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

Convention (n° 81) sur l'inspection du travail, 1947 - Ukraine (Ratification: 2004)

Autre commentaire sur C081

Observation

Demande directe

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Also referring to its observation, the Committee requests the Government to provide particulars concerning the following points.

Articles 1, 2, 3, 4, 20 and 21 of the Convention. Process of reorganizing the labour inspection into an integrated system. Annual report on labour inspection. In its previous comments the Committee had taken note of the Government’s indication that the Ministry of Social Policy was in the process of preparing a draft bill on “State Labour Inspection” which would secure in law the functions and powers of this supervisory body, and ensure conformity with international law. The drafting of the said Bill would be concluded and handed over to the parties concerned for negotiation, by the end of 2010.

The Committee notes from the Government’s latest report that a Regulation on the State Labour Inspection was approved by virtue of Presidential Decree No. 1085 of 9 December 2010 on the optimization of the system of central bodies of the executive power, pursuant to which, the State Labour Inspection has been designated as a central body of the executive power and its activities have been placed under the supervision and control of the Ministry of Social Policy of Ukraine. Moreover, Presidential Decree No. 386/2011 of 6 April 2011 on the provisions relating to the state labour inspection provided extended powers to the state labour inspectors, particularly in order to ensure compliance with legislative provisions on employment, labour protection, job placement of the disabled, and the benefits and compensation of workers in heavy and arduous professions. It is also reported that organizational measures have already been taken to ensure the continuing operation of the State Labour Inspection. Appropriate legislative amendments will be introduced in order to harmonize the legislative acts in force with the abovementioned Decrees after the final distribution of powers between the central bodies of the executive power which has not been completed yet.

The Committee requests the Government to provide a copy of Presidential Decree No. 1085 of 9 December 2010 and Presidential Decree No. 386/2011 of 6 April 2011 and to keep the Office informed of the measures taken to strengthen the organization and functioning of the State Labour Inspection, as well as the results achieved. In particular, the Committee would be grateful if the Government would provide a copy of the new organigram of the State Labour Inspection and continue to provide updated statistical information on the staff of the labour inspection system as well as the inspection activities carried out, including data related to child labour and statistics of industrial accidents and occupational diseases.

Noting moreover that no annual report has been received at the ILO notwithstanding the Government’s indication that such report has been transmitted to the ILO since 2006, the Committee would be grateful if the Government would ensure, in accordance with Article 20 of the Convention, the publication and transmission to the ILO of an annual report containing information on all the items listed in Article 21.

Articles 3(1)(a) and (c), 17 and 18 Effective discharge of the functions of the system of labour inspection. Institution of legal proceedings and enforcement of adequate penalties for violation of the labour legislation relating to conditions of work. The Committee takes note of the Office Report (hereinafter: Report) on the Technical Assistance Mission to Ukraine which took place from 16 to 19 May 2011 as a follow-up to the discussion which took place before the Conference Committee on the Application of Standards in June 2010 with regard to the application of the Protection of Wages Convention, 1949 (No. 95) by Ukraine. The Committee takes note of the information obtained during the mission to the extent that it is relevant to this Convention and summarizes it as follows:

According to the Head of the State Labour Inspection, between 1 March 2010 and 1 April 2011, 160,000 violations of the labour and social security legislation had been recorded, including 95,000 related to wage legislation. Out of 42,000 violations observed in the first quarter of 2011, 24,000 were related to wage legislation. Administrative fines and court proceedings had been initiated in all concerned cases. Meanwhile, 40,924 managers had received warnings, 200 contracts of managers had been terminated and 10,000 fines had been imposed as a result of a special mechanism to monitor the payment of wage arrears and social security contributions under Resolution No. 370 of 18 April 2009 of the Cabinet of Ministers.

In this context, it is also relevant to recall the Government’s communication of 18 January 2010, indicating that as a result of inspections conducted by the territorial state labour inspections in the Lugansk region, administrative proceedings had been instituted on the basis of article 188.6 of the Code of Administrative Offences of Ukraine against heads of enterprises who had violated the law, for not remedying the defects discovered.

