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

Serbia

Labour Inspection Convention, 1947 (No. 81) (Ratification: 2000)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 2000)
Labour Administration Convention, 1978 (No. 150) (Ratification: 2013)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection and the labour administration, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection), 129 (labour inspection in agriculture) and 150 (labour administration) together.

Labour inspection: Conventions Nos 81 and 129

Article 3(1)(a) and (b) of Convention No. 81 and Article 6(1)(a) and (b) of Convention No. 129. Action against undeclared employment and enforcement of the legislation relating to the protection of workers. The Committee notes the information provided by the Government in its report, in response to the Committee’s previous request, concerning the results of the activities of the labour inspectorate in the area of undeclared employment with regard to the protection of workers’ rights, particularly the establishment of formal employment contracts with 12,250 workers in 2015.

Articles 3(1)(a) and (b), and 5(a) and (b) of Convention No. 81 and Articles 6(1)(a) and (b), 12 and 13 of Convention No. 129. Preventive role of the labour inspectorate in the field of occupational safety and health (OSH). Risk assessments carried out by private companies for employers. The Committee notes the information provided by the Government, in response to the Committee’s previous request, concerning the various preventive activities undertaken by the labour inspectorate in the area of OSH and in small and medium-sized enterprises, in cooperation with other government services and the social partners. The Committee also notes the information provided by the Government, in response to its previous request, concerning the modalities of supervision of private companies that perform risk assessments for employers.

Articles 3(1)(a) and (b), 10 and 16 of Convention No. 81 and Articles 6(1)(a) and (b), 14 and 21 of Convention No. 129. Adequate number of labour inspection visits to ensure the effective application of the legal provisions. The Committee previously noted the observations made by the Trade Union Confederation “Nezavisnost” concerning an insufficient number of labour inspections in the area of labour conditions to address frequent labour law violations. The Committee notes the Government’s indication that in 2016, there was a total of 337,927 registered business entities, and that the number of labour inspectors decreased from 324 to 242 labour inspectors following the implementation of administrative reforms. It notes from the information in the 2017 annual labour inspection report that the number of labour inspectors in 2017 was 247, and that the number of inspections was 53,424 covering 510,725 workers. The Government also indicates that a higher number of labour inspectors is needed in the more remote territorial structures of the labour inspectorate, among other things, in view of the increasing number of business entities, and the enlarged scope of labour inspection (which includes the control of unregistered entities since the entry into force of the Law on Inspection Oversight No. 36/15 of April 2015). The Government adds that the labour inspectorate has managed to significantly increase the efficiency of its work with the existing resources, as a result of intensified inspections, which also involve the temporary assignment of labour inspectors to territorial structures on a rotating basis. The Committee requests the Government to continue to provide information on the number of labour inspectors working at the central and local levels of the labour inspectorate as well as the workplaces subject to labour inspection, and to continue to report specifically on measures taken to ensure that the number of inspectors are appropriate for the effective performance of their duties.

Articles 4, 7, 11 and 16 of Convention No. 81 and Articles 7, 9, 15 and 21 of Convention No. 129. Organization and effective functioning of the labour inspection services under the supervision and control of a central labour inspection authority. The Committee notes from the Government’s report that there are currently 36 inspection services within 12 ministries, and that technical inspections are also performed by the bodies of autonomous provinces and local self-government bodies. It further notes the Government’s reference to administrative reforms, and its indication that the activities of the labour inspection services are now covered by the Law on Inspection Oversight No. 36/15 of April 2015. Pursuant to section 12(1) of the Law on Inspection Oversight, a Coordinating Commission shall ensure greater effectiveness of inspection, and avoid overlaps and unnecessary reduplication of inspections. In accordance with section 12(2) of that Law, the Coordinating Commission shall, among other things: provide guidelines to improve the coordination of the various inspection bodies, which also includes the harmonization of the respective workplans of the inspection bodies; review opinions, directives, methodological materials and manuals relevant to inspection oversight; and participate in analysing the needs for funding, technical equipment and professional development of inspectors and make relevant recommendations. The Committee requests the Government to provide clarifications on the structure of the labour inspection services following the abovementioned administrative reform, including information on the organization and exercise of any labour inspection functions that have been entrusted to the bodies of autonomous provinces and local self-government bodies. The Committee also requests the Government to provide information on the composition of the Coordinating Commission, and the impact of its decisions and activities on the labour inspection system.

