Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Germany

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1955)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1973)

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 and 129 together.

Article 3(1) and (2) of Convention No. 81 and Article 6(1),(2) and (3) of Convention No. 129. Protection of the rights of foreign workers in an irregular situation concerning their residence status and cooperation with government services and public or private institutions. In its previous comment, the Committee noted that, under section 23(3) of the Occupational Safety Act (ArbSchG), in the event of firm evidence of the employment of irregular foreign workers, labour inspectors are required to notify the immigration services. The Committee requested the Government to take steps, in conformity with Article 3(2), to ensure that the duties relating to the supervision of immigration law entrusted to labour inspectors do not interfere with the effective discharge of their primary duties. In this respect, the Government indicates in its report under Convention No. 81 that the immigration authorities continue to be responsible for the control of immigration law and that, pursuant to section 23(3) of the ArbSchG, labour inspectors are only required to notify cases to the immigration authorities if there are specific indications that a violation of the German Residence Act has incurred. In this respect the Committee recalls its 2006 General Survey on labour inspection in which it pointed out that the primary duty of labour inspectors is to protect workers and not to enforce immigration law and that any cooperation between the labour inspectorate and immigration authorities should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers, and to improve their working conditions (paragraphs 78 and 161). In this respect, the Committee also recalls that in its 2017 General Survey on certain occupational safety and health instruments it indicated that workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country (paragraph 452). The Committee accordingly requests the Government to provide information on the number of cases in 2016 and 2017 in which labour inspectors have notified the immigration authorities pursuant to section 23(3) of the ArbSchG. The Committee further requests the Government to provide information on the manner in which it ensures that the obligation to notify cases to the immigration authorities does not deviate from the objective of labour inspectors to ensure the protection of workers in accordance with their primary duties as provided for in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. Noting the Government’s indication that foreign workers in an irregular situation can assert their rights before the labour courts, the Committee requests that the Government provide information on the actions taken by labour inspection services (including the provision of information and advice) to ensure the enforcement of legislation with respect to the payment of wages and other benefits for the period of the effective employment relationship of the foreign workers concerned.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Content of the annual labour inspection reports (in agriculture). The Committee notes the Government’s reference to the annual report hyperlinked in the Government’s report. The Committee notes that while the report contains some of the information required under the abovementioned Conventions, the report does not contain statistics on the number of labour inspections undertaken, the violations detected and the penalties imposed, as required under Article 21(d) and (e) of Convention No. 81, and Article 26(d) and (e) of Convention No. 129. The Committee requests the Government to ensure that the annual reports on the labour inspection services (in agriculture) contain information on all the subjects listed in Article 21(a)–(g) and Article 27(a)–(g).

Articles 4 and 21 of Convention No. 129. Coverage of certain categories of agricultural workers by labour inspection and their registration to ensure their protection through labour inspection. In its previous comment, the Committee requested the Government to provide information on labour inspections carried out in relation to seasonal workers and other atypical workers. It also requested the Government to provide information on the 2015 observations of the German Confederation of Trade Unions (DGB), raising concerns on the labour inspection coverage of apprentices, dependent workers and temporary workers in agriculture in view of inconsistencies or the absence of their registration.

In this regard, the Government indicates that, during inspections, labour inspectors regularly examine the data in workplaces concerning apprentices, seasonal workers, and full-time and part-time workers with an employment contract. It adds that employers have access to online tips and information concerning the registration and insurance requirements with regard to foreign seasonal workers. The Committee recalls that it emphasized, in paragraph 437 of its 2017 General Survey on certain occupational safety and health instruments, that an important aspect of the satisfactory coverage of workplaces liable to inspection is the availability of statistical data to enable the labour inspection services to focus interventions on priorities defined on the basis of objective criteria, for example certain categories of workers, such as young persons and migrant workers. The Committee requests the Government to provide detailed information on the system for the registration of workers in agriculture (including apprentices, dependent workers and temporary workers) and the availability of such data to the different labour inspection services with a view to devising an effective labour inspection strategy including the protection of particularly vulnerable workers.

Articles 6(1)(b), 14 and 21 of Convention No. 129. Effectiveness of labour inspection activities in agriculture. The Committee previously noted a decrease in the number of labour inspections and requested the Government to ensure that an adequate number of labour inspections are undertaken in the agricultural sector. It further requested the Government to provide comments on the observations made by the DGB in 2015 alleging: (i) the worsening of the situation in terms of the number of labour inspectors and labour inspections following the merger of nine former agricultural social insurance associations into the Social Insurance Fund for Agriculture, Forestry and Horticulture (SVLFG) in 2013 in view of mandatory cost reductions; (ii) difficulties in determining the real needs in terms of labour inspection staff in the absence of reliable data on the number of persons working in agricultural undertakings; (iii) the persistent high number of fatal accidents in agriculture resulting from the insufficient number of inspections in agricultural enterprises.

In reply to the request of the Committee to ensure an adequate number of labour inspections in agriculture, the Government refers to improved cooperation between the two entities responsible for labour inspections in agriculture (that is, the SVLFG and the inspection authorities in the Länder) and targeted actions during seasonal (harvest) work in some Länder. In reply to the observations made by the DGB, the Government indicates that: (i) the reorganization of the SVLFG has indeed resulted in a decrease in the number of labour inspections, but the labour inspections carried out by the responsible authorities in the Länder should also be taken into account (the Government indicates that, at the moment, there is no data available on the precise number of such inspections); (ii) the number of workers in agricultural undertakings being subject to mandatory social insurance was 244,642 in 2014 and 247,511 in 2015; and (iii) the number of staff at the SVLFG has only marginally decreased since the mandatory budgetary restrictions have not affected the inspection activities of the SVLFG; and staffing requirements are currently being reviewed. The Committee requests the Government to provide information on the efforts made to ensure that labour inspection statistics are reliable, and where applicable, to provide specific information on any difficulties encountered in this regard. In this respect, it requests the Government to provide detailed information on: (i) the number of workers in agricultural undertakings, including those that are not subject to mandatory social insurance; (ii) the number of labour inspectors working at the SVLFG and the labour inspection authorities in the Länder; (iii) the number of labour inspections undertaken by the SVLFG and the labour inspection authorities in the Länder during the reporting period; as well as (iv) the number of occupational accidents and cases of occupational disease reported in agriculture during the reporting period.