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

Referring to its previous observation regarding the comments by the Federation of Trade Unions of Ukraine (FTUU), dated 28 September 2009, on the application of this Convention, the Committee notes the Government’s communication of 12 January 2010 replying to the points raised by the union.

In its comments, the FTUU referred to Act No. 877-V, adopted on 5 April 2007 by the Supreme Council concerning the fundamental principles of state supervision in the area of economic activity, which entered into force on 1 January 2008. According to the union, the Act was supplemented on 23 May 2009 by an Order of the Cabinet of Ministers of Ukraine concerning temporary restrictions on state supervision activities in the area of economic activity, applicable until 31 December 2010. Although the FTUU has not transmitted to the ILO copies of the abovementioned instruments, it indicates that they contain a number of discrepancies with regard to the provisions of this Convention and the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

According to the union, Act No. 877-V significantly restricts the rights of state inspectors and their ability to carry out their supervisory functions as a result of the introduction of additional procedures, namely:

–..... the requirement to establish the periodicity of inspection visits to workplaces;

–..... the requirement to obtain specific authorization documents, without which inspection officials may be refused entrance by the employer;

–..... inspection visits must be carried out only during working hours;

–..... notice of a planned visit must be given at least ten days in advance;

–..... the requirement of an order or warrant from the relevant superior authority in case of unscheduled inspections.

Moreover, Cabinet Order No 502 provides that scheduled inspections of economic entities shall be temporarily suspended until 31 December 2010, except in the case of entities which, according to the risk assessment criteria approved by the Cabinet of Ministers, are classified as “high-risk” economic entities, and in the case of regular monitoring operations in connection with the enforcement of tax legislation and the verification of the calculation, completeness and timeliness of payments due under various budgets and state tax and contribution funds.

According to the union, the provisions of these texts undermine the effectiveness of state labour inspection, in particular inspection activities in connection with the enforcement of legislation regarding occupational safety and health and the working environment. The Committee understands that, in response to the union’s request (by letter No. 4322-0-33-08-21 of 19 May 2008) for a clarification regarding the legality of the provisions of Act No. 877-V, the Ministry of Justice affirmed that, under the terms of the Constitution and the Act concerning international agreements to which Ukraine is party, international agreements currently in force, which have been accepted by the Supreme Council as binding, are an integral part of the national legislation and must be observed conscientiously in accordance with international law and that, consequently, in case of conflict with national provisions, those of international agreements prevail. However, the Ministry refused to ask the Government to initiate an amendment process of these instruments. As a result, according to the union, the inspectors of the state occupational safety and health and mining inspectorate are hindered in their activities.

The FTUU requests that the Government’s attention be drawn to the importance of bringing the national legislation into line with the obligations it has accepted under the terms of this Convention and Convention No. 129.

In reply to the points raised by the FTUU, the Government fully recognizes that Article 12(1)(a) and (2), as well as Article 15(c) of the Convention, have indeed been violated by several provisions of Act No. 877-V, and that the provisions of Cabinet Order No. 502, issued to restrict temporarily the performance of state monitoring activities in the sphere of economic activity until 31 December 2010, are also contrary to the provisions of Articles 16 and 18 of the Convention. Moreover, the Committee notes that, according to the Government, the State Department for Supervision of Labour Legislation (Goznadzortruda) has prepared a Bill to amend Act No. 877-V and a draft Cabinet Order to amend Cabinet Order No. 502, but none of these texts have yet been approved by the competent executive authorities. In this regard, the Committee would like to draw the Government’s attention to paragraph 266 of its General Survey of 2006 on labour inspection, in which it explains that “the different restrictions placed in law or in practice on inspectors’ right of entry into workplaces can only stand in the way of achieving the objectives of labour inspection as set out in the instruments” and notes that “such restrictions are not in conformity with the Conventions”. The Committee recalls that, under the terms of Article 12(1)(a), labour inspectors with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection and that “the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped” (see General Survey, op. cit., paragraph 270).

As regards the frequency and thoroughness of inspection visits in accordance with Article 16 of the Convention, the Committee notes that “how this provision is applied in practice is the basic test of any labour inspection system” (see General Survey, op. cit., paragraph 256). It further recalls that “in order for labour inspectors to carry out inspections as often and as thoroughly as prescribed in the instruments, they must have adequate freedom of movement and logistical means. They must also have the necessary information on the enterprises and activities liable to inspection to enable them to focus their interventions on priorities defined on the basis of objective criteria, such as level of occupational risk, categories of men and women workers employed (young persons, migrants) and the presence of a trade union” (see General Survey, op. cit., paragraph 258).

The Committee requests the Government to provide a copy of Act No. 877‑V and Cabinet Order No. 502, as well as the related abovementioned draft texts, and to take the necessary measures in the near future to ensure that law and practice are brought into line with the provisions of the Convention with regard in particular to the rights and powers of labour inspectors. It would be grateful if the Government would report on the steps taken and the results achieved and provide the Office with any relevant documentation.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2011.]