Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Further to its observation, the Committee draws the Government’s attention to the following issues.

Articles 2(1), 3, 5(a) and 16 of the Convention. Functions of the labour inspection system; inspection visits and cooperation with other government services. The Committee notes that, on the basis of Government Circular Letter No. 0204-568 of 17 April 2009, and General Labour Inspectorate Order No. 109 of 22 April 2009, mixed territorial working groups were created at municipal, sector and district levels in order to track illegal employment with the participation of representatives of the Ministry of Internal Affairs, the State Fiscal Inspectorate, the National Social Insurance Office and the National Medical Insurance Company; these groups inspected 250 enterprises and found approximately 900 persons who worked without a written contract. It also notes from the annual labour inspection report provided by the Government that approximately half of the follow-up visits carried out by the labour inspectorate in 2009, that is, 3,525 visits, related to the employment relationship, while 3,548 visits related to occupational safety and health. The Committee also notes, however, that additional priorities for the labour inspectorate in 2009 have been the issues of child labour (inspections carried out in 30 enterprises where more than 100 minor workers were found to be employed), and wage payment, as a result of which 118,802 workers including 68,331 women received benefits and allowances owed to them. The Committee is not clear whether these activities took place in the framework of inspections relative to the employment relationship or in the framework of complaints made by workers.

The Committee must recall that, according to Articles 2(1) and 3(1) of the Convention, the labour inspection system should primarily be aimed at ensuring the application of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. Consequently, the control of the legality of employment can only be considered as an additional function which, according to Article 3(2), should not be such as to interfere with the effective discharge of the primary duties of the labour inspectorate or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee emphasizes in paragraph 77 of its General Survey of 2006 on labour inspection that the Convention does not contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status and 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 the workers (wages, leave benefits, overtime and any other related matters). The Committee would be grateful if the Government would provide a copy of Government Circular Letter No. 0204-568 of 17 April 2009, and the General Labour Inspectorate Order No. 109 of 22 April 2009, specify the nature of the involvement of labour inspectors in joint operations on the employment relationship and illustrate the way in which such operations lead to the protection of the rights of workers, notably the payment of outstanding wages and benefits.

Furthermore, the Committee requests the Government to keep the Office informed of all labour inspection activities relative to the issue of wage payment and their impact.

Noting, moreover, the detailed information provided by the Government on the inspection activities relative to child labour and their impact on promoting observance of labour legislation, the Committee invites the Government to continue to provide such information and once again requests a copy of Order No. 105 of 30 May 2007 of the General Labour Inspectorate related to the inspection of child labour.

The Government is also requested to describe the manner and the basis on which inspection visits are scheduled and performed (routine, complaints, campaigns).

Article 3(2). Functions entrusted to labour inspectors in the area of dispute settlement. The Committee notes that, although section 9 of the Labour Inspection Act prevents labour inspectors from engaging in mediation or arbitration of labour disputes, the Deontological Code of Labour Inspection approved by Order No. 06‑A of 11 April 2007 requires labour inspectors to recognize and try to settle conflicts related to collective and individual rights and needs (such as the right to safety and health, the right to information and privacy rights). The Committee would like to stress that, as indicated in paragraphs 72–74 of the General Survey, op. cit., the settlement of labour disputes is not among the duties of the labour inspectorate as defined in Article 3(1) of the Convention and that, according to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee requests the Government to specify whether labour inspectors are required to engage in mediation, conciliation or arbitration of labour disputes and, if that is the case, to provide details on the activities carried out in this regard and to specify their proportion in relation to the primary duties of labour inspectors.

Article 5. Cooperation/collaboration with other government services and the social partners. According to the Government, the labour inspection service has signed cooperation agreements with the Confederation of Trade Unions of the Republic of Moldova (CSRM), the National Confederation of Employers of the Republic of Moldova, the Centre for Human Rights in Moldova, the Centre for Combating Human Trafficking of the Ministry of International Affairs and the National Employment Agency and Labour Institute. The Committee would be grateful if the Government would provide details in its next report on the cooperation between the inspection system and these entities and the results achieved with regard to the objectives of the Convention.

