Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Slovenia

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1992)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1992)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

Article 3(1)(a), (b) and (2) of Convention No. 81 and Article 6(1)(a), (b) and (3) of Convention No. 129. Functions entrusted to labour inspectors. 1. Labour inspection activities in the area of undeclared work. The Committee notes the Government’s indication, in reply to its previous comments, that most of the supervision of undeclared work has been transferred to the Financial Administration comprising the Customs Administration (CA) since the adoption of the Prevention of Undeclared Work and Employment Act (PUWEA) in 2014. The Government’s report states that pursuant to the PUWEA, the Labour Inspectorate (LI) only retains the power to supervise violations related to unlawful advertisements for work (section 6(1)); issue a decision prohibiting undeclared work; and inform the CA if there are grounds to suspect undeclared employment (section 19(1) and (5)). As a result, only 18 violations were detected with respect to undeclared work including illegal employment (employment of third-country nationals illegally residing in Slovenia) under the PUWEA. However, the Committee also takes due note that according to the Labour Inspectorate Act (LIA), as amended in 2017, labour inspectors can issue a decision prohibiting workers from carrying out undeclared work until the violation is eliminated (section 19(1)(4)) and order the liable person to conclude a written employment contract within three working days (section 19(2)). According to the annual labour inspection report for 2017 (2017 Annual Report), available on the LI’s website, the labour inspectorate detected 1,732 violations related to employment contracts, of which 176 concerned work based on a civil law contract despite the existence of elements of an employment relationship. Inspectors issued 55 prohibition decisions, and three orders to conclude a written employment contract. The 2017 Annual Report states that inspectors often find it difficult to assess evidence in this regard and the process can be complicated and time-consuming despite the proliferation of such forms of work. The Committee requests the Government to continue to provide information on the work of the labour inspectorate with respect to establishing employment relationships for those who engage in undeclared work, specifically with regard to the measures taken when work is based on a civil law contract despite the existence of elements of an employment relationship.

2. Labour inspection activities with regard to foreign workers and the protection of foreign workers in an irregular situation. The Committee notes the Government’s indication that the new Employment, Self-employment and Work of Aliens Act (ESWAA) was adopted in 2015 to replace the Employment and Work of Foreigners Act. The LI is empowered to supervise the implementation of the ESWAA, and for this purpose, the LI has direct access to the electronic records of the Employment Service and concerning permits, European Union (EU) Blue Cards, and authorizations (section 44(2)). The Committee notes with concern that labour inspectors can impose fines on foreign workers for the performance of work that violates the ESWAA (sections 51, 60, 61, 63, and 66) and are obliged to inform the police authority when its supervision activities lead to the suspicion of illegal residence of foreigners (section 44(4)). According to the 2017 Annual Report, the LI detected such 45 violations in 2017. In its 2006 General Survey, Labour inspection, paragraph 77, the Committee indicated that the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers. The Committee also recalls that neither Convention No. 81 nor Convention No. 129 contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status (paragraph 77). The Committee also observed in its 2017 General Survey on certain occupational safety and health instruments, paragraph 452, 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. The Committee requests the Government to take the necessary measures to ensure that the control duties by the labour inspectorate under the ESWAA do not prejudice the exercise of its primary duty to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers. The Committee also requests the Government to provide information on the manner in which the labour inspection services ensure the enforcement of employers’ obligations with regard to the rights of foreign workers, including those in an irregular situation (such as the payment of wages and any other benefits owed for the work they performed).

3. Mediation and conciliation duties. As the Committee previously noted, labour inspectors may offer mediation for the settlement of a dispute between a worker and employer under the Employment Relationship Act (ERA) amended in 2016 (section 216). Noting the inspectors’ workload due to the understaffing of the LI, the Committee notes with interest the newly launched Project on Eliminating Conflict at Work described in the 2017 Annual Report, under which the LI is aiming to promote the use of mediation services provided by mediation institutions. The 2017 Annual Report states that this is part of their efforts to cope with the shortage of staff and the associated workload, by encouraging voluntary prevention and settlement of disputes by employers and workers themselves. This Project will continue until 2022. The Committee requests the Government to provide information on the impact of this Project in reducing the proportion of time spent by labour inspectors on mediation. In this respect, it once again requests the Government to indicate the proportion of time devoted to the settlement of disputes pursuant to section 216 of the ERA, compared to the time devoted to the exercise of the primary functions of labour inspectors as defined in Article 3 of Convention No. 81 and Article 6 of Convention No. 129.

