Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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. The Committee notes that labour inspections, just as a number of other public inspections, are governed by the Law No. 72 of 2007 (as amended) on the conduct of inspections in enterprises. The Committee notes with concern that the Law provides for various limitations on labour inspection powers and the undertaking of labour inspections, including restrictions relating to: (i) the power to undertake labour inspections without prior notice (scheduled inspection visits have to be notified at least ten days prior to the inspection (section 6(6)); (ii) the free initiative of labour inspectors (labour inspections require a formal authorization, in coordination with the body for the development of entrepreneurship (section 12(3)); (iii) the frequency of labour inspections (e.g. scheduled inspections shall not be conducted more than once a year in workplaces considered to be at high risk, and not more than once every three years in workplaces with an average degree of risk (section 6(3)), and inspections shall not be conducted in new businesses within the first three years of their operation (section 6(8)); and (iv) the scope of inspections, particularly in terms of the issues that can be examined in the course of inspections (see sections 6(5) and 7(4)). The Committee further notes that inspectors risk being released from their office, pursuant to section 20 of Law No. 72 where a court does not confirm the existence of a violation as detected by an inspector, and where the court considers that this is the result of a fault of the labour inspector. The Committee recalls that Article 12 of the Convention provides that labour inspectors shall be empowered to enter workplaces liable to inspection freely and without previous notice and to carry out any examination, test or enquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed, and that Article 16 provides for the undertaking of labour inspections as often as is necessary to ensure the effective application of the relevant legal provisions.

Concerning the effective enforcement of penalties for labour law violations, the Committee notes that section 11 of Law No. 72 provides that scheduled and unscheduled inspections are not intended to impose financial or other sanctions on businesses and that in the event of an observed violation of the legislation during a scheduled inspection, inspectors may issue a written warning to the enterprise requesting it to eliminate the violation within 30 days (three days if the violation impacts the safety or health), and following the expiry of this delay, may take measures to influence the enterprise, as provided for in legislation. In this regard, the Committee recalls that Article 17 of the Convention provides that, with certain exceptions, 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 the necessary 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 and 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. It further urges the Government to take the necessary measures to ensure that labour inspectors are able to initiate or recommend immediate legal proceedings without prior warning, where required, in conformity with Article 17 of the Convention.

Articles 20 and 21. Annual labour inspection report. The Committee notes with regret that the Government has never submitted an annual report on the work of the labour inspection activities, and that the last statistical data on labour inspection activities were provided in the Government’s report in 2004. The Committee once again requests the Government to provide information on the steps taken by the central labour inspection authority with a view to publishing and transmitting to the Office an annual report on the work of the inspection services under its control.

The Committee is raising other matters in a request addressed directly to the Government.