Observation (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

Repetition

The Committee notes the Government’s report for the period ending 30 June 2010, and also the annual reports of the Labour and Mining Inspectorate (ITM) for 2007, 2008 and 2010 received at the ILO on 21 April 2011. It notes the publication, on the ITM’s website, of the annual reports starting with the report for 2004, which provides an overview of the changes in the operation of the labour inspectorate in each area.

The Committee also notes the inclusion in the annual report of the Code of Ethics for the labour inspectorate, adopted on 11 June 2008 and presented as a document that seeks to enable the ITM, as an organization, and its staff to apply quality standards in the sphere of professional and ethical conduct.

The Committee also notes the establishment of the ITM Help Centre in October 2009. This is an online service at national level providing advice and assistance designed to answer any questions that may arise for employees and employers regarding the national legislation. According to the information contained in the annual inspection report for 2010, the Help Centre, which is accessible on the website www.guichet.lu, has already enabled members of the labour inspectorate, who work on a decentralized basis in regional agencies, to provide a coordinated focus for users and to deal with investigations in enterprises.

Articles 3(1)(a) and 5 of the Convention. Methods for controlling the conditions of work of posted workers. The Committee notes that the Labour Code, adopted pursuant to the Act of 31 July 2006, was amended in particular by the inclusion of new provisions through the Act of 21 December 2007 concerning the reform of the Labour and Mining Inspectorate (ITM). The amended version of the Labour Code came into force on 13 June 2011.

The Committee notes the amendment of section 142-3 of the Code, under which foreign enterprises operating in Luxembourg without being permanently established there and employing one or more workers are now required to send to the ITM, as soon as possible (and no longer at the request of the ITM, as was the case under the former provisions), the documents referred to in section 142-2 concerning the enterprise and the workers employed in it. The Committee understands that this legal amendment will give the ITM the possibility of inspecting the conditions of work of the employees concerned as soon as the enterprise commences operations in Luxembourg, and thereby prevent any attempted abuse to the detriment of workers employed for short periods.

However, the Committee notes in the annual report of the ITM for 2010 that 30 injunctions for non-compliance with the new section 142-3 were issued, including nine by officials of the Luxembourg Liaison Office for Posted Workers (BLLD) (an entity resulting from the amalgamation of the Department for Posted Workers and Action against Illegal Work (SDTI) and the Luxembourg Liaison Office), and 21 by officials of the excise administration. The BLLD has a promotional and organizational role within the Inter-Administrative Task Force against Illegal Work (CIALTI), a variable and non-institutionalized structure capable of mobilizing officials from six to eight ministries or administrations and which thereby makes an active contribution, according to the annual report, to the “crackdowns” on worksites or in enterprises already referred to in the previous comments of the Committee. In 2010, a total of 17 interventions relating to “organized undeclared work” during weekends and three “after-work” interventions (i.e. between 17.00 hours and 21.00 hours) were implemented. The interventions related to undeclared work and also to overtime. The annual report also indicates that, in the context of the activities of the ASCAB division of the Customs and Excise Administration undertaken in cooperation with the ITM, a total of 792 inspections took place, during which 204 infringements were reported and penalized. A total of 48 penalties were imposed for undeclared work, and eight reports were drawn up for infringements of the legislation relating to posted workers. The Committee further notes that the cross-border cooperation in which the BLLD participates seeks to take effective action against the numerous and increasingly ingenious variations in illegal work, and to make a specific contribution to the prevention of occupational accidents and diseases among migrant workers.

The Committee requests the Government to clarify the role of ITM inspection staff in the preparation and implementation of “crackdowns”.

Referring to its comments of 2007 which were repeated in 2010, and noting that the Government has not supplied the requested information regarding the situation of foreign workers found as a result of inspections to have irregular status, especially as regards the protection of rights deriving from their status as employees during their actual period of employment, the Committee requests the Government to provide this information.

The Committee requests the Government to state the manner in which cross-border cooperation on controlling the posting of workers contributes to the prevention of accidents and cases of occupational disease among migrant workers.

