Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report for the period ending 31 May 2006 and the information in reply to its previous comments, particularly those regarding the comments from the Union of Technical Officials, Employees and Labourers (BTB) in 2004 concerning the reductions in controls of occupational safety and health matters supposedly resulting from the reform of the labour inspectorate in the Land of Baden-Württemberg. The Committee notes a new observation from this organization dated 23 October 2006 referring to the abovementioned points, which the ILO forwarded to the Government on 28 February 2007.

Restructuring of the labour inspection system. In its previous comments, the Committee noted the Government’s view that the legislative amendments affecting the labour inspection system in the Land of Baden-Württemberg and consisting of the division of responsibilities between the authorities at different levels did not call into question guarantees relating to supervision and control of the labour inspection system as provided for by law, the Ministry of Home Affairs of the Land assuming the duties of the central authority in this matter.

The Committee considered that, even though the incorporation of the labour inspection system into the joint administrative structures of the Land did not in itself conflict with the provisions of the Convention, the Government should nevertheless supply information in reply to the concern voiced by the BTB regarding the imbalanced distribution of the workforce of the former labour inspection system to the detriment of certain subregional districts, which was likely to obstruct the application of Article 16 of the Convention.

In its report received by the ILO in 2006, the Government stated that the new Administrative Reform Act came into force on 1 January 2005 and that labour inspection as defined by the Convention was amalgamated in the Land of Baden-Württemberg with control of the environment. This integrated approach reflects the principle of a single point of contact with regard to all aspects of occupational safety and health and environmental protection. In the Government’s view, this restructuring would have no impact on the fundamental principles of the Convention. It asserts that there has been a balanced distribution of inspection staff between the regional authorities, on the one hand, and the subregional authorities, on the other, given that it meets the requirements of each territorial entity. The guiding principle of the administrative reforms which have been implemented is to assign responsibility to the regional authorities for technical inspection activities relating to establishments which are likely to have a significant impact on the environment. These authorities are therefore responsible for the certification and inspection of enterprises which are covered by the provisions of Council Directive 96/61/EC concerning integrated pollution prevention and control (IPPC) or which perform activities governed by the provisions of the Incident Ordinance (Störfallverordnung). Another guiding principle of the reform is to reinforce coordination of the regional and subregional authorities for the performance of public works. Responsibilities in this case no longer depend on the type of enterprise but on the “industrial site” concept as defined under section 162(2) of the new Act, namely a specific area defined according to the surface area occupied by enterprises, installations or zones of operation with a spatial, technical or functional interconnection and placed under the supervision of a natural or legal person.

The Government points out that only the regional authorities carry out inspections in relation to the safety of products, including safety items and medicinal products, and in relation to protection against radiation, maternity protection and the protection of homeworkers, this point not having been reflected by the BTB even though it partially explains the new distribution of the inspection staff. The Government also points out that the regional authorities are assigned duties other than those related to factories and installations. These are technical, coordination and advisory tasks vis-à-vis the public authorities at a lower level, including the subregional authorities.

According to the Government, none of the ministers responsible for occupational safety and health issues is aware of any grounds for justifying an in‑depth re-examination of the new distribution of staff. It emphasizes that the balance of the staff distribution has to be understood not only according to the number of workplaces to be inspected but also taking account of the complexity of certification procedures and their environmental impact, as purely numerical criteria are insufficient. In this respect, the Government refers to Article 10 of the Convention and emphasizes that the nature and size of workplaces, on the one hand, and the number and complexity of the legal provisions, on the other hand, can differ significantly between a regional authority and a subregional authority. Although it is true that the competence of subregional authorities extends to a wide range of categories of establishments and activities (retailers, hotels, restaurants, shops, offices and other administrative buildings), the number of industrial installations and the level of risk in them is low by comparison with high-risk workplaces which, according to the Government, generated most of the activities of the public factory inspection service before the reform. The latter also took action in enterprises having a certain environmental importance which also depended on the regional authorities for certification and plant authorization. The Government considered this situation to demonstrate a natural compatibility between the role of the inspection services and that of the regional authorities, even before implementation of the reform. It also considers that institutional reform is a source of synergy. Hence, the Ministry of the Environment and the Ministry of Social Affairs of Baden-Württemberg attach the same importance to the promotion of training and retraining in the area of occupational safety and health.

In its observation sent on 23 October 2006, the BTB repeated its point, in addition to the points raised previously which had given rise to the situation referred to above, that the inspection services and the state supervisory services should remain grouped together in the same structure and underlined the negative impact that the same reforms implemented in other Länder had had on occupational safety and health. The main points of its argument were as follows:

–           The existence of dual structures carries the risk of different approaches to implementation and makes coordination between the different Länder difficult.

–           The fragmentation of inspection tasks between different departments, municipalities and urban districts reduces the impact of state control, the latter being limited to the monitoring of legality.

–           Since responsibility for the recruitment of inspection staff is not clearly defined, the result for several years has been a lack of recruitment of new staff and, consequently, a loss of considerable expertise.

–           The dispersion of authorities responsible for training among different structures is a source of inequality in the handling of the matters concerned.

–           The diversity of computing systems used by the different structures is a source of difficulties in communication and information.

–           Competencies for occupational safety and health are divided among an excessive number of regional subdivisions within each Land government.

According to the union, these aspects are already highlighted in an evaluation report produced in 2006 by the Senior Labour Inspectors Committee. The union claims that occupational safety and health inspection in Germany is no longer in conformity with the principles of the Convention.

While noting that the Government has not communicated its point of view with regard to the additional information and the supporting documentation sent by the BTB, the Committee notes that the Government states that, under the terms of section 179 of the Administrative Reform Act, a report from the urban and rural subregional authorities to the Ministry of Home Affairs on the implementation of the reform was expected by 30 June 2007. The Committee hopes that the Government will supply detailed information on the outcome of the examination of the two abovementioned reports, to enable it to make a fuller assessment, in relation to the relevant provisions of the Convention, of the impact of every aspect of the structural reforms relating to the labour inspectorate.