Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 81) sur l'inspection du travail, 1947 - Grèce (Ratification: 1955)

Autre commentaire sur C081

Observation

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The Committee takes note of the Government’s reports dated 31 August and 22 October 2012, the first of which also contains the Government’s reply to the comments made under article 23 of the ILO Constitution by the Greek General Confederation of Labour (GSEE) in a communication dated 28 July 2011.

Articles 1, 3, 4, 5, 6, 7, 10 and 11 of the Convention. ILO technical assistance for the reinforcement of the labour inspection system. In its previous comments, the Committee notes the findings of the ILO high-level mission which visited the country in September 2011, and emphasized the crucial role of the labour inspection function in times of crisis in ensuring that workers’ rights are respected, so that the crisis does not serve as a pretext for lowering labour standards. The Committee noted with interest that following its previous comments, the Government availed itself of ILO technical assistance in the area of labour inspection and that, in this framework, two technical missions visited the country in September and October 2012, so as to carry out a needs assessment of the Greek Labour Inspectorate (SEPE). The objective of strengthening the labour inspection system was part of the first Memorandum of Understanding between the Greek Government and the “Troika” (International Monetary Fund (IMF), European Commission (EC), European Central Bank (ECB)) concluded in May 2010 and incorporated in Act No. 3845/2010. Moreover, as indicated in the Government’s report, the carrying out of an independent assessment of the SEPE was one of the commitments in the second Memorandum of Understanding of February 2012 which was enacted into law by Act No. 4042/2012.

In this context, the Committee notes with interest that the ILO missions which visited Greece benefited from the collaboration of the EC Task Force for Greece. It also notes with interest that, as observed by the two missions that visited the country and indicated by the Government in its report under the Labour Administration Convention, 1978 (No. 150), an IT project has been launched in order to electronically link all SEPE offices, and a database linking the SEPE with the Manpower Employment Organization (OAED) and the Social Insurance Institute (IKA) has been set up in the framework of collaboration with the European Union (EU), in order to simplify administrative procedures and enhance the effectiveness of the SEPE’s actions.

The Committee also notes, however, that in its report under Convention No. 150, the Government refers to drastic budgetary adjustments in the SEPE which have resulted in a sweeping reduction of the material means and incentives previously available for conducting of inspections, especially in the regions. With reference to the findings of the ILO high-level mission of September 2011, the Committee once again draws attention to the need to strengthen the governance of the labour inspection system, build capacities and ensure sufficient resources and means of action if the labour inspection system is to achieve the economic and social goals assigned to this public function. The Committee requests the Government to keep the ILO informed of the measures taken on the basis of the findings and recommendations of the ILO needs assessment, once available, and their impact on strengthening the labour inspection system and its coordination, ensuring sufficient human and material resources and realizing the primary objective of the Convention according to Article 3(1), which is the enforcement of legal provisions concerning the conditions of work and the protection of workers while engaged in their work.

Articles 3, 5(a), 17 and 18. Functions entrusted to the labour inspectorate, cooperation with other bodies and enforcement of sufficiently dissuasive sanctions. Control of undeclared work. The Committee notes that in its comments of July 2011, the GSEE referred to a staggering increase in non-standard forms of work (part-time and reduced time rotation work contracts), widespread precariousness in the labour market, and a considerable volume of unregistered work as a result of the dismantling of the industrial relations framework and employment protection legislation. As indicated by the GSEE, in a context of steadily increasing unemployment, these trends rendered jobseekers all the more vulnerable. According to the GSEE, in 2011, after the first year of the implementation of the programme associated with the international loan mechanism for the Greek economy, labour relations in Greece had qualitatively and quantitatively regressed by two decades, a fact which increased fears that the situation was out of control with harmful consequences to workers, especially women and youth, that might well be irreversible.

The Committee recalls that the high-level mission of September 2011 emphasized among other things that the high incidence of undeclared work – which was indeed alarming – raised questions as to the governance of the entire labour market and clearly needed to be addressed by the labour inspection system, with priority placed on wage payment and non-discrimination. The Committee also recalls from its previous comments that in this context, Act No. 3996/2011 (in combination with Act No. 3655/2010) entrusted the SEPE with additional functions, some of which had been previously carried out by social security inspectors, such as the control of undeclared work, as well as the control of the legality of the employment of foreign workers originating in EU and non-EU countries (third countries).

