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The Committee takes note of the Government’s report replying to its previous comments and to the points raised by the Federal Chamber of Labour (BAK) in October 2008. It notes the amendment of the Labour Inspection Act, No. 27/1993 of 2009, under which data collected via the computer system of the Ministry of Finance (temporary secondment of workers) and that of the Social Security are now available to labour inspectors. The Committee also notes that the BAK has sent comments which largely concern the points raised previously.

The Committee also notes with interest the detailed information published on the Labour Inspectorate’s website (www.arbeitsinspektion.gv.at/AI/default.htm), including the annual inspection reports for 2007, 2008 and 2009, information on the National Occupational Safety and Health Strategy for 2007–12 (various preventive measures, particularly to prevent psychosocial disorders caused by work), and instances of good practices, including the establishment of an annual prize awarded by the Minister of Labour, Social Welfare and Consumer Protection to the three most deserving enterprises for services rendered in the field of workers’ safety and health.

Article 5(a) of the Convention. Effective cooperation between labour inspectors and law enforcement bodies. In its previous comments, the Committee noted that there are two systems for processing and prosecuting offences against the legislation on working conditions and worker protection (an administrative system and a penal system). In reply to the BAK’s assertion that the courts must inform the inspection services when penal proceedings are concluded but need not notify the rulings, the Government states that the inspection services are nonetheless informed of decisions that concern employers responsible for training apprentices (treated by the law as particularly vulnerable). Furthermore, according to the Government, the labour inspectorate is, as a rule, informed of the decisions in penal cases in which it is represented as a witness or expert at hearings. The Committee likewise notes with interest that in certain specific cases, such as those involving industrial accidents, the labour inspectorate is authorized by the Code of Penal Procedure to apply for access to the dossiers or to a copy of the relevant decision.

As to the BAK’s request for enhanced cooperation through joint action by the Federal Ministry of Labour and Economic Affairs and the Federal Ministry of Justice, the Government states that with the right to consult the files and the administrative support lent by the Federal Ministry of Justice to the Federal Ministry of Labour and Economic Affairs pursuant to the Federal Constitution, article 22 (mutual assistance between institutions), nothing more is needed.

As regards the matter of restrictions in the context of cross-border assistance in the enforcement of administrative sanctions, raised by the BAK, the Government refers to the provisions of the Council Act of 2000, establishing the Convention on Mutual Assistance on Criminal Matters between the Member States of the European Union, and to the provisions published in the Official Journal of the Federal Republic of Austria No. 65/2005 appointing the competent authorities, which likewise apply to the activities of the administrative and penal authorities and which allow the prosecution of employers that have their head offices in another member State.

With regard to Article 21(e) of the Convention, which provides for the inclusion in the annual report of statistics of violations and the penalties imposed, the Committee notes that according to the Government, this provision refers only to administrative, and not penal sanctions. The Committee points out in this connection that Article 18 of the Convention applies to penalties for violations of the provisions of the law that are enforceable by labour inspectors, without any exceptions and regardless of the authority that imposes the penalty.

In its General Observation of 2007, the Committee observed that it is important for the labour inspectorate to have information about relevant judicial decisions. The Committee would be grateful if, in the light of the foregoing, the Government would consider the possibility of extending cooperation so that judicial decisions on violations of the provisions of the law referred to in the Convention, are made available, without restriction, to the labour inspectorate and included in an annual report, as required by Article 21(e).

Article 18. Adequate penalties. According to the BAK, administrative fines imposed on employers pursuant to section 19 of the Act on the Penal Liability of Legal Entities (VbVG), are tax deductible. The Government states that according to consistent precedent, judicial fines, like administrative ones, are tax deductible only for minor infractions. The Government is asked to provide examples of tax-deductible pecuniary sanctions.

Articles 10 and 16. Adapting the resources of the inspectorate to the duties to be performed. Having pointed out previously that the human resources of the inspection services are inadequate and that the numbers of labour inspectors need to be increased to cope with the new tasks they have to perform, the BAK refers to a government project to reassign former employees from the postal administration and elsewhere to the inspection services. The Committee requests the Government to make any comments it may deem relevant on the BAK’s views concerning the need to strengthen the human resources of the inspection services and the measures needed.

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The Committee notes with interest the information supplied by the Government concerning the legislation adopted during the period covered by the report, the balanced distribution of labour inspectors by gender, specialization and grade, as well as the activities of inspectors and their results. The Committee also takes note of the annual report of the labour inspectorate for 2006 and the information furnished in response to its previous comments concerning developments in the area of the monitoring of illegal employment and measures to promote effective cooperation between the labour inspection services and the judicial authorities.

The Committee also notes the communication from the Federal Chamber of Labour (BAK), attached by the Government to its report.

