Repetition

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

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Article 3(1)(a), (b) and (2) of Convention No. 81 and Article 6(1)(a), (b) and (3) of Convention No. 129. Functions entrusted to labour inspectors. 1. Labour inspectorate’s competence in establishing employment relationships. Following its previous comments, the Committee requested the Government to continue to provide information on the work of the labour inspectorate with respect to establishing employment relationships when work is based on a civil law contract despite the existence of elements of an employment relationship, in accordance with section 19(1)(6) and 19(2) of the Labour Inspection Act (LIA).

The Committee notes the Government’s information in its report that, in 2018, inspectors found 109 violations of the prohibition of work under civil-law contracts while elements of employment relationships exist. The 2019 annual labour inspection report (Annual Report) shows that inspectors found 98 cases of such violations in 2019. The Government also states that it is complex to prove the existence of employment relationships and that the standards of proof are high. In particular, it is difficult to verify the continuity of work of a particular worker, especially in cases when records of such work are modified or inadequate, or the employer does not keep such records. The Government further states that, when a violation is detected, inspectors may temporarily prohibit the performance of the work concerned until the correction of the irregularity, order the conclusion of a written employment contract within three working days, or impose fines if necessary. In this regard, inspectors issued 17 prohibition orders in 2018 and 6 in 2019. There were also 13 cases recorded in 2018 of an inspector ordering the liable person to provide the worker concerned with a written employment contract. The Committee requests the Government to continue providing information on the activities of the labour inspectorate with respect to establishing employment relationships for those who perform work based on a civil law contract, despite the existence of elements of an employment relationship which effectively amount to an employment contract.

2. Mediation and conciliation duties. In its previous comments, the Committee noted that labour inspectors may offer mediation for the settlement of a dispute between a worker and employer under the Employment Relationship Act (ERA) as amended in 2016 (section 216). It also noted that the labour inspectorate was aiming to promote the use of mediation services provided by mediation institutions under the Project on Eliminating Conflict at Work.

The Committee notes the Government’s indication that, even though the role of the inspector in mediation is provided for by the ERA, inspectors rarely carry out this function in practice, and when they do, it is informal and not recorded. The Committee also notes the Government’s indication that the Project on Eliminating Conflict at Work will last six years from 2017 and aims to promote the use of mediation in the settlement of disputes. In this regard, the Government states that the labour inspectorate organizes free workshops and provides professional assistance in areas within its competence. The Government also indicates that the peaceful resolution of disputes of a non-legal nature by mediation contributes to alleviating the burden on the labour inspectorate by reducing the number of cases in its regular work, because many conflicts are resolved by mediation within the project that would otherwise have been the subject of an inspection procedure or that had been subject to an inspection procedure but had been concluded without reaching resolution. The Government further states that inspectors usually refer a case to the project unit of the labour inspectorate when a person requests help without an inspection being carried out, or when the law does not foresee a fine for a violation and the inspection procedure would not resolve the conflict. According to the information available on the website of the labour inspectorate, the mediation is carried out at the premises of the labour inspectorate by a neutral third-party. The Committee recalls that, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129, any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties. Referring to its General Survey of 2006, Labour inspection, paragraph 72, the Committee recalls the importance of not overburdening inspectorates with tasks which by their nature may be understood as incompatible with their primary function of enforcing legal provisions. The Committee requests the Government to provide further information on the measures it is taking to ensure that additional duties assigned to labour inspectors are not such as to interfere with the effective discharge of their primary duties. In this respect, it requests further information on the implementation of the Project on Eliminating Conflict at Work, including the appointment of mediators and the functioning and the staffing of the project unit, indicating if it is staffed by inspectors.

