Observation (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 81) sur l'inspection du travail, 1947 - France (Ratification: 1950)

The Committee notes the Government’s communication received on 7 March 2011 in reply to the matters raised by the trade union coalition (SNU TEFE FSU–CGT–SUD–UNSA) (communication of 29 June 2010), the additional observations from the SNU TEFE FSU–CGT–SUD–UNSA sent to the Office on 9 March 2011, and the Government’s report of June 2012 concerning the application of the Convention.

Articles 3(1) and (2), 5(a), 15(c) and 17 of the Convention. Further duties entrusted to labour inspectors. The Committee notes the statement in the Government’s report to the effect that the circulars of 20 December 2006 and 7 July 2008 task the heads of territorial units at the Regional Directorates pertaining to enterprises, competition, consumer matters, employment and occupation (DIRECCTE) with ensuring that inspectors placed under their responsibility only intervene in joint inspection operations once their terms of intervention have been specifically determined, which guarantee their professional identity and their prerogatives, and once a report of the infringements has been drawn up, imposing the applicable administrative fines. According to the Government, these instructions find further legitimacy with the adoption of a bill concerning immigration, integration and nationality, title 4 of which will transpose Directive 2009/52/EC of the European Parliament and of the European Council of 18 June 2009 and will institutionalize the process for restoring the rights of foreign employees who have been in an irregular employment situation, irrespective of the supervisory procedures and authorities involved in identifying the nature of the employment relationship. The Committee trusts that the bill concerning immigration, integration and nationality transposing the abovementioned European Union Directive will be adopted in the very near future and requests the Government to send a copy of the text of the law once it has been adopted.

Incompatibility of joint inspection methods with the objectives of the Convention. The Committee notes the Government’s statement that there has been a steady increase in the number of joint inspections carried out by the labour inspectorate and the police, but that these do not constitute a primary inspection activity; this is due to the fact that, under the French legal system, the police have to be involved since they have overall competence. It also indicates that involving the police in labour inspection makes for a greater level of safety for inspection staff during the performance of their duties. The Committee further notes that, according to the Government, the labour inspection information system (CAP SITERE) does not enable the precise identification of legal acts in relation to the nationality of employees concerned and that, in 2010, there were about 100 references to section L.8252-1 of the Labour Code under this system, laying down the principle of equality of status of undocumented foreign employees and employees in a situation of conformity as regards the various obligations of the employer.

The Committee reminds the Government once again that the purpose of the cooperation provided for in Article 5(a) of the Convention is to strengthen the means of enforcing the legal provisions relating to conditions of work and the protection of workers (Articles 2 and 3(1)). With reference to paragraph 157 of the 2006 General Survey on labour inspection, the Committee also reminds the Government that effective support from the police can be useful in carrying out certain inspection missions and in particular to ensure the physical safety of the inspector and allow the planned inspections to take place smoothly. However, it notes that the current collaboration, as part of combating unofficial employment of foreigners, between the police and the labour inspectorate, is not conducive to creating the climate of trust that is essential to ensure good cooperation by employers and workers with labour inspectors. The latter must command respect on account of their power to penalize infringements but must also be approachable in their role of giving warnings or advice. With reference to paragraphs 75–78 of the 2006 General Survey on labour inspection, the Committee re emphasizes that the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of labour inspection. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers. The Committee requests the Government to take all the necessary measures, in law and in practice, to re-establish labour inspectors in their functions as defined by the Convention and to limit their involvement in joint inspection operations to an extent that is compatible with the objectives of the Convention. The Committee requests the Government to continue to supply information, where possible, enabling it to assess the manner in which it is ensured that foreign workers in an irregular situation benefit from the protection afforded by labour inspection in the same way as other workers.

Additional duties assigned to labour inspectors in French Guiana. The Committee notes with concern that, according to the Government’s report, responsibility for combating illegal work in French Guiana lies solely with the labour inspectorate. The Government also states that the labour inspectorate within the Directorate pertaining to enterprises, competition, consumer matters, employment and occupation (DIECCTE) French Guiana comprises three general inspection units which have territorial competence for all sectors of activity and that a mission created on 1 January 2011, at the time DIECCTE was established, now has responsibility for organizing inspections, their follow-up and the relevant legal and administrative support. The Committee further notes that, according to the Government, the work of the eight inspection officials in 2011 led to increased activity relating to safety and health, fundamental rights and freedoms, and representative staff institutions (IRP). However, despite the decrease observed by comparison with 2010, most actions in the context of “Programme 111” are still concerned with combating illegal work, which accounts for the majority of cases referred to the courts in the overseas departments.

The Committee draws the Government’s attention to the fact that, according to Articles 2(1) and 3(1), one of the main functions of the labour inspection system is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. Verifying the legality of employment can therefore only be considered a further duty which, in accordance with the terms of Article 3(2), must not be such as to interfere with the effective discharge of labour inspectors’ primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee therefore requests the Government to indicate how the duties of labour inspectors are discharged in the context of actions under “Programme 111” against illegal work and to continue to take the necessary measures to ensure that the whole labour inspection staff in French Guiana can perform its task of enforcing the legal provisions relating to conditions of work and the protection of workers while engaged in their work. The Government is also requested to supply detailed statistics regarding labour inspection activities on the territory of the department.

Articles 6, 11 and 15(c). Independence of labour inspectors, accessibility of premises to all concerned and confidentiality of complaints. The Committee notes the Government’s statement that, at a meeting on 9 December 2010 of representatives of the Ministry, DIRECCTE and the trade unions concerned, a consensus emerged from discussions between representatives of the administration and the trade unions that the establishment of the labour inspection section at Porto Vecchio (Corsica) did not appear to be problematic in terms of the principles of independence of the labour inspectorate, as defined in Article 6 of the Convention, or the freedom of decision-making established in Article 17, and that the most sensitive issue was the confidential nature of complaints prescribed by Article 15(c). It also notes that, according to the Government, all parties at the meeting agreed that, for want of a more operational solution, the labour inspectorate in Porto Vecchio should stay for the immediate future in its current premises and that, since early 2012, this solution does not appear to be a source of concern for the labour inspector any more than for the workers or departmental unions. The Committee trusts that the Government will soon be in a position to take the necessary operational measures to ensure that labour inspectors are independent of any improper external influences (Article 6), that workers are able to enter the Porto Vecchio section freely (Article 11) and that complaints are treated confidentially (Article 15(c)).

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