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

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 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 National Confederation of Trade Unions of Moldova (CNSM), received on 20 August 2021.

Article 4 of Convention No. 81 and Article 7 of Convention No. 129. Supervision and control by a central authority. Occupational safety and health (OSH). The Committee previously noted that Law No. 131 of 2012 on State Control of Entrepreneurial Activities withdrew supervisory duties in the area of OSH from the State Labour Inspectorate (SLI) and transferred it to ten other sectoral agencies. The observations of the CNSM indicated that the dispersion of inspection duties diminished the efficiency of state control, especially in the field of OSH. The Committee notes the Government’s indication in its report that the normative framework for regulating the activity of the SLI was consolidated by Law No. 191 of 2020, which amended a number of labour legislations, including the Law on the SLI, the Law on State Control of Entrepreneurial Activities, the Labour Code and the Law on OSH. The Committee notes with satisfaction that, consequently, on 1 January 2021, the supervision in the field of OSH, including the investigation of occupational accidents, was transferred back from the ten sectoral agencies to the SLI.

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 Government’s information concerning the number of infringement reports submitted to the Court from 2016 to 2018. The Committee also noted the observations of the CNSM that, despite the fact that the Government report contained information on the number of infringements reported, there was no information on their outcome following their referral to the Court. The Committee notes the statistical information included in the annual reports and monthly reports of the SLI published on its website, according to which 229 and 151 minutes of contravention were submitted to the Court in 2019 and in 2020, respectively. From January to August 2021, 88 minutes of contravention were submitted to the Court and the Court issued 23 decisions sanctioning the employers with a fine and 7 decisions terminating the case. The other 58 cases are still under examination. The Committee also notes the reference to the 2020 annual report in the CNSM’s observation, indicating that, in the field of OSH, 151 reports of infringements were filed, imposing fines of 1,706,700 Moldovan lei (approximately US$98,724). The CNSM states that, however, there is no information on the actual amount of fines collected following the detection of infringements. The Committee requests the Government to continue to provide information on the number of infringement reports submitted to the Court and their specific outcome, indicating any fine or other penalty applied and the amounts collected. The Committee requests the Government to indicate the statistics for infringements and penalties in the field of labour relations and OSH.

Article 5(b) of Convention No. 81 and Article 13 of Convention No. 129. Collaboration of the labour inspection services with employers and workers or their representatives. The Committee previously noted the observations of the CNSM in which the union raised, in the context of the National Commission for Collective Consultations and Negotiations, the issue of monitoring in the field of OSH, and the need to eliminate the contradictions between national legislation and the provisions of Conventions Nos 81 and 129. The Committee notes the indication in the CNSM’s observations that the proposals made by the CNSM in the process of adoption of Law No. 191 of 2020, regarding non-compliance with the provisions of the Convention, were not taken into account. The Committee once again requests the Government to provide information on the measures taken to promote effective dialogue with employers’ and workers’ organizations concerning labour inspection matters. It also requests the Government to provide information on the consultations undertaken in this respect in the National Commission for Collective Consultations and Negotiations, as well as the measures taken following such consultations.

Articles 10 and 11 of Convention No. 81 and Articles 14 and 15 of Convention No. 129. Human resources and material means for labour inspection. The Committee previously noted a significant decrease in both the budget allocated for the SLI and the number of inspectors from 2017 to 2018. The Committee notes that, according to the annual inspection reports, in 2019, there were 61 employees at the SLI, including 19 at the central apparatus and 42 in territorial offices, with 37 OSH inspectors within the ten sectoral agencies. The number of inspectors remained substantially unchanged in 2020. As of March 2021, after the transfer of the OSH competences to the SLI, there were 109 employees working for the SLI, with 28 in the central apparatus and 81 in territorial offices. The Committee also notes that in the 2020 annual labour inspection report, the Government observes a shortage of staff with professional skills in the field. Noting the transfer of supervisory competence on OSH to the SLI in 2021, the Committee requests the Government to indicate whether the labour inspectors previously working for the sectoral agencies have now been transferred to the SLI. It also requests the Government to provide information on the number of inspectors under the SLI performing OSH inspections, and those performing inspections in the field of labour relations. Noting the absence of information on the budget allocated to the SLI, the Committee also requests the Government to provide detailed information in this regard.

Article 12 of Convention No. 81 and Article 16 of Convention No. 129. Unannounced inspection visits. The Committee previously noted that section 19 of the Law on State Control of Entrepreneurial Activities provides for restrictive conditions for unscheduled inspections. The CNSM reiterates in its observations that this provision has in fact made unannounced inspections impossible in practice. It also indicates that there is no information on the results of the unscheduled inspections in the annual inspection reports. The Committee notes with regret that section 19 of the Law on State Control of Entrepreneurial Activities has not been revised in the context of the 2020 amendments to labour legislations. It also notes the statistical information in this regard in the annual and monthly inspection reports, according to which, in 2019, the SLI carried out 1,963 inspection controls, of which 1,399 were planned and 564 were unscheduled. There were also 1,116 controls carried out in OSH by sectoral agencies, of which 1,005 were planned inspections and 111 unplanned visits. In 2020, the SLI carried out 1,701 inspection controls, of which 1,172 were planned and 529 unscheduled. There were also 815 OSH inspections performed by sectoral agencies, with 728 planned and 87 unscheduled. From January to August 2021, the SLI carried out 1,610 controls in both labour relations and OSH areas, with 1,245 planned and 365 unscheduled. The Committee also notes, however, that the labour inspection reports do not include broken down information on the statistics of violations detected and sanctions imposed for planned and unplanned visits, respectively. Noting a downward trend of unscheduled inspections, the Committee once again requests the Government to take the necessary measures 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 continue providing information on the number of announced and unannounced inspections carried out by the SLI, and to indicate in detail the number of violations detected and the specific sanctions imposed through both announced and unannounced inspections.

