Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Labour Inspection Convention, 1947 (No. 81) - Romania (Ratification: 1973)

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. 1. Conciliation and mediation. The Committee understands that, according to the Government’s indications, while the primary responsibility for arbitration and mediation lies with the Office for Mediation and Arbitration of Collective Labour Disputes at the Ministry of Labour, Family and Social Protection (MLFS), labour inspectors also participate (pursuant to Act No. 62/2011 on Social Dialogue and Act No. 108/1999 on the establishment and organization of the labour inspection, in its amended version) in the conciliation of collective labour disputes at the enterprise level. The Committee once again reminds the Government of the primary functions of labour inspectors under Article 3(1) of the Convention, and of the guidelines of Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), establishing that “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee asks the Government to provide information on the number of labour inspectors appointed to participate in the conciliation of labour disputes during the period covered by Government’s next report and the time spent on these duties in relation to their primary duties as defined in Article 3(1) of the Convention. It hopes that the Government will take the necessary measures to ensure that, in accordance with Article 3(2) of the Convention, these duties shall not be such as to interfere with the effective discharge of the primary duties of labour inspectors.

2. Undeclared work. The Committee notes the detailed information provided by the Government on the large-scale activities carried out by the labour inspectorate in the framework of the National Strategy to reduce the incidence of undeclared work for the period 2010–12, including information on the various inspection campaigns, awareness-raising activities and the collaboration of the labour inspectorate with the National Agency for Fiscal Administration, the Financial Guard, the Gendarmerie, the Police (Fraud Investigation Directorate), and the Romanian Immigration Office (RIO). The data on the number of inspections, the violations found, and fines imposed for undeclared work confirm the Government’s indications on the intensification of controls in the area of undeclared work. The Committee further notes the Government’s indications that the level of sanctions for employers employing workers without an employment contract has been raised through amendments of the National Labour Code, and it understands that the powers of labour inspectors in this regard have been strengthened through amendments to Act No. 108/1999 (the Government has not provided the Committee with a copy of this Act in its amended version).

3. Enforcement of immigration law. The Committee notes the information on the collaboration of the labour inspectorate with the RIO in the framework of the National Strategy on Immigration for 2011–13 for detecting “illegal” foreign workers and combating undeclared work of foreign nationals, including the number of joint inspections and fines imposed for the employment of foreign workers working without a valid work permit. The Committee notes that, according to the Government, labour inspectors are entrusted with the function of identifying foreigners working without a valid work or residence permit and entitled to issue sanctions in this regard. However, it notes its indications that applying immigration law is the responsibility of the RIO. It further notes from the annual labour inspection report for 2012, that the new organizational structure of the labour inspectorate includes a unit for the control of labour migration. Finally, it notes that while, according to the Government, the application of the legal rights of foreign workers falls within the competence of the labour inspectorate, the Government has not provided any statistics on the statutory rights granted to foreign workers in an irregular situation, such as the payment of wages and other benefits resulting from their employment relationship, including in cases where these workers are expelled from the country.

The Committee recalls that, as it has indicated in paragraph 69 of its 2006 General Survey on labour inspection that the primary duties of labour inspectors are complex and require time, resources and training. As mentioned above, 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 the primary duties of labour inspectors. Furthermore, referring to paragraphs 78 and 161 of its 2006 General Survey and to its previous observation of 2011, the Committee once again reminds the Government that cooperation with immigration authorities should be carried out cautiously, keeping in mind that the primary duty of labour inspectors is to protect the rights and interests of all workers and not to enforce immigration law. It also reminds the Government that the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers. The Committee asks the Government to provide information on the time and resources of the labour inspectorate spent on activities in the area of undeclared work in relation to activities spent on securing the enforcement of legal provisions relating to other areas (provisions relating to hours, wages, safety and health, child labour, etc.) and to provide relevant data (number of inspections, the violations found and legal provisions to which they relate, sanctions imposed, etc.). The Committee also asks the Government to provide further information on the nature of the new powers of labour inspectors under the amended Act No. 108/1999.

Furthermore, the Committee requests the Government to provide detailed information on the manner in which the labour inspectorate ensures the enforcement of employers’ obligations with regard to the rights of foreign workers in an irregular situation, such as the payment of wages, social security and other benefits for the period of their effective employment relationship, especially in cases where such workers are liable to expulsion from the country. It also asks the Government to provide information on the number of cases where undocumented workers have been granted their due rights. The Committee also requests the Government to elaborate on the responsibilities of the unit for the control of labour migration, and to indicate if labour inspectors are specifically charged with the activities of this unit.

Article 5(b). Collaboration with employers and workers and their organizations. The Committee notes with interest the information provided by the Government that tripartite consultative councils have been set up at the central and regional levels of the labour inspectorate in accordance with the provisions of Act No. 108/1999, as amended. Regulations on their organization and functioning are pending approval by the MLFS. The Committee further notes the Government’s reference to cooperation agreements with employers’ organizations, as well as its indications that the labour inspectorate and the National Confederation of Free Trade Unions of Romania (CNSRL Frăţia) have launched negotiations in 2013 with a view to concluding a cooperation protocol. The Committee asks the Government to provide information on the number, geographical location and composition of the tripartite consultative councils at the central and territorial levels of the labour inspectorate, as well as a copy of the regulations on their organization and functioning, once they have been approved. Please also provide information on the activities undertaken by the councils and supply a copy of any relevant report or document. The Committee further asks the Government to provide a copy of the cooperation protocol with the CNSRL Frăţia, as well as copies of any other cooperation protocols concluded between the labour inspectorate and employers’ and workers’ representatives.

The Committee is raising other points in a request addressed directly to the Government.