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The Committee notes the Government’s report, the annual reports on the situation with regard to occupational safety in each Land, the activity reports on work in mines and the report of the Federal Government on occupational safety and health. It notes with interest the communication by the Government of the links to Internet sites on which many documents and much information are available on the subjects covered by the Convention.

Further to its previous comments on the matters raised by the Union of Technical Officials, Employees and Labourers (BTB) in its 2004 and 2006 observations, the Committee notes the additional information provided by the Government concerning the effects of the restructuring of the labour inspectorate in Baden-Württemberg.

Article 4 of the Convention. Organization of the labour inspection system. Duality of structures and risk of a diversity of approaches to enforcement in each Land. According to the Government, the organization of labour inspection services lies within the sovereign competence of the Länder and can only be influenced to a limited extent. However, it specifies that uniformity of treatment in relation to the objectives of occupational safety is guaranteed at the federal level by the Committee of the Länder for Occupational Safety and Health (LASI), which is specifically responsible for examining the fundamental aspects of the subject from a unified approach. The representatives of the higher labour inspection authorities of the Länder take decisions in the LASI with regard to the implementation of the relevant regulations, with the object of adopting an identical approach in all Länder. Moreover, the LASI examines legal issues relating to occupational safety and health with a view to the harmonized application of the legislation, both with regard to substantive issues and organizational matters inherent to its implementation (strategy, organization, personnel, reporting and information mechanisms and procedures, continuous training and education, the exchange of experience). The Government considers that, despite the diversity of the administrative structures, this guarantees a consistent approach beyond the frontiers of the Länder. It adds that, in the context of the joint strategy developed by the federal Government, the Länder and the employment injury insurance institutions throughout the country, the Länder endeavour to optimize their cooperation with injury insurance providers, which has the effect of improving the cooperation between the Länder themselves. The Government refers by way of illustration to the implementation of the federal labour programmes and the harmonization of advisory and inspection strategies in various ways.

According to the BTB, the fragmentation of inspection functions between the various services, municipal authorities and rural districts of the Land of Baden‑Württemberg is also reducing the impact of state control to the mere supervision of compliance with the law. The explanations provided in this respect by the federal Government, and the government of Baden-Württemberg, show that the distribution of functions between the various urban and rural districts is specific to that Land. The territory of the Land is very great and its population is over 10 million. Its administrative structure is divided into three levels and functions in respect of labour inspection are divided, at the lower administrative levels, between an exceptional number of urban and rural districts. In the view of the government of Baden-Württemberg, the number of authorities at the lower administrative levels is balanced and appropriate, both in terms of effectiveness and of response to the expectations of citizens. It considers that, contrary to the allegations of the union, the fact that inspection functions are divided between four government offices and 44 urban and rural districts does not have the effect of diminishing the quality of inspections. The government offices and the lower administrative authorities provide both ministries with relevant data on their respective supervisory activities, which have to be approved by the offices and the authorities, are covered by a report on the activities of the inspection services (TS‑GWA) and are published in the annual report on these services. Each year, in addition to providing statistics and data, the services are responsible for addressing a list of subjects related to priority fields of action according to predetermined approaches and, based on the instructions provided to them, on the manner in which functions of particular topical interest should be addressed.

The government of Baden-Württemberg emphasizes that regular meetings are held covering all the fields of activity of the labour inspectorate and that they include the participation of representatives of government ministries and offices, as well as those of lower level offices and administrative authorities. It adds that the introduction of new supervisory mechanisms has made it possible to conclude targeted agreements in the Land of Baden-Württemberg, in the context of collaboration between government ministries and intermediate-level offices. These agreements, which constitute one of the aspects of the current administrative reform, are likely to multiply, also at the lower levels of the administrative structures of the Land, which will make it possible for government offices to conclude such agreements with the structures for which they are responsible.

