Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 81) sur l'inspection du travail, 1947 - Roumanie (Ratification: 1973)

Autre commentaire sur C081

Observation

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The Committee notes the comments of the Confederation of Democratic Trade Unions of Romania (CSDR), received on 23 August 2010; the Block of National Trade Unions (BNS), received on 18 January 2011 and 1 September 2011; and the National Confederation of Free Trade Unions of Romania (CNSLR Frặtja), received on 25 August 2010. The Committee notes the Government’s reply to these comments, as well as to the comments made by the National Trade Union Confederation (CNS Cartel Alfa) in June 2009. The Committee requests the Government to make any comment it deems appropriate in relation to the latest observations by CNSLR Frặtja received on 2 September 2011 along with the Government’s report.

Labour law reform. The Committee notes that the Government has embarked on a reform of labour legislation, including provisions relating to the structure and the functioning of the labour inspection system, in the context of an economic program supported by the International Monetary Fund (IMF), the European Union (EU), and the World Bank. The Committee requests the Government to transmit to the ILO copies of Act No. 108/1999 on the establishment and organization of the labour inspection, as amended, Act No. 188/1999 issuing the civil service regulations, and Government Decision (GD) No. 1377/2009 regulating the organization and functioning of the labour inspection (replacing GD No. 767/1999).

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee notes the comments of the CNSLR Frặtja and the CSDR according to which, following the amendment of the Regulations on the organization and functioning of the labour inspection (GD No. 1377/2009), labour inspectors have been entrusted, among other things, with the functions of conciliation and arbitration in cases of conflicts of interest. The Committee refers in this regard to paragraphs 72–74 of the General Survey of 2006 on labour inspection, in which it emphasizes that conciliation should not be among the duties of the labour inspectorate, and to 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”. Drawing the Government’s attention to the provisions of Article 3(2) of the Convention, the Committee requests the Government to take the necessary legislative and practical measures to relieve labour inspectors of conciliation duties so that they can devote themselves fully to ensuring the application of legal provisions relating to conditions of work and the protection of workers, thereby contributing to the prevention of situations giving rise to labour disputes.

The Committee also notes that the Government’s report refers to the adoption of GD No. 1024/2010 approving the national strategy to reduce the incidence of undeclared work in 2010–12 and the National Action Plan for its implementation. The Committee would be grateful if the Government would provide copies of these documents as well as information on the activities carried out by the labour inspectorate in the area of controlling undeclared work and in particular data on the number of inspections, the violations found, legal proceedings instituted and remedies and sanctions imposed for undeclared work. It also requests the Government to indicate the impact of these activities on the implementation of the objectives of the Convention with regard to the effective enforcement of legal provisions on the conditions of work and the protection of workers.

The Committee notes that the Government refers to Protocol No. 1107/803073/2827283/2009 concluded between the labour inspection, the National Agency for Fiscal Administration and the Romanian Office for Immigration in the framework of the strategy to reduce undeclared work. The Committee also notes from the annual labour inspection report for 2009, that both in 2008 and 2009, the labour inspectorate and the Immigration Office established a cooperation plan in order to combat illegal immigration and illegal work of foreign workers. In this regard, 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 of clandestine work and irregular migration and the practice of collaboration with other Government agencies in this regard, that 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 therefore requests the Government to indicate the 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 scope and procedures of cooperation between the labour inspectorate and the Immigration Office.

Furthermore, the Committee would be grateful if the Government would indicate the manner in which the labour inspectorate ensures the discharge of the employers’ obligations with regard to the statutory rights of foreign workers in an irregular situation, such as the payment of wages and other benefits due for work accomplished in the framework of the employment relationship, particularly in cases where these workers are expelled from the country.

Articles 4, 6 and 7. Supervision and control by a central authority. Qualifications and conditions of service of labour inspectors. The Committee notes that, according to the BNS, the principle of the independence of labour inspectors of any change of government and any undue external influence is seriously affected by the politicization of the labour inspectorate, which results in practice in frequent staff movements, as well as inspections in enterprises that are sometimes targeted on the basis of criteria relating to the political affiliation of employers. The CNSLR Frặtja and the CSDR also refer to staff instability at central and local levels in 2009 and 2010.

