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

Republic of Moldova

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1996)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1997)

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.

The Committee notes the observations made by the National Confederation of Trade Unions of Moldova (CNSM) in its communication received on 21 August 2017.

Article 4 of Convention No. 81 and Article 7 of Convention No. 129. Supervision and control of a central authority. Occupational safety and health. The Committee notes that the Government indicates in its report that Law No. 131 on state control of entrepreneurial activities of 2012 withdraws some competencies and supervisory duties in the area of occupational safety and health from the State Labour Inspectorate and transfers them to ten supervision entities, including the National Agency for Food Safety, the Agency for Consumer Protection and Market Supervision, the National Agency for Public Health, the Environmental Protection Inspectorate, the National Agency for Motor Transportation, the National Agency for Energy Regulation, and the National Agency for Electronic Communications and Information Technology. These agencies will monitor occupational safety and health issues for those enterprises regulated by legislation under their purview. With respect to other areas of activity, the Agency for Technical Supervision is responsible for supervising occupational safety and health issues. The Committee also notes the information provided by the Government indicating that labour inspectors responsible for checking occupational safety and health will be appointed in sectoral agencies. These inspectors will report to their respective agencies as well as to the State Labour Inspectorate. The Government further indicates that the State Labour Inspectorate will develop procedural guidelines and checklists for inspectors as well as a platform for their training.

In this respect, the Committee notes the observations of the CNSM that the scattering of control duties in the field of occupational safety and health results in a lack of an institutional framework for the inspection of such issues.

The Committee recalls that Article 4 of Convention No. 81 and Article 7 of Convention No. 129 provides for the placing of the labour inspection system under the supervision and control of a central authority in so far as is compatible with the administrative practice of the Member. It recalls in this respect, that it indicated in its General Survey of 2006 on labour inspection that should certain labour inspection responsibilities be attributed to different departments, the competent authority must take steps to ensure adequate budgetary resources and to encourage cooperation between these different departments (paragraphs 140, 141 and 152). Recalling the importance of ensuring that organizational changes are carried out in conformity with the provisions of Conventions Nos 81 and 129, including Articles 4, 6, 9, 10, 11 and 16 of Convention No. 81 and Articles 7, 8, 11, 14, 15 and 21 of Convention No. 129 (concerning supervision and control by a central authority; stability of employment and independence; the association of duly qualified technical occupational safety and health experts and specialists; ensuring a sufficient number of inspectors to secure the effective discharge of their duties; the provision of suitably equipped local offices and transport facilities; and the undertaking of inspections as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions), the Committee urges the Government to take all necessary measures in that respect.

With reference to its comments on the Occupational Safety and Health Convention, 1981 (No. 155), the Committee accordingly requests the Government to provide further information on the measures taken to ensure coordination among the various sectoral authorities with respect to inspections related to occupational safety and health issues, as well as between these authorities and the State Labour Inspectorate. It requests additional information on the monitoring of enterprises not covered by the respective sectoral agencies and, in particular, of coverage of the agricultural sector. It requests the Government to provide information on: (1) the measures taken or envisaged to ensure the allocation of sufficient budgetary and human resources with a view to securing the enforcement of the legal provisions relating to occupational safety and health; and (2) the number of inspectors appointed in the sectoral bodies as well as the number of inspections undertaken by them (Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129). It requests the Government to indicate how the independence and impartiality of labour inspectors appointed in the sectoral bodies is ensured in light of their reporting to the management of the sectoral bodies (Article 6 of Convention No. 81 and Article 8 of Convention No. 129). It requests the Government to provide information on the manner in which technical occupational safety and health experts and specialists are associated in the work of inspection (Article 9 of Convention No. 81 and Article 11 of Convention No. 129), the measures taken to provide such inspectors with suitably equipped local offices as well as the transport facilities necessary for the performance of their duties (Article 11 of Convention No. 81 and Article 15 of Convention No. 129), and on the manner in which it ensures that the activities undertaken by these inspectors are reflected in the annual report on labour inspection (Articles 20 and 21 of Convention No. 81 and Articles 25–27 of Convention No. 129).

