Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 81) sur l'inspection du travail, 1947 - Bosnie-Herzégovine (Ratification: 1993)

Autre commentaire sur C081

Observation

Demande directe

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With reference to its observation, the Committee would like to raise the following additional points.

Labour inspection needs assessment (ILO technical assistance). The Committee notes with interest that the Government received ILO technical assistance in the form of a labour inspection needs assessment in 2012 (the 2012 audit) and that the recommendations were made with a view to improving the effectiveness, efficiency and quality of the labour inspection services, including the application of the Convention. The Committee invites the Government to indicate the steps taken or envisaged with a view to improving the labour inspection system in accordance with the requirements of the Convention, in light of the recommendations made in the 2012 audit and to provide a copy of any texts adopted in this regard.

Labour inspection activities in the area of undeclared work. The Committee notes the information in the annual reports on the work of the labour inspection activities for the Federation of Bosnia and Herzegovina (the Federation) and the Republika Srpska that inspections were aimed, to a large extent, at undeclared work (informal employment or sub-declaration of wages). According to the information in the 2012 audit, the informal economy is estimated to account for around 30–50 per cent of the national GDP. It also notes that in the Republika Srpska, a tripartite committee to combat undeclared work in the construction sector was set up, where the incidence of this type of work is particularly high. The Committee asks the Government to provide information on the activities carried out by the labour inspectorate in the informal economy (number of inspections in the different economic sectors, awareness-raising activities, etc.) and their outcome (such as the number of violations detected, the legal provisions concerned, the measures taken and the sanctions imposed, as well as the cases notified to the social security institutions).

Article 3(2). Additional duties entrusted to labour inspectors. The Committee notes that according to section 33(5) of the law on labour inspections in the Federation and section 14 of the law on labour inspection in the Republika Srpska, labour inspectors are entrusted, amongst other tasks, with the control of the employment of foreigners. The Committee refers to paragraph 78 of the 2006 General Survey on labour inspection according to which the primary duty of labour inspectors is to enforce the provisions on conditions of work and the protection of workers and not to enforce immigration law, and the function of verifying the legality of employment should have as it corollary the reinstatement of the statutory rights of all workers if it is to be compatible with the objective of labour inspection. The Committee asks the Government to provide details on the nature and scope of the activities carried out by the labour inspectorate in relation to the control of the employment of foreigners, including information on the detected violations and the legal provisions concerned, as well as the legal proceedings initiated, remedies applied and sanctions imposed.

Articles 4 and 5. Structure of the labour inspection system, supervision and control by a central authority or the central authority of a federated unit, and cooperation between inspection services. 1. Structure and organization. The Committee notes from the 2012 audit that, as a result of the administrative division of the country, the Federation, the Republika Srpska and the Brcko District continue to have their own labour inspection systems. While in the Republika Srpska, labour inspection is a centralized body with offices covering different regions of the territory, in the Federation there is duality with responsibilities for labour inspection of the Federal Administration for Inspection Issues (FAII) and each of the ten cantonal inspectorates of the Federation, which leads to some overlapping competencies.

2. Legislation and jurisdiction. All administrative entities have their own labour legislation and, in addition to the different entities, the cantons in the Federation have their own labour law jurisdiction. This leads to a very fragmented legal system with significant differences from one entity to another, and in the cantons of the Federation, creating an environment where employers and workers are given different rights and obligations, depending on the geographical area in which they are located.

3. Supervision and control by a central authority or the central authority of a federated unit and cooperation between the inspection services. The Committee understands from the 2012 audit, that a central authority in the meaning of Article 4 of the Convention does not exist in the country. There is no national policy on labour inspection and each entity defines its own priorities and agendas. In the Federation, the cantons have their own agendas for labour inspection, although the FAII plays the role, to a certain extent, of a central authority and can, to a limited extent, influence their planning options.

4. Recommendations in the 2012 audit. The Committee notes that one of the main recommendations of the 2012 audit is to enhance coordination and coherence of the system. According to the audit, this could be done through: (i) the harmonization of labour law at the national level, including the draft OSH Law of the Federation; (ii) the establishment of a national coordination/supervision mechanism, such as a tripartite committee joining the heads of all the labour inspectorates and social partners at the entity level, respecting the exclusive jurisdiction of the entities and cantons; as well as (iii) the better identification of national priorities and some standardization of practices. In this regard, the Committee also recalls its comments made under the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), which the country ratified in 2009, when it requested the Government to ensure that a coherent OSH policy be formulated in accordance with the principles contained in Article 4 of the Occupational Safety and Health Convention, 1981 (No. 155), for each entity and district, in consultation with the most representative organizations of employers and workers. The Committee asks the Government to provide detailed information on the measures taken or envisaged to give effect to the abovementioned recommendations, with a view to ensuring an effective functioning of the system of labour inspection in the country under the supervision and control of a central authority (either of a federal authority or a central authority of a federated unit) in cooperation between the different inspection services at the entity and cantonal level, and in collaboration with employers and workers or their organizations.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes the information contained in the 2012 audit on the weak collaboration between the labour inspectorate and the social partners in most cantons of the Federation. Neither employers nor workers’ organizations are involved in the activities of the labour inspection on a regular basis. In this regard, one of the recommendations of the audit is to intensify collaboration and promote joint discussions between the social partners and the labour inspectorates. The Committee would be grateful if the Government would provide information on the arrangements made for collaboration between the labour inspection services and employers’ and workers’ organizations (such as information on the organization of conferences or joint committees, including on the subjects covered and the number of participants; the collaboration with the labour inspection services at the enterprise level, etc.) and to specify the impact of such cooperation on the achievement of the objective assigned to the labour inspectorate, namely improving conditions of work and the level of protection of workers while engaged in their work.