Articles 2 and 3. Scope of application of the Convention and duties of labour inspection staff. Former section L.611-1 of the Labour Code stated that “without prejudice to other duties arising from the legal, regulatory or administrative provisions, the ITM shall be responsible in particular for: (i) enforcing the legal, regulatory, administrative and collective agreement-derived provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours of work, wages, safety, health and welfare, the employment of children and young persons, equality of treatment between women and men, protection against sexual harassment in the workplace, and other connected matters, in so far as such provisions are enforceable by the Labour and Mining Inspectorate [...]”. This provision was in full conformity with Articles 2 and 3(1) of the Convention as regards the scope of the Convention and the duties of the labour inspectorate (focusing on conditions of work and the protection of workers).

The Committee notes that, under the terms of the new provisions on this matter (section 612-1 of the Code), the ITM is responsible in particular for enforcing the legal provisions “including those” relating to conditions of work and the protection of workers, which, at least according to the letter of the provision, relegates the inspection tasks of the labour inspectorate as defined by Article 3(1) of the Convention to a secondary level of competence. It notes that labour inspection staff are responsible for a number of other duties unconnected with the duties defined by Article 3, such as surveillance and monitoring of the marketing and use of products in the country (lifts, pressure appliances in general, gas appliances, lifting appliances), which draw substantially on the human and logistical resources of the inspectorate.

In its General Survey of 2006 on labour inspection, the Committee emphasized that primary inspection duties (enforcement of the legal provisions as established in Article 3(1); provision of technical information and advice to employers and workers and their organizations; contributing towards improving the relevant legislation) are complex and require time, resources, training and considerable freedom of action and movement (paragraph 69). It reminds the Government once again that, in accordance with Article 3(2) of the Convention, any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee therefore requests the Government to take the necessary measures to re-establish the labour inspectorate, on the basis of law, in its primary duties, as defined in Articles 2 and 3(1) of the Convention, and to provide information on the measures taken or contemplated towards this end.

It also requests the Government to indicate the proportion of time and resources devoted by labour inspection staff to the performance of other duties as compared with the time and resources devoted to the duties defined in Article 3(1).

Article 12(1). Scope of inspectors’ freedom to enter workplaces liable to inspection. The Committee notes that, under the terms of section L.614-3(1), subsection 1 of the new Code, “If there are legitimate grounds or sufficient evidence to consider that it is necessary to enforce the legal provisions coming within the competence of the Labour and Mining Inspectorate in worksites, workplaces and buildings and also their respective outbuildings, members of the labour inspectorate must be able to enter freely and without previous notice at any hour of the day or night any such location that is liable to inspection.” The same provision also states that “Inspection or search activities undertaken on the spot must respect the principle of proportionality with regard to the grounds for such activities.” The Committee notes that this provision signifies a regression with regard to the previous national legislation. In fact, section 13(1) of the Act of 4 April 1974 concerning the reorganization of the Labour and Mining Inspectorate, which was in line with Article 12(1)(a) of the Convention, had been maintained by virtue of section 612 1(1) of the Act of 31 July 2006, which provided that “inspection personnel equipped with the relevant documents of authorization shall be empowered: (1) to enter freely and without previous notice [workplaces liable to inspection]”.

The Committee considers that the fact that the new Code makes inspections subject to the existence of sufficient evidence or legitimate grounds restricts, in a way which is contrary to the Convention, the scope of labour inspectors’ right to enter workplaces liable to inspection. The only condition that should be attached to this right, in accordance with Article 12(1), is the obligation for labour inspectors to be equipped with proper credentials. The fact that a workplace is liable to inspection is sufficient reason in itself for the full exercise of this right in order to ensure moreover, an effective application of Article 16, according to which workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee also wishes to emphasize that recognition of inspectors’ right to enter workplaces freely as defined by the Convention also enables labour inspectors to ensure that they discharge their obligation of confidentiality with regard to the source of any complaint and also as regards preventing the establishment of any link between the inspection and a complaint (Article 15(c)).

The Committee therefore requests the Government to take the necessary measures to restore in the legislation the right of labour inspectors to freely enter workplaces liable to inspection, as provided for in Article 12(1)(a) of the Convention, and to indicate the measures taken in this regard.