Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Referring to its observation, the Committee would like to draw to the Government’s attention the following points.

Article 3 of the Convention. Additional duties performed by labour inspectors. The Committee notes the detailed statistics provided by the Government on the control of illegal employment. It notes that such control has been generally related to complaints filed with the labour inspectorate, which correspond to 0.61 per cent of all complaints. Given the limited scope of these activities, the Committee observes that they do not appear to constitute additional duties which could interfere with the effective discharge of the primary duties of labour inspectors, that is to secure the enforcement of legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as the provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons and other connected matters. The Committee also notes from the Government’s report that, where infringements are found, administrative sanctions are imposed on the employers responsible for such violations.

The Committee recalls that the role of the labour inspectorate, pursuant to the provisions of the Convention, is in principle to monitor not the legality of the employment relationship but the conditions in which the work is performed. In paragraph 77 of its General Survey of 2006 on labour inspection, the Committee recalled that neither Convention No. 81 nor the Labour Inspection (Agriculture) Convention, 1969 (No. 129), contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. In paragraph 161 of the abovementioned General Survey, the Committee observed that, in view of the growing numbers of foreign and migrant workers in many countries, the labour inspectorate is often asked to cooperate with the immigration authorities and that such cooperation should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions. In this respect, it should be emphasized that the expression “while engaged in their work” used in Article 3(1)(a), of the Convention indicates that the protection afforded by the labour inspection must be provided to all workers for the period of their employment relationship. In order to remain in conformity with the purpose of their duties, the action taken by inspectors should enable the implementation of legal proceedings against employers guilty of contraventions, entailing not only the imposition of adequate penalties in accordance with the various categories of contraventions but also the requirement to pay any outstanding sums owed to the workers concerned for the actual duration of their period of employment. The financial consequences (fines and workers’ wages) resulting from the actions of the labour inspectorate can constitute an effective deterrent against the employment of persons in an irregular situation with regard to labour legislation. In light of the above, the Committee would be grateful if the Government could indicate in which way the labour inspectorate ensures that workers in an irregular employment status are covered by the same legal protection of their terms and conditions of work as regular workers. In particular, please indicate in which way foreign workers in an irregular residency status may recover their acquired rights, for example the payment of wages and social security benefits, in case they are expelled from the territory by the authority competent for the control of illegal migration.

Articles 5(a) and 21(e). Effective cooperation between the labour inspection services and the justice system. The Committee takes note of the detailed information provided by the Government in reply to its general observation made in 2007 with regard to cooperation between the labour inspection services and the justice system. The Committee would be grateful if the Government could provide statistical information on the number of appeals against imposed fines brought to the administrative courts and the decisions rendered. Please also indicate the number of infringements reported to the competent authorities, the number of convictions and particulars on the nature of the penalties imposed by the competent authorities in the various cases (fines, imprisonment, etc.).