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Labour Inspection Convention, 1947 (No. 81) - Denmark (RATIFICATION: 1958)

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CMNT_TITLE

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour administration and inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection), 129 (labour inspection in agriculture) and 150 (labour administration) together.

A.Labour inspection

The Committee notes the observations from the Danish Confederation of Professional Associations (AC) and Danish Trade Union Confederation (FH) on Convention No 81 communicated with the Government’s report.

Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. The Committee notes the observation from the AC and the FH according to which the WEA does not react to all complaints received from workers regarding health and safety issues. According to the AC and FH, the Danish Working Environment Authority (WEA) should investigate all complaints that are not obviously unreasonable. The Committee requests the Government to provide its comments in this respect.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties entrusted to labour inspectors. In reply to the Committee’s previous comment related to the control of migrant workers in an irregular situation, the Government indicates that during the joint inspection visits involving the WEA and other authorities, WEA’s inspectors are not requested to perform other duties than those related to the inspection of the workers’ health and safety. The Committee also notes the Government’s indication that the Danish Centre against Human Trafficking (CMM) provides counselling to victims of trafficking in a range of areas, such as the possibility to recover outstanding salary claims. Should the victim be interested in pursuing the possibility to recover unpaid wages, the CMM will refer the victim to the appropriate authority or relevant parties in the labour market such as trade unions, in order to receive legal advice. The Government indicates that the CMM does not assist migrant workers in enforcing labour rights or in collecting wages. Taking note of the information regarding the role of the WEA in joint operations, the Committee requests the Government to provide information on the actions undertaken by labour inspectors when, in the conduct of an inspection visit, they come across migrant workers in an irregular situation, including any notification to other government agencies and any specific measures taken to ensure the enforcement of migrant workers’ rights. Noting the absence of information on this matter, the Committee once again requests the Government to provide information on the number of cases where migrant workers found in an irregular situation have been granted their due rights.

B.Labour administration

Article 7(b) of the Convention. Extension of the functions of the system of labour administration to self-employed persons and workers in the informal economy.The Committee had previously requested the Government to provide information on measures taken or envisaged for the extension of labour administration activities to self-employed workers and workers in the informal economy. The Committee notes that the Government reiterates that self-employed persons are, to a large extent, subject to the same health and safety rules as employees, including with regard to rules on performance of the work, technical equipment, substances and materials. The Government also reiterates that it has introduced a maternity equalization scheme for self-employed persons to provide these workers with improved income compensation during maternity and parental leave. Noting the absence of information regarding its previous request, the Committee once again requests the Government to provide information on measures taken or envisaged for the extension of labour administration activities to workers in the informal economy.

Application of the Convention in practice. The Committee notes the Government’s indication that there were some adjustments in management and administrative structure of the Danish Working Environment Authority entailing that the Authority is now managed by a Board of Directors comprised of a Director-General, two Deputy Directors and three Directors of Inspection. The Government indicates that employment councils at the local, regional, and national levels meet regularly, and that the national council is able to comment on draft laws. The national, regional and local councils can provide advice and recommendations on the implementation of employment policies. The Committee takes note of the Government’s information, which addresses its previous request.

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In order to provide a comprehensive view of the issues relating to the application of the two ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 and Convention No. 129 in a single comment.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties entrusted to labour inspectors. The Committee refers to its previous comment concerning joint inspection visits between the Danish Working Environment Authority (WEA), the police and tax authorities aimed at combating social dumping. In that comment, the Committee recalled that the primary duty of labour inspectors is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers and not to enforce the immigration law, as reflected in paragraphs 75 to 78 of the General Survey on labour inspection. In this regard, the Committee notes the statement made by the Government in its report that there appears to be no conflict with these paragraphs of the General Survey, as the WEA, the police and the tax authorities have separate functions. The Government further specifies that it is the function of the WEA to control occupational safety and health conditions in workplaces, whereas it is the function of the police to control whether migrant workers have valid work and residence permits. The Committee also notes that joint inspection visits between several agencies, including the Centre against Human Trafficking (CMM), the WEA and the immigration authorities are also aimed at the identification of victims of human trafficking.

