establishments and 12,753,284 employees had received benefits under this scheme. The Committee also notes that, according to the 2018–19 PLFS report, regular wage workers account for 23.8 per cent of the total working population compared to 22.8 per cent in 2017–18. However, it observes that there are still large numbers of workers engaged in non-regular work, including 48.2 per cent as own account workers, 9.2 per cent as helpers in family businesses and 28.3 in casual labour. The Committee requests the Government to indicate whether the PMRPY has continued to operate after 31 March 2019 and, if so, to provide updated information on its activities and impact. It also requests the Government to continue to provide detailed updated information on other measures taken or envisaged in this context and their impact on reducing informal employment.
Employment programmes targeting rural areas. The Committee previously requested the Government to provide information on the impact of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), in enhancing job growth and sustainable employment in rural areas. The Government indicates that the MGNREGA provides more than one hundred days of guaranteed wage employment every financial year to each rural household whose adult members volunteer to do unskilled manual work. MGNREGA thereby provides livelihood security through a fall-back option for rural households when no better employment opportunities are available. The Committee notes the Government’s indication that the MGNREGA programme generated 2.34 billion total person-days in 2017–18 and 2.68 billion total person-days in 2018–19. The Committee also notes that, according to the 2018–19 PLFS report, only 13.4 per cent of workers in rural areas are engaged in regular employment, whereas 41.8 per cent are own account workers, 16.7 per cent are helpers in household businesses and 28.6 per cent are engaged in casual labour. The Committee requests the Government to continue to provide detailed updated information on the implementation of the MGNREGA and its impact. It also requests the Government to provide information on any measures taken or envisaged in order to provide full, productive and sustainable employment for rural households, including through vocational education and skills development as well as other employment services.

C141 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
In its previous comments, the Committee had requested the Government to provide its comments on the observations of the Palamoori Migrant Labour Union (PLMU) regarding the impact of the proposed labour law reform on the freedom of association of rural workers. The Committee notes the Government’s indication in its report that the draft Code on Industrial Relations Bill 2018 has been reviewed and modified in consultation with the social partners, including the Central Trade Union Organization (CTUO). The Committee requests the Government to provide a copy thereof once it has been adopted.
Article 3 of the Convention. Right of all categories of workers to establish and join organizations. Muster assistants (workers that provide water and medical facilities at rural worksites). The Committee has previously requested the Government to provide information on the number of organizations of muster assistants, as well as the number of workers covered. Noting the Government’s indication that it is still awaiting for the response from the relevant authorities, the Committee reiterates its request and expects that this information will be provided with the Government’s next report.
Forest and brick-making workers. The Committee had previously requested the Government to provide copies of any collective agreements which may have been concluded in the forest and brick-making sectors. The Committee takes due note of a code of conduct signed between the Labour Commissioner, the Government of Uttar Pradesh and representatives of the brick-making council and of collective agreements signed in the brick-making sector, as transmitted by the Government. The Committee requests the Government to provide examples of any collective agreements concluded in the forest sector.
Article 5. Elimination of obstacles to the establishment and growth of rural organizations. The Committee had previously noted that section 26 of the draft Labour Code on Industrial Relations provided that subscriptions payable by members of a trade union shall be, for trade unions of persons employed in agricultural operations or rural establishments or workers employed in establishments in the unorganized sector, not less than 6 Indian rupees per month per member. In this regard, the Committee had recalled that matters relating to internal administration should be left to the discretion of the members of workers’ organizations, without any interference by the public authorities, including the levying of union dues. The Committee had requested the Government to review draft section 26, in consultation with the social partners. Noting the draft Code on Industrial Relations Bill 2018 is still undergoing a review, the Committee expects that this provision will be amended, so as to take into account the abovementioned principle.

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
The Committee notes the observations submitted by the Centre of Indian Trade Unions (CITU), received on 22 January 2019. The Government is requested to provide its comments in this respect.