Articles 6, 7, 10 and 11. Human and material resources available to the labour inspection services, conditions of service and training of labour inspectors. According to the 2012 audit, the number of 123 labour inspectors (72 in the Federation, 44 in the Republica Srpska, and seven in the Brcko District) is insufficient in relation to the number of workers in the country (3,839,737), with a ratio of one inspector for 31,217 workers. This ratio does not take into consideration the number of undeclared workers. The shortage of human resources is especially stringent in some cantons of the Federation.

In all of the visited inspectorates during the mission, OSH inspectors do not have their own personal protective equipment to prevent them from exposure to risks in the course of their duties. Moreover, in the Federation, the most important needs were identified in terms of vehicles available to labour inspectors, which are insufficient and in poor or even hazardous conditions. Career prospects of labour inspectors are not such as to attract the best qualified staff and incentives to improve performance are insufficient. As it might appear from the 2012 audit, while a training policy was developed in the framework of the United States Agency for International Development–Enabling Labor Mobility Activity (USAID–ELMO) project and some training was delivered, there is no consistent training on the subjects relevant to labour inspection in most of the cantons of the Federation. The Committee further notes from the 2012 audit, that following an agreement with the International Monetary Fund (IMF) in 2009, the Federation and the Republika Srpska have undertaken measures concerning public expenditure cuts which also affected the human and material resources of the labour inspectorates, including wages in the public sector.

The Committee notes however with interest that, in the framework of the USAID–ELMO project, all inspectors have received IT equipments (laptops and printers) and that a so-called E-Inspector software was developed for the planning and management of inspections. The software has been fully implemented and is in use in the Republika Srpska and is planned to be gradually implemented in all of the cantons of the Federation, while some technical and other problems remain to be solved. In this regard, the Committee also notes that during the mission, reference was made to a database under preparation which would allow for a central exchange of information between the Federation and the Republika Srpska.

The Committee notes the recommendations in the 2012 audit concerning the development of long-term human resources strategies for the reinforcement of staff (recruitment, mobility, etc.), better incentives to attract and retain inspectors and the design and implementation of training strategies. It further notes the recommendations concerning the renewal of the automobile fleet or other options to ensure transportation of labour inspectors to all geographical areas of the country, the purchase and maintenance of personal protective equipment. It further notes the recommendation on technical assistance for the different inspectorates in relation to the E-Inspector software, including the collection of information on existing workplaces in cooperation with other institutions, such as the Chambers of Commerce, to make this information available and feed into the systems in use by the different cantons.

The Committee asks the Government to provide detailed information on any follow-up measures taken with regard to the above recommendations (that is the strengthening of the human resources of the labour inspectorates, purchase of adequate transport facilities and appropriate protective equipment, improvements in the conditions of service of labour inspectors, including their remuneration and career prospects, etc.). The Committee also requests the Government to provide details on the training provided to labour inspectors (subjects, duration, attendance, evaluation and impact) during the period covered by the next report of the Government.

The Committee is requested to report on the progress made with the establishment and operation of the “E-inspector” software in the cantons of the Federation, as well as with the collection of information on existing workplaces in cooperation with other institutions, to make this information available and feed into the systems in use by the different cantons. If applicable, please provide information on any difficulties encountered in this regard.

Articles 13, 17 and 18. Powers of labour inspectors in the canton of Central Bosnia of the Federation. The Committee notes the information in the 2012 audit according to which, although inspectors in the Federation have the power to order the correction of irregularities detected, prohibit activities/order the stoppage of work, issue fines, file criminal charges and request the initiation of court proceedings, labour inspectors in the Canton of Central Bosnia lack, in practice, almost all of the inspection supervisory powers and can almost only provide recommendations. Labour inspectors in this canton lack the statutory powers to order sanctions or orders the stoppage of work. The Committee asks the Government to indicate the measures taken so as to provide for these powers of labour inspectors, both in law and practice, in the Canton of Central Bosnia.

Articles 5(a), 17 and 18. Dissuasive penalties and effective enforcement of labour law violations. Cooperation with the judicial authorities. The Committee notes from the 2012 audit that sanctions are considered to be insufficient and ineffective, while the exact reasons seem not to have been identified yet. In the Federation, the level of sanctions is low, legislation is outdated (the OSH law still refers to the old Yugoslav currency) and the rendering of court decisions is slow (one year on average). In the Republika Srpska, the use of sanctions is mitigated by a recommended approach to inform and prevent first, and by the fact that the first fine to be imposed is limited to a small amount.

The Committee understands from the information provided in the Government’s report that a system for the recording and enforcement of fines for minor offenses has been established and that training has been provided in some cantons of the Federation for the use of this system. Furthermore, the Committee notes that a seminar for labour inspectors on the referral to courts of detected offenses was organized in all cantons with the participation of the presidents of the cantonal courts. It notes from the annual report for 2011 of the Republika Srpska that cooperation has improved through meetings with representatives of the justice system. Noting the recommendations in the 2012 audit, in this regard, the Committee asks the Government to provide information on the measures taken to increase the effectiveness of sanctions. It requests the Government to provide information on any progress made with the adoption of the draft OSH Law of the Federation (as recommended in the 2012 audit), or on any other measures taken or envisaged to amend the legislation in force so as to raise the level of fines and penal provisions.

The Committee requests the Government to keep the ILO informed of any further cooperation activities between the labour inspection services and the justice system in all entities of the country and their impact. In this regard, it asks the Government to indicate the number of cases referred to the judicial authorities by the labour inspectorate, the number of cases dealt with by the courts, the type of penalties imposed, the areas of labour law concerned, etc.