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Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Ukraine

Convention (n° 81) sur l'inspection du travail, 1947 (Ratification: 2004)
Convention (n° 129) sur l'inspection du travail (agriculture), 1969 (Ratification: 2004)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.
The Committee notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU), received on 31 August 2023.
The Committee notes the extremely difficult situation in the country since 24 February 2022.
Articles 1 and 4 of Convention No. 81 and Articles 3 and 7 of Convention No. 129. Organization of the labour inspection system under the supervision and control of a central authority. Partial decentralization of labour inspection functions. Further to its previous comment, the Committee notes the Resolution of the Cabinet of Ministers of Ukraine of January 12, 2022, No. 14 “Some Issues of Territorial Bodies of the State Labor Service” (Resolution No. 14) which provides for the liquidation of the territorial bodies of the State Labour Service (SLS) and the establishment of new interregional territorial bodies of the SLS. The Resolution indicates that the territorial bodies of the SLS which are liquidated continue to exercise the powers and functions assigned to them, until the completion of the implementation of measures related to the formation of interregional territorial bodies and the adoption of a decision ensuring the exercise by such bodies of the powers and functions previously exercised by the territorial bodies. Noting the absence of information on this matter, the Committee reiterates its request that the Government indicate the nature and scope of the power of inspection envisaged under section 17 of the Local Government Act, which refers to local self-government bodies’ ability to control compliance with labour and employment legislation and to carry out certain inspections, and that the Government provide information, including examples, of how this power of compliance and inspection is implemented in practice, indicating as well the effects of this power on the activities of SLS in monitoring compliance and issuing fines. The Committee requests the Government to keep it informed regarding the progress made on the formation of interregional territorial bodies of the SLS and measures ensuring the exercise of the functions previously attributed to the now liquidated territorial bodies.
Articles 10 and 11 of Convention No. 81 and Articles 14 and 15 of Convention No. 129. Material means and human resources to achieve an adequate coverage of workplaces by labour inspection. The Committee notes the Government’s indication that: (i) a new maximum number of employees of the central office and the territorial authorities of the SLS was approved through Resolution No. 14; (ii) there has been a decrease in the number of labour inspectors of the SLS, from 1,119 officers for 1,800 existing posts in 2022, to 885 for 2,086 existing posts in 2023; (iii) with regards to the territorial authorities of the SLS, employees decreased from 2,537 for 3,478 existing posts in 2021, to 2,402 for 3,478 existing posts in 2022 and to 2017 for 3,463 existing posts in 2023. The Committee notes that the Government does not indicate how many of these officers are labour inspectors; and (iv) the budget allocations of the SLS decreased by approximately 20 per cent from 490,306.3 thousand Ukrainian hryvnias (UAH) in 2022 to 397,148.1 thousand UAH in 2023. The Committee notes that, apart from the budget allocations, the Government does not provide other information on measures taken to provide sufficient material resources to labour inspectors. The Committee requests the Government to continue to provide information on the number of labour inspectors employed by the SLS and the number of available posts.In this respect, it requests the Government to indicate the number of employees of the territorial authorities of the SLS that are labour inspectors or conduct labour inspection activities, including in agriculture. The Committee requests the Government to pursue its efforts to fill the vacant posts, noting that over half the labour inspector posts are now unfilled. The Committee once again requests the Government to provide detailed information on the measures taken to provide sufficient material resources to labour inspectors, including offices, office equipment and supplies, transport facilities and reimbursement of travel expenses, at the central and local levels of the SLS.