Article 5(a). Specific cooperation with the justice system. The Committee notes from the annual report that in 2009 the labour inspection service drew up and submitted to the judicial authorities for consideration 672 reports on administrative offences and forwarded investigations on occupational accidents to the police and the Public Prosecutor’s Office. The Committee refers to its general observation of 2007 on the importance of effective cooperation with the justice system in order to achieve the effective enforcement of the legal provisions relating to conditions of work and the protection of workers as required by Article 3(1) of the Convention. The Committee requests the Government to indicate, where available, the outcome of the reports submitted to the judicial authorities by labour inspectors and to describe any arrangements established or envisaged so as to enhance cooperation between the labour inspection system and the judicial authorities.

Articles 6 and 15. Obligations of labour inspectors arising from their status. The Committee takes note of the Civil Servants’ Code of Conduct adopted by Act No. 25-XVI of 22 February 2008. It notes, however, that the Deontological Code of Labour Inspectors, approved by Order No. 06-A of 11 April 2007, has not been attached to the report, as indicated by the Government.

The Committee notes that the Civil Servants’ Code of Conduct contains detailed provisions to prevent cases of undue influence on the activities of labour inspectors. The Committee recalls that one of the essential safeguards against such influences foreseen in the Convention is the granting of appropriate conditions of service and career prospects to labour inspectors under Article 6. The Committee would be grateful if the Government would indicate the conditions of service and career prospects of labour inspectors in comparison to those of comparable categories of public officers such as tax inspectors. It would also be grateful if the Government would provide a copy of the report on the application of Law No. 25 XVI of 22 February 2008 on the conduct of civil servants mentioned in the Government’s previous report, as well as a copy of the Deontological Code of Labour Inspectors.

Article 8. Eligibility of both men and women for appointment in the inspection staff. The Committee notes that the number of women inspectors increased from 14 to 19 out of 96 inspectors. The Committee would be grateful if the Government would indicate whether the recruitment of additional women inspectors has had an impact on the inspection of sectors with a predominantly female workforce and whether the Government envisages a policy of promoting recruitment of women labour inspectors.

Articles 11 and 21. Means available for labour inspection officials. The Committee notes with interest the information provided by the Government on a project entitled “Strengthening the institutional capacity and logistics of labour inspection” which aims at providing to labour inspectors: automatic data processing and communication means; training on the operation of the equipment and computer systems; databases on the legal provisions enforced by the labour inspectorate, the enterprises, institutions and organizations under inspection and the number of persons employed therein, inspections performed, violations detected and sanctions applied, accidents at the workplace and the use of toxic substances; and assistance in piloting the databases module during a period of one year. The Committee trusts that the databases created in the framework of this project will certainly lead to improvements in the content of the annual labour inspection report which, in turn, can serve as a basis for evaluation of the results achieved and the related needs with a view to the progressive improvement of labour inspection activities, including through the allocation of resources. In this framework, the Committee draws the Government’s attention to the guidance provided in Paragraph 9 of the Labour Inspection Recommendation, 1947 (No. 81), and recalls the comments made above with regard to the notification of occupational diseases. The Committee would be grateful if the Government would keep the ILO informed of any progress made in the implementation of the project on “Strengthening the institutional capacity and logistics of labour inspection” and describe its impact on the functioning of the labour inspection system.

