Observación (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

República de Moldova

Convenio sobre la inspección del trabajo, 1947 (núm. 81) (Ratificación : 1996)
Convenio sobre la inspección del trabajo (agricultura), 1969 (núm. 129) (Ratificación : 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 made by the National Confederation of Trade Unions of Moldova (CNSM), received on 30 August 2019.

Article 4 of Convention No. 81 and Article 7 of Convention No. 129. Supervision and control of a central authority. Occupational safety and health (OSH). The Committee previously noted that Law No. 131 of 2012 on state control of entrepreneurial activities withdraws supervisory duties in the area of OSH from the State Labour Inspectorate (SLI) and transfers it to ten other sectoral agencies. In this respect, the Government indicated that a methodology on state control over entrepreneurial activities was being finalized. This methodology would be monitored and coordinated by the SLI and would ensure the application of standard rules in the planning and implementation of OSH inspections for the ten sectoral agencies. The Government also indicated that an e-learning training system would be developed and that the agencies were provided with forms for monthly reporting to the Ministry of Health, Labour and Social Protection. The Government further stated that most of these sectoral agencies had territorial offices and that inspectors with OSH responsibilities within the agencies would be provided with the status of civil servants. The Committee also noted that, according to the report of the ILO mission undertaken in 2017, the reform in the area of OSH had adversely impacted staff retention and the conditions of service of inspectors and that not all of the sectoral agencies with OSH responsibilities had yet been established, nor did they all have territorial or local units.

The Committee notes the observations of the CNSM that the labour inspection system does not meet the requirements of Article 4 of Convention No. 81 and Article 7 of Convention No. 129. Of the sectoral agencies, five are under the Ministry of the Economy, one is under the Ministry of Agriculture, Regional Development and the Environment, one is under the Ministry of Health, Labour and Social Protection, and two are independent bodies. The union states that the dispersion of inspection duties has diminished the efficiency of state control, especially in the field of OSH. In this respect, the CNSM indicates that the number of fatal work accidents rose from 33 in 2017 to 38 in 2018. The union also indicates that, due to failures in the field of OSH, it has repeatedly urged the Government to return to an integrated system of labour inspection, covering both labour relations and OSH. The union further states that there is a lack of qualified personnel within the sectoral agencies (with 31 inspectors across ten agencies) and that the lack of territorial coverage by some agencies leads to a lack of protection and in practice exempts certain workplaces from state supervision related to OSH.

The Committee notes the indication in the annual labour inspection report of 2018 that inspectors in the sectoral agencies responsible for OSH inspections provide reports to the SLI on inspections undertaken. The Committee recalls, however, that both the report of the ILO mission which visited the country in December 2017 and the Observation of this Committee published in 2019 emphasized the necessity for the Government to ensure coordination among the various sectoral agencies so as to ensure the implementation and monitoring of OSH inspection visits. In this respect, the Committee notes with deep concern that, according to the information in the 2018 report, only two of the ten sectoral agencies had conducted any OSH inspections (with 21 inspections carried out in the fourth quarter of 2018, detecting 26 violations). The number of inspectors in those agencies decreased form 36 in 2017 to 31 in 2018. The Committee further notes, once again, with concern an increase in the number of injured persons registered (503 in 2018, compared with 448 in 2017 and 371 in 2016 according to the annual labour inspection reports). Lastly, it notes an absence of information, in response to the Committee’s previous request, concerning the development of a methodology for OSH inspections for the sectoral agencies or a training system for inspectors at these agencies. The Committee once again recalls the importance of ensuring that organizational changes to the labour inspection system are carried out in conformity with the provisions of Conventions Nos 81 and 129, including Articles 4, 6, 9, 10, 11 and 16 of Convention No. 81 and Articles 7, 8, 11, 14, 15 and 21 of Convention No. 129. Recalling prior concern expressed in this regard, the Committee urges the Government to take measures to ensure coordination among the various sectoral agencies, as well as between these agencies and the SLI, including steps taken to ensure monitoring by the SLI of the implementation of OSH inspection visits. It requests the Government to continue to provide information on the number of inspectors appointed in the sectoral agencies as well as the number of inspections undertaken by them, and to indicate the reasons why inspections were only carried out by two of the ten agencies in 2018. It once again requests the Government to provide information as to how the independence and impartiality of inspectors appointed in the sectoral agencies is ensured in light of their reporting to the management of the sectoral agencies, and as to specific measurable progress in providing all inspectors the status of civil servants. It urges the Government to take measures to ensure that inspectors are adequately trained, and to provide information on the measures taken in that respect, including the number of trainings held, the subjects covered, and the number of participants. The Committee further requests the Government to provide information on the manner in which technical occupational safety and health experts and specialists are associated in the work of inspection and the measures taken to provide such inspectors with suitably equipped local offices (including in sectors covered by agencies currently without local offices) as well as the transport facilities necessary for the performance of their duties. Lastly, the Committee requests the Government to take measures to ensure that the information on the activities of OSH inspectors in the sectoral agencies, reflected in the annual report on labour inspection, addresses all subjects covered in Article 21 of Convention No. 81 and Article 27 of Convention No. 129.