In its report the Government indicates that since the beginning of 2010, regular inspections have been conducted by joint teams of the SEPE and the Special Insurance Inspection Service of the IKA to control undeclared work. During 2011 (after the adoption of Act No. 3899/2010), these joint teams conducted 20,246 inspections in companies that account for 2.5 per cent of the total number of businesses in the country. The number of workers in the companies checked was 66,615 and the number of undeclared workers found was 19,968. The Government also provides some aggregate data on the inspection activities of the SEPE for the year 2011, according to which 31,515 inspections had been conducted by the Industrial (labour) Relations Service and 3,738 fines had been imposed amounting to a total of €10,937,418. Another 28,150 inspection visits had been carried out by the occupational health and safety service, and 590 fines had been imposed amounting to €1,704,111. The Committee understands from these data that a large proportion of the activities of the SEPE, notably its Industrial Relations Service, focused on the control of undeclared work. With reference to paragraph 77 of its 2006 General Survey on labour inspection, the Committee notes 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 the primary duty of labour inspectors is to ensure the enforcement of legal provisions relating to conditions of work (e.g. wages, hours of work, occupational safety and health) and the protection of workers (e.g. equality and non-discrimination, freedom of association, eradication of forced labour and child labour). Noting that the annual report of the SEPE for 2011 is not yet available, the Committee once again requests the Government to provide in its next report detailed information on the activities carried out by the SEPE in the framework of the implementation of Act No. 3996/2011 and their results (number of workplaces inspected, violations found, legal provisions concerned, advice provided and sanctions imposed) as well as the impact of these activities on reducing undeclared work and regularizing the situation of workers concerned.

Measures to ensure the payment of wages and benefits. The Committee also notes from the 2010 annual report of the SEPE, that over half of workers’ complaints concerned the non-payment of wages. In its previous comments, the Committee welcomed certain measures introduced by Acts Nos 3996/2011 and 3863/2010 such as the labour stamp and the obligation to pay wages electronically via bank accounts, which can be an effective guarantee of the payment of wages and social security contributions and be of great help in reducing the incidence of undeclared work and illegal employment. It recalls, however, from the report of the high-level mission of September 2011 that, at the time, the two measures had not yet produced any results. There was need for awareness raising on the labour stamp to promote its use, while the ministerial decision for the entry into force of the electronic payment of wages had not yet been issued.

In its latest report, the Government does not provide information on steps taken to promote the use of the labour stamp which it describes as a simple and easy way for employers to be fully protected against any complaint of illegal employment and the employees to safeguard their pension and health care rights. It also does not make any reference to measures for the introduction of the electronic payment of wages. The Committee reiterates its request for the Government to take necessary awareness-raising measures to promote the use of the labour stamp, as well as the necessary legal and practical steps for the implementation of the electronic system for the payment of wages (including the issuance of a ministerial decision for the entry into force of the relevant provisions of Act No. 3863/2010), and to keep the Office informed of progress made in this regard.

Positive incentives to encourage compliance. In its previous comments, the Committee took note of financial incentives introduced by section 24 of Act No. 3996/2011 (e.g. 80 per cent reduction of fines imposed) to persuade employers to discharge in a timely manner their obligations for the payment of outstanding wages and benefits due to workers. The Government indicates that this provision constitutes an innovation aimed at enabling the labour inspectorate to take immediate enforcement measures (imposition of sanctions for infringements of the labour law) and make reductions in certain cases (30 per cent reduction in case of immediate payment of the fine and 80 per cent reduction in case of the employer’s compliance). However, in order for this provision to enter into force, additional measures have been necessary in collaboration with the Ministry of Finance, like the issuance of a Revenue Code Number which was only introduced in 2012 by Circular 20585/25-01-2012 of the SEPE Directorate of Administrative and Technical Support. As a result, there are no data on the implementation results of this provision for the year 2011. The Committee once again requests the Government to indicate the impact of section 25 of Act No. 3996/2011, now that administrative measures have been taken for its entry into force, in relation to the level of compliance with legal provisions on conditions of work and the protection of workers, including wage payment and the regularization of the situation of undeclared workers.

Control of legality of employment of migrant workers. In its previous comments, the Committee noted that according to section 2(2)(a)(iv) of Act No. 3996, the SEPE is entrusted with the control of the legality of the employment of third country nationals and that section 2(2)(b) of the Act authorizes the SEPE to investigate, discover, identify and prosecute, in parallel and independently from other authorities and organizations, those who violate the provisions that are supervised by the SEPE. In its report, the Government indicates that in 2011, out of 19,968 workers who were found to be undeclared, 8,147 were foreign nationals, accounting for 39.49 per cent of the total number of foreign workers found during inspections in the companies checked (20,632 out of 66,615). The Government does not indicate how many of these foreign workers were nationals of third countries.