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 consequence of the receipt of a complaint. In its previous comment, the Committee requested the Government to indicate the measures taken in order to ensure confidentiality of the fact of the complaints and the identity of the complainants, in cases of unannounced inspections resulting from a complaint, in accordance with section 19 of the Law on State Control of Entrepreneurial Activities. The Committee notes the Government’s indication that section 9 of Law No. 140/2001 on the State Labour Inspectorate obliges labour inspectors to maintain the confidentiality of the source of any complaint alleging breach of the provisions of legislation and other regulations in the field of work and OSH. In addition, labour inspectors have the duty not to disclose to the employer that controls have been carried out following a complaint. The Committee also notes that, according to the Government, a motivation note shall be prepared in case of inspections without prior notice. The Government indicates that this motivation note shall include information on the need for intervention, by setting out in detail the circumstances and information underlying the conclusions and actions of the control body, possible violations suspected on the basis of information and evidence held until the initiation of control measures, and a reasonable assessment of danger and possible consequences in case of non-intervention of the control body. The Committee also notes that, according to the Government’s indication, the entity to be inspected is informed about the motivation note. The Committee requests the Government to indicate the measures adopted in order to ensure that no intimation is given to the employer or their representative, in the motivation note or otherwise, that a visit of inspection was made in consequence of the receipt of a complaint, in accordance with Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129. In addition, noting the absence of information on this matter, the Committee requests the Government once again to provide information on the number of unannounced inspections that resulted from a complaint, the number that resulted from an accident, and the number that were not the result of a complaint or an accident.

Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Undertaking of inspections as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee previously noted that a number of provisions of the Law on State Control of Entrepreneurial Activities limits the circumstances in which an inspection can be undertaken. This refers in particular to the conditions set out in section 3 (inspection can be carried out only if other means are exhausted), section 4 (inspectors shall request to check documentation first before inspection visits), section 14 (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) and section 19 (conditions for unscheduled inspections).

The Committee notes with regret that the abovementioned provisions have not been revised in the context of the amendments to labour legislations in 2020, in order to make them less restrictive. Moreover, the Committee notes with deep concern that, according to the 2019 and 2020 annual inspection reports, the number of inspections carried out by the SLI has been decreasing, with 1,963 in 2019 and 1,701 in 2020. Similarly, the number of workers covered by inspection controls has also decreased, with 103,794 in 2019 and 81,897 in 2020. Moreover, a large number of inspection controls were merely requests for documentation (1,112 in 2019 and 1,044 in 2020), with only 851 on-site inspection visits performed in 2019 and 657 in 2020. The Committee once again 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. The Committee also requests the Government to provide further information on the impact of the transfer of the competences on OSH to the SLI, including information on the number, type and results of inspection controls carried out, in the fields of both labour relations and OSH.

Article 17 of Convention No. 81 and Article 22 of Convention No. 129. Prompt legal or administrative proceedings. The Committee previously noted that section 4(10) of the Law on State Control of Entrepreneurial Activities provides that inspections during the first three years of a business operation shall be of a consultative nature. Section 5(4) provides that, in such cases, in the event of minor violations, the sanctions provided for in the Administrative Offences Law or other laws may not be applied, and section 5(5) provides that “restrictive measures” may not be applied in the event of severe violations.

Noting that these provisions are still in force, the Committee notes with deep concern the absence of a reply to its three previous requests on this matter. The Committee is bound to recall once again that Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provide that, with certain exceptions (which are not directed at new operations), 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 must be left to the discretion of labour inspectors to give a warning or advice instead of instituting or recommending proceedings.  The Committee once again urges the Government to take prompt measures to ensure that labour inspectors are able to initiate or recommend immediate legal proceedings for both severe and minor violations during the first three years of a business’s operation, and to provide information on steps taken in this regard. It urges the Government to provide information on the meaning of “restrictive measures” that are prohibited from being imposed under the Law on State Control of Entrepreneurial Activities, on the number and nature of severe and minor violations detected by inspectors in the course of inspections in enterprises in the first three years of operation, on the sanctions proposed by inspectors for severe violations, and on the penalties ultimately applied.

Issues specifically concerning labour inspection in agriculture

Articles 9(3) and 21 of Convention No. 129. Sufficient number of inspections in agriculture and adequate training for labour inspectors in agriculture. The Committee previously noted that no OSH inspections were carried out in agriculture in 2018 by the National Agency for Food Safety (ANSA), which was the competent authority in this regard. It also noted that there was a decrease in the number of inspections by the SLI on non-OSH issues in agriculture from 2017 (458) to 2018 (363). The Committee notes that, according to the 2019 and 2020 annual inspection reports, the number of inspections on labour relations issues in agriculture continued to decrease, with 300 in 2019 and 245 controls in 2020. Regarding compliance with OSH provisions, the ANSA carried out 315 inspections in 2019 and 215 in 2020. The Committee urges the Government to take the necessary measures 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, and to provide information on the number of inspections undertaken in agriculture by the SLI. 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, particularly in the context of the transfer of competence from the ANSA to the SLI in 2021, including the number and duration of training programmes organized, the subjects covered in those programmes and the number of inspectors who participated in those programmes.