Article 3, paragraphs 1(a) and 2, of the Convention. Monitoring of illegal employment. Following up on its observation made in 2006 welcoming the provisions exempting labour inspectors from the need to monitor illegal employment, the Committee notes that, as of 1 January 2007, this function has again been transferred to another authority. The Committee would be grateful if the Government would indicate the impact of this measure on the number and scope of inspections of working conditions in workplaces liable to inspection. The Committee would be grateful if the Government would provide details on any improvements noted.

Article 5(a). Effective cooperation between labour inspection and the judicial authorities. The Committee notes with interest the detailed information concerning the operation of the two prosecution systems relating to violations of the law regarding working conditions and protection of workers. It appears in particular that one of the systems is under the jurisdiction of the administrative courts; as the labour inspectorate forms part of the proceedings, it can make its case before the judgement is rendered and appeal against it. In addition, the Federal Chamber of Labour specifies that information on complaints and administrative procedures is available on the web site of the Federal Ministry of Labour and Economic Affairs.

According to the Federal Chamber of Labour, violations falling under the Criminal Code and the Code of Criminal Procedure are referred by labour inspectors either to the Department of Criminal Investigation or to the Department of the Public Prosecution. The tribunals must inform the inspection services of the termination of a procedure, but not of the decision taken. The above organization declares that it will monitor developments in practice in the implementation of the law on responsibility of organizations (VbVg), in particular in the light of the Committee’s recent comments. However, it is of the opinion that this system presents some shortcomings, in particular when it comes to the prosecution of violations in the area of occupational safety and health. In this connection, the organization refers to article 22 of the Federal Constitution, which provides that the Federal Ministry of Justice shall offer administrative support to other ministries. The organization also raises the problem of ensuring the mutual assistance needed for the enforcement of administrative penalties in a cross-border context.

In addition, the Federal Chamber of Labour provides details on the division of responsibilities concerning the enforcement of labour legislation and the problems that this can entail, in particular in the case of workers covered by collective agreements. It considers that only an increase in the resources allocated to labour inspection services will enable it to adapt to the new forms of work contracts deriving from the introduction of more flexible arrangements as a result of changes in the legislation on working hours.

The Committee would be grateful if the Government would provide in its next report any comments it considers relevant concerning the issues raised by the Federal Chamber of Labour.

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The Committee notes with satisfaction details provided by the Government in reply to its previous comments on the measures undertaken to relieve labour inspectors from the tasks of policing illegal employment. The Government indicates that this duty was transferred to the Federal Ministry of Finance on 1 July 2002. A special unit of the customs administration KIAB (control of illegal employment of workers) combats illegal employment by checking work permits and thus the employment of foreigners. The focus of the controls carried out throughout the country is on the catering and construction industries. Findings from controls are reported to the respective competent authorities (administrative sanctions authorities, employment service and labour inspectorate) for the relevant proceedings.

The indication that it had been necessary to increase the staff of the control authorities to 300 shows that such activity requires the mobilization of considerable resources in terms of staff and time which inspectorates can only provide to the detriment of their primary duties. Hence, the Committee welcomes that labour inspection activities now focus on the duties laid down by the Convention and would be grateful if the Government would provide further information as to the nature and the results of the proceeding carried on by inspectors in cases reported to them.

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Referring to previous comments, the Committee notes with satisfaction that, according to information contained in the Labour Inspection Annual Report for 2002, the Government has given effect to its commitment to take appropriate measures aimed at transferring the control of illegal work to a distinct body, so that labour inspectors could fully perform their principal functions as provided for by Article 3, paragraphs 1 and 2, of the Convention. The Committee would be grateful if the Government would provide the ILO with a copy of the relevant legal provision.

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1.  The Committee notes the information supplied by the Government in its two most recent reports, on the evolution of labour inspection activities which, from 1 January 1999, extend to all mining product extraction (underground and above ground) undertakings and for which the advisory activities concerning compliance with the provisions on workers’ protection have been intensified. Referring to the fears expressed by the Federal Chamber of Labour (BAK) that these advisory activities would be conducted to the detriment of supervisory activities, the Committee notes that, according to the indications in the annual labour inspection report for 1997, the first appraisal shows that these fears are unfounded. The Committee requests the Government to supply in its next report indications on all positive effects noted recently in regard to the increase of advisory activities (Article 3(1)(b), of the Convention). Noting also the comments of the BAK on the decrease in the number of inspections and, in addition, the Government’s reference to activities in relation to occupational authorizations and penal procedure matters, which have not had a negative influence on the number and quality of inspection visits, the Committee requests the Government to supply details on the development of these activities and their possible negative impact on the frequency and extent of inspections (Articles 10 and 16). Noting, furthermore, that the last annual inspection report received by the ILO dates from 1997, the Committee hopes that the Government will, in future, transmit regularly such reports containing the information required (Articles 20 and 21).

2.  With reference to its comments on inspection activities regarding illegal work, the Committee notes in the 1997 annual inspection report the intention to transfer these duties to the Ministry of Finance. The Committee requests the Government to supply information on the decisions taken in this respect and their possible effects in lightening the inspection workload.

