Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Further to its previous comments, the Committee notes the Government’s reports received by the Office on 23 November 2007 and 8 September 2008, and the additional information received in January 2008 concerning the matters raised by the General Confederation of Labour – Force Ouvrière (CGT-FO) in 2002 and the Single National Union-Work, Employment, Training (SNU-TEF (FSU)) between 2005 and 2006.

It also notes the annual report of the labour inspectorate for 2006.

Structural developments. The Committee notes with interest the designation in 2006 of the General Directorate of Labour (DGT) of the Ministry of Employment, Social Cohesion and Housing as the central labour inspection authority and the establishment by Decree No. 2007-279 of 2 March 2007 of a National Labour Inspection Council (CNIT) entrusted with contributing to ensuring “the discharge of the functions and guarantees of labour inspection as set out in ILO Conventions Nos 81 and 129”.

Articles 20 and 21 of the Convention. Annual report on the work of the labour inspectorate. The Committee notes with satisfaction the quality of the annual report covered by these provisions. In addition to detailed descriptions and numerous statistical tables on each of the subjects covered by Article 21, the report also contains forward-looking comments.

The Committee notes with particular interest, in relation to a concern expressed by the CGT-FO, the inclusion in the annual inspection report of very detailed data, based on numerous criteria, on the causes of employment accidents and cases of occupational disease and the measures taken in a number of fields to achieve a significant reduction in their incidence (with particular reference to commuting accidents, accidents caused by cranes, diseases related to asbestos, substances that are carcinogenic, mutagenic and toxic in respect of reproduction, as well as aircraft paints).

Article 10. Numbers and composition of the labour inspection personnel in relation to development functions and the complexity of the legislation.  The Committee notes with interest the plan for the modernization of the labour inspectorate, which envisages a substantial increase in numbers and a reinforcement of the qualifications of inspection officials between 2006 and 2010 (an additional 240 inspectors, 420 controllers and 40 engineers and physicians). The Committee would be grateful if the Government would indicate the distribution of the inspection personnel trained and recruited under this plan, by grade and by function, in light of the duties defined in Article 3, paragraphs 1 and 2, of the Convention.

Articles 6 and 18. Support from the public authorities and the judicial system for inspection officials exposed to physical aggression and threats. The Committee notes with interest the positive message sent out by the ruling of 9 March 2007 convicting a farmer to a sentence of 30 years of imprisonment for the murder in 2004 of two inspection officials engaged in the discharge of their duties. According to the Government, support by the authorities for inspection officials is now a major part of the plan for the development and modernization of the inspectorate (in its legal, judicial and psychological aspects), and the central inspection authority is moreover closely involved in the work undertaken on this subject by the Senior Labour Inspectors’ Committee (SLIC).

