Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

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

Autre commentaire sur C081

Observation

Demande directe

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Reform of the labour inspection services. The Committee notes the Government’s indications according to which the Government has embarked on a labour administration and inspection reform as part of the Business Environment Reform and Institutional Strengthening (BERIS) Project in cooperation with the World Bank under the auspices of the Ministry of Economy, Trade and Energy (METE). Following the conclusions of the METE concerning the need for improved efficiency of inspections and the reduction of costs for enterprises from inspections, Law No. 10433 of 16 June 2011 “On inspection in the Republic of Albania” and Council of Ministers Decision No. 630 of 14 September 2011 “On the organization and functioning of the Central Inspectorate” were approved, by which the Central Inspectorate (CI) for the coordination of all state inspections was established.

The Committee understands that, while there was no agreement on the merger of all inspections functions into a single inspectorate, the CI under the Prime Minister is competent, inter alia, for the coordination and harmonization, methodological direction, planning and general supervision of the inspection services assumed by the different governmental bodies, including the State Labour Inspectorate (SLI) at the Ministry of Labour, Social Affairs and Equal Opportunities (MLSAEO). According to the Government, the new inspection approach focuses on prevention, cooperation and risk-based inspections and is aimed at improving effectiveness, accountability and transparency, as well as at reducing corruption, promoting free competition and improving business conditions.

The Committee also understands that, in the framework of the reform of labour administration and labour inspection, to be implemented by the end of 2012, it was proposed to entrust the SLI with new functions, and that Law No. 10433 of 16 June 2011 replaces certain provisions of the current Labour Inspection Act No. 9634 of 30 October 2006. The Government indicates that the current structure of the MLSAEO, which is based on 12 regional directorates and one local office, will be further expanded to 24 offices covering the areas where the presence of the SLI is needed. Furthermore, at the headquarters of the SLI, a new directorate for social inspections was established, which took on the staff of the previous social inspectorate.

The Committee would be grateful if the Government would keep the Office informed of any measures taken in the framework of the abovementioned reform of the labour inspection services. In this regard, the Committee would be grateful if the Government would provide: (i) an organizational chart of the labour inspection system in its entirety; (ii) to describe its structure and functioning following the implementation of these measures, as well as (iii) to provide detailed information on the scope of activities carried out by the CI.

Furthermore, the Committee requests the Government to provide a copy where possible, in one of the working languages of the ILO of the following legal texts: (i) Decision No. 1139 “On the organization and functioning of the State Labour Inspectorate”, which according to the Government was adopted on 16 July 2008 under Law No. 9634 of 30 October 2006; (ii) Council of Ministers Decision No. 630 of 14 September 2011 “On the organization and functioning of the Central Inspectorate”; and (iii) Prime Minister’s Order No. 47 of 10 April 2012 “On the establishment of an inter institutional working group to monitor the implementation of the inspection reform”.

Articles 1, 2 and 23 of the Convention. Labour inspection in sectors covered by special inspection services. The Committee notes the Government’s information, in response to its previous request, that special laws regulate inspection services in the sectors excluded from the scope of competence of the SLI (such as parts of the oil and gas industry, mining, construction, road, railway, aircraft and the maritime sectors). These laws fall under the purview of the METE and the Ministry of Public Works, Transport and Telecommunication (MWTT). The Committee would be grateful if the Government would indicate the measures taken to ensure that these sectors are effectively inspected and provide relevant statistics (number of inspectors at the respective ministries entrusted with the supervision and control of workplaces in the abovementioned sectors, number of inspection visits carried out, infringements detected and legal provisions to which they relate, number of industrial accidents and occupational diseases occurred, etc.).

Please also provide information on whether inspection functions assumed by the inspection services at the METE and MWTT have been entrusted to the SLI following the reform of the labour inspection services referred to by the Government, and provide any relevant legal texts.

