Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the Government’s reply to its previous comments. It notes with interest that, following repeated requests from the Committee, the Government is planning to take measures to have separate information on inspection work and its results supplied in its future reports and in the annual labour inspection report in relation to French Guyana, Guadeloupe, Martinique, Réunion and St Pierre and Miquelon, which are now treated as metropolitan France for the purposes of the ILO Constitution pursuant to the registration of a declaration to this effect dated 31 August 2009.

With reference to its 2004 observation, the Committee notes with satisfaction the publication in February 2010, after validation by the National Council of Labour Inspection, of a collective work on “Principles of Deontology for Labour Inspection” the preparation of which had been initiated in 2004 under the direction of the Central Support and Coordination Mission for the External Labour and Employment Services (MICAPCOR) and had continued with ILO technical support. The working group which elaborated this tool was mainly composed of representatives of the labour inspection at various levels, as well as other structures of the Ministry of Labour. The ILO and the National Centre of Scientific Research (CNRS) were also represented. The Committee notes with interest the statement made in the book’s preface by the Minister of Labour, Social Relations, Family, Solidarity and Cities, that “deontology reinforces the coherent action of the labour inspection agents at all hierarchical levels ... as it protects the citizens themselves from the risks of arbitrariness”. The Committee also notes that, according to the Minister, “the principle of independence of labour inspection does not signify only a right for the agents concerned, but also a guarantee for the citizens who are able to benefit from an organized public service which is not subject to any undue external influence”.

The Committee also notes the comments from the Single National Union – Work, Employment, Training – Professional Integration (SNU–TEF(FSU)) received at the International Labour Office on 6 July 2010, concerning the involvement of labour inspectors in joint operations to combat illegal work pursuant to “Inter-ministerial Circular No. NOR-IMIM1000102NC of 2 June 2010 to combat illegal work concerning foreign nationals – implementation of joint operations in 2010”. The circular provides for reinforcement of the inter‑institutional cooperation measures to combat illegal work on which the Committee commented previously. On 15 November 2010 the Government sent information to the Office concerning the matters raised by the SNU–TEF(FSU).

The Committee also notes a communication of 29 June 2010 from the Inter-Union Association (CGT–SUD–UNSA), expressing concern at the establishment of a labour inspection office on the premises of the Porto Vecchio (Corsica) Chamber of Trades because of the implications for the principle of independence that ought to govern the performance of inspection duties and the principle that access to inspectorate premises should be ensured for employees. The Committee notes the Government’s replies to the points raised.

Articles 3(1) and (2), 5(a), 6, 12, 15(c) and 17 of the Convention. Further duties entrusted to labour inspectors. Mobilization of resources and incompatibility of inspection methods and the objectives pursued. In its replies to the Committee’s previous comments on the involvement of labour inspectors in operations carried out in workplaces jointly with officials whose job is to implement the policy to combat illegal immigration, the Government indicates that the allegations of the SNU–TEF(FSU) consist in a conflation of press articles, communications from trade unions and the relevant legislation. The Committee points out that it had undertaken a thorough analysis of the legislation and had found that the joint operations to combat illegal work by foreign workers in irregular status were not in accordance with the provisions of the Convention, and stressed the need for measures to remedy the situation and to enable labour inspectors to carry out their functions as defined by the Convention. The Committee observes that the Government has, on the contrary, adopted the circular of 2 June 2010.

