Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Grecia (Ratificación : 1955)

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The Committee takes note of the comments made under article 23 of the ILO Constitution by the Greek General Confederation of Labour (GSEE) in communications dated 29 July 2010 and 28 July 2011 as well as the Government’s reply dated 16 May 2011. It also takes note of the discussion that took place at the Committee on the Application of Standards during the100th Session of the International Labour Conference (June 2011) with regard to the application by Greece of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It notes that the Conference Committee welcomed the Government’s indication that it was working on arrangements with the ILO for the visit of a high-level mission proposed by the Committee of Experts to facilitate a comprehensive understanding of the issues raised by the GSEE concerning the application of 12 Conventions ratified by Greece including the Labour Inspection Convention, 1947 (No. 81). The Conference Committee also considered that contact with the International Monetary Fund (IMF) and the European Union (EU) would assist the mission in its understanding of the situation (Provisional Record No. 18, Part II, pages 68–72).

The Committee takes note of the report of the high-level mission which visited the country from 19 to 23 September 2011 and held further meetings with the European Commission and the IMF in Brussels and Washington, DC, in October 2011, on the basis of the request made by the Committee on the Application of Standards.

Article 3(1) and (2) of the Convention. Additional functions entrusted to the labour inspectorate. The Committee takes note of the detailed information provided by the Government to the high-level mission on the reform of the labour inspectorate (SEPE) which has taken place in the framework of the structural reforms introduced since May 2010, notably through the adoption of Act No. 3996 of 5 August 2011. It notes from the report of the high-level mission the Government’s indication that in order to avoid any abuse of workers’ rights, the role of the SEPE is the necessary complement to the introduction of a wide range of measures to render the labour market more flexible and competitive.

The Committee notes that according to the comments made by the GSEE in July 2010, the measures implemented in the framework of the structural reforms have led to a significant increase in precarious work without any parallel measure to strengthen the SEPE so as to ensure effective protection for workers. The GSEE refers to statistical data released by the SEPE, which show a marked trend towards individualized contracts and the unilateral modification by the employer of working terms under the threat of dismissals, as well as a trend for the abolition of full-time work and the imposition of reduced term rotation work. The GSEE also refers to the absence of sufficient numbers of qualified inspectors and the required infrastructure (e.g. office and transport facilities, adequate means of communication and record-keeping) and the consequent need for sufficient budgetary allocations to ensure the provision of effective inspection services.

The Committee notes from the high-level mission report that even though the mechanism to support the Greek economy provides for the strengthening of the SEPE and funds have been provided for that purpose, the reform of the labour inspection system appears to be primarily focused on detecting undeclared work (social security contribution collection) and migrant workers. It notes in this regard that in the framework of the reform introduced by Act No. 3996, the SEPE has been entrusted with additional functions some of which, the Committee understands, were previously carried out by social security inspectors, such as the control of undeclared work. The SEPE has also been entrusted with the control of the legality of the employment of foreign workers from third countries, as well as enhanced conciliation functions.

1. Control of undeclared work. The Committee notes that the high-level mission took note of a wide prevalence of undeclared work which raises questions as to the governance of the entire labour market. The high-level mission expressed the view that the SEPE’s indication that undeclared work represented 29 per cent in targeted sectors (while studies from research institutes refer to 60 per cent) is indeed alarming and that this issue clearly needs to be addressed. It considered that priority should be placed on issues like ensuring wage payment and more generally the protection of wages, as well as non-discrimination and other labour rights especially in the informal economy.

The high-level mission identified in its report a potential problem of non-payment or delayed payment of wages in full, as well as a widespread tendency in the informal economy to replace terms of employment set through collective agreements (especially at sector level) by individual contracts (largely oral) providing for lower pay, even lower than the floor set by the national general collective agreement. It noted furthermore that women, especially working mothers after their return from maternity leave, were identified as the ones most often offered flexible forms of employment, notably part-time or rotation employment – which has been promoted by the structural reforms – with reduced wages and that the disproportionate impact of the crisis on women was reportedly exacerbated by the stance of the SEPE which seemed reluctant or unable to play a role in gender discrimination cases, e.g. by imposing fines. The Committee refers in this regard to its comments under the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Workers with Family Responsibilities Convention, 1981 (No. 156).

