Labor Inspection and Informal Employment in Africa

Background and rationale

In African countries, the share of informal employment in total employment is particularly high. It ranges from 40.2% in Southern Africa to 67.3% in North Africa, and over 90% in Central, East and West Africa. However, it corresponds to a wide variety of situations that the use of the notion of informality tends to erase to a large extent. Under the label of informality are thus included both situations of undeclared dependent or self-employed work, and activities that may come under forms of cooperation, or even be governed by custom or family mutual aid. The statistical virtue of the notion of informality is limited in this respect. It fails to capture the variety of normative forms that enable actors to qualify and coordinate their activities.
The reference to informal work was in part disseminated by the International Labour Office (ILO). It even promoted it for a time, notably through the debate on development policies and the publication, in 1972, of a multidisciplinary mission report on employment in Kenya (ILO, Employment, Income and Equality: A Strategy for Increasing Productive Employment in Kenya, Geneva, 1972). The analysis of the International Labour Organization (ILO) is now far more critical. The resolution concerning decent work and the informal economy adopted by the International Labour Conference at its 90th session in 2002 marks a turning point in this respect. In adopting Recommendation 204 in 2015, the ILO stressed that “the scale of the informal economy, in all its forms, constitutes a major obstacle to workers’ rights, including the fundamental principles and rights to work, social protection, decent working conditions, inclusive development and the rule of law, and has a negative impact on the development of sustainable enterprises, public revenues, the scope of state action, particularly with regard to economic, social and environmental policies, as well as the soundness of institutions and fair competition in national and international markets” (ILO Recommendation No. 204 concerning the transition from the informal to the formal economy, adopted by the International Labour Conference at its 104th Session on June 12, 2015 in Geneva). The ILO posits that “the transition from the informal to the formal economy is essential to achieve inclusive development and decent work for all” (Ibid). To achieve this transition, Recommendation 204 calls on States to implement coherent, integrated strategies aimed at facilitating the transition to the formal economy. The implementation of these integrated policies must be underpinned by “effective and efficient labor inspections”. The Recommendation thus makes the labor inspectorate one of the key players in the transition to formality. It commits member states to “having an adequate and appropriate inspection system, extending the coverage of labor inspection to all workplaces in the informal economy in order to protect workers, and providing guidance to law enforcement bodies, including on how to deal with working conditions in the informal economy” (Ibid). The labor inspector is a key player here. He or she is vested with a number of functions that may affect all or part of informal employment: the right to visit and inspect, and an informal or compulsory conciliation role in the event of conflict or dispute.

Objective

Questioning the role of labor inspectorates in the transition from informality to formality. The aim is both to gain a better understanding of the role of labor inspectors in relation to work activities in the informal economy and, at the same time, to test the solidity of the “informality” category by observing the activity of labor inspection. How can we study and account for the pluralism of normative forms characteristic of activities classified as informal? Our hypothesis is that these are revealed as soon as labour inspectorates are recognized as having a right of inspection over all or part of the activities developed in the so-called informal economy, particularly when they adopt a professional stance that is both proactive and pedagogical, but also when they are called upon to deal with industrial accidents, collective conflicts and individual disputes. In particular, we would like to study the situations in which the normative forms mobilized in the context of informal employment are put to the test of state normativity.
The project has 3 main focuses.
The first axis aims to understand the transition policies implemented in Côte d’Ivoire and Morocco to ensure the transition from the informal to the formal economy. The aim here is to study the impact of ILO recommendations on the implementation of transition-to-formality policies within labor administrations.
The second and third axes will deal more directly with the postures and practices of labor inspectors with regard to the informal sector.
The second concerns the role of the labor inspectorate in monitoring compliance with labor law. To what extent can this control be applied to informal employment situations? This is obviously a complex question. It involves several levels of questioning. The first, and by no means least, concerns the competence of the labor inspectorate. To what extent are labor inspectors de jure or de facto competent to monitor or promote the rights of workers in the informal economy? Labour inspectorates’ positions may vary from one country to another, but also according to the type of informality under consideration. Informal work in a declared enterprise, self-employment, customary forms of work, agricultural work… all constitute specific cases. Over and above the question of control, the question of the competence of the labour inspectorate with regard to types of informal employment also plays an important role in workers’ access to legal proceedings and to the labour judge. In Côte d’Ivoire, for example, referral to the courts is subject to prior conciliation with the labor inspectorate. It is not uncommon for the inspector to act as a filter for access to the courts, by only ruling on the condition that the employment relationship referred to him is indeed a subordinate employment relationship. Labour inspectorates often declare themselves incompetent in matters of informal employment, due to the absence of a written employment contract. More broadly, the question of the inspectorate’s competence enables us to analyze the ways in which informal activities are qualified. Once they consider themselves competent, labour inspectors can adopt different approaches to atypical work situations. Is the aim to control in order to punish violations of labor legislation? On the contrary, is the role of the labor inspectorate one of prevention, or of promoting minimum protection, primarily in the field of informal employment?
The third focus will be on the conciliation function. In both Côte d’Ivoire and Morocco, the labor inspectorate has a conciliation function in the event of individual labor disputes, as well as a mission to prevent and regulate social conflicts. This is a function of the labor inspectorate that is not entirely specific to the context of West Africa and the Maghreb. French law has also served as a model here. In Côte d’Ivoire and Morocco, however, this conciliation function is particularly important. In some cases, it even seems to replace the control function more commonly performed by the labor inspectorate. It is much more often a sitting inspection than a standing one. In this respect, the conciliation function is ambivalent. It is obviously intended to facilitate the resolution of disputes between employers and workers through recourse to the labor inspectorate. But it can also play a role in filtering such disputes. In Côte d’Ivoire, for example, a conciliation or non-conciliation report is a necessary prerequisite for referral to the labour judge. The Labour Inspectorate’s declaration of incompetence in matters of informal employment – and sometimes, even more fundamentally, the a priori assumption of incompetence – may well constitute an obstacle to referral to the judge, even though this decision of incompetence could itself be the subject of a debate before the judge. More generally, what role does the labor inspectorate play in resolving labor disputes in the informal economy? Can it play an important role through its conflict prevention, individual dispute conciliation and mediation functions? Is this a vector of transition towards formality, particularly through references to regulation/pacification solutions that refer to or take as their model standards such as representation, negotiation, collective organization, decent wages, discrimination, etc.

Methods

1. Semi-structured interviews
Interviews will be carried out with players involved in monitoring compliance with labor law rules, likely to shed light on the intervention of the labor inspectorate in matters of informality: labor inspector, labor director on the one hand, lawyer, members of professional organizations, as well as NGOs confronted with informal work in their actions. How is informality represented? How is the transition from the informal to the formal economy promoted by the International Labour Organization in Morocco and Côte d’Ivoire? What functions does the labor inspectorate have? How do labor inspectors perceive their role and adapt their practices to informal work situations? How do social partners, civil society players and legal professionals integrate labor inspection into their actions in relation to informality?

2. Document collection and analysis
The material here will consist of reports, documents and standards produced by the International Organization and the Moroccan and Ivorian labor administrations in connection with informality.
The third axis of the project will focus on the analysis of pleadings and judgments in cases dealing with informal work and involving the Labour Inspectorate at some stage of the proceedings (legal notes, evidence, legal documentation, conclusions, reports, court decisions).