Consequences of the diversity of structures responsible for labour inspection on the communication of information. According to the BTB, another cause for concern lies in the use by each structure responsible for labour inspection of different information technology systems, resulting in difficulties in the communication of information. The Government affirms that the labour inspection services in the Länder use standard information technology systems and that there is no difficulty in the exchange of information and data by electronic mail. It considers that technological progress means that it is possible to exchange data between different systems without the risk of data loss. It adds that the relevant data are compiled in 12 Länder using a common programme (the IFAS Information System for Labour Inspection Administrations), that the Land of North Rhine-Westphalia, which currently uses its own programme, is envisaging the introduction of IFAS, and that the system used in Hamburg is compatible with IFAS. According to the Government, although the exchange of operational data between the Länder is limited by the legislation on data privacy, taking into account the territorial competences of the Länder, the direct exchange of information between Länder is not necessary. With regard to issues relating to labour inspection, the Government considers that the data should be compared with those of the systems of injury insurance providers. It indicates in this respect that the Internet portal established for this purpose is at the pilot stage and that it will be federal in scope as an integral part of the joint strategy on safety for Germany.

The Committee further notes the provision by the Government, appended to its report, of a report prepared by the government of the Land of Baden-Württemberg (publication No. 14/1740 of the Parliament of Baden-Württemberg of 18 September 2007), indicating that the experience acquired in the field of labour inspection should serve as a basis for the adoption of legislation on the continued reform of administrative structures, planned for 2008.

The Committee observes that the comments made by the BTB focus on the absence of a central inspection authority within the meaning of Article 4 of the Convention. It recalls that, under the terms of Article 4(2), the central authority under the control and supervision of which labour inspection has to be placed may be either the federal authority, or a central authority of a constituent federated entity. It observes that the situation described by both the union and the Government differs in this respect, as several structures that are independent of each other are responsible at the federal, Land and municipal levels for inspection functions. Although the explanations provided by the Government show that efforts are being made to ensure a certain uniformity in the discharge of inspection functions by each of these structures, the Committee finds that progress still needs to be made to achieve the objective of the Convention equally throughout the territory of the federation. The Committee requests the Government to indicate in its next report the measures taken to give effect in so far as possible to the letter and spirit of the Convention in relation to the need for a labour inspection system operating on the basis of common principles of organization, methods of action and the allocation and management of human and financial resources.

Articles 7 and 10. Number and qualifications of inspection personnel. According to the BTB, for several years a dispersal of competence for the recruitment of inspection personnel has led to a decrease in the number of new recruits and therefore a considerable loss of expertise. In addition, the large number of authorities responsible for training in the various structures is resulting in a managerial imbalance in this respect.

The Government indicates in its report that in Baden-Württemberg, Hessen, Lower Saxony, North Rhine-Westphalia and Rhineland-Palatinate, competence for supervision of the legal decisions of labour inspectors and for the general performance of labour inspectors charged with functions relating to safety at work are exercised by different ministries, but that in all Länder the distribution of competences is clearly defined in respect of the recruitment of new personnel. While recognizing that the number of inspectors is decreasing, it indicates that this trend is the result of the general policy of a reduction of the number of public officials, in accordance with the austerity plans of the governments of the Länder. The Government confirms that, in most Länder, departures for retirement and for other reasons have resulted in a considerable loss of technical expertise. However, it reports rare opportunities for recruitment in the Länder of Baden-Württemberg and Lower Saxony and, out of a concern for uniformity and to make up for the loss of expertise, that training and further training for inspectors are subject to centralized control at the level of the Länder.

Expressing its concern at the consequences of the policy to reduce the numbers of public officials on the size of the labour inspection staff and recalling the eminently important socio-economic role of inspectors, the Committee would be grateful if the Government would take the necessary measures to ensure that the numbers of labour inspectors are determined in each Land on the basis of the criteria set out in Article 10 and that their training is adequate, as envisaged by Article 7, and adapted to the new technologies and conditions of work prevailing in industrial and commercial workplaces. It requests the Government to keep the ILO informed of any progress achieved in this respect.