The Committee notes that according to article 2(2)(a)(iii) of Act No. 3996, the functions of the SEPE include the supervision of the implementation of social security legislation concerning workers’ social security coverage, undeclared work and illegal employment. The Committee notes with interest among the recent innovations introduced by Acts Nos 3996/2011 and 3863/2010 in this framework the labour stamp, to ensure that social security contributions are paid for occasional work, and the obligation to pay wages electronically via bank accounts to ensure the automatic deduction of social security contributions. The Committee considers that these measures can be an effective guarantee of the payment of wages and social security contributions and can be of great help in reducing the incidence of undeclared work and illegal employment. It notes, however, from the report of the high-level mission that these measures had not yet produced effects at the time of the mission. There was need for awareness raising on the labour stamp to promote its use, while the Ministerial Decision for the entry into force of the electronic payment of wages had not yet been issued.

The Committee requests the Government to provide in its next report detailed information on the activities carried out by the SEPE in the framework of the implementation of Act No. 3996/2011 and their results (number of workplaces inspected, violations found, sanctions imposed) as well as the impact of these activities on reducing undeclared work.

Noting that article 24 of Act No. 3996/2011 introduces incentives (80 per cent reduction of fines imposed) to persuade employers to discharge their obligations for the payment of outstanding wages and benefits due to workers in a timely manner, the Committee requests the Government to indicate the impact of this provision on the level of compliance with the relevant legal provisions in general, as well as on the regularization of undeclared workers. The Committee also requests the Government to take the necessary awareness-raising measures to promote the use of the labour stamp, as well as the necessary legal and practical steps for the implementation of the electronic system for the payment of wages, and to keep the Office informed in this regard.

Furthermore, the Committee notes that according to article 2(2)(g) of Act No. 3996, the SEPE is entrusted with the examination of the implementation of the principle of equal opportunity and treatment for men and women at work. The Committee notes in this regard from the report of the high-level mission that the Ombudsperson has made suggestions on ways to improve the cooperation between this authority and the SEPE in relation to gender discrimination cases. First, according to the Ombudsperson, even though Act No. 3488/2006 establishes an institutionalized cooperation scheme between the two bodies on gender discrimination matters, the practical aspects of this cooperation have not been standardized through circulars or instructions, which leads to confusion. There is therefore a need to clarify the relatively new competencies and roles of the SEPE and the Ombudsperson respectively. Second, according to the Ombudsperson, labour inspectors need training on gender discrimination issues notably in the form of seminars comprising a theoretical and a practical part, so as to become more aware of relatively new concepts concerning discrimination issues. Noting that according to the high-level mission report, priority attention should be placed on non-discrimination in the framework of the activities of the SEPE, the Committee requests the Government to indicate any measures taken or envisaged in order to strengthen the cooperation with the Ombudsperson in the area of non-discrimination, such as through the issuance of circulars delineating roles and responsibilities and training made available to labour inspectors.

2. Control of legality of employment of migrant workers. The Committee notes that, according to article 2(2)(a)(iv) of Act No. 3996, the SEPE is entrusted with the control of the legality of the employment of third country nationals. Article 2(2)(b) of the Act authorizes the SEPE to investigate, discover, identify and prosecute, in parallel, and independently from other authorities and organizations, those who violate the provisions which are supervised by the SEPE.

The Committee would like to recall that, as indicated in paragraphs 76–78 of its 2006 General Survey on labour inspection with regard to the increasing tendency to link inspections to clandestine work and irregular migration, the primary duty of labour inspectors is to protect workers and not to enforce immigration law. Efforts to control the use of migrant workers in an irregular situation require the mobilization of considerable resources in terms of staff, time and material resources, which inspectorates can only provide to the detriment of their primary duties. Moreover, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers if it is to be compatible with the objective of labour inspection. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers and not immigration law. The Committee would be grateful if the Government would indicate the manner in which effect is given to article 2(2)(b) of Act No. 3996, which empowers the SEPE to investigate and prosecute those who violate the provisions which are enforceable by the SEPE including the provisions concerning the legality of employment of migrant workers.