3. Supervision of the Labour Market Regulation Act by inspectors monitoring working conditions and employment relationships. The Committee previously noted that inspections of the implementation of the Labour Market Regulation Act (LMRA) are carried out by inspectors monitoring working conditions and employment relationships under the employment inspection services (EIS) within the labour inspectorate (section 150). Noting the heavy workload of the labour inspectorate, it requested the Government to indicate whether the inspectors who supervise the LMRA are recruited within the current budget of the labour inspectorate, or with a separate line of budget.

The Committee notes the Government’s information that the recruitment of all new inspectors who are employed by the labour inspectorate falls under the budget line “wages” of the applicable budget for the relevant year, adjusted with regard to the personnel plan and new recruitments concluded. There are no separate budget lines for different inspection areas, namely working conditions and employment relationships, health and safety at work and social affairs. The Committee also notes that, according to the 2019 Annual Report, the labour inspectorate detected 180 violations of the LMRA in 2018 and 105 such violations in 2019. The Committee requests the Government to take the necessary measures to ensure that the control duties by the labour inspectorate under the LMRA do not prejudice the exercise of its primary duty to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers. It also requests the Government to indicate in detail the proportion of time devoted by the inspectors to supervising implementation of the LMRA, including monitoring working conditions and employment relationships with respect to employment services, temporary employment agencies, job certification processes and unemployment insurance, compared to the time devoted to the exercise of the primary functions of labour inspectors as defined in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129.

Articles 4 and 5(b) of Convention No. 81 and Articles 7 and 12 of Convention No. 129. Supervision by a central labour inspection authority and effective cooperation between the labour inspectorate and other government services. The Committee requested the Government to provide information on the role that the Inspection Council established in accordance with section 11 of the Inspection Act (IA) plays in coordinating with the labour inspectorate, including the impact of this coordination on the planning and carrying out of labour inspections as well as any joint inspections undertaken.

The Committee notes the Government’s information on the role of the Inspection Council in planning the joint performance of inspection tasks from different inspection services. The Government indicates that the Inspection Council drafts the Strategic Orientations and Priorities of Inspectorates and Inspection Services based upon the annual work plan that different inspection services and inspectorates draw up independently. During this process, the members of inspection services agree on any joint inspections and campaigns. At the end of every year, the Inspection Council also invites members to draw up reports on the implementation of the Strategic Orientations and Priorities of Inspectorates and Inspection Services for the year, on the basis of which the Council then draws up a joint report and presents it to the Government. The Committee takes note of this information.

Articles 5(a), 17 and 18 of Convention No. 81 and Articles 12, 22, 23 and 24 of Convention No. 129. Effective cooperation between the labour inspectorate and the justice system and enforcement of administrative penalties. The Committee previously noted that labour inspectors did not regularly receive feedback with regard to criminal complaints lodged with the State Prosecutor’s Office. It thus requested further information on the measures taken or envisaged to promote effective cooperation between the labour inspectorate and the justice system. It also requested the Government to indicate the impact of inspectors’ powers to impose fines against minor offences on the work of the labour inspectorate.

The Committee notes the Government’s indication that, according to section 11a(4) of the Minor Offence Act, state prosecutors should immediately inform the minor offence authority of their decisions referred to that affect minor offence proceedings, if criminal proceedings were initiated, and of the final court decision. However, in practice this provision is often not implemented. The Committee takes due note of the Government’s indication that, in order to effectively prosecute offenders and to promote the cooperation between the labour inspectorate and state prosecutors, a joint meeting of the representatives of the Office of the State Prosecutor General and the management of the labour inspectorate was held in January 2019. An agreement was reached on the provision of feedback about the criminal complaints filed and on establishing communication between inspectors and state prosecutors upon the filing of criminal complaints and during pretrial investigations. Upon the request of the labour inspectorate, the Office of the State Prosecutor General provided training for inspectors in 2019 in order to ensure the effective filing of criminal complaints. The Government also states that the fact that the labour inspectorate is also a minor offence authority affects its volume of work. The Committee requests the Government to provide information on the impact of the agreement between the labour inspectorate and the Office of the State Prosecutor General, including the number and nature of feedbacks received upon the filing of criminal complaints and also during pretrial investigations. It once again requests the Government to provide information on the outcome of the cases referred to the justice system by the labour inspectorate, including specifically the number of convictions in relation to the infringements reported, the nature of sanctions applied and the amount of fines imposed.