Article 5(a). Cooperation between the inspection services and other government services and public or private institutions engaged in similar activities. Cooperation in the field of occupational safety. The Committee notes that the Federal Government, the Länder, which under the federal safety system are responsible for supervising occupational safety, and insurance institutions have developed a joint safety strategy for Germany. This strategy involves the establishment of common occupational safety and health strategies and the determination of common fields of action and work programmes, in the context of a harmonized procedure and the sharing of competences between the authorities responsible for occupational safety and accident insurance institutions. For the period 2008–12, the objectives are to:

–      reduce the number and seriousness of occupational accidents;

–      reduce musculoskeletal stress and related pathologies; and

–      reduce the number and gravity of skin diseases.

The Government indicates that this strategy is implemented by a “National Occupational Safety Conference” (NAK), supported by the federal Government, the Länder and accident insurance institutions.

Specific cooperation between the labour inspectorate and judicial bodies. The Committee notes with interest the detailed information provided by the Government in reply to its general observation of 2007, according to which cooperation between the labour inspectorate and judicial bodies occurs, in compliance with the constitutional principles of the distribution of powers and the independence of the judiciary, at three levels:

(i)    at the level of administrative tribunals which, in the view of the Government, usually rule competently in cases of legal appeals against the imposition of an administrative fine by the competent labour inspection authority;

(ii)    at the level of the Office of the Public Prosecutor, in respect of which the Government considers that effective cooperation would be desirable to ensure compliance with occupational safety legislation. In particular, it deplores the fact that, due to the absence of feedback, particularly where an investigation does not result in prosecution, the labour inspectorate cannot use its authority to impose administrative fines. For example, particularly in cases of serious or fatal accidents, procedures have been set aside on the grounds of the responsibility of the victim of the accident (human error), without the question of the attribution of any part of the responsibility to hierarchical superiors being suitably examined, as only the direct cause was taken into consideration. The Committee nevertheless notes with interest that the inspection services are endeavouring to strengthen communication with public prosecutors with a view to improving their knowledge of the responsibilities of employers in relation to occupational safety rules, such as risk evaluations and general and specific technical instructions, etc. Certain Länder report regular meetings (Hamburg and Rhineland-Palatinate), or information and training sessions, as well as seminars (Hamburg, Lower Saxony and Saxony-Anhalt) with the offices of public prosecutors;

(iii)   at the level of local courts, in the case of minor infringements, in cases where the employer appeals, the competent court rules on the legality of the decision and the amount of the fine. The courts hand down their rulings in full independence in accordance with the Constitution. The Government therefore considers that effective cooperation between the inspection services and the judiciary consists of presenting the material facts in the best possible way, as well as the specific point concerned.

The Committee notes with interest that the labour inspection authorities at the federal level and in the Länder have access to the judicial information technology system, which contains data on the rulings handed down and the applicable legal provisions, administrative regulations and European directives, thereby providing them with relevant guidance in their activities.

Nevertheless, according to the Government, court decisions relating to occupational safety are generally handed down in contexts that are too specific to be addressed in accordance with statistical concepts. Moreover, in view of the very long periods before they become available, their inclusion in the annual report would not be relevant to the period described in the report. The Committee requests the Government to continue to keep the ILO informed of the progress achieved in the cooperation between the inspection services and the judiciary and on its impact on the level of compliance with legal provisions relating to conditions of work and the protection of workers while engaged in their work.

Article 5(b) Collaboration between the labour inspectorate and the social partners. The Committee notes with interest that the social partners are consulted in the context of the NAK in relation to the determination of priority fields of action and the principal aspects of the implementation of the programmes of action determined by the Federal Government, the inspection authorities in the Länder and accident insurance institutions. Moreover, there is constant dialogue between the social partners and the various bodies concerned with occupational safety issues in the context of the Occupational Safety Forum, the views of which are examined by the National Occupational Safety Committee. The Committee would be grateful if the Government would indicate the fields in which it has been possible to achieve progress in the operation and outcomes of labour inspection under the influence of the social partners in the context of the NAK and the Occupational Safety Forum, with an indication of their scope in practice at the level of the Länder.