Articles 3, paragraphs 1 and 2, 5(a), 6, 12, 15(c) and 17. Additional duties entrusted to labour inspectors. Mobilization of resources and incompatibility in light of control methods and the objectives pursued. With regard to the association of the labour inspectorate, under the terms of the Decree of 12 May 2005 and various subsequent circulars, with operations to combat the employment of illegal foreign residents, which the SNU-TEF (FSU) considers to be a violation of the Convention, the Government criticizes the union for a restrictive interpretation of the Convention. The Government refers to Article 31 of the Vienna Convention on the Law of Treaties of 1973, under the terms of which a treaty shall be interpreted “… in light of its object and purpose”, and accordingly considers that there is no discrepancy, but indeed synergy between the logic of protecting workers when engaged in their work and that of combating the employment of foreign nationals without a work permit. The Government also refers to the points of view expressed by the Committee in its 2006 General Survey on labour inspection, according to which it is the labour inspectorate that is responsible for verifying whether the conditions in which the contract of employment is concluded and fulfilled comply with the applicable provisions, in particular in the case of vulnerable workers, such as young persons or people with certain disabilities (paragraph 76). The Committee is bound to specify in this respect that the basic idea behind this position was that it is because of a vulnerability related to physical, mental or psychological criteria that the employment of such persons is considered by Article 3, paragraph 1(a), of the Convention as forming part of conditions of work and therefore comes within the legal competence of the labour inspectorate. With regard to the supervision of provisions relating to clandestine or illegal employment, paragraph 77 of the General Survey indicates that neither Convention No. 81 nor Convention No. 129 contain any provisions suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. With the exception of the employment of vulnerable workers, as indicated above, the functions of the labour inspectorate, as defined by the two Conventions, are intended to secure conditions of work that are in accordance with the relevant legal requirements and the protection of workers while engaged in their work, and not the lawful nature of their employment. From the same viewpoint, the annual report of the labour inspectorate for 2005 describes activities in the field of employment as not coming within the competence of the labour inspectorate, within the meaning of Convention No. 81 (second part, III, page 31), while the report for 2006 specifies that the issues covered by the concept of “conditions of work” concern the conditions and environment in which work is performed (page 61). Recalling that the principal function of labour inspection is not to enforce immigration law and emphasizing that the human and other resources available to inspection services are not unlimited, the Committee has observed that the volume of inspection activities devoted to conditions of work appears to be diminished in relation to those concerning the legal status of workers under immigration law (General Survey, paragraph 78). According to the Government’s report, in the sole year of 2007, the labour inspectorate participated in 31,000 controls in the context of the plan to combat illegal work. The SNU-TEF (FSU) criticizes the Government for associating labour inspectors with joint operations intended to identify and apprehend illegal foreign residents at their place of work. Under the terms of the relevant circulars, whether they are employers or employees, the principal administrative measure imposed is to accompany them to the border, which has the consequence for employees of denying their rights arising out of their capacity as wage earners, in contradiction with the objective of labour inspection of affording protection and contrary to national legislation, under which the offence of illegal employment can only be levelled against the employer, as the workers concerned are in principle considered to be victims (section L.314‑6-1 of the Labour Code). The Committee considered in the above paragraph of its General Survey that, to be compatible with the objective of labour inspection, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers, and it advocated caution in any collaboration between the labour inspectorate and the immigration authorities (paragraph 161). The Committee notes in this respect that Interministerial Circular No. 21 of 20 December 2006 limits the scope of cooperation by the labour inspectorate to the extent necessary for the effective implementation of the rights of unlawfully employed workers, and that it refers explicitly to Article 17 of the Convention respecting the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings. The Circular adds that the notion of “competence” in relation to labour inspection relates principally to the effective implementation of the rights of illegally employed workers. It also refers to the “complimentary and concordant clarifications in this respect” contained in the above General Survey. However, the Committee wishes to observe that the fact that inspectors are incorporated into the ranks of and directed by officials from public bodies other than their own central authority, as defined in Article 4 of the Convention, to undertake joint operations the purpose of which is incompatible with the objective of labour inspection constitutes a transgression of the principle of independence set out in the Convention (Article 6) and undermines the right of decision referred to above, as well as the principle of confidentiality as to the source of complaints (Article 15(c)). It also results in an important limitation on the powers of inspectors to initiate and carry out inspections in workplaces (Article 12, paragraph 2(c)(i) and (ii)) and subordinates action related to the priorities of the central labour inspection authority to those of the authorities combating illegal immigration.

Interministerial Circular No. 10 of 7 July 2008, provided by the Government with its report, orders the renewal in 2008 of joint operations to combat the employment of illegal foreigners and hidden work. While referring to the principles recalled in the Circular of 20 December 2006, it nevertheless indicates that the organization of these joint operations forms part of the activities of the labour inspection services under the aegis of the operational committees to combat illegal work and it recommends that the involvement of labour inspection services in interministerial action to combat the illegal employment of foreigners should be strong, “visible and identified”. The Committee notes the indignation of the SNU-TEF (FSU) at the role imposed upon the labour inspectorate and its officials in the implementation of operations carried out on the basis of “personal appearance” according to “a purely police logic”. The SNU-TEF (FSU) provides abundant documentation in support of its allegations, including articles from the press and statements by associations of inspectors and controllers giving the reasons for their rejection of what they describe as activities which very seriously undermine the objective of labour inspection. The SNU-TEF (FSU) refers as an example of good practice in this respect to a European country in which the function of controlling illegal employment has been transferred from the labour inspectorate to another public authority, as a result of which inspectors have been reinstated in their principle duties, as defined by the Convention. The Committee would be grateful if the Government would 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 illegal foreign workers benefit from the same protection by the labour inspectorate as other workers, and if it would provide in so far as possible relevant statistics (number of complaints, of employers ordered to bring their situation into compliance with their obligations and the status of procedures for the implementation of such orders).

The Committee 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. It requests the Government to take measures, in accordance with Article 5(a) of the Convention, to promote collaboration by the services responsible for combating illegal immigration with labour inspection. These services could notify the labour inspectorate of cases of illegal immigrants apprehended outside a workplace but who are engaged in a labour relationship covered by the Convention. Labour inspectors would accordingly be in a position to ensure their protection in accordance with the powers conferred to them under the terms of the Convention and the Labour Code.

The Committee is also addressing a request directly to the Government concerning other matters.