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Labour Inspection Convention, 1947 (No. 81) - Russian Federation (RATIFICATION: 1998)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations of the Confederation of Labour of Russia (KTR), received on 31 August 2021.

Article 3(1) and (2) of the Convention. Additional functions entrusted to the labour inspectorate. Functions of the labour inspection with regard to undeclared work. In its observations, the KTR indicates that the number of cases in which the inspectors have identified workers in informal labour relations is insignificant compared to assessments of the scale of undisclosed labour relations in the Russian Federation. It observes that the reports of the Federal Service for Labour and Employment (Rostrud) do not refer to the number of criminal or administrative cases launched in connection with the identification of informal employment by inspectors, nor to the number of fines imposed. The Committee notes that KTR also indicates that Rostrud, aside from monitoring in the sphere of labour relations, is also responsible for monitoring and oversight in other social spheres. The Committee requests the Government to provide its comments in this respect. It also requests the Government to indicate whether labour inspectors are given additional duties other than their primary duties listed in Article 3(1) of the Convention. Furthermore, it requests the Government to provide data concerning the enforcement of the legal provisions relating to conditions of work and the protection of workers through the activities of the labour inspectorate with regard to undeclared work (the number of cases in which workers were registered with the social security authorities, the number of cases in which workers were paid outstanding salaries resulting from their past employment relationship, etc.). The Committee also requests the Government to provide information on the estimated numbers of unregistered workers and uninsured workers.

The Committee notes the KTR’s indication that the inspectorate does not monitor legislation determining the rights of trade unions, including guarantees of protection from discrimination based on trade union involvement, since the relevant legislation is not part of labour law. Concerning this matter, the Committee refers to its observation under the Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98), concerning adequate protection against acts of anti-union discrimination and interference.

Articles 6 and 10. Conditions of service. Number of labour inspectors. The Committee notes that in reply to its previous comment concerning the recruitment of an adequate number of inspectors, the Government indicates that at present, the maximum number of personnel at Rostrud is approved by Resolution No. 1724 of 2017. The Committee also notes that the Government report does not contain information concerning the number of labour inspectors. However, the Committee notes with concern that according to the reports on the activities of Rostrud as shared by KTR, the number of labour inspectors continued to decline from 1,820, in 2019, to 1,793 in 2020. According to these reports, as of August 2021, there were 44 vacancies for state labour inspectors.

Concerning the condition of service of the labour inspectorate, the Committee notes the Government’s indication that the Decree No. 481 of 7 October 2019 increased official salaries of all civil servants by 1.043 times. The Government also reports on a series of activities to ensure professional development and integration of new employees in Rostrud’s territorial bodies, such as mentoring of new recruits and targeted training for a pre-selected number of labour inspectors in order to promote their career progression.

The Committee also notes that in its observation the KTR states that, despite the extended duties of labour inspectors, the number of inspectors is not increasing, but rather, continues to fall. Regarding the conditions of service, the KTR indicates that the upper limit for salaries of labour inspectors did not exceed the average Russian monthly wage in 2020 in any of the constituent entities that have vacancies. According to the KTR, the wage of state labour inspectors is not even half of the average wage of other federal civil servants at the regional level. The Committee requests the Government to provide its comments in this respect. Moreover, the Committee urges the Government to take the necessary measures to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspection service. In this regard, it requests once again the Government to provide information on the efforts made to recruit new labour inspectors and to fill the existing vacancies. It further requests the Government to provide information on the number of labour inspectors and on the career structure of the Rostrud, including grade and positions as well as the number of appointments made at each position.Noting the absence of information on this matter, the Committeerequests once again that the Government provide detailed information on: (i) the levels of remuneration of labour inspectors in comparison to the remuneration levels of other officials exercising functions of similar complexity and responsibility such as tax inspectors and the police; and (ii) the reason for the high attrition rate of labour inspectors.

Article 5(b). Collaboration with representatives of employers and workers. The Committee takes note of the KTR observations according to which national legislation provides only for a general indication of the need for the Inspectorate to cooperate with trade unions and does not provide for the right of trade unions to lodge a complaint with the Inspectorate, or for the Inspectorate’s cooperation on the consideration of such appeals. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to provide information on measures taken to promote collaboration between the labour inspectorate and employers and workers or their organizations.

