Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Ukraine

Convention (n° 81) sur l'inspection du travail, 1947 (Ratification: 2004)
Convention (n° 129) sur l'inspection du travail (agriculture), 1969 (Ratification: 2004)

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 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU), received on 25 August 2021. It also notes the observations of the Joint Representative Body of the Representative all-Ukraine Trade Union Associations at the national level, communicated with the Government’s report, and the response of the Government thereto.

Articles 4, 6 and 7 of Convention No. 81 and Articles 7, 8 and 9 of Convention No. 129. Organization of the labour inspection system under the supervision and control of a central authority. Partial decentralization of labour inspection functions. The Committee previously noted that local authorities assumed labour inspection functions, in addition to the State Labour Service (SLS), and urged the Government to indicate the measures taken to place the inspection functions of the local authorities under the supervision and control of the SLS. In this regard, the Committee takes due note that, according to the Government’s report, legislative amendments introduced in 2021, including to section 34 of the Local Government Act, exclude local government authorities from monitoring compliance with labour legislation and issuing fines for labour law violations. The Government indicates that accordingly, labour inspection is now carried out exclusively by the SLS. Nevertheless, the Committee observes that section 17 of the Local Government Act, as amended, refers to the ability of local self-government bodies in the exercise of powers to control compliance with labour and employment legislation, to carry out inspections that do not belong to measures of state supervision, at certain enterprises, institutions and organizations. The Committee requests the Government to indicate the nature and scope of the power of inspection envisaged under section 17 of the Local Government Act, and to provide information, including examples, of how this power of inspection is implemented in practice.

Articles 10, 11 and 16 of Convention No. 81 and Articles 14, 15 and 21 of Convention No. 129. Material means and human resources to achieve an adequate coverage of workplaces by labour inspection. The Committee previously noted an increase in the number of labour inspectors from 615 in 2018 to 710 in 2019, for 1,003 existing posts, and urged the Government to pursue its efforts to fill the vacant posts. In this regard, the Committee notes the Government’s statement, that as at July 2021, 1,125 labour inspectors work for the SLS. Regarding its previous request for the Government to take measures to provide sufficient material resources for the SLS, the Committee notes the Government’s indication that labour inspectors are provided with office equipment and have their expenses covered, in accordance with the allocation of budgetary funds. The Committee requests the Government to provide further information on the measures taken to provide sufficient material resources to labour inspectors, including offices, office equipment and supplies, transport facilities and reimbursement of travel expenses, at the central and local levels of the SLS. It also requests the Government to continue to indicate the number of labour inspectors employed by the SLS and the number of available posts at the SLS.

Articles 12(1), 16, 17 and 18 of Convention No. 81 and Articles 16(1), 21, 22 and 24 of Convention No. 129. Restrictions and limitations on labour inspection. 1. Moratorium on labour inspection. The Committee previously noted the expiry of the moratorium on state supervision on 1 January 2019 and expressed the firm hope that no further restrictions of this nature would be placed on labour inspection in the future. In this respect, the Committee notes that, according to the Joint Representative Body of the Representative all-Ukraine Trade Union Associations at the national level, a moratorium has been imposed on planned inspections in businesses considered to be medium- or low-risk, in the context of the COVID-19 pandemic. In response, the Government indicates that such restrictions were necessary to reduce the administrative pressure faced by those businesses, as a result of restrictions related to the COVID-19 pandemic. The Government also explains that there are no restrictions on unplanned monitoring measures, regardless of the category of risk of businesses. The Committee recalls that labour inspection is a vital public function, at the core of promoting and enforcing decent working conditions and respect for fundamental principles and rights at work, and it plays an important role in national responses to COVID-19, by monitoring compliance with protective measures aimed at reducing transmission of the virus among employees. While recognizing the extraordinary nature of, and particular challenges linked to, the COVID-19 pandemic, the Committee requests the Government to ensure that the interference of any COVID-19-related measures with labour inspection activities is kept to the strict minimum necessary to respect public health measures. With reference to its General Observation of 2019 on labour inspection Conventions, the Committee requests the Government to remove any other moratoria on labour inspection. The Committee also requests the Government to provide detailed statistics on the number of inspection visits carried out by the SLS, disaggregated by type of inspection, region and sector.