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The Committee notes the Government’s report for the period ending 31 May 2006 and the information in reply to its previous comments, particularly those regarding the comments from the Union of Technical Officials, Employees and Labourers (BTB) in 2004 concerning the reductions in controls of occupational safety and health matters supposedly resulting from the reform of the labour inspectorate in the Land of Baden-Württemberg. The Committee notes a new observation from this organization dated 23 October 2006 referring to the abovementioned points, which the ILO forwarded to the Government on 28 February 2007.

Restructuring of the labour inspection system. In its previous comments, the Committee noted the Government’s view that the legislative amendments affecting the labour inspection system in the Land of Baden-Württemberg and consisting of the division of responsibilities between the authorities at different levels did not call into question guarantees relating to supervision and control of the labour inspection system as provided for by law, the Ministry of Home Affairs of the Land assuming the duties of the central authority in this matter.

The Committee considered that, even though the incorporation of the labour inspection system into the joint administrative structures of the Land did not in itself conflict with the provisions of the Convention, the Government should nevertheless supply information in reply to the concern voiced by the BTB regarding the imbalanced distribution of the workforce of the former labour inspection system to the detriment of certain subregional districts, which was likely to obstruct the application of Article 16 of the Convention.

In its report received by the ILO in 2006, the Government stated that the new Administrative Reform Act came into force on 1 January 2005 and that labour inspection as defined by the Convention was amalgamated in the Land of Baden-Württemberg with control of the environment. This integrated approach reflects the principle of a single point of contact with regard to all aspects of occupational safety and health and environmental protection. In the Government’s view, this restructuring would have no impact on the fundamental principles of the Convention. It asserts that there has been a balanced distribution of inspection staff between the regional authorities, on the one hand, and the subregional authorities, on the other, given that it meets the requirements of each territorial entity. The guiding principle of the administrative reforms which have been implemented is to assign responsibility to the regional authorities for technical inspection activities relating to establishments which are likely to have a significant impact on the environment. These authorities are therefore responsible for the certification and inspection of enterprises which are covered by the provisions of Council Directive 96/61/EC concerning integrated pollution prevention and control (IPPC) or which perform activities governed by the provisions of the Incident Ordinance (Störfallverordnung). Another guiding principle of the reform is to reinforce coordination of the regional and subregional authorities for the performance of public works. Responsibilities in this case no longer depend on the type of enterprise but on the “industrial site” concept as defined under section 162(2) of the new Act, namely a specific area defined according to the surface area occupied by enterprises, installations or zones of operation with a spatial, technical or functional interconnection and placed under the supervision of a natural or legal person.

The Government points out that only the regional authorities carry out inspections in relation to the safety of products, including safety items and medicinal products, and in relation to protection against radiation, maternity protection and the protection of homeworkers, this point not having been reflected by the BTB even though it partially explains the new distribution of the inspection staff. The Government also points out that the regional authorities are assigned duties other than those related to factories and installations. These are technical, coordination and advisory tasks vis-à-vis the public authorities at a lower level, including the subregional authorities.

According to the Government, none of the ministers responsible for occupational safety and health issues is aware of any grounds for justifying an in‑depth re-examination of the new distribution of staff. It emphasizes that the balance of the staff distribution has to be understood not only according to the number of workplaces to be inspected but also taking account of the complexity of certification procedures and their environmental impact, as purely numerical criteria are insufficient. In this respect, the Government refers to Article 10 of the Convention and emphasizes that the nature and size of workplaces, on the one hand, and the number and complexity of the legal provisions, on the other hand, can differ significantly between a regional authority and a subregional authority. Although it is true that the competence of subregional authorities extends to a wide range of categories of establishments and activities (retailers, hotels, restaurants, shops, offices and other administrative buildings), the number of industrial installations and the level of risk in them is low by comparison with high-risk workplaces which, according to the Government, generated most of the activities of the public factory inspection service before the reform. The latter also took action in enterprises having a certain environmental importance which also depended on the regional authorities for certification and plant authorization. The Government considered this situation to demonstrate a natural compatibility between the role of the inspection services and that of the regional authorities, even before implementation of the reform. It also considers that institutional reform is a source of synergy. Hence, the Ministry of the Environment and the Ministry of Social Affairs of Baden-Württemberg attach the same importance to the promotion of training and retraining in the area of occupational safety and health.