The report also refers to the situation of the Nikanor-Nova mine, where, according to the Independent Miners’ Union of Nikanor-Nova, miners were facing problems such as long working hours (9 hours instead of 6 hours recognized as working time), low wages not corresponding to legally guaranteed levels, delay in payment of wages, difficulty in settling outstanding wages at the end of the employment relationship, payment of holiday benefits in advance, and miscalculation of applicable wage rates resulting in every miner losing one month of his/her wage every four months. Furthermore, a representative of the Barakov mine trade union reported to the Mission that the State Labour Inspection was not allowed to carry out an inspection visit to the mine, where miscalculated wages ran contrary to the applicable collective agreement and minimum wages paid in practice represented only 45 per cent of the collectively agreed wage rate. A representative of the Ministry of Energy and Coal Industry acknowledged that a pay rise of 1.3 times the wage which had been provided under the “Act on enhancing the prestige image of coalminers’ labour of 2008” was not applied to miners and that holiday benefits were not always paid in advance.

As regards legislative measures taken to address the problem of wage arrears, it is indicated in the report that the Decree of 11 August 2010 concerning urgent measures on wage arrears, provided for a special warning to ensure manager accountability. The Ministry of Social Policy and the State Labour Inspection have drafted a new decree and three draft laws in order to strengthen manager liability for non-payment of wages, provide incentives to employers to comply with wages legislation, increase penalties to 4,250–17,000 Ukrainian hyrvnas (UAH) from the current levels of UAH525–1,700, and change the practice of imposing only one fine in case of multiple violations.

As regards the number of violations of labour legislation, the State Labour Inspection reported that this was generally on the rise, both in terms of the number of employers involved and the number of infringements. The number of violations related to the timely payment of wages and other entitlements had increased in the first quarter of 2011 compared to the same period of 2010, while infringements and sanctions related to the payment of minimum wages were decreasing.

The Committee requests the Government to provide detailed information on the measures taken and policies devised in consultation with the social partners in order to ensure the effective enforcement by the State Labour Inspection of wages legislation including through adequate administrative and penal sanctions in cases of violation. The Committee would also be grateful if the Government would provide detailed information and statistics on the nature of penalties imposed in instances of non-compliance with labour legislation on conditions of work and for obstructing labour inspectors in the performance of their duties.

Articles 6, 10, 11 and 16. Impact of the status, conditions of service and conditions of work of labour inspectors on the coverage of the workplaces liable to inspection. The Committee notes with concern that, according to the Government’s previous and latest reports, the territorial units of labour inspection which are placed in rented premises are not provided with either the necessary transport facilities or the necessary equipment (such as copying machines, cameras and Dictaphones) to carry out their duties. The Government reports that in accordance with the Law on the State Budget of Ukraine for 2011, the total resources allocated to the State Labour Inspection and its territorial bodies amount to UAH38.3 million, of which 35.9 million is allocated to staff remuneration. According to the Government, even though this amount represents an increase compared to 2010, these resources are still not sufficient to generate the required material and technical infrastructure for the State Labour Inspection and its territorial bodies. Staff turnover in the State Labour Inspection amounted according to the Government to 214 persons or 26 per cent in 2010, meaning that one in every four workers resigned from the State Labour Inspection during the year. The report of the Technical Mission indicates that it is planned to progressively increase the number of inspectors to 5,000 from 635, which will ultimately allow for the inspection of enterprises once every 5 years, compared to the current average of 36 years. The Committee urges the Government once again to take measures to ensure that the number, status and conditions of service (stability of employment, remuneration commensurate with their responsibilities, career prospects, etc.), and the conditions of work (offices, office equipment and supplies, instruments for measurement and reproduction, transport facilities and reimbursement of professional travelling expenses) of labour inspectors are appropriate for the effective performance of their duties and to provide information to the ILO on any progress made towards that end.

Article 7. Training of serving labour inspectors. Noting that the Government’s report does not contain the requested information on this issue, the Committee is bound to repeat its previous comment which read as follows:

In its communication of 18 January 2010, the Government indicated that the establishment of a training centre for labour inspectors could be discussed during the amendment of Cabinet of Ministers Order No. 464 of 13 September 2009, without clarifying further details. It also reported, in its communication of 13 September 2010, that the territorial units of the State Labour Inspection hold monthly seminars of professional development of labour inspectors on the observance of the labour legislation, and that in December 2009 a series of training for labour inspectors was held by the MLSP in cooperation with the German Technical Cooperation (GTZ). The Committee draws the Government’s attention to its previous comment on this issue and reiterates its request to keep the Office informed of any developments in this regard, to provide information on the content and frequency of training courses and seminars in which inspectors have participated during the period covered by its next report and indicate the measures taken in the context of the implementation of the Decent Work Country Programme relating to labour inspection, to update the training of labour inspectors with a view to enable them to carry out their duties effectively in the framework of an integrated inspection system.

[The Government is asked to reply in detail to the present comments in 2013.]