Article 12(1)(a) and (b). Right of free entry of inspectors. Timing of inspections. Noting once again that the Government’s report does not clarify whether regulations approved by Ordinance No. 1481 of 27 December 2001 have been repealed, the Committee is bound to repeat its previous request which read as follows:

The Committee notes that, although Act No. 140-XV of 10 May 2001 on labour inspection authorizes inspectors to enter workplaces “at any hour of the day or night” without informing the employer in advance (section 8), the scope of this right is actually restricted by the regulations implementing this Act, approved by Ordinance No. 1481 of 27 December 2001, to the period of “working hours” (paragraph 22). The Committee recalls that, according to Article 12(1) of the Convention, labour inspectors must be empowered to enter freely at any hour of the day or night any workplace liable to inspection (clause (a)) and to enter by day any premises which they may have reasonable cause to believe to be liable to inspection (clause (b)). In its General Survey of 2006 on labour inspection (paragraph 270), the Committee emphasized that the conditions for the exercise of the right of free entry to workplaces laid down by Conventions Nos 81 and 129 are intended to allow inspectors to carry out inspections, where necessary and possible, to enforce the application of legal provisions relating to conditions of work. It pointed out that the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped. Referring to Recommendation No. 133, Paragraph 9 of which provides that the activity of labour inspectors at night should be limited to those matters that cannot be effectively controlled during the day, the Committee considered that it should be for the inspector to decide whether or not a visit is reasonable, since inspections should only be carried out at night or outside working hours where this is warranted. The Committee therefore requests the Government to take steps to amend the legislation so as to bring it into line with the Convention with regard to the scope of inspectors’ right to enter freely at any hour of the day or night any workplace liable to inspection and to enter by day any other premises believed to be liable to inspection. It would be grateful if the Government would send information on these measures to the Office and supply copies of any relevant texts.

Articles 12(2) and 15(c). Notification to employers of the labour inspection visit. The Committee notes that, according to section 11 of the Labour Inspection Act of 10 May 2001, labour inspectors must inform the employer of their presence in the workplace before starting the inspection except where the inspection is carried out as a result of a written complaint. The Committee recalls that, according to Article 12(2), inspectors should abstain from notifying their presence to the employer or his representative in case they consider that such a notification may be prejudicial to the performance of their duties. Moreover, allowing inspectors to avoid notification only in case of a complaint is incompatible with Article 15(c), according to which, in order to respect the confidentiality of the source of the complaint, the labour inspector should give no intimation to the employer that a visit of inspection is made in consequence of a complaint. Noting that, according to the Government, measures will be taken to bring the legislation in line with the Convention, the Committee requests the Government to indicate the measures taken or envisaged in order to ensure that the labour inspector is authorized to abstain from notifying his/her presence to the employer if he/she considers that such notification may impair the effectiveness of the control to be performed.

Article 18. Penalties for obstructing labour inspectors’ work. The Government indicates that section 349 of Administrative Code No. 218 provides for the imposition of a fine of between 100 and 2,000 lei, with or without the withdrawal of the right to carry out specific activities for a period of three months to one year, in the case of impeding in any way the legal activities of a civil servant when he/she is carrying out his/her official duties. While noting that, since the entry into force of this Code on 31 May 2009, no cases of obstruction have been recorded and investigated in relation to labour inspectors, the Committee recalls that the penalties for obstructing labour inspectors should be sufficiently dissuasive and effectively enforced and requests the Government to take all necessary measures for the revision of the penalties foreseen in case of obstruction so as to render them sufficiently dissuasive. The Committee draws the Government’s attention to the guidance provided in paragraphs 295–302 of the General Survey, op. cit., with regard to modalities for the review of penalty levels.

Article 20. Publication of the annual report. The Government indicates that, according to section 13 of Act No. 140-XV of 10 May 2001, the labour inspection service must publish an annual activity report in the Official Monitor of the Republic of Moldova six months after the end of the year in question. It adds that the labour inspection service submits the annual activity report to the CSRM and the National Confederation of Employers. The Committee emphasizes that, under Article 20, and Act No. 140-XV of 10 May 2001, the annual labour inspection report should also be published to make it available in the public domain and accessible to all stakeholders. The Committee therefore once again requests the Government to take all necessary steps aimed at giving full effect to the obligation of the labour inspection authority to publish the annual report of its activities.