Solicitud directa (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Eslovenia (Ratificación : 1992)

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Observación

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Legislation. The Committee observes that the relationship between the two main laws setting the basis for the operation of the Slovenian Labour Inspectorate, namely the Labour Inspectorate Act (Ur1RS Nos 38/1994, 32/1997 and 39/2000) and the Inspection Act (Ur1RS No. 56/2002), is not clear. It notes that there is significant overlap in various areas, such as on sanctions for the obstruction of labour inspector’s performance of duties, inspector’s rights and inspection procedure. The Committee would be grateful if the Government would clarify if and to which extent the Labour Inspectorate Act of 1994 has been revised by the Inspection Act of 2002 and indicate whether any steps are taken or envisaged to consolidate the two laws.

Articles 3(1) and (2), 10 and 16 of the Convention. Number of labour inspectors in relation to the primary and additional functions they perform. 1. Functions in the area of employment relations. The Committee observes that the work of the labour inspectorate focuses on two main areas: occupational safety and health (OSH) and the employment relationship. The Committee takes note of the detailed data provided by the Government in reply to its previous request for information on the activities of the labour inspectorate in the framework of the Employment Relationship Act No. 103/2007 which enhanced the competencies of the labour inspectorate, giving it the possibility to take legal action in minor offence proceedings. The Committee notes, in particular, that the inspectorate carried out a high number of inspection visits, including as a follow-up to requests for action submitted by workers, trade unions and employers orally and in writing and issued payment orders in 3,511 cases in 2010. The Committee requests the Government to describe in detail the operating procedures of the labour inspectorate in the framework of the Employment Relationship Act which enhanced the competencies of the labour inspectorate by giving it the possibility to take legal action in minor offence proceedings and indicate the legal provisions concerned by the payment orders issued by labour inspectors as well as the impact of the enhanced functions entrusted on the labour inspectorate with regard to the realization of the primary objective of the Convention, which is the enforcement of legal provisions relating to conditions of work and protection of workers while engaged in their work.

2. Number of labour inspectors. The Committee notes that, according to the Government, the impact of the global economic crisis led to an increase in the number of complaints lodged and requests submitted for corrective measures on the side of the labour inspectorate, and led to a higher number of inspections, detected violations and imposed measures. It also notes that the individual caseload per inspector has continuously increased since 2007, from 125.4 inspections carried out per inspector to 360.4 inspections carried out per inspector in 2010. As of May 2011, 84 inspectors were employed, of whom 42 perform inspections in relation with the employment relationship and 38 in relation with OSH, and four in the area of social security. Even though eight additional labour inspector posts were created, the number of labour inspectors decreased due to the departure of 14 labour inspectors. However, the workload has grown and additional, time intensive functions have been entrusted to the labour inspectorate since 2005, when the labour inspectorate obtained additional enforcement competencies. The Committee notes that according to the Government, the inspectors’ work has become increasingly stressful, that in particular the capacity of the inspection services for employment relationships has been exceeded requiring labour inspectors to perform significant working time outside regular working hours. The Committee requests the Government to indicate any measures taken or envisaged to strengthen the capacities of the labour inspectorate in response to its increasing workload.

3. Control of the work of foreigners. The Committee notes that section 59(1) of the Employment and Work of Aliens Act of 2011 provides that supervision of the implementation of the act shall be the responsibility of the labour inspectorate. According to section 60 in connection with sections 66 and 67 of the same act, labour inspectors may request migrant workers to produce work permits and may issue fines on them when work without a work permit is performed. The Committee notes from the Government’s report that in 2009, a total of 340 labour violations were disclosed in relation to the employment of foreigners including 260 violations of the Employment and Work of Aliens Act and 80 violations of the Prevention of Undeclared Work and Employment Act. In 2010, the total number of violations decreased to 224 (163 and 61 respectively).

The Committee recalls that, as underlined in paragraphs 77–78 of its General Survey on Labour Inspection, 2006, Convention No. 81 does not contain any provision that suggests that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. The primary duty of labour inspectors is to protect workers and not to enforce immigration law. Given the potentially large proportion of inspection activities spent on verifying the legality of immigration status, the Committee has emphasized that additional duties that are not aimed at securing the enforcement of the legal provisions relating to conditions of work and the protection of workers should be assigned to labour inspectors only insofar as they do not interfere with their primary duties and do not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee also recalls that in most countries it is the employer who is held accountable for illegal employment as such, with the workers involved in principle being seen 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. The Committee has therefore emphasized that the function of verifying the legality of employment should have as its corollary, the reinstatement of the statutory rights of all the workers if it is to be compatible with the protection 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 the protection of workers.