Article 3(1)(a)–(b) and (2). 1. Labour inspection activities in the area of occupational safety and health (OSH). The Committee notes that, in the framework of the Instrument for Pre-accession Assistance (IPA) 2010 Project on Human Resources Development in Albania, which is funded by the European Union (EU) and implemented with ILO assistance, Albania is in the process of aligning its legislation to the EU directives in the area of OSH. The Committee observes that this project is aimed at the modernization of the SLI, by means of the Labour Inspectorate Strategy Action Plan 2012–13, the transposition of EU OSH directives into Albanian legislation, the training of SLI staff, the development of an information system, and improved public awareness on OSH. The Committee would be grateful if the Government would provide information on the measures taken or envisaged in the framework of the abovementioned EU IPA 2010 Project, including on any measures taken with a view to improving the human and material resources of the SLI, and on the results attained in terms of compliance with the legal provisions relating to OSH and in reducing the number of industrial accidents and cases of occupational diseases.

2. Labour inspection activities relating to undeclared work. The Committee notes the Government’s information on the measures taken by the Labour Inspectorate to prevent illegal work, including the possibility to denounce cases via a toll-free number and through the website of the SLI, as well as a number of joint activities with the social partners and ILO support to raise awareness about undeclared work and address this issue through partnership and social dialogue (the broadcasting of live talk shows on television, the organization of workshops in several regions, etc.). Moreover, the Government refers to a number of legislative texts issued by the SLI aimed at controlling undeclared work in several sectors, such as construction, agriculture, fisheries, hotels and tourism, trade, textile manufacturing, etc. In this regard, the Committee notes that, according to the annual reports of the SLI for 2010, 2011 and 2012, as well as the information in the Government’s report, the SLI found 3,085 workers in 2009; 1,994 workers in 2010; 1,470 workers in 2011 and 307 workers in the first quarter of 2012 who had not been declared to the tax authorities. The Committee would be grateful if the Government would provide information on the number of workers who were granted their due rights as a consequence of inspections aimed at detecting undeclared work concerning the legal provisions relating to conditions of work and the protection of workers (such as the payment of outstanding wages, annual and sick leave and other social security benefits). In this regard, the Committee would be grateful if the Government would indicate the measures taken and the proceedings initiated by labour inspectors to resolve cases of undeclared work and provide copies of court decisions on this subject.

Article 5(a). Cooperation between the inspection services and other government services and public or private institutions. The Committee previously noted, from the 2009 ILO audit of the labour inspection services (2009 ILO audit report), that despite the existence of agreements between the labour inspection services, on the one hand, and the State Sanitary Inspectorate (SSI), the Public Health Institution, the general directorate of taxation, the national employment service and the environmental inspectorate, on the other, cooperation is very limited in practice. In this regard, the Committee notes the information in the Government’s current report according to which Law No. 10433 of 16 June 2011 (establishing the CI) repeals all agreements on inter institutional cooperation between the different governmental bodies. With reference to the Government’s information on the CI’s function of coordination and harmonization of the different inspection services, the Committee notes that it is envisaged, as part of the labour inspection reform, to set up an “e-inspection” platform at the CI, which should help coordinating and synchronizing inspections at all governmental levels, with a view to facilitating work and to reducing administrative burdens on businesses. The CI will also establish and maintain a national register of state inspectors, which is accessible via the Internet.

The Committee previously noted with interest the establishment by the MLSAEO of a National Health and Safety Commission (NHSC), with the participation of the representatives of institutions responsible for matters relating to working conditions and OSH with a view to increasing the effectiveness and cooperation of the labour inspectorate with these institutions. In this regard, the Committee notes the Government’s information in the current report that the NHSC did not yet hold any meetings, but that a meeting with the relevant ministries is currently being organized in order to discuss, among other things, the Labour Inspectorate and Communication Strategy on Labour Health and Safety (LHS).

