Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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.