The Committee notes that the circulars of 20 December 2006 and 7 July 2007 focus on preserving and respecting the professional identities in determining the role to be played by each administration in the joint operations to combat illegal work. This implies that labour inspectors should keep the responsibility of enforcing the legal provisions on working conditions and the protection of workers, namely sections L.341-6-2, L.8258-1 and L.8252-2 of the Labour Code, which treat unlawfully employed foreign workers in the same way as lawfully employed workers in terms of the obligations incumbent on employers under labour regulations (pay, allowances, severance compensation). The circumstances and results of the joint operations show that the labour inspectors’ cooperation in many cases has the exact opposite effect and ends up exposing workers to a procedure of removal from France and the attendant withdrawal de facto of any right of challenge against the employers who broke the law by hiring them. This is established by Circular No. NOR-IMIM0800047C of 24 December 2008 and the abovementioned circular of 2 June 2010 concerning the results of the joint operations conducted in 2007 (out of 992 persons in an unlawful situation,
295 were expelled) and in 2009 (out of 1,116 workers taken in for questioning, 680 were issued with prefectural expulsion orders and 159 were actually expelled). The Committee notes the terms of the circular of 24 December 2008 according to which, even before a joint operation is launched, “it is important that all steps be taken at each of the levels involved (internal security service, prefectural aliens offices) to ensure that, where foreigners in an unlawful situation are apprehended, this leads to effective removal”. The Committee regrets that the circular of 2 June 2010 reproduces word for word these provisions which may negatively impact on “preserving and respecting” the professional identity of labour inspectors. The circular also emphasizes the logistical arrangements to be made upstream, such as pre-reservation in administrative detention centres when an operation is likely to lead to multiple arrests. The Committee notes that although this circular prescribes measures to ensure speedy procedures for the prosecution of offending employers, it contains no reference to the provisions of sections L.8258-1 and L.8252-2 of the Labour Code, which safeguard the rights of foreign workers in an irregular situation who are victims of the offence of illegal employment. The Committee recalls that, under both the Convention and the national legislation, labour inspectors are to use their powers of injunction to get employers to fulfil their obligations towards workers. It also notes that the circulars make no reference to the rights of the workers affected by joint operations. This may lead to the denial of the right of these workers to apply to the labour courts and give rise to discrimination against them.

The Committee notes that in its report, in connection with this aspect of the offending circulars, the Government mentions Directive 2009/52/EC of the European Parliament and of the European Council of 18 June 2009, which provides that member States must ensure the availability of effective procedures allowing workers in an irregular situation who have been returned, to introduce a claim seeking their entitlements or to enforce a judgement to that effect. In replying to the comments of the SNU–TEF(FSU), the Government specifies that the bill to transpose the European Directive makes the French Immigration and Integration Office (OFII) responsible for recovering and conveying to foreign nationals who have been illegally employed any amounts outstanding from their occupational activity. Since the bill has not been adopted, the Committee can only hope that it will become law shortly so as to strengthen those provisions of the legislation that already afford protection and non-discriminatory treatment to the foreign workers concerned (workers in the construction and public workers (BTP) sector, the hotels, café and restaurants (HCR) sector, the agricultural sector and the apparel sector).

According to the Government, labour inspectors are called on to cooperate in the joint operations in the interest of creating synergy between supervisory bodies responsible for the same type of offence defined in the Labour Code, and such cooperation is therefore fully consistent with Article 5 of the Convention. As to the impact of this activity on other inspection functions, the Government states that violation reports relating to the employment of foreigners with no work permit account for less than 4 per cent of all violation reports. The Committee notes that the Government does not provide any information on the level of the penalties imposed on employers, in order to enable it to assess how dissuasive they are. The Committee recalls that the aim of the cooperation referred to in Article 5(a) is to strengthen the means available to inspectors to enforce the legal provisions on working conditions and the protection of workers (Articles 2 and 3(1)), and that according to Article 12(1)(c)(i), labour inspectors should be empowered to carry out examinations alone or in the presence of witnesses (implied appointed freely by them). The Committee considers that they are not in a position to exercise this prerogative in joint operations, and their freedom to enter workplaces (with no need for a court authorization or an order from the public prosecutor) is used for purposes that are contrary to their functions.

The Committee is also of the view that the association of the police in labour inspection is not conducive to the relationship of trust needed to create the climate of confidence that is essential to enlisting the cooperation of employers and workers with labour inspectors. It must be possible for inspectors to be feared for their authority to report offences, and at the same time to be respected and approachable as preventers and advisers.

The Committee therefore once again asks the Government to provide information so that it can assess the manner in which it is ensured, in accordance with section L.341-6-1 of the Labour Code, that foreign workers in an irregular status benefit from the same protection by the labour inspectorate as other workers, and to provide in so far as possible relevant statistics (number of complaints filed and convictions of employers to regularize their situation with regard to the workers’ rights, as well as the status of procedures for the enforcement of such decisions).

The Committee also, once again, urges the Government to take measures to ensure that the powers of inspectors to enter workplaces liable to inspection are not misused for the implementation of joint operations to combat illegal immigration.

