Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Ukraine

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

The Committee notes the observations of the Federation of Trade Unions of Ukraine (FPU), received on 30 September 2020. The Committee proceeded with the examination of the application of Conventions Nos 81 and 129 on the basis of the observations received from the FPU this year (see 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 below), as well as on the basis of the information at its disposal in 2019.

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) on the application of these Conventions, received on 29 August 2019.

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 the assumption of labour inspection functions by “authorized officials” within local authorities, in addition to the State Labour Service (SLS). It requested the Government, in line with the 2018 conclusions of the Committee on the Application of Standards of the International Labour Conference, to ensure that the inspection functions of the local authorities are placed under the supervision and control of the SLS. In this regard, the Committee once again notes the information provided by the Government in its report on the efforts made to avoid duplication of inspections between the SLS and local authorities. The Committee also notes the information provided by the Government regarding trainings conducted by the SLS with labour inspectors in local authorities. In response to the Committee’s previous comments on the recruitment of these authorized officials, including the qualifications required, the Committee notes the Government’s indication that, to receive a service certificate as a labour inspector, it is necessary for officials to submit information on qualifications and work experience to the SLS, and that, as of January 2019, there were 1,258 labour inspectors with a service certificate, out of which 531 work for local authorities. The Committee nevertheless notes that the Government has not provided a reply concerning the legal provisions governing the status and conditions of service of these authorized officials, the qualifications required for their recruitment or whether there are regular competitions to recruit them, as there are for SLS inspectors. The Committee recalls that the Committee on the Application of Standards recommended in its 2018 conclusions that the Government ensure that the status and conditions of service of labour inspectors guarantee their independence, transparency, impartiality and accountability in line with the Conventions. The Committee therefore urges the Government to indicate the measures taken to ensure that the inspection functions of the local authorities are placed under the supervision and control of the SLS. The Committee once again requests the Government to indicate the legal provisions governing the status and conditions of “authorized officials” working as labour inspectors (Article 6 of Convention No. 81 and Article 8 of Convention No. 129), and how it is ensured that their status and conditions of service are such as to guarantee their independence from any improper external influence. The Committee also requests further information on the manner in which it is ensured that “authorized officials” working as labour inspectors have adequate qualifications for the effective performance of inspection duties (Article 7(1) of Convention No. 81 and Article 9(1) of Convention No. 129). In this regard, the Committee requests information related to the labour inspectors working for local authorities, including the number of local authorities employing these inspectors and the number of inspectors at each authority; the compensation levels and tenures of employment for local authority labour inspectors compared with SLS inspectors; and whether training programmes for SLS inspectors are also required for local authority 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 requested information on the filling of the vacant labour inspector posts, measures taken to improve the budgetary situation of the SLS, and the material resources at the central and local levels of the SLS. In this regard, the Committee welcomes the Government’s indication that, as of 1 January 2019, the number of labour inspectors is 710 (up from 615 inspectors noted in 2018) for 1,003 existing posts (up from 904 noted in 2018). The Committee observes, however, an absence of information on the material resources at the central and local levels of the SLS. The Committee therefore requests the Government to take measures to provide sufficient material resources (offices, office equipment and supplies, transport facilities and reimbursement of travel expenses) at the central and local levels of the SLS. The Committee urges the Government to pursue its efforts to fill vacant posts for labour inspectors, and to continue to provide statistics on the number of labour inspectors.

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 with deep concern that a moratorium was imposed on labour inspection between 1 January 2018 and 22 February 2018. In this respect, it notes the Government’s statement that the law introducing the moratorium on state supervision expired on 1 January 2019. The Committee also notes the observations of the FPU, which allege that a moratorium on scheduled measures of state supervision in enterprises considered to be medium-risk or low-risk has been imposed since March 2020, in response to the COVID-19 pandemic. Taking into account the particular challenges faced by the country in the context of the COVID-19 pandemic, the Committee urges the Government to resume regular inspections as soon as possible, consistent with public health guidelines in the country. The Committee requests the Government to provide its comments on any developments in this respect.