Articles 2 and 5 of the Convention. Effective tripartite consultations. In its 2017 direct request, the Committee requested the Government to provide information on the content and outcome of the tripartite consultations held on the matters concerning international labour standards covered under Article 5(1) of the Convention. The Committee welcomes the detailed information supplied by the Government in its report regarding tripartite consultations held with the social partners from 2015 to 2018 on the matters covered by the Convention. The Government indicates that consultations were carried out with the social partners in writing on a number of questionnaires concerning items on the agenda of the International Labour Conference (Article 5(1)(a) of the Convention). Tripartite consultations were also held on 10 January 2017 in relation to the submission of the Transition from the Informal to the Formal Economy Recommendation, 2015 (No. 204), and the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), pursuant to Article 5(1)(b). With regard to tripartite consultations concerning the possible ratification of ILO instruments, the Government indicates that the 38th Session of the Tripartite Committee on Conventions (CoC) was held on 10 January 2017, under the Chairmanship of the Secretary of the Ministry of Labour and Employment. Members of all central trade unions and employers’ organizations participated in these meetings along with representatives of state governments and central ministries (Article 5(1)(c)). The Committee notes with interest that, after agreement was reached in the CoC, the Government ratified the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), on 13 June 2017, after modifying the Child Labour (Prohibition & Regulation) Act, 1986, (Article 5(1)(c)). The Government also provides information on tripartite consultations held through 2017 on reports to be made to the ILO in relation to Article 22 reports (Article 5(1)(d)), as well as on consultations held during the reporting period on the abrogation and withdrawal of certain instruments. The Committee notes that, in its observations, the CITU maintains that the Government has failed to comply with its obligations pursuant to the Convention. The CITU observes that the Indian Labour Conference, a tripartite structure at the national level, had previously been held annually, with a tripartite standing committee meeting in between the ILCs. The Government has not held the 47th Indian Labour Conference despite calls from the central trade union organizations to do so. The CITU also alleges that the Government has failed to implement important decisions unanimously adopted in the 44th, 45th and 46th Indian Labour Conferences. With regard to the ratification and implementation of ILO Conventions and Recommendations, the CITU observes that meetings of the CoC were previously held twice a year, but no meetings have been held since 10 January 2017 and decisions reached in the meeting have not been implemented. The organization adds that, at the last CoC meeting, the Labour Secretary undertook to continue to hold meetings of the CoC at least twice a year, but no further meetings have been called. The Committee recalls that Article 5(2) of the Convention states that, in order to ensure adequate consideration of the matters referred to in Article 5(1), consultation shall be undertaken at appropriate intervals fixed by agreement, but at least once a year. The Committee requests the Government to continue providing detailed up-to-date information on the frequency, content and results of the tripartite consultations held on all the issues relating to international labour standards covered by the Convention. It further requests the Government to indicate the manner in which account is taken of the positions expressed by the representative organizations on the functioning of the consultation procedures required by the Convention.

MLC, 2006 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments on the General Report of 2021 on this issue.
The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It further notes that the Government previously ratified three maritime labour Conventions which have been denounced following the entry into force of the MLC, 2006, for India. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 entered into force for India on 23 January 2019. The Committee notes the observations of the Forward Seamen’s Union of India, received by the Office on 23 January 2017. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.
Article I. General questions on application. Implementing measures. The Committee notes that the Government provides three Industry Agreements which are in force for the period 2015–19. The Committee notes that these agreements are applicable respectively to Off Shore, Home Trade and Foreign going Ratings and Petty Officers. For the determination of their scope of application, they refer to “seamen engaged on Offshore Indian Articles of Agreement” or to “seamen engaged on Home Trade Indian Articles of Agreement”. The Committee requests the Government to provide, in relation with the implementation of the MLC, 2006, more detailed information on the scope of application of these three Industry Agreements.
Article III. Fundamental rights and principles. The Committee notes that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), have not been ratified by India. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee expects to receive concrete information on how the country or territory has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. The Committee notes that, while the Government refers to an established practice that collective bargaining between the stakeholders is given due recognition, it has not provided any explanation on how effect is given, in the context of the Convention, to the fundamental rights to freedom of association and the effective recognition of the right to collective bargaining. The Committee requests the Government to provide further information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect these fundamental rights.
Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes that MS Notice No. 5 of 2017, paragraph 3, provides that the provisions of MLC, 2006, as enshrined in the Merchant Shipping (Maritime Labour) Rules, 2016, shall be applicable to trainees and cadets as for other seafarers. The Government indicates in its report that, after extensive consultation with the shipowners and seafarers, it was clarified that the trainee is a seafarer. However, the Committee notes that under paragraph 4 of MS Notice No. 5 of 2017, relaxation with the respect of some provisions of the Merchant Shipping (Maritime Labour) Rules, 2016, has been granted with respect to trainees and cadets concerning the maximum duration of service on board to which the seafarers shall be entitled for repatriation and social security measures. The Committee notes that according to the Rules, all other provisions of the Convention, as enshrined in the Merchant Shipping (Maritime Labour) Rules, 2016, shall apply with respect to trainees/cadets. The Committee further notes that paragraph 3 of MS Notice No. 8 of 2017 provides that “the matter has been further examined and it is observed that trainees/cadets are not covered in the prevailing collective bargaining agreements. It is therefore clarified that trainees/cadets are exempted from the provision of implementation of the Merchant Shipping (Maritime Labour) Rules, 2016, in respect of payment of wages applicable for other seafarers under prevailing CBA”. The Committee notes that, while considering that trainees and cadets are seafarers, the Government has decided to provide them with a different level of protection regarding the maximum period of service on board, social security and wages. The Committee recalls that it considers, from the combined reading of Standard A2.4, paragraph 3, on annual leave and Standard A2.5, paragraph 2(b), on repatriation, that the maximum continuous period of shipboard service without leave is 11 months. The Committee further recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to provide information on the specific exception provided for the trainees and the cadets and to indicate the maximum period of service on board following which they shall be entitled to annual leave. Concerning the social security protection and the wages of the trainees and the cadets, the Committee recalls that Article VI, paragraphs 3 and 4, of the Convention, allows a Member which is not in a position to implement the rights and principles in the manner set out in Part A of the Code (Standards), unless expressly provided otherwise in the Convention, to implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A. It recalls that any law, regulation, collective agreement or other implementing measure shall be considered to be substantially equivalent, in the context of the Convention, if the Member satisfies itself that: (a) it is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned; and (b) it gives effect to the provision or provisions of Part A of the Code concerned. The Committee recalls that any substantial equivalences that have been adopted must be stated in Part I of the Declaration of Maritime Labour Compliance (DMLC) that is to be carried on board ships that have been certified. The Committee requests the Government to confirm if it has decided to adopt measures which are substantially equivalent regarding trainees and cadets, and to provide detailed information on how the measures adopted conduce to the full achievement of the general object and purpose of the provisions of Part A of the Code concerned and how they give effect to this provision or these provisions.
Regulation 1.4 and Standard A1.4, paragraph 5. Recruitment and placement. System of protection. The Committee notes that Rule 5(g) of the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2016, provides that the recruitment and placement services provider shall establish a system of protection, by way of a bank guarantee to compensate seafarers for any monetary loss that they may incur as a result of the failure of a recruitment and placement service and the relevant shipowner under the seafarers’ employment agreement to meet his/her obligation to them. The Committee notes however that when providing details about the amount of the bank guarantee, Rule 15 of the above-mentioned Rules refers only to seafarers who are placed on foreign flag ships. The Committee requests the Government to clarify whether the system of protection established to give effect to Standard A1.4, paragraph V(vi), of the Convention also applies to seafarers who are placed on Indian flag ships and to indicate the relevant national provisions.
Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes that the Government has not provided information on the measures taken to require that shipowners of ships flying the Indian flag who use recruitment and placement services which operate in countries that have not ratified the Convention, ensure, as far as practicable, that those services meet the requirements of the Convention. The Committee therefore requests the Government to explain how it gives effect to Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10, of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee notes that Rule 8(7) of the Merchant Shipping (Maritime Labour Rules), 2016, provides that a period of notice shorter than the minimum period may be given in circumstances which are recognized “under the applicable collective bargaining agreements” as justifying termination of the employment agreement at shorter notice or without notice. In determining these circumstances, it shall be ensured by the shipowner that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. Noting that the Industry Agreements provided by the Government do not contain provisions on the compassionate or other urgent reasons which justify a shorter notice period, the Committee requests the Government to provide further information on how those circumstances are determined in practice in order to ensure full compliance with Standard A2.1, paragraph 6.
Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that Rule 8(1)(e) of Merchant Shipping (Maritime Labour) Rules, 2016, provides that at the end of, or termination of, contract, every seafarer’s continuous discharge certificate shall be endorsed with a record of employment on board the ship. The Committee notes that the Merchant Shipping (Maritime Labour) Rules, 2016, do not require, as Standard A2.1, paragraph 3, of the Convention, that the record of employment shall not contain any statement as to the quality of the seafarers’ work or as to their wages. The Committee requests the Government to indicate how full effect is given to Standard A2.1, paragraph 3, by ensuring that records of employment do not contain any statement as to the quality of the seafarers’ work or as to their wages. The Committee further requests the Government to provide an example of the approved document for seafarers’ records of employment.
Regulation 2.2 and Standard A2.2, paragraph 6. Wages. The Committee notes the observations submitted by the Forward Seaman’s Union of India (FSU), received by the Office on 23 January 2017 alleging that shipowners of Indian-registered ships have entered into an “urgent wage agreement” with one trade union, on 2 April 2016, disregarding the Merchant Shipping Maritime (Labour) Rules, 2016, and the amount of the minimum wage set by the Joint Maritime Commission. The FSU refers to Rule 9(5) of the Merchant Shipping (Maritime Labour) Rules, 2016, which provides that the wages included in the collective bargaining agreement or the seafarers’ employment agreement shall be in accordance with the guidelines as laid down in the MLC, 2006. For the FSU, this includes Guideline B2.2.4, according to which the basic pay or wages for a calendar month of service for an able seafarer should be no less than the amount periodically set by the Joint Maritime Commission or another body authorized by the Governing Body of the International Labour Office. The FSU further explains that the basic payment of the Able Seamen of Indian ships are fixed at US$105, whereas the minimum wages as per the Joint Maritime Commission is US$614 for the period 2016–18. The Committee notes that the Government, in its reply received on 26 November 2018, confirms that Rule 9(5) of the Merchant Shipping (Maritime Labour) Rules, 2016, refers to the Guidelines of the MLC, 2006, and that though these guidelines are generally recommendatory in nature, India has adopted those Guidelines for implementation. The Government further states that according to its reading of the Guidelines, if there is an agreement between the shipowners’ association and the seafarers’ union, the agreed wage would prevail over the international minimum wage. The Government adds that in a meeting held with relevant stakeholders to discuss this issue, shipowners’ expressed their inability to pay the minimum wage set by the Joint Maritime Commission. It further informs that the minimum wage has traditionally been agreed by the Indian National Shipowners’ Association (INSA), the most representative shipowners’ organization in the country, and the National Seafarers’ Union of India and another trade union based in Kolkata. Following the complaint made by the FSU, the Government has requested the relevant authority to provide an updated list of seafarers’ trade unions along with their number of affiliates so that they can determine what is the union representing the majority of seafarers. It concludes, indicating that upon receipt of those numbers, an alternative mechanism for entering into the wage agreement can be worked out. The Committee requests the Government to provide information on the development of the situation and on any mechanisms put in place to deal with the minimum wage issues. The Committee also requests the Government to indicate how Guideline B2.2 of the Convention (calculation and payment of wages; minimum wage and minimum monthly basic pay or wage figure for able seafarers) has been given mandatory force in Indian legislation.
Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition of agreements to forgo annual leave. The Committee notes that Rule 11(2) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that any agreement to forgo the minimum annual leave with pay, except in cases provided for by the Director-General of Shipping, shall be prohibited, as it is required under Standard A2.4, paragraph 3, of the Convention. The Committee recalls that it considers that the possibility to authorize exceptions to the prohibition of agreements to forgo minimum annual leave needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. The Committee requests the Government to provide detailed information on the authorized exceptions that have been granted by the Director-General of Shipping under Standard A2.4, and the ground for such authorizations.
Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs. The Committee notes that Rule 12(4) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall not make any provision requiring seafarers to make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from the wages of seafarers or other entitlements except where the seafarer has been found, as per the applicable collective bargaining agreements, to be “in default” of the seafarer’s employment obligations. The Committee recalls that under Standard A2.5.1, paragraph 3, each Member shall prohibit shipowners from recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in “serious default” of the seafarer’s employment obligations. Noting that the national legislation refers to the situation of “default” and not “serious default” as required by the Convention, the Committee requests the Government to indicate the measures taken to give full effect to Standard A2.5.1, paragraph 3, of the Convention. It further requests the Government to provide information on the procedure to be followed and the standard of proof to be applied before any seafarer covered by the Convention can be found to be in “serious default of the seafarers employment obligations”.
Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. The Committee notes that Rule 12(3) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that “the shipowner shall ensure that there are appropriate provisions in collective bargaining agreements, specifying the circumstances in which seafarers are entitled to repatriation; the maximum duration of service periods on board following which a seafarer is entitled to repatriation – which shall be less than 12 months; and the precise entitlements to be accorded by shipowners for repatriation, including those relating to the destinations of repatriation, the mode of transport, the items of expense to be covered and other arrangements to be made by shipowners”. The Committee recalls that Standard A2.5.1, paragraph 2, requires each Member to ensure that there are appropriate provisions on these issues in its laws and regulations or other measures or in collective bargaining agreements. The Committee requests the Government to provide a copy of all applicable collective agreements indicating the relevant provisions which are giving effect to Standard A2.5.1, paragraph 2.
Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. In this regard, the Committee takes note that the Merchant Shipping (Maritime Labour) Rules, 2016, are giving effect to the 2014 amendments. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (If yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer? (If yes, how did your country respond?); (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3, must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (If yes, please specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions and to indicate in each case the applicable national provisions.
Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment indemnity. The Committee notes that Rule 13 of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall ensure that, in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from such loss or foundering which shall be specified in the collective bargaining agreement. The Committee requests the Government to provide any stipulation of the collective bargaining agreements in force that specify the amount of the indemnity against unemployment resulting from a ship’s loss or foundering. The Committee further requests the Government to indicate how due consideration has been given to Guideline B2.6.1 regarding the calculation of the indemnity against unemployment.
Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee notes that Rule 6(2) of the Merchant Shipping (Seafarers’ Accommodation) Rules, 2016, provides that the seafarer’s accommodation facilities and its maintenance on a ship shall be verified during the initial, intermediate, renewal and additional surveys associated with the maritime labour certificate and declaration of maritime labour compliance. The Committee recalls that every ship, within the meaning of the Convention shall be inspected and not only ships to which a maritime labour certificate and a declaration of maritime labour compliance shall be issued. According to Standard A3.1, paragraph 3, of the Convention, the inspections required under Regulation 5.1.4 shall be carried out when: (a) a ship is registered or re registered; or (b) the seafarer accommodation on a ship has been substantially altered. The Committee requests the Government to indicate if every ship, within the meaning of the MLC, 2006, shall be inspected as provided by Standard A3.1, paragraph 3.
Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. Exemptions. The Committee notes that the Merchant Shipping (Seafarers Accommodation) Rules, 2016, provide that the provisions of these Rules “shall not apply to any ship plying in voyages within territorial waters, the seafarers of which are not required to stay on board overnight for periods exceeding eight hours”. They further provide that the Director-General may accept equivalent arrangements on a ship or deviations from the requirements specified in these Rules, when such deviations can be clearly justified, subject to protecting the seafarers’ living conditions, health and safety. The Committee recalls that Standard A3.1, paragraph 21, of the Convention provides that any exemptions with respect to the requirements of this Standard may be made “only where they are expressly permitted in this Standard” and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to indicate how it ensures that exemptions are limited to those expressly permitted by the Convention and to provide detailed information on the exemptions granted.
Regulation 4.1 and the Code. Medical care ashore. The Committee notes that Rule 18 of the Merchant Shipping (Maritime Labour) Rules, 2016, contains provisions on the shipowners’ responsibilities regarding medical care on board but does not regulate India’s obligation, as a coastal State, to ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to its medical facilities on shore (Regulation 4.1, paragraph 3). There seems to be no provision prescribing that the “competent authority” shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, “shall be available free of charge to all ships irrespective of the flag that they fly” (Standard A4.1, paragraph 4(d)). The Committee requests the Government to provide detailed information on how effect is given to Regulation 4.1, paragraph 3, and to Standard A4.1, paragraph 4(d).
