Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Luxembourg

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1958)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 2008)

In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention Nos 81 and 129 in a single comment.

Articles 3(1) and (2), and 5 of Convention No. 81 and Articles 6(1) and (2), 11, 12(1) and 13 of Convention No. 129. Functions of labour inspectors. With reference to its previous comment, the Committee notes the Government’s explanations that the wording of new section L.612-1 of the Labour Code, which provides in subsection 1(a) that the inspectorate of labour and mines shall be responsible, among other functions, for ensuring the enforcement of the legislation, “inter alia” conditions of work and the protection of workers, does not in any way relegate to a secondary level the principal functions of the labour inspectorate, as set out in Article 3(1) of the Convention.

Methods of supervision of the conditions of work of posted workers. The Committee notes the information in the Government’s report in reply to its previous request, and the information contained in the 2014 annual report of the Labour and Mining Inspectorate (ITM) on the methods for supervising the conditions of work of posted workers. It notes the Government’s indication that these workers benefit from the same rights as national workers.

Supervision of the employment of migrant workers in an irregular situation. With regard to clandestine work, the Committee previously noted that the Inter-administrative Unit to Combat Illegal Work (CIALTI) undertook action known as “crackdowns” with the participation of officials from several ministries or administrations, including the labour inspectorate and the Security and Alcohol Department (ASCAB) of the Customs and Excise Administration. In this connection, the Committee notes the Government’s indication that the “crackdowns” carried out up to 2014 did not produce the desired results and have been rethought and modified since the beginning of 2015. The Committee notes from the annual report of the ITM for 2014 that the ASCAB Department carried out during that year 257 controls for clandestine work on behalf of the ITM, during which 31 violations were detected. The Committee notes that, in accordance with section L.612-1(1)(f) of the Labour Code, labour inspectors shall be responsible for controlling the employment of migrant workers in an irregular situation and that, for this purpose, the ITM shall conduct a risk analysis for the regular identification of sectors in which there is a concentration of employment of migrant workers in an irregular situation concerning their residence status. It observes that the Government has not provided the information requested in its comments made in 2007 and reiterated in 2010 and 2014 concerning the situation of migrant workers found to be in an irregular situation during such controls, particularly with regard to the protection of rights arising out of their employment. The Committee recalls that, in order to be compatible with the protective vocation of labour inspection, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers concerned. The Committee requests that the Government specify whether the “crackdown” actions referred to above have been totally brought to an end. It also requests the Government to provide details on the specific role of the ITM in monitoring the employment of migrant workers in an irregular situation and, where appropriate, to provide statistics on this subject. The Committee also requests the Government to provide information on the action taken by the ITM to ensure compliance by employers with their obligations in relation to the rights of migrant workers in an irregular situation, such as the payment of wages and social security and other benefits, throughout the effective duration of their employment relationship, particularly in cases in which such workers are at risk of expulsion from the country. It further requests the Government to provide information on cases in which undocumented workers have obtained the entitlements to which they were due.

Function of preventing and conciliating labour disputes. With reference to section L.612-1(1)(b) of the Labour Code, the Committee notes the Government’s indication that the personnel of the labour inspectorate is responsible for preventing and conciliating all labour disputes which do not lie within the competence of the National Conciliation Office. It also notes that the Government is not yet in a position to quantify the time and resources devoted by the personnel of the labour inspectorate to the discharge of their various functions, and that reflection has commenced on this subject since the restructuring of the ITM initiated in February 2015. The Committee recalls in this regard the terms of Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129 and draws the Government’s attention to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which the “functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee requests that the Government provide information on the measures adopted to ensure that the functions set out in Article 3(1) of the Convention continue to be the principal functions of the labour inspectorate. In this respect, it once again requests the Government to provide information on the proportion of time and resources devoted to the various inspection functions.

Supervision and prevention in relation to occupational safety and health in agricultural undertakings. In its previous comment, the Committee requested the Government to provide information on the legal provisions respecting the exercise by inspectors of the functions of prevention and supervision in agricultural undertakings, and to provide statistics on the application of these provisions. In this context, the Committee notes that the ITM is responsible for the enforcement of Book III, Title I, of the Labour Code respecting occupational safety, and its implementing regulations. The Committee also notes that certain agricultural undertakings are governed by the amended Act of 10 June 1999 concerning classified establishments, which contains provisions on the protection of the health and safety of workers. Finally, the Government indicates that the ITM is not yet in a position to provide statistical data on the application in practice of these provisions. The Committee requests the Government to continue its efforts to produce statistical data on the application in practice of these provisions.

Articles 4 and 10 of Convention No. 81 and Articles 7 and 14 of Convention No. 129. Restructuring of the labour inspection system and number of labour inspection staff. The Committee notes that, according to the 2014 annual report of the ITM, the personnel of the labour inspectorate decreased from 103 in 2013 to 99 in 2014 and that, according to the Government’s report, the ITM was composed of 92 officials in 2015. It also notes that one of the consequences of the restructuring of the ITM has been the centralization of the personnel. It notes that an “inspection, control and surveys” service has been established with the objective of making the inspection system more proactive. The Committee requests that the Government provide information on the reasons for the reduction in the numbers of labour inspection personnel. It also requests that the Government provide further information on the restructuring of the ITM and to provide an organizational chart of the labour inspectorate. Furthermore, it requests that the Government provide information on any changes in the financial resources allocated to the labour inspectorate over the past five years.