Articles 5(a), 17 and 18 of Convention No. 81 and Articles 12(1), 23 and 24 of Convention No. 129. Cooperation with the justice system and adequate penalties for violations of the legal provisions enforceable by labour inspectors. The Committee previously noted the information in the Government’s annual labour inspection reports that the State Labour Inspectorate drew up 891 infringement reports in 2012 for submission to court, 514 such reports in 2013 and 434 in 2014. It notes in this respect the information in the Government’s report that, in 2016, labour inspectors drew up and filed 165 infringement reports. Noting the significant decline between 2012 and 2016 in the number of infringement reports submitted to courts, the Committee once again requests the Government to provide information on the reasons for this trend. It also requests the Government to provide information on the specific outcome of the infringement reports submitted to the courts, indicating the decision rendered and if any fine or other penalty was applied.

Article 12 of Convention No. 81 and Article 16 of Convention No. 129. Unannounced inspection visits. The Committee previously noted that the report of the tripartite committee set up to examine the representation alleging non observance by the Republic of Moldova of Convention No. 81 submitted under article 24 of the ILO Constitution, adopted by the Governing Body in March 2015 (GB.323/INS/11/6), found that the application of Law No. 131 to the State Labour Inspectorate (pursuant to paragraph 27 of its annex) raised issues of compatibility with Article 12 of Convention No. 81, in restricting the free access of labour inspectors to undertake inspections. In particular, the report of the tripartite committee noted that section 18(1) of Law No. 131 provides that notice of the decision to carry out a control shall be sent to the entity subject to control at least five working days prior to the carrying out of the control. Section 18(2) provides that this notice is not provided in the case of an unannounced control, and section 19 outlines the specific limited circumstances under which an unannounced control can be undertaken irrespective of the established schedule of control. In this regard, the tripartite committee’s report stated that the restrictions on the undertaking of unannounced inspections contained in sections 18 and 19 of Law No. 131 were incompatible with the requirements in Article 12(1)(a) and (b) of Convention No. 81. These restrictions are similarly incompatible with the requirements of Article 16(1)(a) and (b) of Convention No. 129.

The Committee notes the observations of the CNSM that although the Government has taken some measures to adapt the national legislation to the provisions of Article 12 of Convention No. 81, it still contains serious limitations on labour inspection activity. It notes the statement of the Government that with respect to planned controls, there is an awareness of the existing contradiction between the general rules for initiating an inspection (sections 14 and 20–23 of Law No. 131) and the provisions of Article 12. The Government indicates that this inconsistency will be removed as part of a legislative package to be adopted by Parliament, as a second phase in the reform of inspections. In particular, it indicates that it plans to provide for certain exemptions in respect of the obligation to provide prior notification five days before an inspection. Recalling the importance of fully empowering labour inspectors to make visits without previous notice in order to guarantee effective supervision, the Committee urges the Government to pursue its efforts to amend Law No. 131 to ensure that labour inspectors are empowered in line with Article 12(1)(a) and (b) of Convention No. 81 and Article 16(1)(a) and (b) of Convention No. 129 to make visits without previous notice. It requests the Government to provide detailed information on the measures taken and to provide a copy of any legislative texts adopted in this regard.

Articles 15(c) and 16 of Convention No. 81 and Articles 20(c) and 21 of Convention No. 129. Confidentiality concerning the fact that an inspection visit was made in response to the receipt of a complaint. The Committee notes the information in the Government’s report concerning the number of unscheduled inspections undertaken in 2015 and 2016, which indicates that such inspections were undertaken as a result of a complaint or to conduct an investigation following an accident. The Committee recalls that pursuant to Law No. 131, enterprises receive notice of inspections five days in advance for all inspections except unscheduled inspections. In this respect, the Committee recalls that in order to better guarantee confidentiality regarding any connection between a complaint and an inspection visit, it is important to ensure that a sufficient number of unannounced inspection visits are conducted independent of complaints or accidents. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that a sufficient number of unscheduled inspections are undertaken to ensure that when inspections are conducted as a result of a complaint, the fact of the complaint as well as the identity of the complainant(s) is kept confidential.

Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Undertaking of inspections as often as is necessary to ensure the effective application of the relevant legal provisions. The Committee previously noted, in light of the report of the tripartite committee, that certain provisions of Law No. 131 were not compatible with the principle contained in Article 16 of Convention No. 81. In particular, pursuant to section 14 of Law No. 131, control bodies are not entitled to perform a control of the same entity more than once in a calendar year, with the exception of unannounced inspections. Section 15 provides that each authority with supervisory functions shall develop a yearly plan for inspections which cannot be altered that indicates by quarter when an inspection is foreseen, and that it is not possible to perform an inspection not foreseen in the schedule. The Committee noted that the undertaking of inspection visits according to a schedule is not incompatible with Convention No. 81 to the extent that this schedule does not preclude the undertaking of a sufficient number of unscheduled visits, but that the particular limitations on the carrying out of unscheduled inspections contained in section 19 of Law No. 131 constituted an impediment to the carrying out of inspections as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. It further noted that the limitations contained in section 3(g) of Law No. 131, that inspections can only be carried out when other means to verify compliance with the law have been exhausted, was not in conformity with Article 16 of Convention No. 81. The Committee subsequently noted the observations of the CNSM that Law No. 18, adopted on 4 March 2016, introduced a moratorium on, among other things, labour inspection for the period 1 April to 31 July 2016.

The Committee notes the Government’s indication that the existing framework does not expressly or implicitly limit the number of inspections which can be carried out in respect of an economic agent. Section 14 of Law No. 131 states that the inspection body must plan a maximum of one inspection per year unless the applied risk-based methodology requires a higher frequency, and for unscheduled inspections there is no limit at all. In addition, any follow-up inspection concerning violations will not be considered as a separate inspection. The Committee notes in this respect the information provided by the Government that, in 2015, 4,883 scheduled inspections were undertaken and 1,317 unscheduled inspections (arising from the investigation of complaints or accidents), as well as 117 follow up inspections. In 2016, this fell to 3,665 scheduled inspections, 610 unscheduled inspections and 42 follow-up inspections.

The Committee takes due note of the Government’s explanations concerning the use of a risk-based methodology as well as the number of unscheduled inspections undertaken. However, it notes that Law No. 131 permits unscheduled inspections only under certain specific conditions: they are subject to a delegation of control signed by the head authority vested with control functions; they cannot be carried out on the basis of unverified information and information received from anonymous sources; and they cannot be conducted when there are any other direct or indirect ways to obtain the information needed (sections 7 and 19). The Committee also notes that Law No. 230 amending and supplementing certain legislative acts of 2016 further amended Law No. 141 on labour inspection to remove the possibility of undertaking inspections as often as necessary to ensure compliance with the legislative provisions concerning occupational safety and health. Recalling with regret that it has been requesting action in this respect since 2015, the Committee urges the Government to take the necessary measures to ensure that the national legislation is amended in the near future to allow for the undertaking of labour inspections as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, in conformity with Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Further, recalling that any moratorium placed on labour inspection is a serious violation of these Conventions, the Committee requests the Government to ensure that no further restrictions of this nature are placed on labour inspection in the future.

Article 17 of Convention No. 81 and Article 22 of Convention No. 129. Prompt legal or administrative proceedings The Committee notes that section 4(1) of Law No. 131 provides that inspections during the first three years of the operation of a company/employer shall be of a consultative nature. The Committee notes with concern that section 5(4) provides that in the event of minor violations, the sanctions provided for in the Administrative Offence Law or other laws may not be applied and, moreover, that section 5(5) provides that restrictive measures may not be applied in the event of severe violations. In this regard, the Committee recalls that Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provides that, with certain exceptions, legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give a warning or advice instead of instituting or recommending proceedings. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that labour inspectors are able to initiate or recommend immediate legal proceedings. The Committee also requests the Government to provide information on the meaning of “restrictive measures” that are prohibited from being imposed under Law No. 131, the number and nature of severe violations detected by inspectors, the sanctions proposed by inspectors, and the penalties ultimately applied.

Issues specifically concerning labour inspection in agriculture

Article 9(3) of Convention No. 129. Adequate training for labour inspectors in agriculture. The Committee once again requests the Government to provide information on the training provided to labour inspectors that relates specifically to their duties in the agricultural sector, including the number of training programmes organized and the number of inspectors who participated in these programmes.

[The Government is asked to supply full particulars to the Conference at its 107th Session and to reply in full to the present comments in 2018.]