Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee takes note of the Government’s report replying to its previous comments and to the points raised by the Federal Chamber of Labour (BAK) in October 2008. It notes the amendment of the Labour Inspection Act, No. 27/1993 of 2009, under which data collected via the computer system of the Ministry of Finance (temporary secondment of workers) and that of the Social Security are now available to labour inspectors. The Committee also notes that the BAK has sent comments which largely concern the points raised previously.

The Committee also notes with interest the detailed information published on the Labour Inspectorate’s website (www.arbeitsinspektion.gv.at/AI/default.htm), including the annual inspection reports for 2007, 2008 and 2009, information on the National Occupational Safety and Health Strategy for 2007–12 (various preventive measures, particularly to prevent psychosocial disorders caused by work), and instances of good practices, including the establishment of an annual prize awarded by the Minister of Labour, Social Welfare and Consumer Protection to the three most deserving enterprises for services rendered in the field of workers’ safety and health.

Article 5(a) of the Convention. Effective cooperation between labour inspectors and law enforcement bodies. In its previous comments, the Committee noted that there are two systems for processing and prosecuting offences against the legislation on working conditions and worker protection (an administrative system and a penal system). In reply to the BAK’s assertion that the courts must inform the inspection services when penal proceedings are concluded but need not notify the rulings, the Government states that the inspection services are nonetheless informed of decisions that concern employers responsible for training apprentices (treated by the law as particularly vulnerable). Furthermore, according to the Government, the labour inspectorate is, as a rule, informed of the decisions in penal cases in which it is represented as a witness or expert at hearings. The Committee likewise notes with interest that in certain specific cases, such as those involving industrial accidents, the labour inspectorate is authorized by the Code of Penal Procedure to apply for access to the dossiers or to a copy of the relevant decision.

As to the BAK’s request for enhanced cooperation through joint action by the Federal Ministry of Labour and Economic Affairs and the Federal Ministry of Justice, the Government states that with the right to consult the files and the administrative support lent by the Federal Ministry of Justice to the Federal Ministry of Labour and Economic Affairs pursuant to the Federal Constitution, article 22 (mutual assistance between institutions), nothing more is needed.

As regards the matter of restrictions in the context of cross-border assistance in the enforcement of administrative sanctions, raised by the BAK, the Government refers to the provisions of the Council Act of 2000, establishing the Convention on Mutual Assistance on Criminal Matters between the Member States of the European Union, and to the provisions published in the Official Journal of the Federal Republic of Austria No. 65/2005 appointing the competent authorities, which likewise apply to the activities of the administrative and penal authorities and which allow the prosecution of employers that have their head offices in another member State.

With regard to Article 21(e) of the Convention, which provides for the inclusion in the annual report of statistics of violations and the penalties imposed, the Committee notes that according to the Government, this provision refers only to administrative, and not penal sanctions. The Committee points out in this connection that Article 18 of the Convention applies to penalties for violations of the provisions of the law that are enforceable by labour inspectors, without any exceptions and regardless of the authority that imposes the penalty.

In its General Observation of 2007, the Committee observed that it is important for the labour inspectorate to have information about relevant judicial decisions. The Committee would be grateful if, in the light of the foregoing, the Government would consider the possibility of extending cooperation so that judicial decisions on violations of the provisions of the law referred to in the Convention, are made available, without restriction, to the labour inspectorate and included in an annual report, as required by Article 21(e).

Article 18. Adequate penalties. According to the BAK, administrative fines imposed on employers pursuant to section 19 of the Act on the Penal Liability of Legal Entities (VbVG), are tax deductible. The Government states that according to consistent precedent, judicial fines, like administrative ones, are tax deductible only for minor infractions. The Government is asked to provide examples of tax-deductible pecuniary sanctions.

Articles 10 and 16. Adapting the resources of the inspectorate to the duties to be performed. Having pointed out previously that the human resources of the inspection services are inadequate and that the numbers of labour inspectors need to be increased to cope with the new tasks they have to perform, the BAK refers to a government project to reassign former employees from the postal administration and elsewhere to the inspection services. The Committee requests the Government to make any comments it may deem relevant on the BAK’s views concerning the need to strengthen the human resources of the inspection services and the measures needed.