Articles 5(a) and 9 of Convention No. 81 and Articles 11 and 12(1) of Convention No. 129. Cooperation and collaboration on occupational safety and health surveillance. In its last comment, the Committee requested the Government to provide information on the status and role of supervisory bodies carrying out controls in workplaces involving asbestos and workplaces where workers are exposed to hazardous substances. The Committee notes the Government’s explanations, particularly in relation to section L.614-7(1) of the Labour Code, which provides that the ITM may be assisted by individuals or public or private law associations, approved by the Ministry, to fulfil various technical functions and to conduct studies and verifications. The latter are called “approved experts” or “supervisory bodies”, depending on the functions set out in the provision.

With regard to the agricultural sector, the Committee noted in its previous comment the collaboration between the inspectorate and the Chamber of Agriculture, and requested the Government to provide information on the content and procedures for cooperation between the labour inspectorate in agriculture and other governmental bodies. In this respect, the Committee notes the Government’s indication that the ITM collaborates with various institutions, including the administration responsible for technical services in agriculture, the association of accident insurance schemes and the health department. Nevertheless, the Government does not specify the content of such cooperation. The Committee requests that the Government specify the content of the cooperation between the ITM and these institutions in the field of agriculture.

Article 7(3) of Convention No. 81 and Article 9(3) of Convention No. 129. Training of labour inspectors. The Committee notes that, in the context of the current restructuring of the ITM, the Government envisages the creation of a “knowledge academy” for the development of further training for labour inspection officials. The Committee also notes that labour inspectors are not provided with specific training in agriculture. In this connection, the Committee recalls the terms of Article 9(3) of Convention No. 129 and draws the Government’s attention to Paragraph 4 of the Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), under the terms of which labour inspectors in agriculture should “have knowledge of the economic and technical aspects of work in agriculture”. The Committee requests that the Government provide information on any progress achieved in the establishment of the “knowledge academy” (and on the content of training, the number of labour inspectors inscribed, etc.).

Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129. Scope of the freedom of inspectors to enter workplaces liable to inspection. In its previous comment, the Committee expressed the view that the subordination of inspections under the terms of section L.614-3(1) of the new Labour Code to the existence of “sufficient proof or legitimate grounds” restricts the right of labour inspectors to enter establishments and workplaces liable to inspection in a manner that is contrary to the Convention. It emphasized that the sole condition upon the exercise of this right, in accordance with Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129, should be the requirement for inspectors to be provided with proper credentials. In this regard, the Committee notes the explanations provided by the Government, according to which the terms “sufficient proof or legitimate grounds” do not restrict the right of labour inspectors to enter establishments or workplaces liable to inspection as all the legal grounds relating to the generic or specific functions of the ITM constitute legitimate grounds.

Issues specifically relating to labour inspection in agriculture

Articles 3, 4 and 5(3) of Convention No. 129. Coverage of the labour inspection services in agriculture. In its previous comment, the Committee requested the Government to specify the various categories of workers that the ITM is responsible for protecting, and the applicable legislative provisions or regulations. The Government indicates in this respect that the ITM is responsible for the protection of employed persons and indicates that, under the terms of section L.611-2 of the Labour Code, the term employed person should be understood to mean any individual, including trainees, apprentices and students engaged in an agricultural undertaking for the provision of services in exchange for remuneration which are performed under a relationship of subordination.

With regard to the effect given to Article 5(1) of Convention No. 129, the Government indicates that the ITM system covers members of the family of the owner or operator of the undertaking on condition that they are subject to a relationship of subordination. It does not apply to agricultural owners or sharecroppers not engaging external labour and exercising their activity as self-employed persons. The Committee notes this information.

Article 13 of Convention No. 129. Collaboration between officials of the labour inspectorate and employers and workers or their organizations. In its previous comment, the Committee requested the Government to provide information on the collaboration between labour inspectors carrying out inspections in agriculture and employers and workers or their organizations. In this regard, the Committee notes that the ITM has provided training on conditions of work and health and safety for agricultural employers and employed persons. However, the Committee recalls that collaboration between the labour inspection services and the social partners may take various forms. It may, for example, occur within the framework of a health and safety committee. The Committee requests the Government to provide information on the measures adopted or envisaged to encourage collaboration between the ITM and the social partners.

Articles 14, 15(1)(b) and 21 of Convention No. 129. Transport facilities for inspections of agricultural undertakings. Adequacy of the number of inspection personnel and frequency of inspections. In its last comment, the Committee requested the Government to provide information on the number of labour inspectors assigned to agriculture, the frequency of inspections, the measures taken to ensure the effectiveness of inspections and the means of transport available for inspections. In this regard, the Government indicates that, since its restructuring, the labour inspectorate is organized to work in all sectors, through its various pools, and that there are therefore no labour inspectors specifically assigned to agriculture. It also indicates that 33 vehicles are available for the ITM in general. With regard to statistics on the frequency of inspections, it adds that they are not yet available. The Committee requests the Government to take the necessary measures for the production of statistics as a basis for analysing the action of the ITM in agricultural undertakings.

Article 27 of Convention No. 129. Information on the activities of the inspection services in agriculture contained in the annual report. In its previous comment, the Committee requested the Government to provide information on the measures taken to ensure that the annual reports of the ITM contain the information required in Article 27 of the Convention. In this regard, the Committee notes the information provided by the Government to the effect that there are 2,137 agricultural undertakings in Luxembourg and that 5,068 people work in the sector, of whom 840 are employees. It also notes that in 2014 no penalties were issued and that three work-related accidents were reported. While welcoming the information provided by the Government, the Committee requests the Government to take the necessary measures to obtain detailed data on all of the matters covered by clauses (a)–(g) of Article 27 and to include this data in the annual report of the ITM.