Articles 7(3), 17 and 18. Enforcement of labour law provisions. For many years the Committee has been noting a disparity between the number of cases reported by the labour inspectorate, the number of investigations initiated and the number of convictions. The Committee takes note of the information provided by the Government regarding the monitoring activities for 2019 and 2020. However, the Committee notes that the Government’s report is silent on the number of criminal cases instituted and the actual convictions. The Committee notes that, in 2020, the courts annulled 942 decisions taken by labour inspectors. In its observations, the KTR indicates that although the reports of Rostrud provide general indicators for administrative proceedings against employers, there is a lack of information about all categories of violations for which employers have been subjected to administrative proceedings. The KTR also indicates that state labour inspectors’ powers are confined to responding to undisputed cases of violations of labour law, although the official understanding of “undisputed cases of violations of labour law” and the limitations on the powers of state labour inspectors in such cases have not been formally established. The trade union adds that this approach to labour inspectors is due to ambiguous legal practices that consider unlawful the act of state labour inspectors issuing employers with binding orders or imposing fines for violations of the law, if by doing so the inspector is “resolving an individual labour dispute”. According to the KTR, since the legislation does not establish clear criteria that would allow the differentiation of a “labour dispute” from a situation in which a state labour inspector is entitled to intervene, state labour inspectors’ orders on any issue may in practice be declared unlawful by the court in connection with inspectors exceeding their authority and interfering in a “labour dispute”. Regarding concrete measures taken to address the deficiencies identified, the Government reports a series of trainings but does not provide specific information regarding the training for labour inspectors on the establishment and completion of non-compliance reports, including the collection of the necessary evidence, as previously requested by the Committee. The Committee requests the Government to provide its comments with respect to the KTR observations.The Committee urges the Government to take the necessary measures to ensure the effective enforcement of the legal provisions enforceable by labour inspectors. It once again requests the Government to provide information on concrete measures taken to address the deficiencies identified, such as training for labour inspectors on the establishment and completion of non-compliance reports, including: (i) the collection of the necessary evidence; (ii) the improvement of communication and coordination activities with the judiciary on the required evidence to establish and effectively prosecute labour law violations; and (iii) the need for timely communication of the outcome of cases to the labour inspectorate. The Committee requests the Government to provide concrete statistics on the administrative and criminal cases reported by the labour inspectorate, the investigations and prosecutions initiated, and the penalties imposed as a result. In view of the KTR observations, the Committee also requests information on the reasons for the cancellations by the courts of the decisions taken by labour inspectors.

Article 12. Labour inspectors’ powers and prerogatives.In reply to the Committee’s previous comment, the Government indicates that the new Federal Act No. 248-FZ of 31 July 2020 provides for unannounced inspection visits, which shall be carried out without prior notification and during which the inspector has unimpeded access to documents, facilities and premises, as well as the right to perform a series of monitoring actions. In this respect, the Committee notes that the inspector can conduct an oral interview of the controlled person under section 78 of the Federal Act No. 248-FZ. The Committee notes that in its observations, the KTR indicates that Federal Act No. 248-FZ was adopted without regard to the view of the KTR and retained restrictions on the powers of state labour inspectors. In particular, it indicates that: (i) physical inspections are possible only if an inspector cannot verify the completeness and accuracy of the documents and explanations submitted by an employer, in order to assess the lawfulness of the employer’s activity (inactivity) by another means (Act No. 248-FZ, section 73(3)); (ii) unplanned inspection visits are allowed only with the consent of the prosecutor, except in situations where they are conducted on special grounds, such as on the instruction of the Russian President or the Russian Government, at the request of the prosecutor, or in the absence of evidence of the execution by the employer of a previously issued order (Act No. 248-FZ, sections 73(5) and 57(1)(3–6), 57(3) and 66(12)); and (iii) employers must be given notice at least 24 hours prior to the start of an unplanned inspection visit (Act No. 248-FZ, section 73(6)). Furthermore, the Committee notes with concern that many of the restrictions on the powers of labour inspectors noted previously by the Committee remain in place, including restrictions on the free initiative of labour inspectors to undertake inspections without prior notice (sections 9(12) and 10(16) of Law No. 294-FZ) and on the free access of labour inspectors to workplaces at any hour of the day or night (sections 10(5) and 18(4) of Law No. 294-FZ), as well as the enumeration of limited grounds on which unscheduled inspection visits may be undertaken (section 10(2) of Law No. 294-FZ and section 10 of Regulation No. 875). The Committee also notes that, for a number of years ithas been noting that pursuant to section 19(6)(1) and (2) of the Code of Administrative Offences, labour inspectors may incur administrative liability where they fail to observe certain restrictions. The Committee notes that the Government has not provided relevant information on this matter. The Committee requests the Government to provide its comments with respect to the KTR observations. Recalling and emphasizing the importance of fully empowering labour inspectors to make visits without previous notice in order to guarantee effective supervision, the Committee once again urges the Government to take the necessary measures to bring the national legislation into conformity with Article 12 of the Convention, particularly by ensuring that labour inspectors are empowered to make visits without previous notice, in line with Article 12(1)(a) and (b) of the Convention.The Committee reiterates its request that the Government provide further information on the cases brought against officials of the state labour inspectorates under section 19(6) of the Code on Administrative Offences, indicating the requirements of the legislation on state control that were violated, particularly specifying violations related to undertaking labour inspections on grounds other than those permitted in law, and any penalties assessed against inspectors based on such violations.

