Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Labour Inspection Convention, 1947 (No. 81) - Ireland (Ratification: 1951)

Other comments on C081

Observation

Direct Request

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The Committee notes the joint observations made by the International Organisation of Employers (IOE) and the Irish Business and Employers Confederation (IBEC) received by the Office on 1 September 2017 and the observations made by the Irish Congress of Trade Unions (ICTU) received by the Office on 10 September 2018.

Articles 3(1)(a) and (b), and 6 of the Convention. Reform of the labour inspection services entrusted with the control of working conditions. Appointment of labour inspectors. The Committee notes the response in the Government’s report, in reply to the Committee’s request concerning the status and conditions of service of labour inspectors working at the Workplace Relations Commission (WRC), which in 2015 replaced the National Employment Rights Authority (NERA), that labour inspectors are permanent public servants and enjoy stability of employment. In this respect, the Committee also notes the explanations provided by the IOE and the IBEC that while section 26(4) of the Workplace Relations Act (WRA) refers to appointments on a fixed-term basis, the cessation of “appointment” is required in cases in which labour inspectors are moving to a different role, including when they leave the public service.

Articles 3(1)(a) and (b), 17 and 18. Strategy of the labour inspection services to ensure compliance with the legal provisions. The Committee notes the Government’s reference, in response to its request regarding the strategy of the WRC to avoid recidivism, to two new enforcement mechanisms, the so-called “compliance notice” and “fixed payment notice” under the 2015 Workplace Relations Act. Compliance notices require employers in breach of the legislation to take measures, and fixed payment notices require employers in breach of the relevant legislation to make a payment within a 42-day period – failure to take these measures may result in prosecution by the WRC in the courts. The Committee also notes, from the statistics provided by the Government that in 2017, out of 4,747 inspections undertaken by the WRC, 185 compliance notices were issued (i.e. for 3.9 per cent of inspections) and 28 fixed penalty notices were issued (i.e. 0.6 per cent), while 125 ended in prosecutions (i.e. 2.6 per cent). The average compliance rate with the legislation for which the WRC was responsible was 43 per cent. The Committee further notes from the 2018 annual report of the WRC that in 2018, the WRC undertook 5,753 labour inspections, of which 120 resulted in compliance notices, and 21 in fixed payment notices and 98 (i.e. 1.7 per cent) ended in prosecutions. Forty-five per cent of all employers inspected were found to be in breach of employment legislation to some degree, with over half of the breaches discovered related to failure to keep adequate employment records (52 per cent). The 2018 report further indicates that the total value of wages recovered has been increasing, from €1.5 million in 2016, to €1.77 million in 2017 and €3.1 million in 2018. The Committee also notes that the IOE and the IBEC indicate, with regard to the low number of legal proceedings relative to the number of incidents of non-compliance, that this is because many of the breaches are technical breaches of employment rights legislation. The employers’ organizations add that the WRC inspectors recognize the difficulties posed by technical breaches, including with respect to record keeping on working time, and therefore tend to adopt a compliance-based approach rather than an approach based on prosecutions. The organizations indicate that, in their view, this is an appropriate use of discretion, as envisaged in Article 17 of the Convention. The Committee requests the Government to continue to provide relevant statistical information on the compliance rate in relation to the legislation falling into the responsibility of the WRC. It also requests the Government to continue to provide detailed information on the enforcement activities of the WRC as a result of their inspection activities (number of inspections undertaken, cases of non-compliance detected, compliance notices and fixed payment notices issued and prosecutions undertaken, as well as the outcome of the prosecutions). Noting an absence of information in this respect, the Committee also once again requests the Government to provide the relevant statistical information as regards the activities of the Health and Safety Authority (HSA).

Article 3(2). Additional duties entrusted to labour inspectors. In its previous comment, the Committee noted the Government’s indication that monitoring compliance with the Employment Permits Act (EPA) is an integral part of labour inspectors’ functions and that joint inspections were also carried out in collaboration with the police. The Committee requested information on the enforcement of the rights of undocumented migrant workers.

The Committee notes the Government’s indications, in response to the Committee’s request that WRC inspectors work with the immigration authorities as well as the Garda National Protective Services Bureau (a dedicated Government agency responsible for assisting victims of human trafficking) on issues relating to persons working without the required permission and suspected victims of trafficking and forced labour. The Government adds that the current legislative framework does not enable labour inspectors to seek remuneration for a person employed without a work or resident permit. However, it indicates that persons in that position may avail themselves of the provisions of section 2B of the EPA, which enables them – under certain conditions – to take civil proceedings for recompense for work carried out, or have the Minister carry out such proceedings at their request. The Government also indicates that when pursuing breaches of the EPA, it is the WRC’s policy to not prosecute persons working without permission, the focus remaining on the employer. Finally, the Committee also notes the joint observations of the IOE and the IBEC that joint inspections with the police are carried out only in rare cases involving serious criminal activity.