2. Other restrictions. The Committee previously noted that Act No. 877 of 2007 on Fundamental Principles of State Supervision and Monitoring of Economic Activity (Act No. 877) and Ministerial Decree No. 295 on the procedure for state control and state supervision of compliance with labour legislation of 2017 (Decree No. 295), provide for several restrictions on the powers of labour inspectors. These include restrictions with regard to: (i) 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); (ii) the frequency of labour inspections (section 5(1) of Act No. 877); and (iii) the discretionary powers of labour inspectors to initiate prompt legal proceedings without previous warning (sections 27 and 28 of Decree No. 295). The Committee urged the Government, in line with the 2018 conclusions of the Committee on the Application of Standards, to take the necessary measures and appropriate reforms to bring the labour inspection services and the legislation into conformity with the Conventions.

The Committee notes with deep regret that the Government has not replied to the Committee’s request in this respect. The Committee also notes the observations of the KVPU according to which, following a ruling of the Sixth Administrative Court of Appeal on 14 May 2019, Decree No. 295 no longer applies to labour inspections and the SLS may supervise application of labour law only on the basis of the requirements of Act No. 877. According to the KVPU and the FPU, inspection procedures largely replicate the provisions of Act No. 877 and the SLS carries out labour inspection in accordance with the requirements of the Act. In this respect, the Committee notes the adoption of Ministerial Decree No. 823 of 21 August 2019 on the Procedure for State Control of Compliance with Labour Legislation, as amended by Ministerial Decrees No. 1132 of 4 December 2019 and No. 617 of 8 July 2020. The Committee notes with concern that Decree No. 823, as amended, provides for restrictions on the powers of labour inspectors with regard to the maximum duration of labour inspections (section 9). The Committee also observes that, while the amendment by Ministerial Decree No. 1132 appeared to remove certain restrictions from Decree No. 823, restrictions on the power of labour inspectors remain under Act No. 877. In this respect, the Committee further notes the FPU’s observations, alleging that pursuant to section 1(2) of the amended procedures, labour inspection, with the exception of measures related to the detection of informal employment, must be carried out in accordance with Act No. 877. In addition, the Committee notes the FPU’s reference to Ministerial Decree No. 383 of 20 May 2020, which limits the frequency of scheduled measures of state supervision according to the degree of risk attributed to an economic entity, namely: (i) once every two years for high-risk entities; (ii) once every three years for medium-risk entities; and (iii) once every five years for low-risk entities (section 5). The FPU further alleges that a draft Act on the fundamental principles of state supervision prepared by the Government largely replicates Act No. 877 and also limits the powers of labour inspectors.

The Committee recalls its general observation of 2019 on the labour inspection Conventions, expressing concern at reforms that substantially undermine the inherent functioning of labour inspection systems and urging governments to remove these restrictions, with a view to achieving conformity with Convention No. 81 and Convention No. 129. The Committee also recalls that, pursuant to Article 12(1)(a) and (b) of Convention No. 81 and Article 16(1)(a) and (b) of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection, and to enter by day any premises which they may have reasonable cause to believe to be liable to inspection. The Committee also recalls that Article 16 of Convention No. 81 and Article 21 of Convention No. 129 stipulate that workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. In addition, Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provide that persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it is up to the discretion of the labour inspectors to give warning and advice instead of instituting such proceedings. The Committee strongly urges the Government to take the necessary measures and adopt appropriate reforms to bring the labour inspection services and the national legislation into conformity with the provisions of Conventions Nos 81 and 129, including 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 recalls that the Government can avail itself of the technical assistance of the ILO in this regard. The Committee also requests the Government to provide its comments in respect of the FPU’s observations, to provide information on any revisions to the legislation governing labour inspection, and to transmit a copy of the new Act on the fundamental principles of state supervision, if adopted. Lastly, the Committee requests the Government to provide information on draft law No. 1233 of 2 September 2019, which has been approved by the Parliamentary Committee for Social Policy and Veteran’s Rights, and which foresees further limits on labour inspectors’ powers related to the application of fines for certain categories of entrepreneurs, as well as a decrease in the level of applicable fines.

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 2021.]