CMNT_TITLE

Labour Inspection Convention, 1947 (No. 81) - Ireland (RATIFICATION: 1951)

Other comments on C081

Observation

Direct Request

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Articles 3(1)(a) and (b), 4, 5(a), 6, 7, 10, 12, 15, 16, 17 and 18 of the Convention. Reform of the labour inspection services entrusted with the control of employment rights. The Committee previously noted that the National Employment Rights Authority (NERA) was responsible for the enforcement of legislation concerning working time, leave, payment of wages and minimum wages and employment permits, while the Health and Safety Authority (HSA) was responsible for the enforcement of occupational safety and health (OSH) legislation. Further to the plans announced by the Government in its previous report, the Committee notes that as of October 2015, the newly created Workplace Relations Commission (WRC) has assumed functions that were previously performed by the NERA and other bodies, including the Labour Relations Commission, the Equality Tribunal and the first instance functions of the Employment Appeals Tribunal and Labour Court. The Committee notes the Government’s indication that the WRC is governed by the 2015 Workplace Relations Act (WRA), and that its core services include: monitoring employment rights compliance; the processing of licences concerning employment agencies; the protection of young persons (employment); and the provision of mediation, conciliation and facilitation, and advisory services.

While the Committee notes that the Government refers to the functions of the WRC as including the monitoring of employment rights compliance and that Part III of the WRA is entitled “enforcement”, it also notes that the function of securing the enforcement of the legal provisions relating to conditions of work and the protection of workers as provided for in Article 3(1)(a) is not listed among the functions of the WRC enumerated in section 11 of the WRA. The Committee also notes that some of the provisions in the WRA do not transpose the principles of the Convention, for example, the requirement in Articles 6 of the Convention to provide labour inspectors with the status and conditions of service to assure them stability of employment (section 26(4) of the WRA enables appointments on a fixed-term basis). Given that the Government indicates that the WRC has assumed the functions of the employment rights tribunals, the Committee requests that the Government provide information regarding how the reform complies with Article 17. The Committee requests that the Government provide further information on the system for the enforcement of legislation concerning working time, leave, payment of wages and minimum wages, including statistical information on the number of labour inspections carried out in practice, the provisions monitored and the measures taken as a result of non-compliance detected (information which is not contained in the report of the WRC for the period from October to December 2015).

The Committee recalls that in so far as the legal provisions relating to conditions of work and the protection of workers are enforceable by labour inspectors and the functions as provided for in Article 3(1)(a) are entrusted to them, the Government is required to ensure that full effect is given to the principles in the Convention, including guaranteeing labour inspectors the status and conditions of service (i.e. the status of public servant and stability of employment) to ensure their independence and impartiality (in conformity with Article 6).

Articles 3(1)(a) and (b), 17 and 18. Strategy of the labour inspection services to ensure compliance with the legal provisions. In reply to the Committee’s previous request on the reason for the low level of prosecution and the measures taken to improve compliance with the legal provisions, the Committee notes the Government’s indication that it is the policy of the NERA (whose functions have now been assumed by the WRC) to seek voluntary compliance where breaches of employment law are detected and that employers are given a reasonable opportunity to rectify breaches in preference to prosecution. In this respect, the Committee notes from the 2014 annual report of the NERA that, in that year, the percentage of all inspections that ended in legal proceedings remained very low (only 1.5 per cent), while the average compliance rate with the legislation for which the WRC is now responsible also remained below 60 per cent. The Committee notes from the 2015 annual report of the HSA, that this inspection body also pursues an approach primarily based on the provision of information and advice, and through enforcement where necessary.

With regard to the possible courses of action once a violation has occurred, the Committee recognizes that a violation may result from a failure to understand the terms or scope of the applicable laws or regulations and that labour inspectors therefore should have the discretion to give directions on remedial measures and warnings rather than instituting or recommending legal proceedings in appropriate cases. However, the Committee also recalls from paragraph 482 of the 2017 General Survey on the occupational safety and health instruments concerning the promotional framework, constructions, mines and agriculture, that the availability of sanctions and the possibility that they will be imposed by labour inspectors, where merited and warranted to deter future violations, constitute important components of any preventative strategy. The Committee recalls, as stated in paragraph 282 of its 2006 General Survey on labour inspection, that labour inspectors should have the necessary capacity for judgement to be able to distinguish between serious or repeated wilful non-compliance, culpable negligence or flagrant ill will which call for a penalty and an involuntary or minor violation, which may lead to a mere warning. In view of the consistently high non-compliance rate with legislation falling within the responsibility of the WRC, the Committee once again requests that the Government provide information on the strategies taken to avoid recidivism. In this respect, it recalls that an appropriate balance needs to be struck between the advisory functions of labour inspection, and its enforcement functions as part of a comprehensive compliance strategy. It requests the Government to continue to provide relevant statistical information on the compliance rate in relation to the legislation falling into the responsibility of the WRC, and HSA, and provide information on the enforcement activities of these inspection bodies as a result of their inspection activities.

Article 3(2). Additional duties entrusted to labour inspectors. In its previous comment, the Committee noted that the NERA was entrusted with ensuring compliance with the Employment Permits Act (EPA). In this respect, the Committee notes the Government’s indication that monitoring compliance with the EPA is an integral part of labour inspectors’ functions and that joint inspections were carried out in collaboration with the police, in addition to the social security and tax authorities. While the Committee notes the Government’s indication that the NERA monitored compliance with the conditions attached to the granting of work permits (including working hours and wages), and refers to the number of cases in which employers were prosecuted for non-compliance with the EPA, the Committee also notes that the Government has not provided the requested information concerning the measures taken to grant workers that were found to have engaged in non-declared work their due rights. In addition, the Committee reminds the Government that the involvement of inspection staff in police operations is not conducive to the relationship of trust that it is essential to enlisting the cooperation of employers and workers with the labour inspectorate, and is not in conformity with Article 3(2) of the Convention. The Committee requests that the Government indicate whether WRC inspectors – previously NERA inspectors – monitor work performed without work permits and whether they are involved in joint operations with the police. It also requests that the Government continue to provide statistical information on legal proceedings instituted, penalties imposed and provide information on the enforcement of the rights of undocumented migrant workers (including concerning outstanding wages and other benefits from their employment relationship).

Articles 4 and 5(a). Effective cooperation between inspection bodies. The Committee notes the information provided by the Government, in reply to the Committee’s request, on the cooperation between the NERA and the HSA (formerly the major inspection bodies) including, for example, through the envisaged exchange of information and the coordination of investigation activities. Noting from the Government’s information that the WRC has assumed the functions previously carried out by the NERA, the Committee requests that the Government provide information on the manner in which the inspection and control activities of the WRA and HSA are coordinated in practice.

Articles 20 and 21. The publication and communication to the ILO of consolidated annual labour inspection reports. Further to its previous comments in this regard, the Committee notes that a consolidated labour inspection report, integrating inspection data from both inspection branches, the HSA and the NERA, has not yet been received, and that the 2015 report of the HSA and the report of the WRC (for the period from October to December 2015) do not contain all the statistical information required under Article 21 of the Convention. The Committee notes the Government’s indication that future annual reports of the WRC will address the issue raised by the Committee under these Articles. The Committee once again requests that the Government take the necessary measures for the elaboration and publication by the central labour inspection authority of a consolidated annual report that contains all the information required under Article 21 of the Convention.