The Committee asks the Government to provide further information on the measures adopted or envisaged to increase cooperation between the different governmental services assuming labour inspection functions and information on their implementation in practice (including the establishment of the abovementioned e-register and national register of state inspectors, the conduct of joint inspections, the exchange of relevant data, etc.) as well as their impact on the work of the labour inspection services. The Committee also once again requests the Government to provide information on the work of the NHSC and the results achieved, including at the local level.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes that, by virtue of section 13(3) of the Labour Inspection Act (LIA 2006), the labour inspectors shall, upon the initiation of inspections, notify the trade union representative or a worker’s representative about their presence. In this regard, the Government indicates that an annex to the inspection form on trade union activity has been drafted which must be filled out for every subject inspected. Moreover, the Committee notes the Government’s information that a number of joint activities with regard to collaboration with the employers’ and workers’ organizations have been organized, particularly in relation to the implementation of Decision of the Council of Ministers No. 107 of 9 February 2011 “On the composition of the rules of operation of the NHSC and workers’ representatives” and Decision of the Council of Ministers No. 108 of 9 February 2011 “On the skills requirements to be met by employers, individuals and specialized services dealing with the issues of labour safety”. In addition, several round tables with employers’ and workers’ representatives were organized and the SLI has participated in activities organized by the workers and employers. The Committee would be grateful if the Government would continue to provide information on the arrangements made for collaboration between the labour inspection services and employers’ and workers’ organizations (such as information on the organization of conferences or joint committees, including on the subjects covered and the number of participants; the collaboration with the labour inspection services at the enterprise level, etc.) and to specify the impact of such collaboration on the achievement of the objective assigned to the labour inspectorate, namely improving conditions of work and the level of protection of workers while engaged in their work.

It would also be grateful if the Government would provide information on whether the social partners have been involved in the formulation and implementation of the current reform of the labour inspection services (including on relevant draft legislation), and are represented in the inter institutional working group to monitor the implementation of the inspection reform. Please provide information, if any, on the outcome of such consultations.

Articles 6 and 7. Conditions of service and training of labour inspectors. The Committee previously noted from the 2009 ILO audit report that the wages and bonuses of labour inspectors are not very attractive and that there is no real human resources strategy for recruitment and career development, or any real training plan. It also observed that the lack of mechanisms for entrusting responsibility in the public administration and the frequent replacement of officials may affect their independence.

The Committee notes the Government’s information concerning the recruitment procedure for labour inspectors. This procedure is carried out according the procedures set out in Law No. 8549 of 11 November 1999 “On the civil servant status”, which requires labour controllers to have held their positions for no less than a year before becoming eligible to compete for the position of labour inspector. To obtain the position of labour inspector, labour controllers must perform a written examination pertaining to labour legislation and inspection techniques. The Inspector General of the SLI then appoints the labour inspectors among those having attained the highest results, upon the approval of the Minister of Labour, and the employment contracts thus approved are indefinite. Moreover, labour inspectors and controllers are tested at least once a year to assess their professional skills. It furthermore notes from the Government’s report that labour inspectors are granted the status of civil servants.

While the Committee takes note of this information, it also notes that the Government does not provide any response in relation to the questions raised concerning the conditions of service and training of labour inspectors. The Committee once again asks the Government to specify the remuneration scale and career prospects of labour inspectors in relation to other comparable categories of public officials and any measures adopted to improve these conditions of service.

Please also specify whether labour controllers exercise labour inspection functions, and provide information on their status, conditions of service (wages and other benefits, etc.), and the qualifications required for their recruitment.

The Committee would be grateful if the Government would provide information on the content, frequency and duration of the training given to inspectors in the course of their employment, as well as on the exact number of inspectors concerned in each case.

Articles 10, 11 and 16. Staffing and material means of the labour inspection services; scope of inspections carried out. The Committee previously noted the indication in the 2009 ILO audit report that only 70 per cent of enterprises are covered by the inspection services due to the inadequacy of the personnel, equipment, vehicles, financial resources and the lack of reimbursement of travel expenses.

The Committee notes the Government’s indication that the current staff of 167 labour inspectors is not sufficient to fully perform their assigned tasks as set forth by the law. However, the Committee notes that one of the priorities of the EU IPA 2010 Project on Human Resources Development in Albania, funded by the EU and implemented by the ILO, is the development of a human resources strategy for labour inspection. The Committee further notes with interest that, in the framework of the current labour inspection reform referred to by the Government and the introduction of an e-inspection platform, it is envisaged to provide all labour inspectors with a computer, a printer and a localization system (GPS). The Committee requests the Government to provide detailed information on the measures taken or envisaged, including in the framework of the EU IPA 2010 Project and the current labour inspection reform, to improve the budget allocated to labour inspection so as to ensure an increase in the number of inspectors, appropriate equipment and sufficient transport facilities, as well as the reimbursement of the travelling and incidental expenses necessary for the performance of inspection duties.