In its observation sent on 23 October 2006, the BTB repeated its point, in addition to the points raised previously which had given rise to the situation referred to above, that the inspection services and the state supervisory services should remain grouped together in the same structure and underlined the negative impact that the same reforms implemented in other Länder had had on occupational safety and health. The main points of its argument were as follows:

–           The existence of dual structures carries the risk of different approaches to implementation and makes coordination between the different Länder difficult.

–           The fragmentation of inspection tasks between different departments, municipalities and urban districts reduces the impact of state control, the latter being limited to the monitoring of legality.

–           Since responsibility for the recruitment of inspection staff is not clearly defined, the result for several years has been a lack of recruitment of new staff and, consequently, a loss of considerable expertise.

–           The dispersion of authorities responsible for training among different structures is a source of inequality in the handling of the matters concerned.

–           The diversity of computing systems used by the different structures is a source of difficulties in communication and information.

–           Competencies for occupational safety and health are divided among an excessive number of regional subdivisions within each Land government.

According to the union, these aspects are already highlighted in an evaluation report produced in 2006 by the Senior Labour Inspectors Committee. The union claims that occupational safety and health inspection in Germany is no longer in conformity with the principles of the Convention.

While noting that the Government has not communicated its point of view with regard to the additional information and the supporting documentation sent by the BTB, the Committee notes that the Government states that, under the terms of section 179 of the Administrative Reform Act, a report from the urban and rural subregional authorities to the Ministry of Home Affairs on the implementation of the reform was expected by 30 June 2007. The Committee hopes that the Government will supply detailed information on the outcome of the examination of the two abovementioned reports, to enable it to make a fuller assessment, in relation to the relevant provisions of the Convention, of the impact of every aspect of the structural reforms relating to the labour inspectorate.

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The Committee notes the Government’s statement that there has been no change in the application of the Convention during the reporting period. It also notes the observation made by the German Union of Civil Servants (Bund der Technischen Beamten, Angestellten und Arbeiter im Deutschen Beamtenbund) and the documents attached, dated 30 March 2004, which were forwarded to the Government on 22 June 2004, as well as of the Government’s partial reply to the points raised by the union.

According to the German Technical Civil Servants’, Employees’ and Workers’ Association, which is a member of the German Union of Civil Servants (Bund der Technischen Beamten, Angestellten und Arbeiter im Deutschen Beamtenbund), the Act to reform administrative structures and justice and to extend the negotiating power of local government in Baden-Württemberg state, which will come into force on 1 January 2005, does not comply with the requirements of the Convention in several areas, and particularly with Article 4, in conjunction with Articles 10 and 16.

1. Articles 4, 10 and 16 of the Convention. Control and supervision of the labour inspection system by a central authority; appropriate human resources and effectiveness of labour inspection. The above union expresses concern that the dissolution of the former separate labour inspectorates in Baden-Württemberg and their merger into the German common administrative structure will limit the extent of supervision by the central authority and prejudice the effectiveness of labour inspection within the jurisdiction of the Land. The reasons invoked include the distribution of the former labour inspection staff to regional districts (Regierungsbezirke) and subregional districts (Landkreise/Stadkreise), which does not, as required in Article 10 of the Convention, take into account the number of enterprises covered or the size of each of the subregional districts. According to the union, this is likely to result in disparities in the frequency of inspections, thereby considerably affecting the effectiveness of labour inspection (Article 16) in the subregional districts. One-third (269.5) of the labour inspection staff will be located in regional district offices covering 1,000 enterprises, while two-thirds (500) will have to cover 290,000 enterprises in subregional districts.