The Government also indicates that the primary objective of labour inspectors is to protect the labour rights of the said group of workers and adds that Act No. 4052/2012 on “Sanctions and Measures Against Employers of Illegally Staying Third Country Nationals in order to Combat Illegal Immigration” was adopted in 2012 in order to harmonize Greek legislation with EU Directive 2009/52/EC. This Act prohibits the employment of illegally staying third country nationals and entrusts labour inspectors with: (i) keeping records of employers against whom an administrative sanction has been imposed for infringing the prohibition of employing illegally staying third country nationals, keeping track of relevant judicial decisions and issuing relevant certificates; (ii) conducting regular and extraordinary inspections by sector of activity based on relevant risk assessments, in order to control the employment of illegally staying third country nationals; and (iii) notifying the Minister of Labour and Social Security of inspections conducted during the previous year as well as of their outcomes both in absolute figures and as a percentage of the employers for each sector (sections 79(1) and 90 of Act No. 4052/2012).

The Government explains that until recently, the SEPE acted in the same manner as regards foreign nationals who were illegally staying in the country and those who were legally staying but had no permit to work (e.g. cases of family reunification), by informing the regional authorities so that they might impose legal sanctions on employers (pecuniary fine and/or closure of business). Following the recent amendment of section 86 of Act No. 3386/2005 by section 14 of Act No. 3846 of 2010, and in accordance with the provisions of section 85 of Act No. 4052/2012, when the SEPE inspectors find evidence of illegal employment of foreign nationals from third countries, they themselves impose fines on employers. The Government does not specify whether labour inspectors continue to notify the regional authorities about their findings. The Government indicates that the functions of controlling irregular employment are to be exercised both together with and independently from the police but does not specify whether labour inspectors actually take part in any joint operations with the police or have any direct or indirect involvement in return procedures for workers who are illegally staying nationals of third countries.

The Committee once again recalls from paragraph 78 of its 2006 General Survey on labour inspection that any association of the labour inspectorate with the police and immigration authorities to target irregular workers is not conducive to the relationship of trust needed to create the climate of confidence that is essential to enlisting the cooperation of employers and workers with labour inspectors and that 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.

The Committee also recalls from paragraph 78 of its General Survey that, while usually only employers are to be held accountable for illegal employment as such, with the workers involved being seen in principle as victims, where the workers concerned are foreigners residing illegally in the country, they are doubly penalized in that, in addition to losing their job they face the threat of expulsion, if not actual expulsion. Nonetheless, the fact that labour inspection in general has the power to enter establishments without prior authorization allows it more easily than other institutions to put an end to abusive working conditions of which foreign workers in an irregular situation are often the victim, and to ensure that workers benefit from recognized rights. In these circumstances, 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.

In this regard, the Committee notes with interest that Act No. 4052/2012 envisages penal sanctions for employers guilty of persistent infringements in respect of the simultaneous employment of a significant number of illegally staying third country nationals accompanied by particularly exploitative working conditions, including of minors (sections 87 and 88) and that a residence permit for humanitarian reasons may be provided to the victims of such practices (section 89). It also, notes however, that the penal sanctions introduced for such acts do not appear to be sufficiently dissuasive (minimum of five months’ imprisonment or minimum of six months where the victims are children).

The Committee requests the Government to specify the sanctions imposed by the courts on employers found to be guilty of particularly exploitative working conditions including of minors and to communicate the texts of relevant court decisions. It also requests the Government to indicate any steps taken to revise sections 87 and 88 of Act No. 4052/2012 so as to ensure that the minimum sanctions applicable for such acts are sufficiently dissuasive. The Committee requests the Government to provide detailed information on the activities carried out by the SEPE in the framework of the implementation of Acts Nos 3996/2011 and 4052/2012, and to furnish data on the impact of these activities on the punishment of employers guilty of trafficking and other forms of exploitation and on the payment of outstanding wages and benefits due to workers who are illegally staying nationals of third countries, including where they are liable to expulsion or after they have been expelled.

The Committee requests the Government to specify the role of labour inspectors in detecting infringements and in recommending or facilitating the filing of complaints and the institution of criminal proceedings vis-à-vis employers so as to extend further the protection of the statutory rights of workers in an undocumented situation and to ensure that workers who are illegally staying nationals of third countries have effective access to the justice system, and to provide data and examples of decisions rendered in this regard.

The Committee requests the Government to specify whether labour inspectors are associated in any police and/or immigration operations in the framework of combating illegal immigration and whether they have any direct or indirect involvement in expulsion procedures of workers who are illegally staying nationals of third countries. If that is the case, the Committee once again requests the Government to take measures so as to progressively dissociate the functions of enforcing immigration law (legality of employment of third country nationals) from those of supervising the observance of workers’ rights (e.g. protection of fundamental rights at work and payment of wages and statutory benefits) which constitute their primary duties under Article 3(1) of the Convention, and to keep the Office informed of progress made in this regard.