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 a significant decline between 2012 and 2017 in the number of infringement reports submitted to courts (from 891 to 197 such reports). The Government indicated that this was due to a decrease in the number of entities subjected to inspection visits since the adoption of Law No. 131 in 2012. It indicated that in 2017, the Contravention Code was amended to introduce a section on violations of OSH provisions, and that it therefore expected the number of infringement reports produced by inspectors to increase in the future.

In this respect, the Committee takes due note of the information in the Government’s report concerning the number of infringement reports submitted to court in 2018 (270 in 2018, rising from 197 in 2017 and 165 in 2016). The Government also provides information related to the payment of salary arrears paid following inspections. The Committee also notes the observations of the CNSM that although the Government’s report contains information on the number of infringement reports, there is no information on their outcome following their referral to court. The CNSM also indicates that although 26 violations related to OSH were detected by inspectors at the sectoral agencies, infringement reports were not prepared. The Committee requests the Government to continue to provide information on the number of infringement reports submitted to courts, and to indicate the number, if any, of infringement reports related to OSH violations following inspections by OSH inspectors in the sectoral agencies. In addition, and noting an absence of information in response to the Committee’s previous request, it urges the Government to provide information on the specific outcome of the infringement reports submitted to the courts, indicating the decision rendered and if any fine or other penalty was applied.

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 notes the observations of the CNSM that the union has, in the context of the National Commission for Collective Consultations and Negotiations, systematically raised 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 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 notes the information from the annual labour inspection reports for 2017 and 2018 that the budget for the SLI decreased substantially from 15,820,100 Moldovan lei (MDL) in 2017 to MDL9,475,800 in 2018. It also notes with concern a significant decrease in the number of inspectors, particularly in the territorial offices: from 109 inspectors in 2017 (22 in the central office and 87 in territorial offices) to 59 inspectors in 2018 (16 in the central office and 43 in territorial offices), and that the number of inspectors in the sectoral agencies decreased from 38 to 31 over the same period. Recalling that the number of labour inspectors shall be sufficient to secure the effective discharge of the duties of the inspectorate, the Committee requests the Government to provide information on the measures taken to ensure an adequate number of labour inspectors, as well as information on the reasons for the significant decrease in the number of inspectors. It also requests the Government to provide information on the measures taken to ensure that sufficient budgetary resources are allocated for the labour inspectorate.

Article 12 of Convention No. 81 and Article 16 of Convention No. 129. Unannounced inspection visits. The Committee previously noted that, prior to its amendment in 2017, Law No. 131 required that notice of a scheduled inspection visit be sent at least five working days in advance (section 18(1) and (2)), but that there were specific limited circumstances under which an unannounced inspection could be undertaken irrespective of the established schedule (section 19). Particularly, pursuant to section 19(1) of the Law, unannounced controls were permitted in the following cases: (i) follow-up inspections (to verify that recommendations of a previous scheduled inspection had been implemented); and (ii) if reliable information (supported by evidence) was available indicating that there has been a violation of the legislation or a situation of emergency which represents an imminent danger to life and/or property or damage to the environment exceeding a specific monetary value. The Committee subsequently noted that Law No. 131 was amended in 2017 (by virtue of Law No. 185) to specifically exclude inspections undertaken in the area of labour relations and OSH from the requirements in section 18 to provide five days’ notice. It requested information on the impact of these amendments.

The Committee notes the information in the Government’s report that, in 2018, the number of unannounced inspections undertaken was 571, indicating a slight increase from 2017, when 545 such inspections were undertaken (compared with 1,317 unscheduled inspections undertaken in 2015 and 610 such inspections in 2016). The Committee also notes, however, that pursuant to Law No. 179 of 2018, section 19 of Law No. 131 has been amended to specify that complaints and petitions, including notifications or requests from other state inspection bodies, may only serve as grounds for an unannounced inspection if the circumstances or information provided reasonably indicates a possible infringement which will imminently cause damage and only if these circumstances and information are supported by proof. Complaints, petitions or other claims that do not require the immediate initiation of an unannounced control, may be taken into account in the next annual planning of controls.

The Committee notes the statement of the CNSM that the amendment of Law No. 131, by Law No. 179/2018, has made the carrying out of unannounced inspections impossible in practice. The union states that violations of labour law have therefore become very difficult to detect and combat. With reference to its comments below on the application of Article 16 of Convention No. 81 and Article 21 of Convention No. 129, the Committee requests the Government to take 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 provide information on the impact of the amendments to section 19 of Law No. 131 on the activities of the labour inspectorate, including its capacity to make unannounced visits as required under both Conventions and its capacity to respond to complaints received. The Committee requests the Government to continue to provide information on the number of announced and unannounced inspections carried out by the SLI, and it urges the Government to provide the same information on announced and unannounced inspections for OSH inspections carried out by sectoral agencies. With respect to inspections carried out by both the SLI and the sectoral agencies, it once again requests the Government to indicate in detail the number of violations detected and specific sanctions imposed for 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. The Committee previously noted that, prior to the 2017 amendments to Law No. 131, unscheduled inspections were only undertaken as a result of a complaint or to conduct an investigation following an accident. Following the 2017 amendments, unscheduled inspections could be undertaken in the field of labour relations and OSH. Noting the further restrictions on unscheduled inspections introduced by Law No. 179/2018, the Committee requests the Government to provide information on measures taken to ensure that a sufficient number of inspections without prior notice are undertaken and to ensure that when inspections are conducted as a result of a complaint, the fact of the complaint as well as the identity of the complainant(s) is kept confidential. It requests the Government to indicate the number of inspections carried out without prior notice that were not undertaken as a result of a complaint or following the occurrence of an accident.

Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Undertaking of inspections as often as is necessary to ensure the effective application of the relevant legal provisions. The Committee previously noted that certain provisions of Law No. 131 were not compatible with Article 16 of Convention No. 81 and Article 21 of Convention No. 129 on the carrying out of inspections as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. Section 3(g) of Law No. 131 provides that inspections can only be carried out when other means to verify compliance with the law have been exhausted. Pursuant to 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. Pursuant to sections 7 and 19, Law No. 131 permits unscheduled inspections only under certain specific conditions: they are subject to a delegation of control signed by the head authority vested with control functions; they cannot be carried out on the basis of unverified information and information received from anonymous sources; and they cannot be conducted when there are any other direct or indirect ways to obtain the information needed. In this respect, the Committee noted the Government’s statement that, following the adoption of Law No. 131, the number of entities subjected to inspection visits decreased annually.

The Committee notes the new amendments to Law No. 131 by virtue of Law No. 179/2018 limiting the circumstances in which an inspection can be undertaken in response to a complaint (examined above). It also notes new requirements that consideration be given to carrying out monitoring through a documentation check only. Pursuant to section 4 of Law No. 131 in 2018 (as amended by section 9 of Law No. 179/2018), inspection bodies must consider, when carrying out scheduled or unscheduled inspections, the possibility of carrying out the monitoring by a direct request to the enterprise for documentation. Only in the case of insufficient documentation and information, or based on the type of inspection and risk analysis, will the inspection body carry out an inspection visit. Section 4 was further amended to state that an inspection visit may be carried out if an enterprise does not reply to the request for documentation within ten working days. If an inspection visit is undertaken, the inspector does not have the right to request documentation that has previously been presented. The Committee notes the Government’s indication that the SLI (including its territorial subdivisions) carried out 2,317 inspection visits in 2018 covering 108,703 workers (compared with 3,135 inspections covering 111,500 workers in 2017 and 4,458 visits covering 146,900 workers in 2016), and that 21 OSH inspections were carried out. The Government further indicates that 233 controls based on documentation were undertaken in 2018 following the procedure introduced in Law No. 179/2018.

The Committee notes the observations of the CNSM that with the new restrictions, introduced by Law No. 179/2018, the control authority will automatically request documentation instead of carrying out an inspection. The union states that the Government did not indicate how many of the 233 documentation checks carried out in 2018 detected violations or if any infringement reports were subsequently prepared. Noting with grave concern the new restrictions on the undertaking of labour inspections, 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. Lastly, the Committee requests the Government to take measures to ensure that labour inspectors with proper credentials shall be empowered to require the production of any documents which are required to be kept by law, in accordance with Article 12(c)(ii) of Convention No. 81 and Article 16(c)(ii) of Convention No. 129.

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(1) of Law No. 131 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 Offence 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. It noted the observations of the International Trade Union Confederation that these restrictions constituted a free pass for companies in the first three years of their operation by stipulating that sanctions cannot be applied in the case of minor offences for this period.

The Committee notes the statement of the CNSM that the prohibition on the application of restrictive measures is still in force, and that this is not in compliance with Article 17 of Convention No. 81 and Article 22 of Convention No. 129.

Noting with deep regret the absence of a reply to its two previous requests on this matter, the Committee once again recalls 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 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 once again requests the Government to provide information on the meaning of “restrictive measures” that are prohibited from being imposed under Law No. 131, 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, the sanctions proposed by inspectors for severe violations, and 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 the National Agency for Food Safety is in charge of OSH inspections in agriculture, and that labour inspectors at the Agency would carry out inspections in cooperation with other field inspectors of the Agency.

In this respect, the Committee notes with concern the indication in the 2018 annual labour inspection report that no OSH inspections were carried out by the National Agency for Food Safety in 2018. The Committee further notes the information in the 2018 report indicating a decrease in the number of inspections by the SLI (covering non-OSH issues): 363 inspections were conducted in agriculture, forestry and fisheries by the SLI in 2018 compared with 458 in 2017. The Committee requests 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, in conformity with Article 21 of Convention No. 129. It requests the Government to provide information on why the National Agency for Food Safety did not undertake any OSH inspections in 2018, and to provide information on the number of inspections undertaken in subsequent years. In addition, 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, including the number of training programmes organized for inspectors of the National Agency for Food Safety with OSH functions, the subjects covered in these programmes and the number of inspectors who participated in these programmes.