With regard to the changes introduced by the new Act in the structure of the labour inspection system in the Land of Baden-Württemberg and their impact on effectiveness of labour inspection, the Government indicates that the supervision and control of the labour inspection system, as envisaged by the law, will remain fully guaranteed, since the Ministry of Internal Affairs of the Land will be entrusted with the role of the central authority referred to in Article 4, paragraph 2, of the Convention. While the Committee agrees that, in itself, the integration of the labour inspection system into the common administrative structure of the Land is not an infringement of the Convention, it however notes that the Government has not commented on the other point raised by the union, namely, the risk that the unbalanced reallocation of the staff of the former labour inspection system might jeopardize the application of Article 16, particularly in certain subregional districts. The Committee would therefore be grateful if the Government would indicate its views and make any other comments in this regard, and indicate whether measures have been taken to ensure that the enforcement of the new Act will not prejudice the application of the fundamental principles set out in the Convention with respect to the definition of the scope and principal functions of the labour inspection system (Articles 1 and 3 of the Convention), the need for an appropriate distribution of the inspection staff based on the established criteria (Article 10), the status and conditions of service of the labour inspection staff (Article 6), their qualification level (Article 7), their powers (Articles 12, 13 and 17) and their obligations and duties (Articles 15 and 19).

2. Articles 20 and 21. Annual inspection report. The Committee notes with interest the detailed labour inspection reports submitted. However, referring to its previous comments of 2000, it once again hopes that the Government will envisage sending to the ILO a consolidated annual labour inspection report summarizing the content of all the annual reports of the Länder, including those that have still not been received by the Office.

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The Committee notes the Government’s reports covering the period from 1995 to 1999, and the attached texts. It also notes the annual inspection reports prepared by each Land for the same period. It makes the following requests to the Government.

1.  Requirement of a detailed report.  The Committee reminds the Government that the Convention is classified as a priority Convention and therefore requires Members to provide a detailed report to the ILO every two years on the measures taken to give effect to its provisions, in accordance with the information requested under each provision in the report form adopted by the Governing Body of the ILO, in so far as such information is not contained in the annual inspection report. Noting the complexity of the organization and operation of the bodies entrusted with activities relating to the principal functions of labour inspection, as set out in Article 3 of the Convention, the Committee requests the Government to provide information on each of the provisions of Articles 4, 5, 8, 9, 10, 14 and 19.

2.  Annual general report on the work of the inspection services.  While noting with interest the large amount of information contained in the annual inspection reports transmitted by the Länder, the Committee would be grateful if the Government would envisage the possibility of taking appropriate measures to ensure that the central authority at the federal level prepares and transmits to the ILO, in accordance with Article 20, an annual general report containing the required information on each of the subjects enumerated in Article 21(a) to (g).

3.  Imposition of penalties for violations of legal provisions relating to the subjects covered by the Convention.  The Committee would be grateful if the Government would provide information on the measures taken in practice for the imposition of the penalties envisaged by the law in the event of the violation of legal provisions relating to conditions of work and the protection of workers while engaged in their work. In particular, it requests the Government to indicate the proportion of violations brought before the judicial tribunals in relation to the number of violations reported by the inspection services, and to indicate its opinion on whether or not the penalties imposed are dissuasive.

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1. The Committee notes that the report for the period 1989-91 and the attached inspection reports contain no information on the application of the Convention in the eastern Länder. It would be glad if the Government would provide full information in this regard in its next report.

2. The Committee has noted also that the inspection reports provided under Articles 20 and 21 of the Convention come from the authorities of various individual Länder, but that no general data compiled at the national level has been supplied (such as an annual report on accident prevention prepared by the Federal Ministry of Labour and Social Affairs). It would be grateful if the Government would supply any reports or information of this kind available, together with an up-to-date indication of which authorities are responsible for the application of all aspects of the Convention throughout the country (Part III of the report form).

3. Further to its earlier comments, the Committee would be grateful if the Government would describe the manner in which Article 12(1)(a) of the Convention is applied in practice (exercise by labour inspectors of the power which ought to be conferred on them freely to enter any workplace liable to inspection at any hour of the day or night), any practical difficulties encountered in this respect, and further review of the relevant provisions envisaged.