Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Labour Inspection Convention, 1947 (No. 81) - Kyrgyzstan (Ratification: 2000)

Articles 12, 16, 17 and 18 of the Convention. Limitations and restrictions of labour inspection. Effective enforcement of penalties for labour law provisions. 1. Moratorium on labour inspections. Further to its previous comments on this matter, the Committee takes due note that the moratorium on inspections has expired on 1 January 2022. In this regard, it notes that Government Decision No. 586 of 2018 on the introduction of a temporary ban on the inspection of economic entities was declared null and void by virtue of Resolution of the Cabinet of Ministers No. 9 of 14 January 2022 on the invalidation of certain decisions of the Cabinet of Ministers (section 1, Annex, para. 2836). It also notes that the annual reports on the work of the labour inspectorate covering the period 2019–20 provide detailed statistics on the number of inspection visits carried out during the reference period.

The Committee also notes that the labour inspection system has been reorganized as set out in the Regulations on the Service for Control and Supervision of Labour Legislation under the Ministry of Labour, Social Security and Migration, approved by Government Decision No. 317 of 17 December 2021. According to these Regulations, the Service for Control and Supervision of Labour Legislation is now the body authorized to perform the functions of state supervision and control of compliance with labour legislation (sections 1 and 10). The Committee observes that, according to section 11(7) of Law No. 72 of 2007 on the conduct of inspections in enterprises, in exceptional cases the Government has the right to introduce a temporary ban (moratorium) on conducting inspections in order to improve the economic situation. Recalling that a moratorium placed on labour inspection would substantially undermine the inherent functioning of the labour inspection system and would be contrary to the provisions of the Convention, the Committee urges the Government to take all necessary measures to amend the legislation and to ensure that no moratorium on labour inspections be placed in the future and that labour inspectors are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of the legal provisions, in compliance with Article 16 of the Convention.

2. Other limitations on labour inspection. The Committee has repeatedly referred to the serious limitations on the powers of labour inspectors and on the undertaking of labour inspections set forth in Law No. 72 of 2007 on the conduct of inspections in enterprises. The Committee notes with deepconcern that such limitations remain in force. It also notes the Government’s indication concerning the provision of administrative penalties for violations of labour legislation contained in the Code of Offences, which was adopted on 28 October 2021 by Law No. 126. In this respect, it notes that sections 87 to 93 of this Code provide for fines for violations of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. The Committee notes that, despite the adoption of the Code of Offences, which penalizes violations to labour legislation, labour inspections continue to be hampered by the limitations established by Law No. 72 of 2007. Therefore, the effective enforcement of the penalties set out in sections 87 to 93 of the Code of Offences is also undermined.

Furthermore, the Committee notes with deep concern that the Government refers once again to its statements made in 2019, concerning the status quo of labour inspection in the country asserting that, under Law No. 72, the authorized state body may carry out unplanned on-site inspections only after the Ministry of Economy has given its consent, that this is the only form of inspection during which labour inspectors can check that employers comply with the requirements of labour legislation, and that if the organization has a qualified lawyer, any inspection with prior notice or limited to a review of documents provided by the employer has almost no chance of identifying actual breaches of labour legislation, even if they are serious.

Lastly, the Committee notes the information provided by the Government on the inventory and revision of laws carried out by the inter-agency expert group by virtue of Presidential Decree No. 26 of 8 February 2021 on the Conduct of an Inventory of the Legislation. With reference to its 2019 general observation on the labour inspection Conventions, the Committee urges the Government to bring its national legislation into full conformity with the Convention. Specifically, it requests the Government to take prompt measures to ensure that labour inspectors are empowered to make visits to workplaces liable to inspection without previous notice, in conformity with Article 12(1)(a) of the Convention, that they are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of the legal provisions, in conformity with Article 16 of the Convention, and that they are able to initiate or recommend immediate legal proceedings without prior warning, where required, in conformity with Article 17 of the Convention.

In this connection, the Committee requests the Government to provide information on the measures taken in order to ensure the amendment of Law No. 72 of 2007 on the conduct of inspections in enterprises, including consideration given to this issue within the National Tripartite Commission and in the context of the inventory and revision of laws carried out by the inter-agency expert group. It further urges the Government to intensify its efforts to ensure the effective enforcement of penalties for violations of the legal provisions enforceable by labour inspectors as set out in the Code of Offences, in conformity with Article 18 of the Convention. In addition, the Committee requests the Government to provide statistics regarding the number of inspection visits undertaken by labour inspectors without previous notice, as compared to inspection visits undertaken with prior notice, as well as statistics on the number of penalties effectively enforced.

Article 13(2)(b). Measures with immediate executory force to ensure the safety and health of workers. Further to its previous comments, the Committee notes the Government’s reference to the inventory of policy frameworks, strategies, programmes and laws carried out by the inter-agency expert group by virtue of Presidential Decree No. 26 of 2021 on the conduct of an inventory of the legislation, as well as its indication that the public authorities are actively working to improve legislation, which will include revising existing laws.The Committee notes, however, that no concrete measures have yet been taken to empower labour inspectors to issue orders requiring measures with immediate executory force in case of imminent danger to the health and safety of workers. It also notes the information contained in the annual reports, according to which, in the period from 2018 to 2020, there were 75 fatal accidents. The Committee therefore urges the Government to intensify its efforts to bring the national legislation into conformity with Article 13(2)(b) of the Convention. In addition, it requests the Government to provide information on the number of orders requiring measures with immediate executory force issued by labour inspectors per year and to indicate the cause and outcome of such orders.

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 2023.]