In this respect, the Committee also notes the observations made by the ICTU that despite the measures referred to by the Government, migrant workers still widely believe that the labour inspector’s main function is to enforce immigration rules rather than working conditions and to target workers, not unscrupulous employers. The ICTU adds that joint inspections with the immigration authorities are a major contributory factor to this perception. A separation of activities and clear, safe reporting mechanisms for undocumented migrants who are victims to exploitation and crime would enable the enforcement of their labour rights and assist in the eradication of exploitation and forced labour. The trade union indicates that the lack of firewalls (i.e. the lack of measures to separate immigration enforcement activities) means that victims of workplace exploitation or trafficking are usually afraid that if they report the crime to the WRC or to the police their immigration status may come to light with the risks of detection, detention, and deportation. In this respect, the Committee recalls that in its 2017 General Survey on certain occupational safety and health instruments, it indicated that workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country (paragraph 452). The Committee requests the Government to indicate the measures it is taking to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors, which is to provide for the protection of workers in accordance with Article 3(1) of the Convention. In this respect, it requests the Government to provide specific information on the manner in which it ensures that the cooperation with the immigration authorities is kept separate from labour law enforcement activities affecting the same employers and workers, and does not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers, in accordance with Article 3(2) of the Convention. Noting the Government’s indication that migrant workers in an irregular situation can assert their rights before the labour courts or that the Ministry can undertake relevant proceedings for them at their request, the Committee requests that the Government provide information on any actions taken by labour inspection services to provide information and advice as regards the possibility to undertake such proceedings, as well as information on any specific instances in which migrant workers in an irregular situation have asserted their rights before the labour courts or have requested the Ministry to undertake the relevant proceedings, and the results of them.

Articles 4 and 5(a). Effective cooperation between inspection bodies. The Committee notes the information provided by the Government, in reply to the Committee’s request, on the cooperation between the WRC and the HSA.

Articles 10 and 16 of the Convention. Sufficient number of labour inspectors and adequate coverage of workplaces by labour inspection. In its previous comment, the Committee noted that the number of labour inspections undertaken by the National Employment Rights Authority (NERA) had decreased from 8,859 in 2009 to 5,591 in 2011. It noted a moratorium on public sector recruitment introduced in 2009 and that the number of staff of the NERA had decreased from 132 in 2008 to 108 in 2010.

It notes from the information provided in the Government’s report and in the 2018 annual report of the WRC that the WRC undertook 4,747 labour inspections in 2017 and 5,753 labour inspections in 2018. The Committee also notes the clarifications provided by the Government that the decrease between 2008 and 2010 in the number of staff working at NERA, as previously noted by the Committee, concerned the total number of staff and not only labour inspectors. The IBEC and the IOE indicate in this respect that there were not 132 inspectors in 2008, and that although there had been agreement in 2006 to raise the number of inspectors to 90, this never occurred due in part to the reduction in employment following the 2006–07 recession. The Committee also notes from the statistical information provided by the Government that the number of labour inspectors working at the WRC was 58 as of March 2018 (an increase from 46 in 2017). The Committee further notes the information concerning the number of labour inspectors (82 full time and 19 part time as of 2017) and inspections undertaken by the HSA. The Government states that the Department of Business, Enterprise and Innovation works on determining the allocation of staff resources with the agencies concerned, including with the WRC and the HSA, while reflecting the requirement to manage the pay bill and staff numbers in accordance with Government policy. The Committee takes due note of the Government’s indication that the moratorium on recruitment and promotion in the public sector has now been lifted and it welcomes the Government’s indication that permission was given in 2018 to the WRC and the HSA to increase the number of inspection staff. The Committee requests the Government to continue to provide statistical information on the number of labour inspectors working at the WRC and the HSA and the inspection visits undertaken by these bodies.

Articles 20 and 21. Annual labour inspection reports. The Committee notes the annual reports of the HSA and the WRC communicated with the Government’s report and available on the respective websites of those agencies. It notes that both reports contain information on the total number of staff working at both agencies, but does not provide specific information on the number of labour inspectors (Article 21(b) of the Convention). It also notes that statistics of workplaces liable to inspection and the number of workers employed therein are missing in both reports (Article 21(c) of the Convention). The Committee requests the Government to ensure that future annual reports on the work of the labour inspection activities contain all the information required under Article 21 of the Convention.