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

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Montenegro (Ratificación : 2006)

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Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee notes from the 2010 annual report on the work of the labour inspection services that several measures have been taken with a view to combating illegal employment. Inspection visits have been targeted to sectors with a high percentage of illegal employment, a telephone line has been introduced for anonymous complaints on the occurrence of illegal employment, a body has been established for coordination between the labour inspectorate and other inspection services.

The Committee further notes from the abovementioned report that inspection visits have also been aimed at the control of the legality of employment of foreigners and that in conformity with article 40(1) of the Act on Employment and Work of Foreigners, labour inspectors are empowered, amongst others, to sanction foreign workers with fines ranging from one half to 20 times the minimum wage when they are employed without a residence or work permit. The Committee also understands from the annual labour inspection report that labour inspectors apparently can issue work permits and order the regularization of employment of foreigners pursuant to an inspection.

The Committee recalls that as indicated in paragraphs 76–78 of its 2006 General Survey on Labour Inspection with regard to the increasing tendency to link inspections of 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 the workers if it is to be compatible with the objective of labour inspection. As a general rule, only the employer should be held accountable for illegal employment with the workers involved in principle being seen as victims. The Committee has therefore welcomed the initiative of certain governments to relieve the inspectorate of the task of policing illegal employment and transfer it to another body.

The Committee therefore requests the Government to provide more details on the nature of the functions currently assigned to the labour inspectorate with regard to the employment of foreign workers, and to indicate the legislative and other measures taken or envisaged so as to ensure that the functions of enforcing immigration law are dissociated from those of controlling the observance of workers’ rights. Please also specify the nature of the cooperation between the labour inspectorate and the police referred to in the annual report for 2010 of the work of the labour inspection services.

The Committee also requests the Government to specify the proportion of the activities carried out by the labour inspectorate in the area of combating illegal employment and their impact on the enforcement of legal provisions relating to conditions of work and the protection of workers (nature of violations found, legal proceedings instituted, as well as the remedies applied and sanctions imposed).

The Committee finally asks the Government to indicate the manner in which the labour inspection ensures the enforcement of employers’ obligations with regard to the statutory rights of undocumented foreign workers for the period of their effective employment relationship.

Article 4 of the Convention. Reorganization of the labour inspection system. The Committee notes that the labour inspectorate, which was formerly structured as two different inspectorates (namely the Labour Relations Inspection and the Occupational Safety and Health (OSH) Inspection), is now organized as an integrated system at all levels, and placed under the supervision and control of the central labour inspectorate within the Division of Labour of the new Ministry of Labour and Social Welfare (MLSW). The Committee requests the Government to provide a copy of any legislative text on the organization and functioning of the reorganized labour inspection system and on the powers and functions of labour inspectors within the system, as well as an organizational chart.

Articles 5(a), 10, 20 and 21 of the Convention. Establishment of a register of industrial and commercial workplaces liable to labour inspection and the number of workers employed therein. Annual report on the work of the labour inspection services. The Committee notes that the Government refers to cooperation between labour inspectors and the tax services, which maintain registers of all workers for the purpose of mandatory social security insurance, in conformity with national law. The Committee also notes that the 2010 annual labour inspection report, attached to the Government’s report and published on the Government website, contains some information on the work of the labour inspectorate, but does not yet contain sufficient information for the assessment of the functioning of the labour inspection system in practice. The Committee would like to draw the Government’s attention to its 2009 general observation, where it emphasized the essential character of the availability of a register of workplaces and enterprises liable to inspection, and the value of inter-institutional cooperation for this purpose, amongst others with a view to provide the central labour inspection authorities with the data essential for the preparation of the annual labour inspection report.

Recalling that the 2009 labour inspection audit recommended the implementation of a simple and accessible (computerized) national level register of enterprises, the Committee once again asks the Government to keep it informed on the progress made in this regard as well as on the impact of inter-institutional cooperation for this purpose.

The Committee once again asks the Government to make every effort to enable the central inspection authority to publish and communicate to the ILO a report on the work of the labour inspection services under its control, containing information on each of the subjects covered by Article 21 (a)–(g) of the Convention. In this regard, it refers the Government to the guidance provided in Paragraph 9 of the Labour Inspection Recommendation, 1947 (No. 81), concerning the ideal level of detail for the information which should be included in the annual inspection report.

The Committee notes that the Government’s report does not reply to its previous comments in relation to the follow-up to the labour inspection audit carried out by the ILO in 2009. It hopes that the next report will include full information on all the matters raised in its previous direct request, which read as follows:

Article 5(a) of the Convention. Collaboration with other authorities. The Committee notes that according to the information provided by the Government and in the Labour Inspection audit report, collaboration and relationships between the two departments (Labour Relations Inspection and OSH Inspection) as well as with other institutions and authorities are good, but informal. Thus, the audit report recommended a more targeted institutional and formal approach, i.e. through institutional agreements among the different authorities.