The Committee also requests the Government to take measures to ensure that labour inspectors are notified of cases of immigrants in an irregular status, who are apprehended outside a workplace and are engaged in a labour relationship covered by the Convention.

The Committee notes the creation on 1 December 2008 in French Guiana of a service to combat illegal work (SLTI). It notes with concern that despite the small size of the inspection staff (4.5 for the whole department), two of its members (one inspector and one controller) and an administrative secretary are assigned on a full-time basis to implement the local policy to combat illegal work formulated by the Select Committee to Combat Illegal Work (CORELTI) and the provision of secretariat services for CORELTI, whose membership comprises the police, gendarmerie, customs and fiscal authorities.

Although the Government asserts that the SLTI’s work in combating illegal work is focused on the inspection duties defined in the Labour Code, the figures supplied are insufficient to show what proportion of supervisory duties (547 inspection visits) accounted for enforcement of the legal provisions on working conditions and the protection of workers: the information that there were 28 decisions to close down sites, 295 written observations and 36 violation reports does not allow a distinction to be drawn between action linked to the reporting of offences of illegal employment and action linked to the reporting of offences against the provisions covered by the Convention. The Committee accordingly asks the Government to take the necessary steps to enable all the labour inspection staff of French Guyana to carry out their inspection functions that relate to enforcement of the legal provisions on conditions of work and the protection of workers while engaged in their work. It would be grateful if, in support of the relevant information, the Government would provide detailed statistics of the activities of the labour inspectorate in the department.

Article 10. Strength and composition of the labour inspectorate staff in relation to development functions and the complexity of the legislation. The Committee notes with interest that between 2006 and 2009, 452 student inspectors were promoted and 923 probationary controllers were trained. It also notes that of the 60 posts for labour inspectors and the 100 posts for labour controllers created in 2009, most are controller posts.

Articles 5(a) and 7(3). Effective cooperation between the inspection services and other government services and public or private institutions, and training for inspectors in the prevention of occupational risks. The Committee refers to its previous comments concerning Réunion in which it asked the Government to provide information on the measures taken or envisaged to reduce the frequency of industrial accidents and instances of occupational disease, particularly in work noted as having a high risk potential. The Committee notes in this connection that in September 2007 ten inspectors received training in the field of chemical risks and that pursuant to a partnership agreement signed in 2005, the Directorate of Labour, Employment and Vocational Training (DTEFP) of Réunion belongs to a prevention network (whose membership includes the National Agency for the Improvement of Working Conditions – ANACT –, the General Fund for social security, the occupational health services). Furthermore, it notes with interest that improving occupational safety and health, particularly in the construction and public works sector and in the area of chemical risks, was one of the main objectives set for the labour inspectorate for 2008 and that a regional occupational health plan has been in preparation since October 2007.

The Committee requests the Government to continue to provide information on progress made by virtue of cooperation between the abovementioned players in the area of occupational risk prevention and the labour inspection sections of Réunion. In particular, the Government is asked to provide information on the training that labour inspectors received in the area of occupational safety and health, on progress in the regional occupational health project and the missions and activities conducted by labour inspectors in this connection and their impact on the frequency of industrial accidents and occurrences of occupational disease.

Articles 6, 11 and 15(c). Independence of labour inspectors, accessibility of their premises to all concerned. With regard to the concern expressed by the Inter-Union Association (CGT–SUD–UNSA) that the labour inspectorate has its office on the premises of the Chamber of Trade of Porto Vecchio (Corsica), the Committee notes that according to the above organization, the premises are so designed that fear of being seen by their employers could dissuade workers from going to the labour inspectorate. The Government, for its part, states that the establishment of a labour inspection section in Porto Vecchio is recent and that it was because there were no other options that the inspectorate was housed in the premises of the Chamber of Trades, which is a public establishment. The Government adds that the questions raised about this location are being thoroughly investigated by the Directorate General of Labour, and a decision will be taken when inquiries are completed. The Committee would be grateful if the Government would provide information on the results of the abovementioned investigation, and asks it in any event to take the necessary steps to ensure that labour inspectors are independent of any improper external influences and that workers are able to enter the Porto Vecchio section freely.

The Committee is raising other points in a request addressed directly to the Government.