Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Germany

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1955)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1973)

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.

Legislation. The Committee notes the information provided by the Government regarding the adoption of the Act to improve the enforcement of occupational health and safety, which entered into force on 1 January 2021. The Committee notes that this Act provides for the strengthening of OSH measures mostly in the meat industry while also adopting some amendments to the Occupational Health and Safety Act (ArbSchG) of 7 August 1996, including provisions on inspection. In particular, the Committee notes that according to the new section 21(1a) of the ArbSchG, starting from 1 January 2026, for each calendar year there shall be a minimum annual inspection rate of 5 per cent of the companies operating in the country. The Committee also notes the measures introduced in the new section 21(3a) of the ArbSchG, which provides that the inspection authorities of the Länder shall, after 1 January 2023, transmit information regarding inspections and their results to the accident insurance institution responsible for the inspected establishment.

Article 3(1) and (2) of Convention No. 81 and Article 6(1), (2) and (3) of Convention No. 129. Protection of the rights of foreign workers in an irregular situation concerning their residence status and cooperation with government services and public or private institutions. In its previous comment, the Committee requested the Government to provide information on the notifications to the immigration authorities by labour inspectors, pursuant to section 23(3) of the ArbSchG. It also requested the Government to indicate how it ensures the enforcement of legislation with respect to the payment of wages and other benefits for the period of the effective employment relationship of the foreign workers concerned. The Committee notes the Government’s indication that there were no notifications provided by the labour inspectors to the immigration authorities in 2016 and 2017 pursuant to section 23(3) of the ArbSchG. The Government reports that the inspectors working for personal accidents insurers are asked only sporadically for findings that go beyond their core tasks, which are related to monitoring of occupational safety and advising employers on occupational safety compliance. The Committee also notes the Government’s indication that the responsibility for inspections under the Act to Combat Undeclared Work and Unlawful Employment essentially lies with the Customs Authority’s Tax Enforcement Unit for Undeclared Work (FKS). The Committee further notes that, in reply to its previous comment, the Government reiterates that foreign workers in an irregular situation can assert their rights against employers in the same way as workers in a regular situation or national workers and, in case of a dispute, they can refer their case to the labour courts. While noting that the primary responsibility for the enforcement of the Residents Act and the Act to Combat Undeclared Work and Unlawful Employment lies with other Government agencies, the Committee requests the Government to continue to provide information on the notifications made by labour inspectors to immigration and/or prosecution authorities in application of section 23(3) of the ArbSchG. The Committee also requests the Government to provide further information on the actions undertaken by labour inspectors in those cases where, in the discharge of their duties, they encounter violations of the legal provisions related to conditions of work and protection of wages for migrant workers. In this regard, the Committee requests the Government to collect and provide information on the outcome of judicial proceedings resulting from investigations initiated following actions taken by labour inspectors.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Content of the annual labour inspection reports. The Committee notes that the labour inspection report 2019, hyperlinked in the Government report, contains information on all the subjects listed in Article 21(a)–(g) of Convention No. 81. The Committee also notes that, in reply to its previous request concerning the compliance of the labour inspection report with Article 27 of Convention No. 129, the Government indicates that breakdown statistics for the agricultural sector are reflected in the report with regard to inspection activities carried out by the agricultural employers’ liability insurance association under the Social Insurance Fund for Agriculture, Forestry and Horticulture (SVLFG). Concerning the labour inspectors of the Länder, the Government reports that there are no disaggregated data on the number of inspectors working specifically on agriculture. The Government indicates that this is because inspectors may be responsible for multiple sectors or have cross-sector responsibilities. The Government also indicates that there is no breakdown by sector of the statistics concerning the number of inspection visits conducted and of violations and penalties imposed by the inspection authorities of the Länder. Further, the Committee notes the Government’s indication that a Länder working group has been set up and started working in order to improve the reporting and the collection of sector-based statistics by the inspection authorities of the Länder. The Committee requests the Government to provide information on the progress made by the Länder working group in order to improve the reporting of labour inspection activities in the agricultural sector, in particular concerning the requirements of Articles 27(d) and (e) of Convention No. 129 on statistics of inspection visits conducted and of violations and penalties imposed in agriculture.