Concerning the enforcement of the labour rights of migrant workers in an irregular situation, the Committee notes the Government’s indication that the CMM assists victims of human trafficking and forced labour through the provision of legal advice and the collection of wages for the period of their effective employment relationship. Concerning migrant workers in an irregular situation other than victims of human trafficking, the Committee notes the question of wages is dealt with within the Danish Labour Market Model by the social partners or in the Danish legal system.

The Committee requests that the Government take further measures in particular, to lead joint inspection visits concerning the control of migrant workers in an irregular situation to ensure that the cooperation with the immigration authorities and the police does not interfere with the effective discharge of the primary duties of labour inspectors or prejudice in any way inspectors’ authority and impartiality in their relations with employers and workers, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129.

Noting the information on the role of the CMM and the social partners as regards the enforcement of the employers’ obligations with regard to the rights of migrant workers in an irregular situation, such as the payment of wages for the period of their effective employment relationship, it requests the Government to provide more detailed information in this regard, as well as on the number of cases where migrant workers found in an irregular situation have been granted their due rights.

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Article 3(2) of the Convention. Additional duties entrusted to labour inspectors. The Committee notes the Government’s indications in its report that the Danish Working Environment Authority (WEA) has organized special inspections in 2012, together with the police and the tax authorities targeted at so called “social dumping”. According to the Government’s indications in its report provided on the application of the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the term social dumping is used to describe the operation of foreign companies in the country, which do not comply with national labour legislation and do not provide working conditions which meet the national standards, or employ foreign workers without the required residence permits.

Furthermore, the Committee notes the information provided on the website of the WEA, according to which two joint control activities of the WEA, the police and tax authorities have been carried out in 2013, which were aimed at combating social dumping. It further notes from the same source that it was envisaged to conduct eight nationwide, and 24 regional activities against social dumping in 2013. The Committee notes that during these actions, the police detained three third-country nationals, which were found to be working in an irregular situation. According to the Government, further investigation will be conducted and charges brought against the employer. These three foreigners were also accused of not having been in possession of the necessary identity papers.

The Committee would like to draw the Government’s attention to paragraphs 75–78 of its General Survey of 2006 on labour inspection, where the Committee emphasized that the primary duty of labour inspectors is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers and not to enforce immigration law, and that Convention No. 81 does not contain any provision suggesting that any workers be excluded from the protection afforded by labour inspection on account of their irregular employment status. To be compatible with the protective function of labour inspection, the verification of the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers. Furthermore, since the human and other resources available to labour inspectorates are not unlimited, the major role sometimes assigned to labour inspectors in the area of illegal employment would appear to entail a proportionate decrease in inspection of conditions of work.

The Committee asks the Government to provide further details on the number, scope, nature and method of these activities, including information on the detected violations and the legal provisions concerned as well as the legal proceedings initiated, remedies applied and sanctions imposed, and the impact of these activities on the enforcement of legal provisions relating to conditions of work and the protection of workers.

In particular, the Committee requests the Government to describe the role of the labour inspectorate and the justice system in ensuring the enforcement of the employers’ obligations with regard to the rights of foreign workers in an irregular situation, such as the payment of wages and social security benefits for the period of their effective employment relationship, especially in cases where such workers are liable to expulsion from the country.

It asks the Government to provide information on the number of cases where workers found in an irregular situation have been granted their due rights, and to provide copies of relevant decisions.

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The Committee takes due note of the information provided by the Government in its report, which was received by the ILO on 1 October 2010. It would be grateful if the Government would continue to provide the annual report on the activities of the labour inspection services and information on any developments or changes in laws and regulations and in practice.