Articles 6 and 11 of Convention No. 81 and Articles 15 and 20(a) of Convention No. 129. Costs for inspection procedures imposed on liable persons. The Committee previously noted that the IA obliges the person in breach of the laws or any other regulations to cover the cost of inspection procedures in establishing facts and evidence (section 31).

The Committee takes due note of the Government’s indication that funds allocated to the labour inspectorate from the public budget are approximately equivalent to its claims under non-tax revenues, including fines, court fees, costs of proceedings and administrative charges. The Committee observes that the large proportion of revenues from fines and fees may lead to uncertainty of the budgeting. It recalls that, by virtue of Article 11 of Convention No. 81 and Article 15 of Convention No. 129, it is essential for Member States to allocate the necessary material resources so that labour inspectors can carry out their duties effectively. The Committee therefore requests the Government to further provide information on the measures taken or envisaged to ensure that sufficient budgetary resources are allocated for the labour inspectorate. In this respect, it requests the Government to continue providing information on the budget of the labour inspectorate, including a specific identification as to the amount of revenues obtained for the Inspectorate through charging inspection costs as a proportion of the overall budget for the inspectorate.

Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Adequacy and frequency of labour inspection visits. The Committee previously noted that the labour inspectorate conducts regular inspections, reactive inspections based on complaints and control visits to follow up on a previous decision. However, it noted the low proportion of regular inspections performed by the labour inspectorate reported in the 2017 Annual Report.

The Committee notes that, according to the statistical information provided by the Government and in the 2019 Annual Report, the number of inspections carried out was 14,541 in 2017, 12,928 in 2018 and 14,118 in 2019. Moreover, the number of regular inspections decreased from 810 in 2017 to 492 in 2018. The Committee also notes that, according to the supplementary information provided by the Government, from 1 January to 31 May 2020, 4,362 inspections were carried out, including 85 regular inspections, 2,573 inspections based on complaints, 1,173 inspections as part of targeted activities and 531 control visits. The Government further indicates that these inspections were mostly carried out in cases where, in the context of the COVID-19 pandemic, the life and health of workers was at risk at the workplace. The Committee requests the Government to provide information on the measures taken or envisaged to ensure a sufficient number of inspection visits, in particular regular inspections, and to provide information on the manner in which it determines the priorities for inspection. It also requests the Government to continue to provide information on the number of labour inspections carried out, disaggregating unannounced regular inspections from complaint-based reactive inspections.

Article 20 of Convention No. 81 and Article 26 of Convention No. 129. Annual inspection report. Following its previous comments, the Committee notes the annual labour inspection reports for the years 2015 to 2019 submitted to the Office, as well as their publication on the labour inspectorate’s website.

Repetition

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

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Legislation. The Committee previously noted the legislative reforms regarding the Labour Inspection Act (LIA) of 2014 and requested the Government to indicate the extent to which labour inspectors are bound by the general principles established under the Inspections Act (IA) as well as how the overlapping or conflicting provisions under the IA and the LIA are applied in practice to the daily work of labour inspectors.

The Committee notes the Government’s reference in its report to section 3 of the LIA providing that unless otherwise provided by the LIA, the performance of inspection and inspectors shall be subject to the provisions of the IA governing inspection, the provisions governing the general administrative procedure and the provisions of specific regulations governing the supervision of individual inspection services that operate within the inspectorate. The Government states in this respect that inspectors carry out their work pursuant to the LIA, but that for issues not regulated in the LIA, they carry out inspections pursuant to the IA. In this respect, the Committee notes that qualifications of inspectors, the initiation of inspections, additional powers including seizure of documents, inspection records, and entities liable to inspection are covered by the LIA (sections 9–11 and 13–15), while inspection procedures and access to workplaces are regulated by the IA. The Committee takes note of the information provided by the Government.

