Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. However, annual inspection reports for 2003 and 2004 were sent on 6 September 2005 and 24 April 2006, respectively. It notes the observations of 13 January and 22 November 2005 and 10 July 2006 by the Single National Union – Work Employment Training Integration – SNU-TEF (FSU). The Office sent the above observations to the Government on 2 March, 16 February and 4 September 2006, respectively.

In its observation of 13 January 2005, the SNU-TEF (FSU) referred to a murderous assault in the Dordogne in September 2004 against two labour inspectors in the performance of their duties, and a similar incident in Brazil. The above organization expressed its concern at the emergence of violence on the part of employers in the country. It states that there has been some delay on the Government’s part in the prosecution of the above assault and that it has not reacted with operational decisions, particularly as regards strengthening the staff of the inspectorate. It also alleges glaring inadequacy in the numbers of inspectors in light of the extra work created by the complexity of the new legislation (particularly on working hours), the branch agreements and, above all, the enterprise agreements, which are often unclear, and the increase in the number of workplaces and workers covered. Furthermore, those most affected by the drop in the frequency of inspections are workers in small enterprises, where most wage earners are employed, and where the staff have no representation. This situation is impairing not only workers’ rights but also the working conditions of inspection staff: an inspection only once every ten years is conducive, in the organization’s view, to accidents in such enterprises. The organization expresses deep concern not only at the shortage of inspection staff, but at the consequences of the inspection campaign decided on by the Government after the State was found guilty by the Council of State of delay in responding to occupational risks arising from the use of asbestos. The campaign apparently targeted friable asbestos, was carried out over a period of 15 days and was “improvised”, with no serious preparation which meant that the inspectors themselves were exposed to carcinogenic risks. The organization also takes the Government to task for failing to react to employers’ publications on the Internet encouraging enterprises not to observe the legislation and encouraging certain employers’ federations to refuse any supervision by labour inspectors without a prior appointment. Pointing out that the supervisory aspects are only part of the phenomenon, the SNU-TEF (FSU) also alleges breach of Article 18 of the Convention, in that the judicial bodies apprised of incidents in the course of inspection pronounced convictions in only 20 per cent of the cases referred by inspectors. Lastly, it is the organization’s view that the legitimacy of the inspectorate’s supervisory duties must be restored as a matter of urgency.

The Committee notes in this connection that, in the annual inspection report for 2004, numerous departmental directorates report difficulties in following up the results of the court proceedings effectively.

On 22 November 2005, the SNU-TEF (FSU) sent a further communication to the ILO referring to developments in the situation, linked to the Decree of 12 May 2005 establishing a central office to combat illegal work (OCLTI). The abovementioned office reports to the subdirectorate of the criminal police department of the gendarmerie nationale, overall coordination being the task of the criminal police central directorate. According to the Decree, the labour inspectorate is “associated with the activities of the office, as necessary” (section 1). The office intervenes at the request of the judicial authorities or units of the gendarmerie, the police, departments and branches of the other ministries concerned and social protection bodies whenever circumstances require (section 4). The office centralizes, analyses, uses and forwards to the national police and units of the gendarmerie nationale, and to the administrative departments and social protection bodies concerned, all information falling within its remit (section 5). According to section 6 of the Decree, the police, the gendarmerie, the Ministries of Labour, Health, Defence, the Economy, Equipment, Transport, and Agriculture, as well as the other administrative departments and social protection bodies concerned, are required to send to the OCLTI at the earliest possible date and in accordance with jointly established procedures, all information in their possession or of which they have knowledge concerning work-related offences, the perpetrators thereof and their accomplices. The SNU-TEF (FSU) appends to its observations a circular addressed to prefects by the Minister of Labour on 29 July 2005 on stepping up mobilization to combat illegal work, following a meeting on 27 July 2005 of the Inter-ministerial Committee for Immigration Control, chaired by the Minister of the Interior. The circular requires every department to organize, before 31 October 2005, at least one joint control operation involving all departments concerned, including the labour inspectorate, the tax and customs inspectorate, to inspect workplaces liable to be unlawfully occupied by undocumented foreigners. The circular makes it plain that “the priority given to supervising the employment of foreigners without legal status […] must not, of course, be to the detriment of other aspects of illegal work, including transnational fraud, […] or other categories of fraud (hidden work, the loan or barter of unlawful labour, breaches of the law on wages and working conditions in general), which are frequently associated with the employment of undocumented foreigners”.

According to the SNU-TEF (FSU), the circular talks of “involving the labour inspectorate in crackdowns on sites where foreigners are to be identified by their appearance”, following which foreigners with no work permits would be taken immediately to the border with no heed for the procedures allowing their status to be regularized or to the Labour Code, particularly section L 341-6-1, which treats undocumented workers as victims who have the entitlements of workers employed for remuneration (wages due, severance pay). The above organization has sent the ILO press articles reporting unrest following a joint operation that led to the arrest of foreigners. It refers to comments addressed to a country by the Committee in 2005 concerning the involvement of labour inspectors in the control of unlawful work by foreigners, in which the Committee noted with satisfaction that the Government had met its commitment to take the necessary measures to transfer the control of unlawful work to a body other than the labour inspectorate, so as to enable inspectors to carry out their main duties fully, in accordance with Article 3, paragraphs 1 and 2, of the Convention.

Lastly, in observations sent on 10 July 2006 the SNU-TEF (FSU) reports what it sees as an aggravation of the situation: an inter-ministerial circular signed on 27 February 2006 ordering several joint operations every year. In the organization’s view, the circular violates the principles on which the action of the labour inspectorate is based, its ethics and the independence which the inspectorate must enjoy in order to perform its duties and which is embodied in the Convention. It would appear that all the organizations of employees of the Minister of Labour reacted immediately to resist what they see as a series of abuses resulting in the perversion of the inspectorate’s duties and to defend the culture and rights of inspectors by refusing to allow them to be associated with what they consider to be purely police operations to identify people by their appearance, with no heed for the fundamental logic of labour law, namely protection of the rights of wage earners, and in breach of Article 17 of the Convention, which gives labour inspectors discretion as to follow-up action and of Article 15(c), providing for confidentiality of the source of any complaints to the inspectorate.

The organization indicates that, at a national meeting of organizations held in Paris on 21 and 22 March 2006, 800 inspectors out of 1,800 voted in favour of a motion to reject in its entirety the current policy on the work of foreigners, and in favour of notifying a national strike.

The Committee hopes that the Government will not fail to send information replying to its observation of 2004 together with any comments it may deem useful regarding the matters raised by the SNU-TEF (FSU).