Article 5(b) of Convention No. 81 and Article 13 of Convention No. 129. Collaboration between the labour inspection services and employers and workers (at the enterprise level and in the agricultural sector). The Committee notes the Government’s reference, in reply to the Committee’s request for information on collaboration with the social partners at the enterprise level, to numerous inspections following relevant requests made by trade union representatives. The Committee also notes that the Government indicates, with regard to the previous observations made by the Confederation of Autonomous Trade Unions of Serbia (CATUS) concerning restrictions on the presence of trade union representatives during labour inspections, that there are no such restrictions. The Government provides information on inspections with trade union representatives in attendance. Moreover, in response to the Committee’s request for information on collaboration, particularly in the agricultural sector, the Government refers to periodic meetings with the social partners on issues concerning the implementation of labour legislation, and to a meeting in 2016 specifically concerning the agricultural sector. The Committee requests the Government to continue to provide information on collaboration with social partners in the inspection process.

Article 7 of Convention No. 81 and Article 9 of Convention No. 129. Adequate initial and further training of labour inspectors. The Committee notes the information provided by the Government, in reply to its previous request, concerning the training provided to labour inspectors, including the preparation of inspection instructions, which also concern labour inspections in agriculture.

Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. Freedom of labour inspectors to enter at any hour of the day or night any workplace liable to inspection. The Committee notes that pursuant to section 19(1) and (2) of the Law on Inspection Oversight No. 36/15, inspection of a legal entity shall be performed during working hours, except where there are reasons to act without delay, where the level of risk appraised is high or critical, or where urgent action is required to prevent or remove direct hazard to human life or health, the environment or plant or animal life.

The Committee would like to recall its observations made in its 2006 General Survey, Labour inspection, paragraph 270, according to which the conditions for the exercise of the right of free entry to workplaces laid down by Conventions Nos 81 and 129 are intended to allow inspectors to carry out inspections, where necessary and possible, to enforce the application of legal provisions relating to conditions of work, and that the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits. The Committee also recalls its indications in the same paragraph that it should be for the inspector to decide whether a visit is reasonable and that, obviously, inspections should only be carried out at night or outside working hours where this is warranted. The Committee requests the Government to specify the meaning of the term “reasons to act without delay” in section 19 of the Law on Inspection Oversight No. 36/15, and to ensure that the protection of workers is the primary objective for any decision on the timing of inspection visits, in conformity with Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129.

Article 14 of Convention No. 81 and Article 19 of Convention No. 129. Notification of occupational accidents and diseases to the labour inspectorate. In its previous comments, the Committee noted the Government’s indication that data on occupational diseases was extremely fragmented due to: its underreporting by employers who fail to recognize the link between occupational diseases and working conditions, as well as the absence of appropriate exchange of information between the various national institutions holding such data. In this respect, the Committee noted the Government’s reference to a number of proposed measures for improved identification, reporting and registration of occupational accidents and diseases. In response to the Committee’s request for progress made in this regard, the Government refers to a European Union (EU) project, which includes the introduction of a new information system for the registration of statistics on occupational accidents and diseases. The Committee requests the Government to continue to provide information on the measures taken or envisaged in order to strengthen the efficiency of the system for notifying occupational accidents and diseases.

Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129. Confidentiality of complaints. The Committee notes that section 16 of the Law on Inspection Oversight No. 36/15 requires a written inspection warrant, which determines the content and purpose of the inspection. Section 17(4) provides that the reasons for not providing notification shall be listed in the inspection warrant, and section 20(1) provides that entities subject to inspection shall be acquainted with the purpose of the inspection. The Committee recalls that Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129 provide that labour 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 employers or their representatives that a visit of inspection was made as a consequence of the receipt of such a complaint. The Committee requests the Government to provide information on the manner in which it ensures that confidentiality is maintained with respect to the fact that an inspection was undertaken pursuant to a complaint, and to indicate if the fact that a complaint was received is indicated on the inspection oversight warrant.

Articles 17 and 18 of Convention No. 81 and Articles 22, 23 and 24 of Convention No. 129. Adequate penalties imposed and effectively enforced. In its previous comments, the Committee noted the observations made by CATUS and the Trade Union Confederation “Nezavisnost” concerning the inefficiency of the system of penalties for labour law violations (including the reference of workers by labour inspectors to the courts, rather than applying the administrative means available to them). In this context, the Committee also noted the Government’s indication that there was a need to accelerate judicial procedures so as to overcome problems with regard to the statute of limitations. The Committee notes the information provided by the Government in reply to its request, namely on cooperation with the judicial authorities, as well as the statistical information on the number of proceedings that have lapsed due to the statute of limitations. According to the statistics provided, this number has decreased between 2012 and 2015 from 558 to 335 cases concerning alleged offences under the Labour Code, and from 200 to 171 cases concerning alleged offences under the Occupational Safety and Health (OSH) Law.