Article 12(1). Right of inspectors to free entry of workplaces. The Committee previously noted that, under section 4(2) of the LIA 2006, the access of inspectors to workplaces depends on authorization issued by the competent authorities “in particular cases”. It further noted from the 2009 ILO audit report that the discretionary powers of inspectors for visiting any enterprise on their own initiative are limited, as 95 per cent of the inspections carried out are set out in the regional and central plan established previously by their respective authorities and they do not have real autonomy to organize inspections in their local areas at their own initiative.

The Committee notes the Government’s indications that, in accordance with section 13(1) of the LIA 2006, labour inspectors have been provided with identification badges and are authorized to freely enter any workplaces liable to inspection without prior notice, at any hour of the day or night. According to the Government, inspection visits are unannounced.

Moreover, the Committee notes the Government’s explanations, according to which, as the Committee understands them, the labour inspection system is decentralized and governed by its regional structures including the labour inspectors working therein, who plan their monthly inspections autonomously, by taking into account the established priorities at central level, but also the necessities arising, for instance, the need for inspections in workplaces with suspected shortcomings relating to conditions of work and the protection of workers. While the Committee takes due note of this information, it requests the Government to provide information on how it is ensured, in the new inspection system with inspections being coordinated, directed and planned at the central level by the CI, that labour inspectors throughout the structures of the labour inspectorate including at the local level have discretionary powers to visit any enterprises on their own initiative where deemed necessary without prior authorization of the central or regional authorities, and outside previously approved inspection plans by these authorities.

Articles 13 and 14. Inspections in the field of OSH, powers of injunction of labour inspectors in case of threats to the safety and health of workers and obligation to notify industrial accidents and cases of occupational disease. According to the statistics provided by the Government on industrial accidents and cases of occupational diseases, 126 industrial accidents (including 26 fatal) have been notified in 2011. These accidents occurred in the following sectors: manufacturing enterprises (21.4 per cent); mining and quarrying (21.4 per cent); construction (13 per cent); electricity, gas, and water (13 per cent); and other activities (14.2 per cent). However, the Committee notes once again that, according to the 2011 annual report, most inspections are not concentrated on sectors with the highest number of serious and fatal industrial accidents. According to a report of the labour inspectorate for the period of January to September 2012, 55.1 per cent of the 11,787 inspections conducted during the reporting period were done in the commercial bars/hotels/restaurants sector, 13.2 per cent in manufacturing enterprises, 7.8 per cent in construction, and only 0.8 per cent in mines and quarries.

The Committee further notes that the Government, in response to the question concerning a systematic data mechanism providing the labour inspectorate with the data it needs to identify high-risk activities and the most vulnerable categories of workers, and to seek the causes of occupational accidents and cases of diseases in workplaces liable to inspection, refers to relevant provisions in national law, namely: (i) section 22(1) of the LIA 2006, which contains the obligation of the employer to notify all industrial accidents and cases of occupational diseases; (ii) Chapter V of the OSH Act No. 10237 of 18 February 2010, which defines and regulates the notification, investigation, registration, classification and reporting of industrial accidents and cases of occupational diseases; and (iii) Decree No. 788 of 14 December 2005, which provides for the investigation procedure of industrial accidents. The Committee notes that no statistics of cases of occupational diseases are contained in the annual reports on the work of the SLI for 2011 and 2012. Noting the information provided by the Government, according to which the new inspection approach is focused on inspections in high-risk sectors for the safety and health of workers, the Committee once again asks the Government to indicate the measures adopted or envisaged to reinforce the activities of the labour inspection services in such sectors and the results achieved, including through the use by inspectors of powers of injunction in the event of imminent danger to the health and safety of the workers.

Further noting that a high rate of industrial accidents occurred in the mining, construction and gas sectors, which fall within the competences of the inspection services of the METE and MWTT, the Committee would be grateful if the Government would also provide information on how effective inspections are ensured in these sectors.