Regulation 4.1 and Standard A4.1, paragraphs 2 and 4(1). Standard medical report form. Medicine chest, medical equipment and medical guide. The Committee notes that Rule 18(2) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that “the shipowner” shall adopt a standard medical report form for use by the masters of the ship and relevant onshore and on-board medical personnel as specified by the Director-General of Shipping and the form when completed, its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers. Recalling that Standard A4.1, paragraph 3, provides that the “competent authority” shall adopt a standard medical report form, the Committee requests to indicate whether such report form has been adopted.
Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. In this regard, the Committee takes note that the Merchant Shipping (Maritime Labour) Rules, 2016, are giving effect to the 2014 amendments. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while the situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary); (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (If yes, please specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the above mentioned questions, indicating in each case the applicable national provisions.
Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government’s report, as well as the examples of DMLC, Part I and Part II submitted with the report, refer to Rule 20 of the Merchant Shipping (Maritime Labour) Rules, 2016, which provides that the Director-General of Shipping may specify separate guidelines from time to time, for the management of occupational safety and protection of health on board the ships. The Committee notes however that such guidelines do not seem to have been adopted yet. The Committee recalls that member States shall develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag, after consultation with representative shipowners’ and seafarers’ organizations and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations (Regulation 4.3, paragraph 2). The Committee further recalls that members shall adopt laws and regulations and other measures addressing the matters specified in the Code, taking into account relevant international instruments, and set standards for occupational safety and health protection and accident prevention on ships that fly its flag (Regulation 4.3, paragraph 3). The Committee requests the Government to indicate the laws, regulations and guidelines adopted to give effect to Regulation 4.3 and Standard A4.3.
Regulation 4.5 and the Code. Social security. The Committee notes that, at the time of ratification, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specified the following branches of social security: maternity benefit; invalidity benefit and survivors’ benefit. Noting that the Government indicates that discussions are taking place on the possibility to extend the social security protection for seafarers to other social security branches (old-age benefit, family benefit), not specified at the time of ratification, the Committee requests the Government to provide information on any developments on this issue in accordance with Regulation 4.5, paragraph 2, and Standard A4.5, paragraph 11).
The Committee notes that, according to the information provided by the Government for the three branches specified, social security coverage is not available to all seafarers ordinarily resident in India, but only to Indian seafarers, holding CDC Book, and who are recruited/engaged by the Indian shipowners or through registered Recruitment and Placement Services, for Indian or foreign flag ships. The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory, regardless of their nationality or of the flag of the ships they work on. Noting that the Government in its report has not indicated whether seafarers are residents or otherwise domiciled in the territory, the Committee requests the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in India are granted social security coverage in the branches specified, which is no less favourable than that enjoyed by shore workers resident in India, in conformity with Regulation 4.5 of the Convention. The Committee recalls that this responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements (Standard A4.5, paragraph 3).
Regulation 5.1.1 and Standard A5.1.1, paragraph 2. Flag State responsibilities. General principles. Copy of the MLC, 2006 on board. The Committee notes that the Annexure III of the MS Notice No. 16 of 2016 provides a checklist for inspections which indicates that the inspectors shall control that a copy of the MLC, 2006, is available on board. The Committee notes that the MS Notice No. 9 of 2017, which is applicable to ships of less than 500 gross tonnage, does not include the same requirements. Recalling that pursuant to Standard A5.1.1, paragraph 2, each Member shall require all ships that fly its flag to have a copy of the Convention available on board, the Committee requests the Government to indicate how it ensures compliance with this requirement of the Convention.
Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s indication that inspection under the MLC, 2006, has been delegated to recognized organizations. The Committee notes however that the Government has not provided further information on the measures taken to give effect to Regulation 5.1.2. In particular, the Committee recalls that Standard A5.1.2 provides that the competent authority shall review the competency and independence of the organization to be recognized (paragraph 1) and establish a system to ensure the adequacy of work performed by recognized organizations (paragraph 3(a)), as well as procedures for communication with and oversight of such organizations (paragraph 3(b)). The Committee also recalls that any authorizations granted with respect to inspections shall, as a minimum, empower the recognized organization to require the rectification of deficiencies that it identifies in seafarers’ working and living conditions and to carry out inspections in this regard at the request of a port State (paragraph 2). The Committee requests the Government to indicate the measures taken to give effect to these requirements of Standard A5.1.2, and to provide an example or examples of authorizations given to recognized organizations.