Article 6. Status and conditions of service of labour inspectors. The Committee notes that labour inspectors at the Ministry of Health, Labour and Social Welfare (MHLSW) are civil servants who are re-elected every four years once they pass an evaluation of their skills. The Committee would like to underline the point expressed in the Labour Inspection audit report that such a re-election system is not compatible with the idea of stability of employment. In this regard, the Committee would like to refer the Government to its General Survey of 2006 under paragraph 201, where it pointed out that the public servant’s status was best suited to guarantee the independence and impartiality of labour inspectors which is necessary for the performance of their duties. As regards poor motivation due to low salaries and limited career prospects, the Labour Inspection audit recommends the redesigning of personnel policies to ensure that inspectors have incentives to promotion and to ensure that qualified and motivated staff in the inspection services is retained.

Article 7. Initial and further training of labour inspectors. The Committee notes from the Labour Inspection audit report that training of labour inspectors merely consists in the mentoring of newly recruited labour inspectors. It therefore recommends the establishment of a general and national training plan for inspectors, which ensures sustainability of initial as well as further training (including refresher, on-the-job (in-service) or specialist trainings, that is on the recent adoption of a number of important new labour and OSH legislations).

Article 10. Number of labour inspectors. The Committee notes that there is currently a total number of 36 labour inspectors (25 inspectors charged with the control of general labour conditions and 11 inspectors charged with the control of safety at work). In this regard, the Labour Inspection audit report recommends that a budget is provided to cover current vacancies (which are a result of inspectors having quit their jobs) and increase the number of inspectors in order to put inspectors in a position to effectively discharge the various tasks imposed on them.

Article 11. Working conditions of labour inspectors. The Committee notes that working conditions of labour inspectors are not appropriate: bad conditions of offices and office facilities (lack of computers, fax equipment, no Internet access, no technical measuring tools or personal protection equipment, lack of operational vehicles). It notes that labour inspectors usually use their own cars for inspection visits, get a monthly lump sum of €70 reimbursement for petrol, while the use of public transport does not seem to be reimbursed. Therefore, the Labour Inspection audit report recommends that labour inspectors are provided with at least minimum logistical and technical support.

Article 16. Planning of inspection visits. According to the Labour Inspection audit report, internal procedures should be improved and inspection forms and procedures prepared with a view to facilitating information exchange and enhancing the value of inspection visits. Also, checklists should be drawn up for use during inspections. In addition, before inspections take place, inspectors should prepare the visits by checking files, records, location of the establishment, contact person, number of workers, previous violations, employers’ general attitude, work accidents, complaint letters, trade union presence and more. To facilitate the monitoring of non-compliance by sector and by locality, it is useful to establish a file and registry system.

Article 14. Register of cases of occupational disease. Further, it recommends the development of a national-level register on occupational accidents and cases of work-related disease on a sex disaggregated basis (maintaining personal confidentiality), to allow a better analysis of trends, as well as planning visits and organizing campaigns for prevention purposes.

Articles 17 and 18. Sanctions and administrative procedures. The Committee notes from the Labour Inspection audit report, that sanctions and enforcement in minor cases, at least as regards general conditions of work, are promptly applied and enforced (power of inspectors controlling general labour conditions to impose on-the-spot fines and rapid enforcement of these sanctions by the First Instance Offences Office at the MHLSW). However, the Labour Inspection audit suggests revising, streamlining and homogenizing of the current administrative sanctioning procedures, with the graduation of infractions according to different criteria to allow a better application of the sanctioning system. It equally recommends that OSH inspectors should have the same sanctioning procedures and powers as labour relations inspectors.

The Committee requests the Government to keep the ILO informed of all progress made as regards the abovementioned recommendations by the Labour Inspection audit and to communicate copies of any relevant legal provisions. It reminds the Government, as outlined in the Labour Inspection audit, that it may request further technical assistance of the ILO for the accomplishment of the abovementioned recommended measures in the Labour Inspection audit report, where appropriate.

Article 3, paragraph 1(b). Technical advice and information to employers and workers. The Committee notes the Government’s conclusion in its report that the detected violation of labour conditions through inspections is partly due to the lack of information by employees and employers and that inspectors are mainly entrusted with supervisory tasks. The Committee asks the Government to indicate the measures taken or envisaged to reinforce the educational functions of the labour inspectors provided for in this provision of the Convention vis-à-vis workers and employers.