2. Other restrictions. The Committee has previously noted for several years important restrictions on the powers of labour inspectors, contained in Act No. 877-V of 2007 on Fundamental Principles of State Supervision and Monitoring of Economic Activity (Act No. 877-V), including restrictions with regard to: (i) the free initiative of labour inspectors to undertake inspections without previous notice; and (ii) the frequency of labour inspections. It noted with concern that Ministerial Decree No. 823 of 21 August 2019 on the Procedure for State Control of Compliance with Labour Legislation, as amended in 2019 and 2020 (Decree No. 823), provides for similar restrictions. In particular, section 1 of the amended Procedures approved by Decree No. 823 requires labour inspection to be carried out in accordance with Act No. 877-V, except for measures related to detecting informal employment. In this regard, the Committee strongly urged the Government to bring the labour inspection services and national legislation into conformity with the Conventions.

The Committee notes that, according to the Joint Representative Body of the Representative all-Ukraine Trade Union Associations at the national level, the District Administrative Court of the city of Kiev has found Decree No. 823 to be invalid in its Ruling No. 640/17424/19 dated 28 April 2021. The Committee notes with deep concern that previously observed restrictions in Act No. 877-V on the powers of labour inspectors remain in place. In this respect, the Committee notes the KVPU’s observations, alleging that, despite multiple amendments, sections 4, 5 and 6 of Act No. 877-V continue to restrict labour inspectors with regard to the time, scope and duration of inspections visits, their ability to undertake inspection without previous notice, and the measures they can take against violations. According to the KVPU, this leaves a significant number of problematic and important employee issues neglected and inadequately addressed. The KVPU also alleges that, despite the rising numbers of occupational accidents and cases of occupational diseases in 2020–21, requests from trade unions regarding identified violations are unanswered, delayed, or often met with refusal by the SLS, because trade union requests are not included in the exceptional grounds for unscheduled inspections under section 6 of Act No. 877-V.

The Committee recalls once again that restrictions on labour inspectors’ ability to conduct inspection visits without previous notice, at any hour of the day or night, in workplaces liable to inspection; and to ensure that workplaces are inspected as often and as thoroughly as necessary to ensure effective application of legal provisions, violate the Conventions. The Committee also recalls that, under Article 18 of Conventions No. 81 and Article 24 of Convention No. 129, adequate penalties for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties shall be provided for by national laws or regulations and effectively enforced. In this regard, the Committee takes due note of the Government’s indication that the Ministry of Economy has developed a draft law to amend several legislative acts relating to the procedure for labour inspection, and notes that the Government is receiving ILO technical assistance. The Government also indicates that a new draft law on fundamental principles of state monitoring was approved by the Cabinet of Ministers of Ukraine in June 2021 and submitted to Parliament. In addition, according to the Government, legislative amendments to the Labour Code have been adopted (previously, draft Law No. 1233 of 2019), reducing the size of fines provided for labour law violations in the Labour Code, and requiring labour inspectors to give warnings in cases of violations by certain legal persons and individual entrepreneurs using hired labour. The Committee observes that a number of draft laws, including draft Laws Nos 5371, 5054-1 and 5161-1, also propose changes to labour legislation which could have an impact on the application of Conventions Nos 81 and 129. The Committee requests the Government to provide its comments with respect to the observations of the KVPU. With reference to its general observation of 2019 on the labour inspection Conventions, the Committee strongly urges the Government to promptly take all necessary measures to bring its national legislation into conformity with the provisions of Conventions Nos 81 and 129. In particular, the Committee strongly urges the Government to ensure that any future legislative amendments and laws with an impact on labour inspection, including the draft law on the fundamental principles of state monitoring, are in full conformity with Articles 12, 16, 17 and 18 of Convention No. 81 and Articles 16, 21, 22 and 24 of Convention No. 129. It requests the Government to provide a copy of the amendments to Act No. 877-V and the new law on the fundamental principles of state monitoring, once adopted.

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