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

Ukraine

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

The Committee notes the Government’s report received by the Office on 14 August 2018, as well as the supplementary information received from the Government on 27 November 2018. The latter communication will be examined by the Committee at its next session as it was received too late to be examined at its current session.

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.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the 2018 conclusions of the Committee on the Application of Standards (CAS) on the application of Conventions Nos 81 and 129 by Ukraine, which called on the Government to: (i) take the necessary measures and appropriate reforms to bring their labour inspection services into line with the provisions of Conventions Nos 81 and 129; (ii) provide detailed information regarding the restrictions on the powers of labour inspectors contained in Act No. 877 and Ministerial Decree No. 295 and regarding the recent legislation enacted on the labour inspection system; (iii) promote effective dialogue with employers’ and workers’ organizations concerning labour inspection matters; (iv) ensure that the status and conditions of service of labour inspectors guarantee their independence, transparency, impartiality and accountability in line with the Conventions; (v) ensure that the inspection functions of the local authorities are placed under the supervision and control of the State Labour Service (SLS); and (vi) 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 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. 1. Moratorium on labour inspection. The Committee previously noted the imposition of a moratorium on labour inspection between January and June 2015. It notes once more with deep concern that another moratorium had been imposed on labour inspection between 1 January 2018 and 22 February 2018. Recalling that a moratorium placed on labour inspection is a serious violation of these Conventions, the Committee urges the Government to ensure that no further restrictions of this nature are placed on labour inspection in the future.

2. Other restrictions. In its previous comment, the Committee noted with concern that Act No. 877 (as amended in 2017) concerning the fundamental principles of state supervision and monitoring of economic activity, and Ministerial Decree No. 295 of 26 April 2017 on the procedure for state control and state supervision of compliance with labour legislation, 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). It urged the Government to take measures to bring the legislation into conformity with the Convention.

The Committee notes with regret that the Government has not provided any response to the request of the Committee on the measures taken to bring Act No. 877 and Ministerial Decree No. 295 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. The Committee also notes that the Government has not provided any further information on 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 passed the first reading in Parliament in July 2017 and which makes the conduct of unscheduled inspection visits an administrative offence. The Committee urges the Government, in line with the 2018 conclusions of the CAS, to take the necessary measures and appropriate reforms to bring the labour inspection services into line with the provisions of Conventions Nos 81 and 129. In this respect, the Committee once again urges the Government to take the necessary measures to bring Act No. 877 and Ministerial Decree No. 295 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.

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 previously noted 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 were also assumed by the local authorities, in addition to the SLS. In this respect, the Committee recalled the importance of ensuring that organizational changes are carried out in conformity with the provisions of the Conventions.

The Committee notes the Government’s reiterated indication, in response to the Committee’s previous request concerning the placing of the labour inspection system under the supervision and control of a central authority, that efforts are being made to avoid duplication, including through: (i) the establishment of a joint register on the inspections undertaken by the SLS and the local authorities, implemented through an electronic system; (ii) the certification of “authorized officials” by the SLS (which the Government indicates are now 399 persons) and the possibility of the SLS to revoke their credentials if they systematically fail to duly exercise their monitoring powers; and (iii) the possibility by the SLS to repeal any instructions or orders by the local government bodies within ten days. The Government further indicates that “authorized officials” within the local government bodies have the free initiative to undertake labour inspections at any time of the day or night, without prior notice.

The Committee also notes that the Government reiterates that the local government authorities receive guidance, information and training from the SLS. It refers in this respect to several activities, including approximately 3,310 seminars, meetings and round tables on how to undertake inspections, 5,861 letters sent about the exercise of inspection powers, the provision of distance learning courses, and six joint trainings with the participation of 234 persons appointed to undertake inspections by the local bodies. The Committee notes that the Government has not provided the information requested on the status and conditions of service of the “authorized officials”. The Committee requests the Government, in line with the 2018 conclusions of the CAS, to ensure that the inspection functions of the local authorities are placed under the supervision and control of the SLS. Because the Government has not provided a reply in this regard, the Committee once again requests the Government to indicate how it is ensured that the “authorized officials” from the local authorities performing labour inspection functions 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). In this regard, it requests the Government to indicate the legal provisions governing the conditions of service of these officials. It also requests the Government to provide more detailed information on 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 this respect, it requests the Government to provide information on the recruitment procedures of these officials, including the qualifications required and if they include regular competitions as for SLS inspectors.

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 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 welcomes the Government’s indication in its report that in July 2018 there were 615 labour inspectors (up from 542 inspectors noted in 2017) and 904 established posts (up from 765). The Government also refers to regular recruitment competitions to fill vacant positions. The Committee further notes the Government’s indication, in response to the Committee’s request, that 585.2 million Ukrainian hryvnia (approximately US$671.7 million) were allocated for labour inspection in the 2018 State Budget Act, but that this Act was not implemented. Noting that almost one third of the posts remain unfilled, the Committee requests the Government to continue to provide information on the filling of the vacant posts, with a view to ensuring that the number of inspectors is sufficient for the effective performance of their duties. The Committee also requests the Government to continue to provide information on the measures taken to improve the budgetary situation of the SLS, including the material means at its central and local levels. In addition, the Committee once again requests the Government to provide information on the material resources (offices, office equipment and supplies, transport facilities and reimbursement of travel expenses), at the central and local levels of the SLS.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional functions entrusted to labour inspectors. The Committee notes that the Government has not responded to the conclusions of the CAS that the Government ensure that other functions entrusted to labour inspectors do not interfere with their primary duties. The Committee urges the Government to list any other functions entrusted to SLS inspectors or “authorized officials” from the local authorities, and to explain how those functions are constrained from interfering with inspectors’ discharge of their duties to secure the enforcement of labour laws and the protection of workers.

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