Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Repetition

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee notes that the Government has not replied to its previous request concerning the enforcement of the Croatian Aliens Act, and the role of the labour inspectorate and the justice system in ensuring that employers fulfil their obligations with regard to the statutory rights of foreign workers found to be illegally employed.

The Committee notes, in this regard, that a new Foreigners Act (FA) (Official Gazette 130/11) was adopted and entered into force on 1 January 2012, with the exception of certain provisions which entered into force upon Croatia’s accession to the European Union (EU). The Committee notes that, according to section 107(5) of the FA, before a decision is taken on the expulsion of a foreign national who has lived and worked illegally in the country, the foreign national shall be informed of: (i) the possibility of receiving compensation; (ii) the possibility of appealing or filing a lawsuit against his or her employer; and (iii) the entitlement to free legal aid. The Committee also notes that, under section 207(4) of the FA, the labour inspection authorities are responsible for the enforcement of the provisions of this Act relating to the conditions of work and the rights of workers.

The Committee notes that a project entitled Strengthening Policies and Capacities for Reducing Undeclared Work (“moonlighting”) was launched in November 2011 with a view to receiving pre-accession assistance from the EU. It notes that a budget of €1,500,000 was allocated to this project, including for the purchase of computers and vehicles. The Committee understands that the moonlighting project is carried out jointly by the Ministry of Labour, the Croatian Institute for Pension Insurance, the Ministry of the Interior, the Ministry of Finance (Tax Directorate) and the Croatian Employment Service. It further notes the Government’s indication that the abovementioned project should significantly improve the efficiency of the labour inspectorate’s work.

Referring to its General Survey of 2006 on labour inspection (paragraphs 75–78), the Committee recalls its observations made in its last comment, where it emphasized that the Convention does not contain any provision suggesting that any workers be excluded from the protection afforded by labour inspection on account of their irregular employment status, and that the primary duty of labour inspectors is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers and not to enforce immigration law. To be compatible with the protective function of labour inspection, the verification of the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers. Furthermore, since the human and other resources available to labour inspectorates are not unlimited, the major role sometimes assigned to labour inspectors in the area of illegal employment would appear to entail a proportionate decrease in inspection of conditions of work.

The Committee requests the Government to describe in detail how labour inspectors assume their role to enforce the provisions of the new FA relating to the conditions of work and the rights of foreign workers in accordance with section 207(4) of the FA. It also asks the Government to describe the role of the justice system in ensuring the enforcement of employers’ obligations with regard to the statutory rights of undocumented foreign workers (such as the payment of wages and any other benefits owed for the period of their effective employment relationship), especially in cases where they are liable to expulsion or after they have been expelled. In this regard, it requests the Government to provide a copy of any regulations issued under section 107 of the FA, as well as information on the number of cases where workers found in an irregular situation have been: (i) informed of the possibility of receiving compensation or filing a lawsuit against their employer; (ii) granted free legal aid; and (iii) granted their due rights. Please provide copies of relevant decisions.

Furthermore, the Committee asks the Government to provide information on whether labour inspectors responsible for labour relations have been discharged from the function of enforcing immigration law following the entry into force of the FA.

Finally, the Committee asks the Government to provide further information on any joint activities carried out by the labour inspectorate and the abovementioned government bodies in the framework of the project Strengthening Policies and Capacities for Reducing Undeclared Work (“moonlighting”), as well as on other joint activities aimed at combating undeclared work, including on the number, scope and nature of the controls carried out, violations, legal proceedings, remedies and sanctions imposed for undeclared work, and the impact of these activities on the enforcement of the legal provisions relating to conditions of work and the protection of workers.

Furthermore, noting that the Government has not replied to this question, the Committee asks it to provide the requested information on the following:

Articles 5(a), 17 and 18. Institution of legal proceedings and enforcement of adequate penalties. In its previous comments, the Committee noted the high rate (58 per cent) of cases in which the legal proceedings initiated by labour inspectors were declared inadmissible by the misdemeanour courts due to the expiration of the statute of limitations. It notes that this rate has now decreased to 36.5 per cent, due primarily to the adoption of the Misdemeanours Act (OG107/07) which modified the statute of limitations as of 1 January 2008.

Furthermore, pursuant to its previous comments concerning the insufficient level of the penalties imposed, the Committee notes that, according to the Government’s report, the decisions rendered by the Courts almost never order restitution for unjust enrichment and therefore are often not proportionate to the gravity of the offence.

With reference to its 2007 general observation on the importance of cooperation between the labour inspection system and the justice system, the Committee requests the Government to indicate any additional measures taken or envisaged with a view to accelerating the examination of cases referred by labour inspectors to the courts and ensuring the effective enforcement of adequate and sufficiently dissuasive penalties. It would be grateful if the Government would continue to indicate the progress achieved or difficulties encountered in this regard.