Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the Government’s report for the period ending June 2009.

Articles 17 and 18 of the Convention. Legal proceedings and penalties. Cooperation with the justice system. Referring to its previous comments relating to the disparity between the number of cases referred to the Office of the Prosecutor and the number of cases which have actually given rise to legal proceedings, the Committee notes the new information provided by the Government according to which, in 2008, out of 308 cases – all concerning occupational safety and health – referred to the Office of the Prosecutor, only 21 gave rise to legal proceedings and led to 20 judgements of conviction. The Committee notes however with interest the communication by the Government of the audit carried out on the reasons for the disparity between cases referred to the Office of the Prosecutor and measures finally taken, and on the need to strengthen the cooperation and exchange of information between the State Labour Inspectorate and the territorial prosecution offices, as well as the capacities and expertise of the pre-trial investigation officers, prosecutors and experts carrying out forensic examinations. The audit suggests in particular that, with a view to strengthening cooperation, representatives of the State Labour Inspectorate and territorial prosecution offices should meet regularly and discuss the problems arising in prosecuting or sanctioning persons who have violated occupational safety and health regulations, analyse the mistakes made on the occasion of the relevant proceedings to avoid them in the future, and develop a streamlined practice of investigating the crimes in this area. The Committee would be grateful if the Government would take the necessary steps to ensure an effective cooperation between the State Labour Inspectorate and the Office of the Prosecutor with a view to achieving, according to Article 18 of the Convention, a more effective enforcement of the legal provisions on occupational safety and health, as recommended by the abovementioned audit. The Committee also asks the Government to indicate the impact of the measures taken with regard to the number and variety of penalties imposed by the judiciary.

Referring to its 2007 general observation, the Committee would also be grateful if the Government would take measures aimed at promoting such cooperation with the justice system more generally, so as to ensure that the work of the labour inspectors is properly supported through the sanctions imposed on the perpetrators of violations, not only in the area of occupational safety and health but equally with regard to the general conditions of work, such as hours of work, wages, child labour, leave, etc.

Article 5(b)  Collaboration between the labour inspection services and employers and workers. According to the audit, the labour inspectors face various obstacles in holding persons criminally liable under article 176 of the Criminal Code relating to the violation of safety and health protection requirements at work. Such obstacles include:

(i)    negligent actions of employees who are expected to ensure that working conditions do not raise any hazard to their life and health, and who should refuse to perform work which represents even a minimum threat;

(ii)   exemption of the employer from responsibility, even where such responsibility has been documented by the labour inspectorate, if the prosecution reveals that the worker could have avoided the accident, had she/he applied the safety precautions appropriately;

(iii)  failure by the managers to make an appropriate assessment of the risks and hazards and render employees responsible for their own actions as they exercise only episodic control and organize mere formal briefings, counselling and information procedures;

(iv)  alcohol consumption by workers (every third person who died at work was drunk);

(v)   unwillingness of workers, who depend entirely on their employer for their welfare, to disclose occupational safety and health related violations;

(vi)  difficulties in identifying the party responsible for violating article 176 of the Criminal Code as the “employer” for the purposes of the prosecution is not the person with overall responsibility, for example, the owner or managing director, but rather the employee responsible for occupational safety and health in enterprises with 50 or more employees. As powers are frequently shifted to people orally, it is difficult to prove who was actually responsible for occupational safety and health and this prevents proceedings from being instituted. The same happens when the deceased victim of an accident was the person responsible for occupational safety and health in the enterprise;

(vii) complicity between, on the one hand, the perpetrator/employer and, on the other, the victim or her/his family who refrain from informing the labour inspectorate on the circumstances of an accident or the existence of violations of occupational safety in the undertaking, in return for arrangements on future conditions of work or huge funeral allowances.

The Committee notes with concern the obstacles faced by the labour inspectorate in the enforcement of the legal provisions relating to occupational safety and health. It would like to draw the Government’s attention to Article 3(1)(b) of the Convention which identifies as one of the essential functions of the labour inspection system the supply of technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions, and to the guidance provided in Paragraphs 4–7 of Recommendation No. 81 on the specific forms of collaboration that could be maintained between the labour inspectorate and employers and workers in regard to health and safety. It stresses, in particular, the creation of safety committees or similar bodies, the members of which should be authorized to collaborate directly with the officials of the labour inspectorate when investigations and, in particular, inquiries into industrial accidents or occupational diseases are carried out. The Committee would also like to emphasize that specific information should be provided to the employers by the labour inspectorate on the long-term financial benefits derived from proper observance of the safety and health requirements at the workplace, benefits which are much higher than the immediate costs of the measures to be taken to this end.

The Committee urges the Government to take steps without delay in order to raise awareness among employers and workers on the vital importance of the enforcement of legislation on occupational safety and health as well as on the complementary roles of the social partners in helping the labour inspectorate ensure the enforcement of the relevant legislation. The Committee also requests the Government to take measures without delay so as to enhance the collaboration between employers and workers or their representatives with a view to ensuring the enforcement of article 176 of the Criminal Code. The Committee requests the Government to indicate in its next report the measures taken in relation to the above.

Articles 20 and 21. Annual report on the work of the labour inspection services. The Committee notes that the central authority publishes an annual report which is publicly available on its website in Lithuanian. The Committee would be grateful if the Government would provide in its forthcoming reports on the application of the Convention a summary of the content of the annual report in relation to the issues listed in Article 21 of the Convention (laws and regulations relevant to the work of the inspection service, staff of the labour inspection service, statistics of workplaces liable to inspection and the number of workers employed therein; statistics of inspection visits; statistics of violations and penalties imposed; statistics of industrial accidents; and statistics of occupational diseases).