Issues specifically concerning labour inspection in agriculture

Articles 4 and 21 of Convention No. 129. Coverage of certain categories of agricultural workers by labour inspection and their registration to ensure their protection through labour inspection. The Committee notes that in its previous comment, it requested the Government to provide information on the system for the registration of workers in agriculture (including apprentices, dependent workers and temporary workers) and the availability of such data to the different labour inspection services. The Committee notes that the Government refers to section 28a(4) of the Social Code (SGB) Fourth Book (IV), Common Provisions for Social Security, which provides for the obligation of the employers operating in the sectors listed in this provision, to report information concerning each employee to the data centre of the pension insurance provider. The Government also indicates that as part of an automated retrieval process, the FKS, which is responsible for inspecting provisions on minimum wage, is able to view the reference data available to the pension insurance provider’s data centre. The Government further indicates that with regard to occupational safety and health, all agricultural enterprises have an accident insurance coverage within the SVLFG’s agricultural accident insurance scheme, which facilitates access to information regarding agricultural establishments. The Committee also notes that in previous reports the Government referred to the Joint German Occupational Health and Safety Strategy (GDA) as the framework of cooperation between the labour inspection authorities of the Länder and the accident insurance providers. Noting that agriculture is not listed among the sectors included in section 28a (4) of the SGB IV, the Committee requests the Government to clarify how the authorities in charge of inspecting provisions on minimum wage can benefit from a system of registration of workers in agriculture in order to ensure an effective labour inspection strategy which includes the protection of particularly vulnerable workers. The Committee also requests the Government to indicate the measures taken in order to ensure that inspection authorities in the Länder have access to the data concerning the agricultural undertakings that have accident insurance coverage within the SVLFG’s agricultural accident insurance scheme. In this respect, it also requests the Government to indicate whether the GDA contains a specific component on cooperation concerning inspection in the agricultural sector.

Articles 6(1)(b), 14, 19 and 21 of Convention No. 129. Effectiveness of labour inspection activities in agriculture. In its previous comment, the Committee requested the Government to provide information on (i) the number of workers in agricultural undertakings, including those that are not subject to mandatory social insurance; (ii) the number of labour inspectors working at the SVLFG and the labour inspection authorities in the Länder; (iii) the number of labour inspections undertaken by the SVLFG and the labour inspection authorities in the Länder during the reporting period; as well as (iv) the number of occupational accidents and cases of occupational disease reported in agriculture during the reporting period. The Committee notes the Government’s reference to the labour inspection report, which provides the number of agricultural workers covered by social security contributions. In addition, the Committee already noted above the Government’s indication that the labour inspectors of the Länders deal with all sectors and there is no inspection staff dealing exclusively with agriculture. The Committee further notes that, according to the labour inspection report, the number of inspectors working for the SVLFG continued to decrease, from 457 in 2017 to 433 in 2019 and that the number of visits conducted by the SVLFG also decrease from 59.906 in 2017 to 40.874 in 2019. In addition, the Committee notes that the number of fatal accidents in the agricultural sector is the highest after the public sector, which includes defence and social insurance administration. In this regard, the Committee requests the Government to provide the statistics concerning agricultural workers that are not subject to mandatory social insurance. It also requests the Government to provide information on the measures undertaken and planned in order to make sure that the number of labour inspectors in agriculture is sufficient to secure the effective discharge of their duties and to ensure that agricultural undertakings are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee also requests the Government to provide information on the manner in which inspectors are associated with any inquiry on the spot into the causes of accidents with fatal consequences in accordance with Article 19(2) of the Convention.