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

Ukraine

Labour Inspection Convention, 1947 (No. 81) (Ratification: 2004)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (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 Convention No. 81 and Convention No. 129 together.

The Committee notes the observations made by the Federation of Trade Unions of Ukraine (FPU) received on 9 August 2017.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the 2017 conclusions of the Committee on the Application of Standards (CAS) on the application of Conventions Nos 81 and 129 by Ukraine.

Articles 12(1)(a) and (b), 16 and 17 of Convention No. 81 and Articles 16(1)(a) and (b), 21 and 22 of Convention No. 129. Restrictions and limitations on labour inspection. The Committee previously noted with deep concern the moratorium introduced between January and June 2015 on labour inspections. In this respect, the Committee recalls that the CAS noted that this moratorium had expired, and called upon the Government to refrain from imposing any such restrictions on labour inspection in the future.

The Committee notes that no further moratorium on labour inspection has been adopted. However, it notes with concern that Act No. 877 of 1 January 2017 concerning the fundamental principles of state supervision and monitoring of economic activity (which applies to a number of inspection bodies, including the labour inspection services), and Ministerial Decree No. 295 of 26 April 2017 on the procedure for state control and state supervision of compliance with labour legislation (applying section 259 of the Labour Code and section 34 of the law on self-governing bodies) provide for several restrictions on the powers of labour inspectors, including with regard to the free initiative of labour inspectors to undertake inspections without prior notice (section 5 of Decree No. 295 and section 5(4) of Act No. 877), the frequency of labour inspections (section 5(1) of Act No. 877), and the discretionary powers of labour inspectors to initiate prompt legal proceedings without previous warning (sections 27 and 28 of Decree No. 295).

In this context, the Committee also notes that the FPU indicates that in July 2017, Parliament passed, on its first reading, Bill No. 6489 on amendments to certain laws concerning the prevention of excessive pressure on businesses due to state supervision of compliance with labour and employment legislation, which makes the conduct of unscheduled inspection visits an administrative offence. In order to ensure that no such restrictions are applied, the Committee urges the Government to take the necessary measures so that Act No. 877 of 1 January 2017 and Ministerial Decree No. 295 of 26 April 2017 are brought into conformity with Articles 12(1)(a) and (b), 16 and 17 of Convention No. 81 and Articles 16(1)(a) and (b), 21 and 22 of Convention No. 129 and to ensure that no additional restrictions are adopted. The Committee also reminds the Government that it can continue to avail itself of ILO technical assistance for this purpose.

Articles 4, 6, 7 and 11 of Convention No. 81 and Articles 7, 8, 9 and 15 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 notes that pursuant to Decree No. 295 of 27 April 2017, applying section 259 of the Labour Code and section 34 of the Local Government Act, labour inspection functions are now assumed by both the State Labour Service (SLS) and the local authorities (executive bodies of councils in regional urban centres and in integrated rural and semi-rural territorial communities). The Committee notes that the Government indicates that the local government authorities come under the supervision of the SLS with respect to labour inspection functions, in terms of the guidance, information and training provided by the SLS to the local authorities concerning labour inspection. Moreover, the Government indicates that the SLS may revoke the appointment of “authorized officials” in the local authorities as labour inspectors if these officials systematically fail to duly exercise their verification powers. The Government also refers to efforts to ensure coordination to avoid duplication, for example through the establishment of a joint register on the inspections undertaken by the SLS and the local authorities. In this respect, the Committee notes that section 5 of the procedure for state supervision (adopted by Decree No. 295) provides that labour inspections by the local authorities are conducted pursuant to the annual work plan of the SLS.

The Committee recalls that Article 4 of Convention No. 81 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. The Committee 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 and 152). In addition, the Committee recalls the importance of ensuring that organizational changes are carried out in conformity with the provisions of the Conventions, including Articles 4, 6, 7 and 11 of Convention No. 81 and Articles 7, 8, 9 and 15 of Convention No. 129. The Committee therefore requests the Government to provide detailed information on the allocation of adequate budgetary resources to enable the effective performance of labour inspection duties (Article 11 of Convention No. 81 and Article 15 of Convention No. 129). Relatedly, noting the guidance and training provided by the SLS to the local authorities, the Committee requests the Government to provide specific information on how the supervision by the SLS of the local authorities is ensured on a regular basis. The Committee also requests the Government to indicate how it is ensured that the “authorized officials” working as labour inspectors under the supervision of the SLS and the local authorities have the status and conditions of service guaranteeing their independence from any undue external influence (Article 6 of Convention No. 81 and Article 8 of Convention No. 129). Moreover, it requests the Government to indicate how it is ensured that “authorized officials” working as labour inspectors have the adequate qualifications and training for the effective performance of inspection duties (Article 7 of Convention No. 81 and Article 9 of Convention No. 129). In line with the 2017 requests of the CAS, the Committee requests the Government to ensure that other functions entrusted to labour inspectors do not interfere with their primary duties and impact negatively on the quality of labour inspections.

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 from the 2015 needs assessment undertaken by the ILO following the request for technical assistance by the Government that increasing the number of labour inspectors and material resources (including transport facilities, registers and appropriate software) was essential for enhancing the number and quality of inspections. The Committee notes with regret that the Government has, once again, not provided information on any measures taken in this regard. It also notes from the information provided by the Government that there are currently 542 labour inspectors and 223 vacant labour inspection positions. The Committee therefore once again requests that the Government provide information on the measures taken to improve the budgetary situation of the SLS, and improve the material means and human resources of the services throughout its structures. In this respect, 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 SLS and their material resources (offices, office equipment and supplies, transport facilities and reimbursement of travel expenses), and to take measures to ensure that the number of inspectors and level of resources are appropriate for the effective performance of their duties.

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

[The Government is asked to reply in full to the present comments in 2018.]