The Committee also requests the Government to take the necessary measures to ensure that the functions of enforcing immigration law (legality of employment of third-country nationals) are dissociated from those of controlling the observance of workers’ rights and are not entrusted to labour inspectors and to keep the Office informed of progress made in this regard.

Furthermore, the Committee requests the Government to indicate the measures taken by the SEPE to ensure the discharge by the employers of their obligations with regard to the statutory rights of foreign workers in an irregular situation, such as the payment of outstanding wages and other benefits due for the work accomplished during the employment relationship, particularly in cases where these workers are liable to expulsion.

3. Conciliation functions. The Committee notes that according to article 2(12) of Act No. 3996, the SEPE is entrusted with providing advice, if requested by employers and workers, in the conduct of collective bargaining and in the resolution of individual and collective disputes. In addition, the Committee notes that article 3(1), (4), (5) and (6) of Act No. 3996/2011 gives to senior labour inspectors in the local offices of the SEPE throughout the country conciliation functions in relation to collective and individual labour disputes, and provides that the central authority exercises similar functions in case of national level labour disputes which may disturb industrial peace and deregulate labour relations and have a serious impact on the national economy. The Committee notes in this regard that, by virtue of Act No. 3899/2010, the scope of unilateral recourse to arbitration of collective disputes has been limited to the issue of wages which may probably lead to an increased need for conciliation of collective labour disputes on non-wage matters.

The Committee also notes that, according to article 3(7) and (9) of Act No. 3996/2011, the conciliator should aim on the one hand, at ensuring the strict implementation of the applicable legislation and, on the other hand, at bringing the views of the parties closer together, by proposing solutions for reaching an agreement which the parties can accept, so as to ensure a quick resolution of disputes and industrial peace in the best interest of employers and workers.

The Committee would like to underline that the two functions of inspection and conciliation are often incompatible in the sense of Article 3(2) of the Convention, according to which any further duties which are entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties (enforcement and advice) or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee also draws the Government’s attention to the guidance provided in Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee emphasizes in paragraphs 72–74 of its General Survey of 2006 on labour inspection the importance of avoiding overburdening inspectorates with tasks, which by their nature may be understood as incompatible with their primary function of enforcing legal provisions. It recalls that the time and energy that inspectors spend on seeking solutions to collective labour disputes is often at the expense of their primary duties and that carrying out supervisory functions more consistently would lead to better enforcement of the legislation and hence a lower incidence of labour disputes. The Committee therefore requests the Government to take the necessary measures to ensure that the functions of conciliation are separated from those of inspection. It would be grateful if the Government would provide information on any progress made to this end and in the meantime, to indicate the categories and number of labour inspectors who carry out the advisory and enforcement functions of the labour inspection provided for in Article 3(1)(a) and (b) of the Convention compared to those who carry out conciliation functions.

4. Potential ILO technical assistance. The Committee would like to emphasize the crucial role of the labour inspection function in times of crisis in ensuring that workers’ rights are respected so that the crisis does not serve as a pretext for lowering labour standards and the need to strengthen the resources and means of action of the labour inspection system if it is to achieve the economic and social goal assigned to this public function.

The Committee notes that the need to strengthen the governance of the labour inspection system, build capacities and ensure probity of the labour inspectors emerged in discussions between the high-level mission and its interlocutors at the national and international levels and that the high-level mission identifies these areas as potential targets for ILO technical assistance. Noting with interest the suggestion of the high-level mission for an objective needs assessment of the labour inspectorate to be followed by ILO support in mutually agreed areas, as well as the indication of the European Commission to the high-level mission that there is room for the assistance of the ILO in the areas within its mandate, including labour inspection, the Committee invites the Government to avail itself of ILO technical assistance in the area of labour inspection and to provide information to the Office on the steps taken in this regard.

[The Government is asked to reply in detail to the present comments in 2012.]