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The Committee duly notes the information supplied by the Government in its report for the period ending 31 May 2007 in reply to previous comments and the documentation attached, as well as the documentation received by the ILO in October 2008. It also notes the legislative developments which have occurred since 2005, particularly the consolidation of Act No. 268 of 18 March 2005 on the Working Environment, and Act No. 175 of 27 February 2007 amending the same Act with the texts adopted for their implementation.

Articles 10, 11, 12, 13 and 16 of the Convention. Good practice in monitoring occupational safety and health. Impact of publicity given to enterprises and rational management of labour inspection resources. The Committee notes with satisfaction the procedure established by the Government with a view to ensuring rational and effective management of the human resources and means of the labour inspection services for monitoring the situation of enterprises with regard to occupational safety and health. The implementation of this procedure enables, firstly, the rapid identification of enterprises requiring closer inspection by the Working Environment Authority and, secondly, the granting of a mark of recognition to enterprises which have distinguished themselves with a high level of occupational safety and health. The Committee hopes that dissemination of the details of the procedure in six languages on the Working Environment Authority’s web site (www.at.dk) will set an example for the labour inspectorates of other countries.

In 2005, the Working Environment Authority focused its inspection activities on four priority areas: (1) enterprises performing activities entailing a high risk of fatal or serious accidents; (2) enterprises where the work involves heavy lifting; (3) enterprises performing activities involving repetitive or monotonous movements; and (4) enterprises performing activities entailing psychological risks. However, additional unannounced inspections may also be undertaken to prevent enterprises from considering that they are not subject to inspection and failing to take the necessary safety and health measures.

The procedure that has been established entails an initial evaluation of occupational safety and health conditions by means of screening based on investigations undertaken by the inspection services, individual evaluations carried out in writing by the enterprises themselves and compliance with legal obligations such as the establishment of a safety department in enterprises employing more than ten workers. All enterprises liable to inspection are screened periodically.

When the results of the screening are published on the Authority’s web site, the date of screening and a symbol are displayed beside the name of each enterprise that has been screened. The symbols used are a series of “smileys” which clearly show the situation of the enterprise in terms of safety and health, as follows:

– a green “smiley” means that the enterprise is considered to have no issues or only minor issues in relation to safety and health and therefore does not require any specific inspection;

– a yellow frowning “smiley” means that the enterprise has some safety and health issues and requires advice from a health and safety consultant with a view to rectifying them;

– a red frowning “smiley” means that an enterprise has major issues, necessitating advice from the Working Environment Authority and has received an improvement notice with a fixed deadline.

The yellow or red symbol is removed from enterprises which have resolved the issues in question with the assistance of the Working Environment Authority.

– a green “smiley” with a crown indicates enterprises which, at their own request, have been inspected by the qualified bodies of the Working Environment Authority, have fulfilled the special conditions imposed for this purpose and obtained a safety and health certificate which is valid for up to three years. Barring exceptional cases, these enterprises are exempt from screening.

The publicity given to the results of screening and to the awards made for particular achievements by enterprises in terms of safety and health conditions clearly acts as an incentive for enterprises seeking to promote a positive public image.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes with interest the detailed report supplied by the Government and the attached documents. It notes, however, that statistics on violations and the penalties imposed are not supplied, as required by Article 21(e) and notes the high number of industrial accidents and cases of occupational disease. The Committee would be grateful if the Government would indicate the comparison between the violations observed and the large number of industrial accidents and cases of occupational disease and provide any relevant information on measures taken or envisaged in practice to improve industrial safety and health conditions in establishments at risk.

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With reference to its previous direct request the Committee asks the Government to continue to provide information on the work of the Working Environment Service and to send copies of annual inspection reports published in conformity with the Convention.

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Articles 20 and 21 of the Convention. The Committee notes that the publications entitled Working Environment in Focus and The Danish Working Environment in Figures 1992 mentioned in the most recent report of the Government as enclosed have not reached the Office. Please provide copies of these documents, as well as copies of regular annual inspection reports published in conformity with the Convention.