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Articles 3, paragraph 2; 10 and 16 of the Convention. The Committee takes note of the observation of 6 December 1994 made by the Branch Committee of the Staff Representation of the Central Labour Inspectorate (Fachausschuss beim Zentral - Arbeitsinspektorat) regarding the transfer of additional duties, under the Act on the Employment of Foreigners to the labour inspectorate which they consider to be contrary to Articles 3, paragraph 2, and 10 of the Convention.

It states that this transfer of additional duties to labour inspectors could interfere with the effective discharge of their primary duties, because at present only 310 labour inspectors were covering 250,000 enterprises which employ 3 million workers. They also state that the complicated procedures will add too heavy a burden on the inspectorate. In their view this would represent an unreasonable additional burden on the labour inspectorate which could not be fully mitigated by the 40 additional labour inspection posts that are to be made available.

The Committee notes the Government's acknowledgement that the supervision of illegal employment of foreigners as well as the participation in the punitive and other administrative procedures have been transferred to the labour inspectorate with effect from 1 January 1995, BGBL No. 994/1994. The Government also agrees that 40 additional posts will be accorded but that, according to the figures available in 1993, 208,765 enterprises and 2.5 million workers were covered by 315 labour inspectors. In addition the Government states that facilities such as electronic data processing is constantly being provided to the inspectorate. It further states that the former legal position and working conditions of the permanent staff of the labour inspectorate will not be affected at all as the workload will be carried out on the basis of strict division between the old and new duties. The Government also indicates that the only change will be that in the future as regards cases of infringements of the legislation concerning foreigners, the permanent staff will notify the newly installed supervisory team for foreigners of the competent labour inspectorate composed of the additional posts and not the official agencies of the labour market administration as before.

The Committee notes that the Branch Committee considers that, due to the future harmonization of Austrian legislation with European standards, the number of employees in the labour inspectorate has to be increased in order to carry out the additional tasks transferred by new legislation. The Government maintains that in the long run the implementation of relevant European Union (EU) regulations will lead to a considerable easing of the burden on labour inspectors, because the main burden for the additional duties will be borne by employers, specialists on prevention and safety advisers.

The Government refers to the National Employee Protection Act (BGBL No. 450/1994) which shifts matters concerning employee protection to the enterprise level. The Committee notes that the Government acknowledges that initially labour inspectors will be faced with new challenges as they will be responsible for assessing the suitability and effectiveness of the internal health and safety systems in the enterprises. Additional burdens will eventually decrease.

The Committee would be grateful if the Government would provide further information concerning the practical application of the new legislation in particular as regards the workload resulting from: cases related to the employment of foreigners as well as from the shift to internal protection systems at the enterprise level. The Committee would be grateful if the Government would provide further information on any legislation that implements the EU regulations and on how the Government intends to deal with the additional burden of labour inspectors during the transition period.

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The Committee notes with interest the information provided by the Government in reply to its previous comments.

Articles 17 and 18 of the Convention. The Committee notes the information on the amendments to the administrative penalties procedure which it states has helped solve the problem of excessive delays in dealing with violations or negligence of the employer. Please provide also particulars regarding the observations of the Federal Chamber of Wage-Earning and Salaried Employees (Federal Chamber of Labour) that the effective implementation of protective labour standards is limited by the relatively light sanctions and the continuing weakness of the administrative penalties procedures.

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The Committee notes the information provided by the Government, and in particular the replies to the observations of the Austrian Chamber of Workers (OA) referred to in the last direct request.

Article 10 of the Convention. The Government indicates that staffing of the labour inspectorate has increased by 12 per cent since 1988, and visits are regularly made outside normal hours of work. The Committee hopes data on the strength of the inspectorate will be included in future reports.

Article 11. The Government indicates that kilometrage quotas for inspectors making visits outside their offices have been increased and have proved sufficient.

Articles 17 and 18. The Government describes the administrative penal proceedings system and the measures taken and proposed to deal with the problem of excessive delays. The Committee hopes the next report will show the effect of these measures, having regard to the requirements of the Convention.

Article 20. The Government indicates that observance of time-limits for preparation and publication of annual inspection reports has been affected by the change to automated data processing. The Committee notes that the 1988 report has now been supplied, while the 1989 one has been completed, the 1990 one is in preparation, and the 1991 one will be ready on time. It hopes that these reports will include details in particular of the implementation of the Articles, comments on which were made by the OA.

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The Committee has taken note of the comments made by the Austrian Chamber of Workers concerning the application of Articles 10 (insufficient number of labour inspectors); 11, paragraph 1(b) (limited transport facilities for inspection tours in rural areas); 17 and 18 (defects of the system of enforcing penalties for violations of legal provisions); and 20 (non-observance of the time-limit for the publication of the annual inspection report) of the Convention. It requests the Government to provide its observations on the various aspects of the application of the Convention raised in the above-mentioned comments.