The Committee requests the Government to describe the practical steps taken by the labour inspectorate when undocumented foreigners are found to be engaged in illegal employment, notably whether sanctions are imposed on the workers as provided in sections 66 and 67 of the Employment and Work of Aliens Act and any collaboration with other public entities in this framework.

Furthermore, given the considerable workload involved in the tasks related to the verification of the employment relationship, the Committee requests the Government to indicate the measures taken or envisaged to ensure that the activities of the labour inspectorate targeted at the enforcement of the Employment and Work of Aliens Act, do not prejudice the exercise of its primary duty to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers. It further requests the Government to describe the role of the labour inspectorate and the justice system in ensuring the discharge of the employers’ obligations with regard to the statutory rights of foreign workers found to be illegally employed, such as the payment of wages and any other benefits owed for the work performed in the framework of their employment relationship, including where they are liable to expulsion or after they have been expelled.

4. Creation of a new inspection branch. The Committee also takes note of section 150 and the following of the Labour Market Regulations Act of 28 September 2010, that came integrally into force as of January 2012, as well as section 24 and the following of the National Professional Qualifications Act of 5 January 2007, according to which the labour inspectorate is involved in the control of professional certification processes and in the control of temporary employment agencies. It notes the information in the Government’s report on the Labour Inspection (Agriculture) Convention, 1969 (No. 129), according to which an additional inspection branch within the labour inspectorate, namely the Inspection for Employment, is being set up in order to be entrusted with the implementation of the Labour Market Regulations Act. The Committee requests the Government to submit information on the organizational structure and mandate of the new inspection service, as well as whether it will be composed of existing or newly recruited specialized staff, so as to ensure that there will be no adverse effect on the fulfilment of inspection tasks by the staff of the existing labour inspection branches (OSH, Labour Relations and Social Security).

Article 3(1)(b) of the Convention. Provision of advisory services and preventative role. The Committee notes with interest that a call centre was set up which enables citizens to obtain advice and which channels relevant requests to the competent inspection service. It also notes the creation of a web portal through which users can file an electronic complaint and address questions through a general e-mail address with the relevant information being channelled to the competent labour inspection services. It also notes that the response to this instrument has been positive, as in 2010, 55 reports were submitted in this way to the labour inspectorate. It moreover notes that the topics of the most frequent questions are published on the website of the Slovenian Labour Inspectorate. The Committee requests the Government to provide information on the topics raised most frequently through the call centre and web portal and whether any follow-up action is given, for example, through targeted inspection and/or information campaigns, by the labour inspectorate. Please also provide information on any further preventative activities of the labour inspectorate, carried out in collaboration with employers’ and workers’ organizations.

Article 5(a) of the Convention. Effective cooperation between inspection services and other government services engaged in similar activities. 1. The Committee notes from the Government’s reply to previous comments that training sessions were organized for 80 police officers in October 2008, and 50 officers in May 2009, in addition to representatives of the State Prosecutor’s Office. The purpose of the training was to familiarize police officers with OSH legislation, to introduce aspects of collaboration when investigating into accidents at work, and to focus on criminal offences in connection with accidents at work. It observes the Government’s positive evaluation of this experience, indicating that this kind of training had contributed to a better operational work in practice. The Committee requests the Government to provide details on the specific content and duration of the common training with the police and its impact on the prevention and investigation of industrial accidents.

2. The Committee notes the information provided on the Inspections Board which is a permanent inter-ministerial working body coordinating the joint implementation of inspection duties of different inspection services, considers common issues relating to the operation of inspection services, deals with questions relating to training in inspection services and discuss, coordinate and plans measures to provide information support to inspection services. It is composed of four committees on performance monitoring, education and training, IT support and legal affairs. The Committee would be grateful if the Government would specify the composition of the Inspection Board and explain the relationship between the Board and the labour inspection central authority as well as the social partners. Please also provide a summary of the activities and decisions of the Inspection Board over the reporting period, as well as their impact in terms of both law enforcement and conditions of work of labour inspectors.

3. The Committee notes the information provided in reply to its direct request according to which meetings are held between the labour inspectorate and the public prosecutors at local level focusing on actual cases. It also notes that meetings and work consultations were held with the Office of the State Prosecutor General in order to standardize and improve the effective filing of criminal complaints. In this framework, the labour inspectorate organized a workshop with the judicial branch on how to improve minor offence procedures. With reference to its general observation of 2007 the Committee requests the Government to indicate any measures taken or envisaged to promote effective cooperation between the labour inspection services and the justice system, especially in the framework of the functioning of the labour inspectorate as a misdemeanour authority for minor offences, as well as information on the judicial treatment of any cases referred to the justice system by the labour inspectorate.