Regulation 5.1.3 and Standard A5.1.3, paragraph 12. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance. Documents on board. The Committee notes that section 176A of the Merchant Shipping Act, 1958, provides that the shipping master, surveyor, seamen’s welfare officer, port health officer, Indian consular officer, or any other officer at any port duly authorized in this behalf by the Central Government, may inspect any ship, in such manner as may be prescribed, and the master of the ship or any person having charge over the ship shall make available to such inspecting officer, the maritime labour certificate and the declaration of maritime labour compliance. The Committee recalls that Standard A5.1.3, paragraph 12, provides that a current valid maritime labour certificate and declaration of maritime labour compliance shall be carried on the ship and a copy shall be posted in a conspicuous place on board where it is available to the seafarers. A copy shall be made available in accordance with national laws and regulations, upon request, to seafarers, flag State inspectors, authorized officers in port States, and shipowners’ and seafarers’ representatives. The Committee requests the Government to indicate how effect is given to this provision.
Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the maritime labour certificate and the declaration of maritime labour compliance. The Committee notes that the Government has not indicated any relevant provision establishing the circumstances in which a maritime labour certificate ceases to be valid and the circumstances in which a maritime labour certificate must be withdrawn (Standard A5.1.3, paragraphs 14–17). The Committee therefore requests the Government to indicate how it gives effect to these requirements of the Convention.
Regulation 5.1.5 and Standard A5.1.5, paragraph 3. Flag State responsibilities. On-board complaint procedures. Victimization. The Committee notes the Government’s indication that Rule 28(2) of Merchant Shipping (Maritime Labour) Rules, 2016, is the legal provision under which victimization of seafarers for filing a complaint is prohibited and penalized in India. However, the Committee notes that this Rule deals with the on shore complaint-handling procedures and does not seem to apply to on-board complaints. The Committee requests the Government to provide information on how effect is given to Standard A5.1.5, paragraph 3, according to which the on-board complaint procedures shall include safeguards against the possibility of victimization of seafarers for filing complaints. The Committee also requests the Government to indicate the applicable national provisions which require that a copy of the on-board complaint procedures applicable on the ship is provided to the seafarers (Standard A5.1.5, paragraph 4).
Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes that section 358 of the Merchant Shipping Act, 1958, provides that a shipping casualty shall be deemed to occur when any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coast of India. The Committee recalls that Regulation 5.1.6, paragraph 1, provides that each Member shall hold an official inquiry into any serious marine casualty, leading to “injury or loss of life”, that involves a ship that flies its flag. The Committee requests the Government to provide information on how it ensures that an official inquiry is carried out in any serious marine casualty, leading to injury and not only in cases of loss of life.
Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes that under Rule 27 of the Merchant Shipping (Maritime Labour) Rules, 2016, the Director-General of Shipping shall establish the procedure for inspection as required under the Convention for fulfilling its port State responsibilities. The Committee requests the Government to provide detailed information on how full effect is given to Standard A5.2.1, including any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7.
Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that Rule 28 of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that an on shore complaint redress procedure shall be followed in all Indian ports as specified by the Director-General of Shipping, in consultation with the shipowners’ and seafarers’ organizations concerned, who are parties to the Collective Bargaining Agreement as reflected in the seafarers employment agreement, where applicable. The Committee also notes that the MS Notice No. 3 of 2013 establishes a relevant grievance redress mechanism but only for Indian seafarers. The Committee requests the Government to indicate how full effect is given to Regulation 5.2.2 and Standard A5.2.2.
Statistical information. Noting that some required statistical information has not been provided in the report, the Committee requests the Government to provide clear and detailed information regarding: (a) the number of seafarers who are working on national flag ships, distinguishing those who are engaged or not engaged in international voyages (or voyages between ports in other countries); (b) the number of seafarers who are nationals or residents or otherwise domiciled in the territory; and (c) the number of foreign seafarers who are working on Indian flag ships.
© Copyright and permissions 1996-2024 International Labour Organization (ILO) | Privacy policy | Disclaimer