Articles 12(1), 16, and 17 of Convention No. 81 and Articles 16(1), 21, and 22 of Convention No. 129. Restrictions and limitations on labour inspection. 1. Moratorium on Labour Inspection. The Committee notes that the moratorium on labour inspection which was imposed in the context of the COVID-19 pandemic is no longer applicable. The Government indicates that pursuant to paragraph 1 of Resolution of the Cabinet of Ministers of Ukraine of March 13, 2022 No. 303 “On Termination of Measures of State Supervision (Control) and State Market Supervision in the Conditions of Martial Law” (Resolution No. 303), it decided to suspend scheduled and unscheduled state supervision (control) and state market supervision for the period of martial law imposed by Decree of the President of Ukraine of February 24, 2022 No. 64 “On the Introduction of Martial Law in Ukraine”. In this respect, the Committee notes that paragraph 2 of Resolution No. 303 exceptionally allows the implementation of unscheduled measures of state supervision on the basis of decisions of central executive bodies in the presence of a threat that has a negative impact on the rights, legitimate interests, life and health of a person, protection of the environment and ensuring the security of the state, as well as for the fulfilment of Ukraine’s international obligations during the period of martial law regime. Furthermore, the Government indicates that the Law of Ukraine “On the Organization of Labor Relations under Martial Law” of March 15, 2022 No. 2136-IX (Law No. 2136-IX) stipulates that during the period of martial law, the SLS and its territorial bodies may, at the request of an employee or trade union, carry out unscheduled measures of state supervision over compliance with labor legislation by legal entities, regardless of ownership, type of activity, business, and individuals using hired labor, in terms of compliance with the requirements of this Law, as well as to identify unregistered labor. In its observations, the KVPU, indicates that according to the Law “On Amendments to Certain Legislative Acts of Ukraine Regarding the Optimization of Labor Relations” of 1 July 2022 No. 2352-IX, the SLS was indeed allowed to carry out unscheduled inspections, however exclusively on a limited range of issues regarding: the legality of the termination of employment contracts; compliance with the requirements of Law No. 2136-IX; and detection of informal labour relations. While recognizing the extraordinary nature of, and particular challenges linked to the current situation, the Committee refers to its 2019 general observation on the labour inspection Conventions and recalls that a moratorium placed on labour inspection substantially undermines the inherent functioning of the labour inspection system and is contrary to the Conventions. The Committee requests the Government to provide its comments with respect to the observations of the KVPU. The Committee urges the Government to eliminate the current restrictions imposed on labour inspections and to ensure that labour inspectors, including in agriculture, are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of the legal provisions, in compliance with Article 16 of Convention No. 81 and Article 21 of Convention No. 129. The Committee requests the Government to ensure that no moratorium on labour inspections be placed in the future. The Committee also requests the Government to provide detailed statistics on the number of inspection visits carried out by the SLS during the period of the martial law, if possible disaggregated by type of inspection, region and sector.
2. Other restrictions. The Committee once again notes with deep concern that previously observed restrictions imposed by Act No. 877-V of 2007 on Fundamental Principles of State Supervision and Monitoring of Economic Activity (Act No. 877-V) on the powers of labour inspectors with regard to the time, scope and duration of inspections visits, their ability to undertake inspection without previous notice, and the measures they can take against violations, are still in place. It notes in this regard that the Law No. 2352-IX indicates that unscheduled measures of state supervision allowed under the Martial Law should be carried out in accordance with the procedure established by the Act No. 877-V. In this respect, in its observations, the KVPU reiterates its concerns regarding the limitations on labour inspection activities imposed by the Act No. 877-V, and in particular the requirement that labour inspectors provide previous notice (of time and their presence) of their visit; the requirement that the inspection must be carried out in the presence of the manager or his deputy, or an authorized person of the business entity; and the requirement that the inspection must be carried out during working hours of the business entity, established by the rules of the internal labour regulations. According to the KVPU, these limitations hinder the proper and timely inspections, disregarding the relevant principles of the Convention. In this respect, it highlights the need to exclude labour inspection from the scope of the Act No. 877-V. The Committee recalls once again that restrictions on labour inspectors’ ability to conduct inspection visits without previous notice, at any hour of the day or night, in workplaces liable to inspection; and on inspectors’ ability to ensure that workplaces are inspected as often and as thoroughly as necessary to ensure effective application of legal provisions, violate the Conventions. With reference to its general observation of 2019 on the labour inspection Conventions, the Committee once again strongly urges the Government to promptly take all necessary measures to bring its national legislation into conformity with the provisions of Conventions Nos 81 and 129. In particular, the Committee once again strongly urges the Government to ensure that any future legislative amendments and laws with an impact on labour inspection are in full conformity with Articles 12, 16, 17 of Convention No. 81 and Articles 16, 21, 22 of Convention No. 129. It requests the Government to keep it informed of any legislative developments in this respect.
Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Adequate penalties imposed and effectively enforced. In its previous comments, the Committee noted the Government’s indication that legislative amendments to the Labour Code reduced the size of fines provided for labour law violations in the Labour Code. The Government indicates that section 16 of Law No. 2136-IX stipulates that during the period of martial law, the fines set under section 265 of the Labor Code shall not apply, provided that the employer fully complies with the orders to eliminate violations identified during unscheduled state supervision measures, within the established timeframe. The Committee recalls that, under Article 18 of Convention No. 81 and Article 24 of Convention No. 129, adequate penalties for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties shall be provided by national laws or regulations and effectively enforced. The Committeerequests the Government to indicate how section 16 of Law No. 2136-IX is applied in practice. It requests the Government to provide information on the measures taken or envisaged to ensure that the level of fines and other penalties for labour law violations are sufficiently dissuasive. While noting the extremely difficult situation in the country, the Committee requests the Government to provide detailed information on the number of violations detected, the number of infringement reports issued, the number of cases brought to the courts, and the penalties subsequently imposed, during the period of the martial law regime.
The Committee is raising other matters in a request addressed directly to the Government.
[The Government is asked to reply in full to the present comments in 202 5 .]
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