The Government refutes these allegations and refers to the existence of a uniform and coherent labour inspection strategy, independent of any change of government and of any external influence, guaranteed by the permanence of the position of General State Inspector. With regard to the changes in staff positions in 2009 and 2010, the Government indicates that they were decided upon in accordance with Act No.188 of 1999 as sanctions against officials who had been guilty of violations of the obligation of confidentiality and discretion, or who had failed to comply strictly with legal provisions during inspections.

In response to the point raised by the CNS Cartel Alfa in June 2009 concerning staff changes and replacements in relation to the executive staff of various regional inspection offices, the Government adds that Emergency Ordinances Nos 37 of 22 April 2009 and 105 of 2009, under which these measures were adopted, have been declared unconstitutional and their effects void. Consequently, the appointments of the Directors and Deputy Directors of regional offices were suspended and officials have been appointed on a temporary basis to the previous posts of Chief Inspector and Deputy Chief Inspector while awaiting for the organization of a competition to fill these posts.

The Committee understands from the above that competitions have still not taken place with a view to ending the uncertainty as to the key positions of the heads of the labour inspectorates at the regional level and ensuring that the qualifications and competence of the persons who currently hold these posts are established in a transparent manner in accordance with Article 7 of the Convention. It emphasizes that the existence of a stable central authority at the highest level of the labour inspectorate is not in itself sufficient to ensure in practice the implementation of a unified and coherent strategy in all regions. The stability of inspection personnel and conditions of service which guarantee them independence from any change of Government and any external influence are a prerequisite for the operation of an inspection system that can help to achieve the eminently important socio-economic objective assigned to this public service. The Committee urges the Government to take the necessary measures so that competitions for executive positions in local inspectorates take place without delay and to keep the Office informed of the results. It also requests the Government to describe the criteria and procedures followed for the recruitment of labour inspection staff including executive staff (Article 7(1) of the Convention). It would be grateful if the Government would provide further information on the reasons for the changes in personnel referred to by the trade unions (number of cases where misconduct was ascertained, indication of relevant provisions in Act No. 188/1999 and decisions taken, etc.).

The CSDR also raises the question of appropriate and continuous training of inspectors and calls for the development of an appropriate strategy in this respect, which the Committee considers to be a key issue for the development of labour inspection services adapted to developments in the world of work. The Committee would be grateful if the Government would indicate the steps taken or envisaged for the elaboration of a training strategy and the frequency, content and duration of training available to labour inspectors, as well as the number of participants and the practical impact of such training (Article 7(3) of the Convention).

With regard to the policy on the remuneration of labour inspectors, the CNSLR Frặtja considers that it is totally inadequate in relation to their functions and responsibilities. Furthermore, according to the CSDR, the application of recent legal provisions has resulted in a reduction in their salaries by 25 per cent. In this regard, the Committee notes the Government’s reply to the comments made by the BNS under the Protection of Wages Convention, 1949 (No. 95), to the effect that these reductions were found to be constitutional. Referring also to paragraph 209 of its 2006 General Survey on Labour Inspection, the Committee recalls that although it is aware of the severe budgetary restrictions governments often face, it is bound to emphasize the importance it places on the treatment of labour inspectors in a way that reflects the importance and specificities of their duties and that takes account of personal merit. The Committee requests the Government to provide information on the impact of the recent reforms on the budget allocated to the labour inspection and to indicate any measures taken or envisaged in order to improve the conditions of service of labour inspectors.

Article 5(b) of the Convention. Collaboration with employers and workers and their organizations. According to the CNSLR Frặtja, it was impossible to conclude a cooperation protocol with the labour inspectorate in 2009 and 2010 due to the many changes in senior inspection personnel. Furthermore, the standard inspection procedure requires labour inspectors to invite only employers’ representatives to assist on the occasion of inspections, but not workers’ representatives. The Government indicates in this regard that the labour inspectorate, irrespective of the authority in charge, has always been open to the social partners for the conclusion of cooperation protocols. The Government refers in this respect to the protocols concluded in recent years with the CNSLR Frặtja, the CDSR and the BSN, namely Protocols Nos 1808/669/04.10.2010 and 1886/1420/18.10.2010. In this respect, the Committee notes the CSDR’s view that the Labour Inspection Board should include, at the central and regional levels, representatives of both employers and trade unions in order to achieve effective collaboration. The Committee asks the Government to provide copies of the cooperation protocols concluded between the labour inspectorate and employers’ and workers’ representatives and to describe in greater detail the arrangements for collaboration between the labour inspectorate and the social partners. It also requests the Government to indicate the composition of the Labour Inspection Board and its activities during the period covered by the next report.