Article 3(1)(a), (b) and (2) of Convention No. 81 and Article 6(1)(a), (b) and (3) of Convention No. 129. Functions entrusted to labour inspectors. Additional duties entrusted to labour inspectors related to immigration. The Committee previously noted with concern that labour inspectors can impose fines on migrant workers for the performance of work that violates the Employment, Self-employment and Work of Aliens Act (ESWAA) (sections 51, 60, 61, 63, and 66), and are obliged to inform the police authority when its supervision activities lead to the suspicion of illegal residence of migrant workers (section 44(4)). It requested the Government to take the necessary measures to ensure that the control duties by the labour inspectorate under the ESWAA do not prejudice the exercise of its primary duty to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers. It also requested information on the manner in which the labour inspectorate ensure the enforcement of employers’ obligations with regard to the rights of migrant workers.

The Committee notes the Government’s indication that sanctions for violations of the ESWAA do not affect the protection of labour rights of migrant workers or their right to suitable working conditions. In accordance with section 19(1)-2 of the LIA, inspectors may prohibit the worker concerned from performing work until the correction of the irregularity, if during an inspection they find that the employer has enabled a foreigner or a person without citizenship to work contrary to regulations governing the employment of foreigners. According to the 2019 annual report on inspection activities (Annual Report), the inspectors found 49 infringements in 2019, compared to 29 in 2018. The Government also states that the labour inspectorate imposed sanctions on migrant workers due to such violations in a few cases in 2018 and 2019. The Government further indicates that a migrant worker whose employment contract is determined to be null and void in accordance with section 23 of the Employment Relationship Act (ERA) only enjoys the protection of labour rights if they prove the existence of an employment relationship in court.

The Committee recalls that, in accordance with Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129, the function of the system of labour inspection is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and that any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties. It also recalls that neither Convention No. 81 nor Convention No. 129 contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status (paragraph 77, General Survey of 2006, Labour inspection). Referring to paragraph 452 of its General Survey of 2017, Working together to promote a safe and healthy working environment, the Committee further indicates that workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country. The Committee requests the Government to take measures to ensure that the duties entrusted to labour inspectors do not interfere with the fundamental objective of securing the protection of workers in accordance with the primary duties set out in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. It requests the Government to provide further specific information on the number of cases in which sanctions were imposed on migrant workers, the violations concerned and the sanctions imposed. The Committee once again requests the Government to provide information on the manner in which the labour inspection services ensure the enforcement of employers’ obligations with regard to the rights of migrant workers, in particular those in an irregular situation or without an employment contract, including specific information as to the payment of remunerations and any other benefits owed for the work they performed.

Articles 6 and 10 of Convention No. 81 and Articles 8 and 14 of Convention No. 129. Number of labour inspectors and their conditions of service. Stability and independence of labour inspectors. The Committee previously noted the continuous decline in the number of labour inspectors and their heavy workload, as well as issues related to external pressure facing inspectors from both complainants and employers, as documented in the Annual Report for 2017. It requested the Government to take measures to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspectorate, and to provide information on measures taken to address the pressure facing labour inspectors.

The Committee notes the Government’s information that the number of approved posts at the labour inspectorate increased from 106 in 2017 to 121 in 2019, and that recruitment procedures are under way. According to the 2019 Annual Report, there are 120 employees at the labour inspectorate, including 91 inspectors (up from 81 in 2018) and the number of business entities increased from 215,354 in 2018 to 220,236 in 2019. The Annual Report further states that inspectors, in particular those in charge of monitoring working conditions and employment relationships and social affairs, still face difficulties to promptly process all requests. In 2019, the labour inspectorate received 7,215 complaints, of which about 80 per cent fall into the competence of inspectors monitoring working conditions and employment relationships. Information in the 2019 Annual Report also indicates that the number of these inspectors has increased in recent years in response to their heavy workload, but that there has been a decrease in the number of occupational safety and health (OSH) inspectors (from 41 in 2008 to 31 in 2019). In this regard, the Annual Report states that measures will be taken to reinforce OSH inspections.

