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Labour Inspection Convention, 1947 (No. 81) - Austria (RATIFICATION: 1949)

Other comments on C081

Observation

Direct Request

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The Committee takes note of the comments by the Federal Chamber of Labour (BAK) in its communication of 29 May 2012.

Articles 1, 2(2), 4, 7(3), 10 and 16 of the Convention. Impact of restructuring on the organization, structure and resources of the Labour Inspectorate. The Committee takes note of the Government’s indication that the labour transport inspectorate has been incorporated into the Labour Inspectorate with effect from 1 July 2012 and that the Labour Inspection Act was amended so as not to exclude workplaces in the transport sector from its scope of application.

The Committee also notes the Government’s reply to the BAK’s previous comments on the limited number of labour inspectors in relation to their tasks. The Government acknowledges that personnel reduction measures have been taken in all federal agencies but adds that the competent ministry has undertaken to maintain the number of labour inspectors at a level which correlates with the complexity of functions to be performed, and that as from the end of 2013, a further reduction in personnel has been excluded. The Government furthermore indicates that six public servants with technical background have been transferred to the Labour Inspectorate even though the ratio of workers per labour inspectors in the country continues to be below recommended standards.

In this regard, the Committee notes the comments made by the BAK according to which the human resources situation is strained, despite the transfer of public servants from other services who had not yet been trained for their specific duties. The BAK expresses reservations in respect of a possible loss of expertise and knowledge in technically complex areas, such as railways, following the impact of the merger between the labour transport inspectorate and the Labour Inspectorate, which, even though agreed upon, would henceforth merit close follow-up.

The Committee would be grateful if the Government could keep the Office informed of the impact of the merger of the former labour transport inspectorate with the Labour Inspectorate in relation to the number of workplaces brought under the control of the latter, the complexity of the tasks entrusted on labour inspectors, the number of staff, the number of visits and the effectiveness of controls in technically complex areas such as railways, and to furnish an updated organizational chart of the labour inspection system. The Committee would also be grateful if the Government would provide information on the training made available to labour inspectors and its impact on the effective performance of their duties.

Articles 5(a) and 21(e). Effective cooperation between labour inspectors and other governmental bodies. 1. Common use of databases. The Committee notes from the Government’s report that the legal prerequisites for the operation of a database on construction sites have been fulfilled in order to facilitate legal reporting and notification obligations from the side of the employer (such as advance notification of construction sites, construction operations, notification of hazardous construction works and asbestos works). This information can, once captured in the database, be accessed by the Labour Inspectorate, the tax administration and health insurance providers. The Committee would be grateful if the Government could keep the Office informed of the impact of this type of data exchange on the daily work of the Labour Inspectorate.

2. Effective cooperation between labour inspectorates and judicial bodies. The Committee notes from the Government’s report that the Federal Ministry of Justice is about to draw up an order making the criminal courts aware of section 402 of the Code on Penal Procedure, according to which the criminal court has to formally notify a final court sentence to an interested body, if this sentence pronounces the loss of a right or would cause the loss of a right. The Government explains in this respect, that this provision applies for instance vis-à-vis bodies competent for issuing business licences and withdrawing them in the event of a criminal conviction. The Committee also notes that the BAK reiterates its concerns that the Labour Inspectorate is not systematically informed of the outcome of relevant criminal court procedures. In this context, the Committee recalls previous comments made by the Government, to the effect that data protection rules prevented the notification of criminal court rulings to the labour inspectorate in a general manner, except from those cases in which apprentices were concerned and in which the labour inspectorate was called upon to take part in criminal proceedings as a witness. The Government further indicated that the Labour Inspectorate has, in specific cases, such as industrial accidents, the right to apply for access to the criminal file or to receive a copy of the final court ruling. The Committee asks the Government to clarify the impact of section 402 of the Code of Criminal Procedure on administrative practice in relation to the direct notification of criminal court rulings to labour inspectorates, so that the outcome of such procedures can be captured in the annual inspection report as required by Article 21(e) of the Convention.

Cross-border collaboration with other labour inspectorates within the EU in the framework of the EU Directive 2006/123/EC on services in the internal market. The Committee notes with interest the new section 20, paragraph 9, of the Labour Inspection Act which sets the legal ground for a systematic collaboration between labour inspectorates from different EU countries. Under this section, labour law violations are to be notified to the Labour Inspectorate of the country, which hosts the head office of the employer who infringed the law in Austria. The Austrian Labour Inspectorate is obliged to provide information on employers’ labour law compliance upon request from labour inspectorates located in other EU countries. It also notes in this regard the BAK’s concerns, stating that these possibilities of inter-administrative collaboration appear not to be used in case of violations of provisions relating to the 2011 Act on wages dumping.

The Committee would be grateful if the Government could provide information on the impact of the new section 20(9) of the Labour Inspection Act on the enforcement of legal provisions pertaining to conditions of work and the protection of workers in practice. It also requests the Government to make any comment it deems appropriate on the BAK’s observations concerning the enforcement of the Act on wages dumping in a cross-border context, and to provide statistics on cross-border cooperation, including on violations notified in this regard.

Article 18. Adequate penalties and deterrence of sanctions. In its previous comments the Committee asked for examples of administrative fines which were tax-deductible by the employer pursuant to section 19 of the Act on the penal liability of legal entities (VbVG). In this regard, the Committee notes the clarification provided by the Government, that fines could only be tax-deductible as business expenditure when they could not be attributed to the person penalized or when they were imposed for a minor fault. According to the Government, such cases of tax deductibility did not relate to violations of worker protection provisions. In this context, the Committee notes that the tax legislation has been modified in that fines that were previously paid by a corporation for the termination of prosecution under the Code of Criminal Procedure, or which were imposed under the VbVG, cease to be tax-deductible. This information is confirmed by the BAK, which expresses its satisfaction with regard to this development.

The Committee notes moreover with interest that, according to the new section 20, paragraph 10, of the Labour Inspection Act, the Labour Inspectorate may notify violations of worker protection rules to bodies that grant financial aid out of a federal budget to employers found to be non-compliant. The Committee would be grateful if the Government could provide information on the application of this legal provision and indicate the follow-up given to notifications of violations, as well as on its impact on compliance with legal provisions pertaining to conditions of work and the protection of workers.