Concerning the discretionary powers of labour inspectors, the Committee notes that sections 27(1) and (5) and 42(3) of the Law on Inspection Oversight No. 36/15 require inspectors first to provide advice and the possibility to remediate non-compliance before they may initiate enforcement measures, with the exception only in urgent cases related to OSH. In this respect, the Committee recalls that under Article 17(1) and (2) of Convention No. 81 and Article 22(1) and (2) of Convention No. 129, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal or administrative proceedings without previous warning, but that exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given. The Committee requests the Government to ensure that labour inspectors are provided with the discretionary powers to initiate prompt legal proceedings without previous warning as provided for in Article 17 of Convention No. 81 and Article 22 of Convention No. 129, to provide specific examples in which such prompt proceedings were initiated and with what results, and to limit any exceptions as to the possibility of initiating prompt legal proceedings to a level that does not undermine the effectiveness of labour inspection actions to achieve the effective application of the legal provisions relating to conditions of work and the protection of workers.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Communication of the annual reports on the work of the labour inspection services. The Committee notes once again that no annual report on the labour inspection activities has been received by the Office (including electronically) since 2011. However, the Committee also notes that such reports are published on the website of the Ministry of Labour, Employment, Veterans and Social Affairs, and that the latest report published on that website relates to 2017. While noting the detailed information in the 2017 annual labour inspection report, the Committee notes that the report does not appear to contain information on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c) of Convention No. 81 and Article 27(c) of Convention No. 129), although that information was transmitted in the Government’s report to the Committee, nor on the statistics of occupational diseases (Article 21(g) of Convention No. 81 and Article 27(g) of Convention No. 129). The Committee also hopes that in light of the abovementioned EU project under Article 14, the Government will soon be in a position to include statistics on occupational diseases in its annual labour inspection reports. The Committee once again requests the Government to ensure that the annual report on the labour inspection activities is transmitted to the ILO on an ongoing basis in accordance with Article 20 of Convention No. 81 and Article 26 of Convention No. 129 and that it contains information on all the items listed in Article 21 of Convention No. 81 and Article 27 of Convention No. 129.

Issues specifically concerning labour inspection in agriculture

Articles 4 and 9(3) of Convention No. 129. Scope of labour inspection in agriculture. The Committee notes the Government’s indication, in reply to its previous request, concerning the scope of application of labour inspection in agriculture, which now includes, following legislative amendments, employers in agriculture which are not registered with the National Business Registries Agency. Noting the extension of the scope of labour inspection in agriculture, the Committee requests the Government to provide information on the frequency, content, and number of participants in trainings particularly relevant to that sector.

Labour administration: Convention No. 150

The Committee notes the Government’s first report.

Articles 5, 6 and 8 of the Convention. Consultation, cooperation and negotiation within the system of labour administration, between the public authorities and the most representative organizations of employers and workers. The Committee notes the structural arrangements for the involvement of the social partners within the system of labour administration at the national, regional and local levels, including through the Social and Economic Council, the Board of the National Employment Service and regional and local employment councils. The Government indicates that the employers’ and workers’ representatives on the Social and Economic Council discuss and give their opinions on draft laws and regulations. In this respect, the Committee indicated in its 1997 General Survey, Labour administration, paragraph 56, that the preparation of draft laws and regulations constitutes the major part of the preparation of national labour policy, and that for this purpose consultations with the social partners take place in tripartite bodies. Despite the existing arrangements as described above, the Committee also notes the 2018 conclusions of the Committee on the Application of Standards (CAS) concerning the application of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which recommended that the Government take the necessary steps to ensure that meaningful, effective and timely consultations on matters concerning international labour standards take place, including within the framework of the Social and Economic Council. The Committee notes that the discussions in the CAS concerned social dialogue, particularly in relation to labour and social legislation. The Committee requests the Government to provide detailed information on the consultation and cooperation within the system of labour administration with the social partners in the different tripartite instances.

Article 7. Coverage of workers by the labour administration system who are not, in law, employed persons. In its 2017 comment under the Employment Policy Convention, 1964 (No. 122), the Committee noted the Government’s indication that the rate of informal employment was 19.4 per cent in the first quarter of 2015, and its reference to measures taken, in line with the national employment policy, to facilitate the transition to the formal economy. In this regard, the Committee notes the information provided by the Government in its report under this Convention that the Law on Inspection Oversight No. 36/15 of 2015 expanded the powers of labour inspectors to undeclared workplaces, and that in cases where labour inspectors find persons to be working illegally, they shall issue a decision ordering the employer to establish their employment relationship for an indefinite time, subject to the relevant conditions in the law being applied. The Committee requests the Government to continue to provide information on the extension of the functions of the system of labour administration to workers who are not, in law, employed persons.