Article 14. Notification of industrial accidents and cases of occupational diseases to the labour inspectorate. For a number of years, the Committee has been requesting the Government to provide information on any legislative changes establishing the systematic notification of the labour inspectorate of cases of occupational diseases. The Committee recalls that according to the Order of the Ministry of Health No. 176 of 28 May 2001, the Sanitary and Epidemiological Supervision Centre shall inform the territorial state labour inspector only for acute diseases. In its observations, the KTR indicates that the Inspectorate does not have the authority to collect full information on industrial accidents and occupational diseases and refers to section 228.1 of the Labour Code, according to which, employers are only required to inform the Inspectorate of group industrial accidents, serious industrial accidents or fatal industrial accidents. The Committee emphasizes once again thatthe systematic notification of the labour inspectorate of industrial accidents and cases of occupational diseases is important to fulfil its functions and obligations, including the planning of labour inspection visits and the inclusion of such information in the annual reports on labour inspection. Therefore, the Committee requests once again that the Government provide information on any measures taken or envisaged to establish a procedure to ensure that the labour inspectorate is notified of all types of industrial accidents and cases of occupational diseases. It also requests the Government to ensure that representative statistics in this regard are included in the annual labour inspection report.

Article 16. Frequency and thoroughness of labour inspections. In reply to the Committee’s previous comment, the Government indicates that inspections visits using the risk-based approach are only carried out on a scheduled basis. The Government adds that, by 1 July of the year preceding the scheduled inspection year, certain information on employers whose activities are classified as high- and significant- risk is posted and kept up-to-date on the official Internet website of Rostrud. The Government also indicates that it developed a series of online tools to reinforce Rostrud’s preventive work in the form of online consulting for employees and employers. This also includes the possibility for employers to conduct self-inspections through an electronic checklist. The Government adds that, the Federal Act No. 122-FZ of 24 April 2020 on Experimenting with the Use of Electronic Work Documents, will facilitate implementation of electronic oversight while avoiding direct interaction with employers, thereby substantially reducing inspectors’ workload. In its observations, the KTR points to increased intervals between inspections; and indicates that the criteria for assigning employers to the various risk categories give rise to the following concerns: (i) regulations offer no instructions on the right of workers and trade unions to contact the Inspectorate with information on facts affecting the assignment of an employer to a risk category; (ii) the assignment of employers to risk categories is largely based on the formal criterion of the main type of economic activity indicated by the employer, with no consideration given to the fact that employers may at the same time in practice carry out activities assigned to a higher risk; (iii) one of the criteria influencing the establishment of employers’ risk categories is the existence or absence of administrative proceedings for the violation of labour law which is taken into consideration irrespective of their number, and thus does not encourage unscrupulous employers to observe labour law if they have already been held administratively liable for its violation; (iv) the consideration of the criteria of the number of workers on a company’s staff, and type of economic activity, means that the majority of small- and medium-sized enterprises are considered low-risk and thus excluded from planned inspections.

The Committee takes note of the number of inspections, including scheduled inspections carried out by the State Labour Inspectorate for the period 2016–20. It notes that the number of inspections significantly decreased from 131,286 in 2019 to 69,895 in 2020, a decrease which according to the Government was due to restrictions associated with adoption of decisions taken in the context of the COVID-19 pandemic. In this respect, the KTR refers once again to constraints on the work of the state labour inspectorate in the context of the pandemic through legislations adopted since 2020, and to an increase in workers’ complaints about the non-observance by employers of labour law. The Committee requests the Government to provide its comments with respect to the KTR observations. It requests the Government to take measures, including legislative amendments, with regard to the criteria for assigning employers to the various risk categories to ensure that workplaces are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee requests the Government to continue to provide statistics on the number of labour inspections undertaken each year, including the number of scheduled and unscheduled inspections, and of inspections undertaken on-site and those conducted without a visit to the establishment. It requests once again that the Government provide the breakdown of inspections in small, medium-sized and large enterprises. Further, the Committee requests the Government to provide detailed information on the circumstances under which employers conduct self-inspections, and to indicate the number of self-assessments conducted and the number of follow-up inspection visits by labour inspectors in case of violations. The Committee also requests the Government to indicate whether any COVID-19 related restrictions to labour inspection are still in place.

Articles 20 and 21. Annual labour inspection report. The Committee takes note of the observations of the KTR according to which, although the Inspectorate’s reports contain a range of statistical information on the number of complaints received by the Inspectorate and the distribution of visits by economic sector, they do not provide statistical information on occupational diseases and contain only some statistical data on serious industrial accidents rather than on all accidents. The Committee requests the Government to provide its reply in this respect and indicate any steps taken or envisaged in order to publish a consolidated labour inspection report containing detailed information on all the items listed in Article 21(a)–(g) of the Convention.