Implementation of the principle of equal opportunity and treatment for men and women at work. The Committee notes from the Government’s report that the SEPE contributes to the greatest extent possible to the increase in women’s participation in employment and, as such, constitutes one of the key guardians and promoters of the principle of equal treatment in employment and occupation. The Government provides data which show a marked increase in the number of discrimination cases referred to the Ombudsman from 16 cases in 2011 to 21 in the first half of 2012. It also indicates however, that although Act No. 3488/2006 establishes institutionalized cooperation between the SEPE and the Ombudsman, the practical aspects of this cooperation have not been standardized through circulars or instructions, leading to confusion and a need to clarify the new competencies and roles.

The Committee also notes from the 2011 report of the Greek Ombudsman, that even though collaboration with the SEPE has been positively assessed, room for progress exists in some areas so as to address: (i) the occasional transfer of files to the Ombudsman only after a meeting has taken place at the SEPE for the resolution of the dispute, which may restrict the margin of intervention by the Ombudsman; (ii) the occasional lack of notification to the Ombudsman of the final outcome of a case especially when it has recommended that a fine be imposed; (iii) the occasional practice of limiting labour inspectors’ roles to taking note of the parties’ opinions and recommending that they take their dispute to court without making any finding as to labour law violations; and (iv) the limited role of labour inspectors in sexual harassment cases where they usually avoid taking any position or action, and simply take note of the parties’ views before transferring the case to the Ombudsman.

Noting that according to the high-level mission report, priority attention should be placed on equality and non-discrimination in the current context of the labour market, the Committee requests the Government to indicate any measures taken or envisaged by the SEPE central authority in order to strengthen the cooperation with the Ombudsman in the area of non-discrimination, such as through the issuance of circulars delineating roles and responsibilities and enhancing cooperation, as well as through training made available to labour inspectors, as previously suggested by the Ombudsman, so as to increase awareness of relatively new concepts concerning discrimination. Furthermore, the Committee would be grateful if the Government would indicate any steps taken, including training of labour inspectors on investigation methods, to strengthen protection against sexual harassment.

The Committee also notes that according to the Government, in matters relating to disabled employees, the labour inspectors may cooperate on a case-by-case basis with experts appointed by the National Federation for the Disabled. The Committee requests the Government to provide additional information on the activities of the SEPE on matters relating to workers with disabilities, including cooperation with experts and training, and to indicate their impact on ensuring equality of opportunity and treatment for this category of workers.

Conciliation functions entrusted to labour inspectors. The Government indicates that Act No. 3899/2011 added the functions of an “Industrial Relations Conciliator” to those of Industrial Relations Inspectors. According to section 4 of Act No. 3996/2011, the Conciliator is a labour inspector with increased qualifications serving at the Industrial Relations Inspection Department where the application for conciliation is submitted. According to the Government, the Industrial Relations Conciliators perform their duties in a fully independent manner with objectivity and impartiality, at local, regional or national level. The Government adds that in 2011, 21,345 labour disputes were treated, 9,843 of which were resolved and €19,875,087 were paid to workers, thereby ensuring, to a large extent, the payment of accrued wages and the protection of labour rights.

The Committee recalls from its previous comments, that by virtue of Act No. 3899/2010, the scope of unilateral recourse to arbitration of collective disputes was limited to the issue of wages, leading to an increased need for conciliation of collective labour disputes on non-wage matters – a task now entrusted to the labour inspection system by Act No. 3996/2011. It also recalls that, according to section 3(7) and (9) of this Act, the conciliator (of both individual and collective disputes) should aim on the one hand, at ensuring the strict implementation of the applicable legislation and, on the other hand, at bringing the views of the parties closer together, by proposing solutions for reaching an agreement which the parties can accept, so as to ensure a quick resolution of disputes and industrial peace in the best interest of employers and workers.

The Committee once again refers to paragraphs 72–74 of its 2006 General Survey on labour inspection which emphasize the importance of avoiding overburdening inspectorates with tasks, which by their nature may be understood as being incompatible with their primary function of enforcing legal provisions. It recalls that the time and energy that inspectors spend on seeking solutions to collective labour disputes is often at the expense of their primary duties and that carrying out supervisory functions more consistently would lead to better enforcement of the legislation and hence a lower incidence of labour disputes. The Committee therefore once again requests the Government to take the necessary measures to ensure that the functions of conciliation are separated from those of inspection and entrusted to a distinct body. It would be grateful if the Government would provide information on any progress made to this end and, in the meantime, to indicate the number of labour inspectors who carry out the advisory and enforcement functions provided in Article 3(1)(a)–(b) of the Convention, and those who carry out conciliation functions.

The Committee is raising other points in a request addressed directly to the Government.

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