Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Inspection Convention, 1947 (No. 81) - Estonia (Ratification: 2005)

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

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee notes from the Labour Inspection Reports for 2010 and 2011 that 76 of the total number of 689 enterprises inspected in 2010 and 73 of the total of 557 enterprises inspected in 2011 in relation to labour relations were targeted for undeclared labour relations. Furthermore, it notes that 35 employees in 15 different enterprises were detected in 2011 as working without a contract, i.e. as “black labour force” during inspection visits and that the data on those employees were forwarded as professional assistance to the Estonian Unemployment Insurance Fund and the Tax and Customs Board. It further notes from the annual report 2009 that the labour inspectorate cooperates closely, amongst others, with the Tax and Customs Board. The Committee would be grateful if the Government would provide details on the nature and scope of the activities carried out by the labour inspectorate in the area of controlling undeclared work, and in particular the employment of foreign workers who are not legally entitled to remain in the country, including information on the violations detected and the legal provisions concerned as well as the legal proceedings initiated, remedies applied and sanctions imposed.

If inspections are also directed at foreign workers in an irregular situation, the Committee would be grateful if the Government would indicate the manner in which the labour inspectorate ensures the enforcement of the employers’ obligations with regard to the rights of foreign workers in an irregular situation, such as the payment of wages and social security benefits for the period of their effective employment relationship, especially in cases where such workers are liable to expulsion from the country; and the number of cases in which workers found to be in an irregular situation have been granted their due rights.

Article 6. Conditions of service of labour inspectors. Following the Committee’s previous request, the Committee notes the Government’s indication that the salaries of labour inspectors are now similar to those of other civil servants performing analogous inspection activities. The Committee would be grateful if the Government would provide further information, and in particular specify the wages of labour inspectors, including allowances, in relation to those of other types of officials performing similar duties, such as social security and tax inspectors.

Article 14. Notification of industrial accidents and cases of occupational disease. The Committee notes from the Annual Labour Inspection Report for 2011 and the information on the website of the labour inspectorate that the number of registered accidents at work was 3,741 in 2011 but that, according to the National Audit Office, statistics are not as reliable as in other EU Member States and that the actual number of industrial accidents is estimated to be 2.4 times higher than the reported number. However, the Annual Labour Inspection Report for 2011 indicates that labour inspectors have the perception that the notification of accidents at work has improved, which is considered to be one of the reasons for the increased number of registered accidents following communication activities by the labour inspectorate and increased awareness among both employers and employees. The Committee further notes that in 2011, the labour inspectorate received notifications of 87 cases of diagnosed occupational diseases and of 167 cases of work-related diseases. It notes that under section 23(1) of the Occupational Safety and Health Act, an occupational disease is defined as “a disease which is brought about by risk factors present in the working environment and included in the list of occupational diseases, or the nature of the work” and that “The list of occupational diseases shall be established by the Minister of Social Affairs.” The Committee further notes that Regulation No. 75 of the Government of the Republic of 3 April 2008, available on the website of the labour inspectorate, contains provisions on the procedure for the notification, registration and investigation of occupational accidents and diseases. The Committee would however like to emphasize that it is essential, in order for the system for the notification and registration to function effectively in practice that comprehensive regulations exist on the notification procedure and the penalties that apply in the event of negligence. In this regard, the Committee wishes to draw the Government’s attention to the ILO code of practice on the recording and notification of occupational accidents and diseases, which contains guidance on the collection, recording and notification of reliable data and the effective use of such data for preventive action, and which is available at: http://www.ilo.org/safework/info/standards-and-instruments/codes/WCMS_107800/lang--en/index.htm. The Committee would be grateful if the Government would describe in detail the procedure for the notification, registration and investigation of occupational accidents and diseases under Regulation No. 75 of the Government of the Republic of 3 April 2008.

It also asks the Government to provide information on any measures taken or envisaged to improve the efficiency of the procedure for the notification of industrial accidents and cases of occupational disease to the labour inspectorate (including, but not limited to the publication on the website of the labour inspectorate of the current list of occupational diseases adopted by the Minister of Social Affairs, the enhancement of collaboration with all the institutions concerned for that purpose, the establishment or increase of administrative sanctions for non-compliance with the obligation of notification by employers, the provision of information on the procedure for notification during inspection visits, in publications and on the labour inspectorate’s website, etc.).

