Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes with interest the information supplied by the Government concerning the legislation adopted during the period covered by the report, the balanced distribution of labour inspectors by gender, specialization and grade, as well as the activities of inspectors and their results. The Committee also takes note of the annual report of the labour inspectorate for 2006 and the information furnished in response to its previous comments concerning developments in the area of the monitoring of illegal employment and measures to promote effective cooperation between the labour inspection services and the judicial authorities.

The Committee also notes the communication from the Federal Chamber of Labour (BAK), attached by the Government to its report.

Article 3, paragraphs 1(a) and 2, of the Convention. Monitoring of illegal employment. Following up on its observation made in 2006 welcoming the provisions exempting labour inspectors from the need to monitor illegal employment, the Committee notes that, as of 1 January 2007, this function has again been transferred to another authority. The Committee would be grateful if the Government would indicate the impact of this measure on the number and scope of inspections of working conditions in workplaces liable to inspection. The Committee would be grateful if the Government would provide details on any improvements noted.

Article 5(a). Effective cooperation between labour inspection and the judicial authorities. The Committee notes with interest the detailed information concerning the operation of the two prosecution systems relating to violations of the law regarding working conditions and protection of workers. It appears in particular that one of the systems is under the jurisdiction of the administrative courts; as the labour inspectorate forms part of the proceedings, it can make its case before the judgement is rendered and appeal against it. In addition, the Federal Chamber of Labour specifies that information on complaints and administrative procedures is available on the web site of the Federal Ministry of Labour and Economic Affairs.

According to the Federal Chamber of Labour, violations falling under the Criminal Code and the Code of Criminal Procedure are referred by labour inspectors either to the Department of Criminal Investigation or to the Department of the Public Prosecution. The tribunals must inform the inspection services of the termination of a procedure, but not of the decision taken. The above organization declares that it will monitor developments in practice in the implementation of the law on responsibility of organizations (VbVg), in particular in the light of the Committee’s recent comments. However, it is of the opinion that this system presents some shortcomings, in particular when it comes to the prosecution of violations in the area of occupational safety and health. In this connection, the organization refers to article 22 of the Federal Constitution, which provides that the Federal Ministry of Justice shall offer administrative support to other ministries. The organization also raises the problem of ensuring the mutual assistance needed for the enforcement of administrative penalties in a cross-border context.

In addition, the Federal Chamber of Labour provides details on the division of responsibilities concerning the enforcement of labour legislation and the problems that this can entail, in particular in the case of workers covered by collective agreements. It considers that only an increase in the resources allocated to labour inspection services will enable it to adapt to the new forms of work contracts deriving from the introduction of more flexible arrangements as a result of changes in the legislation on working hours.

The Committee would be grateful if the Government would provide in its next report any comments it considers relevant concerning the issues raised by the Federal Chamber of Labour.