4. The Committee notes that the labour inspectorate obtained access to electronic databases maintained by other state authorities and that, as a result, the information exchange became faster and more efficient. The Committee asks the Government to specify the type of data maintained in databases by other State authorities and shared with the labour inspectorate.

Article 6. Status and conditions of service of labour inspectors. 1. The Committee notes that 14 labour inspectors departed from the service during the reporting period. While the Government indicates that some cases were due to retirement or alternative employment, in nine cases the Government does not indicate the motives for the departure. The Committee also notes that according to section 7 of the Labour Inspection Act and section 153(1)(6) and (7) of the Civil Servants Act, the employment of labour inspectors may be terminated if they fail to pass a professional qualification test which is due every three years. The Commission recalls that according to Article 6 of the Convention, the inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment. The Committee requests the Government to amend section 7 of the Labour Inspection Act so that the continuing employment of labour inspectors is not conditional on passing a professional qualification test every three years. Noting moreover, that according to the Government, the Inspection Board cooperates with representative trade unions on issues relating to the status of labour inspectors, the Committee requests the Government to communicate any position of trade unions expressed on this matter.

Recalling moreover that according to Article 7 of the Convention, labour inspectors should be adequately trained for the performance of their duties, the Committee requests the Government to provide details on the initial and continuing training provided to labour inspectors and its impact on the effective performance of their duties.

2. The Committee notes that in reply to its previous comments the Government acknowledges that no measures to improve the position of labour inspector or to increase the interest in this profession were taken during the reporting period. Three labour inspectors left the service for new employment. The Committee also notes from the Government’s report and the Annual Labour Inspection report 2009 (OSH part) that potential candidates were discouraged by demanding working conditions and low wage levels to be expected. Competitions for OSH inspectors had to be repeated due to the absence of sufficiently qualified candidates. The Committee emphasizes the importance of offering attractive conditions of service corresponding to the complexity and socio-economic importance of the labour inspections functions, in order to retain qualified staff and to ensure the independence of the labour inspection services from external influences. The Committee once again requests the Government to indicate any measures taken or under consideration to improve the conditions of service of labour inspectors and make them more attractive for qualified candidates. It requests the Government to indicate any progress made or obstacles encountered in this respect.

Article 12(b). Access to presumed workplaces. The Committee notes that according to section 21 of the Inspection Act, the access of labour inspectors to premises not belonging to a person liable to inspection may be refused if the inspection process might cause property damage or “severe embarrassment” even though there is suspicion of the presence of persons performing activities and being liable to inspection”. The Committee wishes to underline that according to Article 12(1)(b), labour inspectors should be empowered to enter by day premises which they may have reasonable cause to believe to be liable to inspection in order to efficiently ensure workers’ protection. The Committee requests the Government to indicate how it gives effect to this obligation in practice.

Article 15(a). Prohibition from having any direct or indirect interest in the undertaking liable to inspection. The Committee would be grateful if the Government would indicate which legislative provision gives effect to the labour inspectors’ obligation not to have any direct or indirect interest in the undertaking under their supervision.

Article 14. Notification of industrial accidents and cases of occupational disease in accordance with national laws and regulations. The Committee notes from the Government’s reply to its previous comments that the draft rules on record keeping and reporting in the area of OSH have not yet been adopted. The Committee requests the Government to provide the Office with a copy of the rules on record keeping and reporting in the area of OSH once adopted.

Articles 17 and 18. Adequate penalties for the violation of enforceable legal provisions and for the obstruction of labour inspectors. Deterrence of sanctions. The Committee notes the Government’s reply to its previous comments on the applicable legal provisions in cases of obstruction of labour inspectors. It notes with interest, that the obstruction of an official is considered as a criminal act which may lead to a sentence of imprisonment in accordance with article 299 of the Penal Code. It also observes, however, the overlap between section 38 of the Inspection Act and section 24 of the Labour Inspection Act which impose fines of €1,500 and €4,172 respectively, for obstruction. The Committee would be grateful if the Government would clarify the applicable provisions in this case. It reiterates its request for information on the application of these sanctions in practice and asks the Government to provide relevant statistics in its next report.

Articles 20 and 21 of the Convention. Communication of the annual report. The Committee notes with interest that a detailed report with a summary data extracted from the annual labour inspection reports was provided by the Government. The Committee encourages the Government to continue to provide summaries of the content of annual labour inspection reports which are available on the internet in Slovenia.