Articles 12 and 15(c). Right of inspectors to enter workplaces freely and confidentiality of any complaint. The Committee notes the indication in the Government’s report that inspectors are free to perform announced or unannounced inspection visits; in most cases, prior notice is given; and the proportion of unannounced inspection visits is estimated at 10 per cent. Unannounced inspection visits are carried out following a complaint, or when inspectors have reason to believe that there are irregularities. For instance, the majority of inspection visits in the construction sector are unannounced. First inspections of enterprises are also unannounced. The Committee would like to draw the Government’s attention to the fact that the low proportion of unannounced visits raises problems in relation to Article 15(c) of the Convention. In practice, the low number of planned inspection visits may undermine the requirement that inspectors shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and shall give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint, which is reflected in national law in section 25(3)(6) of the National OSH Act. This is the case because, in a situation where unannounced visits are an exception to the rule, labour inspectors are not in a position to ensure the confidential treatment of complaints if they are not able to prevent the employer or his/her representative from detecting any link whatsoever between the inspection and the likelihood of a complaint, identifying the person responsible for the complaint and taking reprisals against that person (Article 15(c) of the Convention). As the Committee indicated in its previous comment, conducting unannounced visits on a regular basis, on the other hand, enables inspectors to observe the confidentiality required by Article 15(c) of the Convention with regard to the purpose of the inspection when it is carried out in response to a complaint.

The Committee also notes the Government’s indications on how effect is given in national law to most of the requirements of Article 12 of the Convention. However, the Government has not provided any reply in relation to the effect given to Article 12(2) of the Convention, under which inspectors should be entitled to refrain from notifying their presence to the employer or to his or her representative if, in their view, this makes for more effective inspection. The relevant provision in national law, i.e. section 25(4)(4) of the OSH Act as well as sections 3.1.2 and 4.1. of the inspection instructions approved by Decree No. 48 of 2007 by the Director-General of the labour inspectorate seem to require inspections to be performed in the presence of the employer and/or persons authorized by him/her, and exceptions can only be made in the cases that the employer has approved the inspection, or if at the time of inspection the representative of the enterprise is not present, where the inspection takes place without advanced notice, and the representative of the enterprise to be inspected is not present at the time of inspection. The Committee therefore asks the Government once again to indicate how effect is given in national law to the requirement in Article 12(2) of the Convention, of leaving it to the decision of labour inspectors to notify their presence to employers or their representatives on the occasion of an inspection visit.

Furthermore, in light of the above, the Government is requested to indicate how it envisages giving effect in practice to the requirement in Article 15(c) of the Convention for inspectors to treat as absolutely confidential the source of any complaints bringing to their notice a defect or breach of legal provisions and that they shall give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint.

Articles 5(a), 17 and 18. Cooperation between the labour inspection services and the judicial authorities. Legal proceedings and penalties. The Committee notes the information in the Government’s report on the number of misdemeanour procedures between 2008 and 2011 and the amount of the fines imposed, although – except in the case for obstruction of labour inspectors in the performance of their duties – no particulars are provided of the classification of such infringements according to the legal provisions to which they relate. The Committee understands that the information provided relates to proceedings relating to misdemeanours, which were carried out by the labour inspectorate.

In this regard, it notes that, in accordance with the relevant powers of the labour inspectorate entrusted by section 9 of the Statute of the Labour Inspectorate (Regulation No. 26 of the Minister of Social Affairs of 17 October 2007), labour inspectors have both the function to: “carry out non-judicial proceedings relating to misdemeanours, pursuant to the procedure and in the cases prescribed by law” (indent 13) and “commence criminal proceedings and perform urgent investigative action” (indent 14).

It also notes the Government’s indication that five industrial accidents during the period from 2009 to 2011 resulted in sanctions following criminal procedures, but that the requested details in this regard are not provided (number of infringements reported, particulars of the classification of such infringements according to the legal provisions to which they relate, etc.). The Committee asks the Government to describe the procedure to be followed by labour inspectors when violations of labour legislation are detected (including the circumstances in which non-judicial procedures are conducted and in which cases are referred to the judicial authorities) and send a copy of any applicable text in this regard.

It also asks the Government once again 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. Please also include this information in the annual labour inspection reports.

The Committee further asks the Government to indicate the arrangements made or envisaged to enhance effective cooperation between the labour inspection services and the judicial authorities.

Articles 20 and 21. Annual report on the work of the labour inspectorate. The Committee notes the information in the Labour Inspection Reports for 2007–11, which are available in Estonian, Russian and English on the labour inspectorate’s website. While the Committee notes the great level of detail in the report (particularly with regard to statistics of industrial accidents and cases of occupational disease in the different economic sectors, as well as the assessments made of the functioning of the labour inspection system, for example, in relation to the causes of accidents and diseases, target areas for inspections, preventive activities of the labour inspectorate, etc.), it would however like to emphasize that, so that the Committee can make an informed assessment of the application of the Convention, annual reports should contain information on all the subjects covered by Article 21 of the Convention, including the information that is currently lacking from the labour inspection reports on: laws and regulations relevant to the work of the inspection service; the staff of the labour inspection services; statistics of workplaces liable to inspection and the number of workers employed therein (and not only the number of workers), as well as more comprehensible statistics of the violations and penalties imposed. In this regard, the Committee would like to draw the Government’s attention to the guidance provided in the Labour Recommendation Inspection, 1947 (No. 81), regarding the way to present and disaggregate the information contained in such reports. The Committee would be grateful if the Government would take the necessary measures to ensure that the annual labour inspection reports contain information on each of the subjects covered by Article 21 (a) to (g).