4. Creation of the Employment Inspection Service (EIS) under the labour inspectorate in the areas of employment policy measures, including the supervision of employment services, temporary employment agencies, job certification processes and unemployment insurance. The Committee previously requested information on the new inspection service under the Labour Market Regulation Act (LMRA). The Committee notes that inspections of the implementation of the LMRA are carried out by employment inspectors with special powers and responsibilities who are employed by the EIS within the LI (section 150). Noting the heavy workload of the labour inspectorate, the Committee requests the Government to indicate whether employment inspectors are recruited within the current budget of the LI, or newly recruited specialized inspectors with a separate line of budget.

Articles 4 and 5(b) of Convention No. 81 and Articles 7 and 12 of Convention No. 129. Supervision by a central labour inspection authority and effective cooperation between the labour inspectorate and other government services. Referring to its observation regarding legal uncertainty between the LIA and the Inspection Act (IA), the Committee notes the principle of mutual cooperation under section 11 of the IA, providing that the Inspection Council (IC) shall be established as a permanent interministerial working body for the purposes of ensuring mutual coordination of work and achieving greater efficiency in different inspection services. The Committee notes that pursuant to the IA, the IC shall, among others, coordinate the joint implementation of inspection duties of different inspection services and consider common issues relating to the operation of inspection services. The IA further provides that the work of the IC shall be addressed in the procedural rules adopted by the IC in agreement with the Government. The Committee requests the Government to provide information on the role that the IC plays in coordinating with the labour inspectorate, including the impact of this coordination on the planning and carrying out of labour inspections as well as any joint inspections undertaken.

Articles 5(a), 17 and 18 of Convention No. 81 and Articles 12, 22, 23 and 24 of Convention No. 129. Effective cooperation between the LI and the justice system and enforcement of administrative penalties. The Committee notes with interest the Government’s indication that the LI, as a minor offence authority, is now empowered to impose minor fines (€1,500–€4,000), in accordance with the ERA. Labour inspectors may choose to take different measures, including administrative and prohibition decisions (written and oral), minor offence decisions with fines or reminders, payment orders, warnings, reporting suspected criminal offences. The Government however states that, with regard to criminal complaints lodged with the State Prosecutor’s Office, labour inspectors do not regularly receive feedback. The Committee requests the Government to provide further information on the measures taken or envisaged to promote effective cooperation between the labour inspection services and the justice system, including the provision of feedback to labour inspectors on the outcome of cases referred to the State Prosecutor’s Office. It once again requests the Government to provide information on the outcome of the cases referred to the justice system by the labour inspectorate (number of convictions in relation to the infringements reported, nature of sanctions applied and amount of fines imposed). The Committee also asks the Government to indicate the impact of inspectors’ powers to impose fines against minor offences on the work of the LI.

Articles 6 and 11 of Convention No. 81 and Articles 15 and 20(a) of Convention No. 129. Costs for inspection procedures imposed on liable persons. The Committee notes that the IA obliges the person in breach of the laws or any other regulations to cover the cost of inspection procedures in establishing facts and evidence (section 31). The 2017 Annual Report indicates that in 2017, the LI’s non-tax revenues through fines for minor offences, court fees, procedural costs, administrative fees and others accounted for €3,286,057 in claims. The Committee requests the Government to continue to provide information on the budget of the LI, including the proportion of revenues obtained through charging inspection costs.

Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Adequacy and frequency of labour inspection visits. The Committee notes the Government’s indication that the LI conducts regular inspections, reactive inspections based on complaints, and control visits to follow up on a previous decision. Referring to its observation, however, the Committee notes the low proportion of regular inspections performed by the LI reported in the 2017 Annual Report. The Committee requests the Government to provide information on the number of labour inspections carried out, disaggregating unannounced regular inspections from complaint-based reactive inspections, as well as the coverage of workplaces under unannounced regular inspections disaggregated by sectors, size of establishments, and subjects of inspections.

Article 20 of Convention No. 81 and Article 26 of Convention No. 129. Annual inspection report. The Committee notes that the annual reports on the activities of the labour inspectorate, while available on the LI’s website, have not been communicated to the ILO since 2015. The Committee requests the Government to take measures to ensure that annual labour inspection reports are transmitted to the ILO, in accordance with Article 20 of Convention No. 81 and Article 26 of Convention No. 129.