The Committee asks the Government to indicate the legal and practical measures taken to determine the cases and manner in which, in accordance with Article 14, the labour inspectorate is notified of cases of occupational diseases, like that of industrial accidents. Please also ensure to systematically include relevant statistics in the annual report of the labour inspection services.

Finally, taking note of the abovementioned legal provisions in the LIA, OSH Act and Decree No. 788 of 14 December 2005, the Committee requests the Government to provide information on the practical application of these provisions, as well as any measure adopted or envisaged to improve the effectiveness of the system.

Articles 5(a), 17 and 18. Prosecutions and penalties. The Committee previously noted that, according to the annual report of the SLI for 2009, from the 11,724 inspections carried out, only 201 fines were imposed for reported violations. It further noted, from the 2009 ILO audit report, that in 2008, inspectors issued 212 fines and that in practice it is very rare for fines to be issued due to the fact that the inspectorate, in the event of a judicial execution for the enforcement of an order, has to pay an advance of 7 per cent of the amount of the fine pronounced, which it cannot recover.

In this regard, the Committee notes with interest the Government’s indications that following the enactment of Law No. 10279 of 20 May 2010 on administrative contraventions, there is no requirement for labour inspectors to pay an advance for the enforcement of fines issued, which according to the Government, are normally enforced by the bailiff’s office, in case they are not voluntarily paid by employers. In this regard, it notes the Government’s reference to section 43 of this Law, which provides that: “When executing decisions on administrative violations, governmental bodies shall be exempted from the obligation of an advance payment of court and service operation fees, which are enforced by the court administration and the bailiff.” However, the Committee notes that, according to the 2011 labour inspection report, the number of fines imposed in relation to the inspections imposed, is still relatively low (381 fines imposed in relation to 14,028 inspections). The Committee finally notes the Government’s reference to the Decision of the Council of Ministers No. 726 on the cooperation of the SLI with the Ministry of Justice.

The Committee once again refers to paragraph 284 of its 2006 General Survey on labour inspection and recalls that inspectors should be able to deal with non-compliance with legal provisions with appropriate severity to guarantee the effectiveness of the inspection system. It once again emphasizes that Article 18 of the Convention provides that adequate penalties for violations of the legal provisions enforceable by labour inspectors shall be provided for by national laws or regulations and effectively enforced.

The Committee requests the Government to provide a copy of the abovementioned Law No. 10279 of 20 May 2010 on administrative contraventions and Decision of the Council of Ministers No. 726 on the cooperation of the SLI with the Ministry of Justice if possible, in one of the working languages of the ILO.

Please also provide an appreciation of the causes for the low number of sanctions imposed and effectively enforced, as well as information on the measures taken to ensure effective cooperation between the labour inspection services and the justice system. In this regard, the Committee would be grateful if the Government would provide numerical data illustrating the manner in which the bailiff’s offices and courts deal with the cases of violations referred to them reported by labour inspectors.

Articles 19, 20 and 21. Periodic reports and annual report on the work of the labour inspection services. The Committee notes that annual labour inspection reports are published on the official website of the SLI (www.sli.gov.al). However, it observes that the annual reports on the work of the labour inspection activities for 2010 and 2011, as published on this website, do not contain statistics on the workplaces liable to inspection, in the absence of which it is impossible to assess the coverage rate of the labour inspection services and the adequacy of the number of inspectors in relation to needs. Furthermore, these reports do not contain statistics on cases of occupational diseases, and statistics of violations of the legislation are fairly brief and do not provide indications on the nature of the violations or the action taken as a result.

The Government is requested to provide more information on the development and content of the “e-inspection” platform at the CI, and the national register of state inspectors referred to by the Government, as well as on the progress made with the establishment and operation of these registers.

The Committee expresses the hope that the Government will soon be in a position, among others through the data collected electronically, to ensure that future annual reports will contain the required information on each of the subjects listed in Article 21(a) to (g) of the Convention. It draws the Government’s attention to the guidance given in Part VI of the Labour Inspection Recommendation, 1947 (No. 81), on the detailed information that should be supplied in the annual report, in the interests of making it a useful tool for evaluating and improving the operation of the labour inspectorate.