The Committee also notes the Government’s indication that a risk assessment undertaken of the work of the inspectorate indicated that nearly all employees of the labour inspectorate, and particularly inspectors, are exposed to the risk of third-party violence, due to the nature of their work. In order to address this, the labour inspectorate has taken measures to prevent unauthorized access to its offices, drafted instructions outlining measures to reduce such violence, and organized various lectures and workshops on stress management, communication in difficult situations and other relevant topics. Concerning protection against aggression, certain inspections are carried out by two inspectors or together with other supervisory authorities, and inspectors may also request that police officers be present at the inspection. The Government also indicates that, in addition to the provisions on the independence of inspectors provided for by the IA and the LIA, certain inspections are carried out by inspectors from the head office instead of local units if it is assessed necessary to prevent the external influence from local stakeholders. The Committee also notes that, however, the 2019 Annual Report states that labour inspectors continue to be overwhelmed with the amount of assigned cases and face a significant level of external pressure from both complainants and employers in the form of insults, misconduct and aggressiveness concerning matters beyond their mandate. While taking note of the increase in the number of inspectors from 2017 to 2019, the Committee requests the Government to reinforce its efforts to ensure that the number of labour inspectors is sufficient to secure the effective discharge of the duties of the inspectorate, regarding both inspectors monitoring working conditions and employment relationships and OSH inspectors. It also requests the Government to continue to provide information on the measures taken in this respect. In addition, the Committee urges the Government to strengthen its efforts to address the issues raised in the 2019 Annual Report related to violence, harassment and other external pressure facing labour inspectors, including with a view to ensuring their independence from improper external influences.

Article 12(1)(b) of Convention No. 81 and Article 16(1)(b) of Convention No. 129. Access to workplaces liable to inspection. The Committee previously noted that pursuant to section 21 of the IA regarding business and other premises not belonging to the person liable, persons owning or possessing business premises, production premises or other premises or land can refuse inspectors’ free access under certain conditions. The Committee notes the Government’s explanation in response to its request that an inspection may only be denied in the exceptional cases provided for by section 21 of the IA. The Government also indicates that, if a person unjustifiably refuses to allow an inspection, they may be subject to the same measures as a witness who refuses to testify, and the inspection may be carried out against their will. With reference to its comments above on the LIA and the IA, the Committee notes that the LIA does not contain provisions relating to access to workplaces liable to inspection. The Committee recalls that, by virtue of Article 12(1)(b) of Convention No. 81 and Article 16(1)(b) of Convention No. 129, labour inspectors should be empowered to enter by day premises which they may have reasonable cause to believe to be liable to inspection in order to efficiently ensure workers’ protection, and that these Articles do not allow for any restrictions. With reference to its General Survey of 2006, Labour Inspection, paragraph 266, the Committee also recalls that restrictions placed in law or in practice on inspectors’ right of entry into workplaces can only stand in the way of achieving the objectives of labour inspection as set out in the Convention. The Committee once again urges the Government to take measures to bring the national legislation into conformity with Article 12 of Convention No. 81 and Article 16 of Convention No. 129 to ensure that that labour inspectors are empowered to enter by day premises which they may have reasonable cause to believe to be liable to inspection. In the meantime, it requests the Government to provide detailed information on the implementation of section 21 of the IA in practice, indicating the number of times that inspectors have been denied access to workplaces under this section, the reasons given for each denial under one or more of the exceptions provided for in section 21, and the outcome of any proceedings reviewing each denial.