Articles 10, 11 and 16. Human resources and material means available to the labour inspection. According to the CNSLR Frặtja and the CSDR, the total labour inspection staff (including public employees and contractual staff) now amounts to 3,236 persons, due to personnel reductions which took place in 2010 and the closure of the social inspection and social inclusion department within the labour inspectorate. The Committee notes that both trade unions deplore the inadequacy of the number of labour inspectors which, according to the CSDR, prevents them from carrying out their functions.

The Committee notes the tables provided by the Government on the general structure of the personnel and the distribution of labour inspectors by rank at central and local levels, including those engaged in supervision in the field of safety and health, disaggregated by economic sector. It also notes that with regard to the material means available to labour inspectors for the performance of their duties, the Government indicates that it spent a considerable amount in 2009 on equipment and transport facilities for the central and regional offices, but acknowledges that no additional resources were allocated for that purpose in 2010. Drawing attention to the socio-economic importance of the objectives assigned to the labour inspection services, the Committee urges the Government to endeavour to the fullest possible extent to ensure that the human resources allocated to the labour inspectorate are sufficient for the effective exercise of its functions (Article 10). The Committee requests the Government to keep the ILO informed of any measure taken or envisaged in this regard.

Article 15(c). Confidentiality of the source of complaints. The Committee notes the observation made by the CNSLR Frặtja that labour inspectors carrying out inspections frequently reveal the authors of complaints, leading to dramatic consequences for the latter. The trade union ascribes this to the lack of a provision in the law sanctioning breaches of confidentiality by labour inspectors. Recalling that the issue of breaches of confidentiality was raised previously by the BNS in comments sent to the ILO in January 2004, the Government is requested to provide detailed information on the measures taken or envisaged, in order to ensure that labour inspectors comply with the confidentiality requirement set out in the law with respect to the existence and source of any complaint.

Articles 13, 17 and 18. Prevention and enforcement measures. The Committee notes that, according to the statistics on inspection activities provided by the Government in its report, the number of inspections, the number of enterprises inspected and the number of sanctions applied by the labour inspectorate continued to increase in 2009 and 2010. The Government indicates that the number of penalties applied increased because of the failure of employers to give effect to the measures ordered by labour inspectors. The Committee also notes an increase in the number of occasions on which work was stopped in cases of failure to comply with the measures ordered to protect the health and safety of workers. The Committee refers in this regard to the comment of the CSDR concerning the lack of preventive activities targeting safety and health at work before employment accidents actually occur. It also notes the acknowledgement by the Government that it has still not given full effect to Article 13(2) of the Convention, under the terms of which labour inspectors shall have the right to apply to the competent authority for the issuance of orders or for the initiation of measures with immediate executory force in the event of imminent danger to the health or safety of the workers.

The Committee understands that stoppages of work and the shutting down of activities generally occur in situations where an accident has already occurred. It wishes to emphasize that the intention of Article 13 of the Convention is to empower labour inspectors to take steps with a view to remedying defects observed in plant, lay-out or working methods which they have reasonable cause to believe constitute a threat to the health and safety of the workers. The provisions of this Article are not intended to punish employers responsible for violations, but to ensure the elimination of the causes of risks with a view to preventing accidents.

The Committee also recalls that where an employer fails to comply with measures ordered on the occasion of an inspection, in accordance with Article 13, the labour inspector should be empowered to make use of Article 17, which is also applicable in areas other than occupational safety and health, and involves such measures as prompt legal proceedings without previous warning or, where appropriate, warnings and advice. The Committee emphasizes in this regard that routine inspections are indispensable to give full effect to Article 13, which would avoid or reduce the need to make use of the powers provided for in Article 17. The Committee requests the Government to take the opportunity of the ongoing legislative reforms in order to adopt all necessary measures giving full effect to Article 13 and to keep the ILO informed of the progress made to this end. In the light of the above explanations, the Committee would also be grateful if the Government would provide statistics of routine inspections and verification inspections in industrial and commercial workplaces, as well as clarifications on the inspection actions falling under both Articles 13 and 17 of the Convention. With reference to its previous observation, the Committee also once again requests the Government to supply information on court decisions issued during the next reporting period following prosecutions instituted at the initiative of the labour inspectorate, with an indication of the branches of activity and the legal provisions concerned.