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

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 made by the International Trade Union Confederation (ITUC) in a communication received 1 September 2018 as well as the observations made by the National Confederation of Trade Unions of Moldova (CNSM) in its communications received on 4 January and 4 September 2018. In its observations of 4 September, the CNSM indicates that the report of the Government had not been submitted to it. The CNSM states that it is regrettable that no effective measures have so far been taken to adapt national legislation to the provisions of Conventions Nos 81 and 129, nor to give due consideration to the recommendations of the report of the tripartite committee set up to examine the representation alleging non observance by the Republic of Moldova of Convention No. 81 submitted under article 24 of the ILO Constitution, adopted by the Governing Body in March 2015 (GB.323/INS/11/6). The Committee requests the Government to provide its comments in response to the observations of the CNSM.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes that in June 2018, the Committee on the Application of Standards (CAS) recommended that the Government take the necessary measures and appropriate reforms to bring their labour inspection services into line with the provisions of Conventions Nos 81 and 129 in law and practice, including enabling inspectors to carry out visits to workplaces liable to inspection without prior notice in order to guarantee adequate and effective supervision; ensure that inspections are proportionate to the legitimate aim pursued and are possible as often as necessary; and provide to this Committee, in writing, detailed and precise information related to a range of provisions and requirements under the two Conventions.

Article 4 of Convention No. 81 and Article 7 of Convention No. 129. Supervision and control of a central authority. Occupational safety and health. The Committee previously noted that Law No. 131 of 2012 on state control of entrepreneurial activities withdraws supervisory duties in the area of occupational safety and health (OSH) from the State Labour Inspectorate (SLI) and transfers it to ten other agencies. The Government indicated that OSH inspectors would be appointed in the respective agencies reporting both to their respective sectoral agencies as well as to the SLI.

The Committee notes that the CAS, in 2018, recalled that the labour inspectorate shall be placed under the supervision and control of a central authority.

The Committee notes the observations of the ITUC expressing concern about the fragmentation and weakening of the labour inspectorate by the introduction of Law No. 131, including the transfer of competencies in the area of OSH to ten different sectoral agencies. The ITUC states that the limitations introduced in Law No. 131 have weakened labour inspections, in contradiction with Conventions Nos 81 and 129, and have resulted in occupational accidents, including fatal ones. The Committee notes the Government’s statement that the reform aims to ensure that a single enterprise is not inspected for the same type of activity or production process by different control bodies, thereby avoid the duplication of inspections. The Government indicates that the methodology on state control over entrepreneurial activities, based on risk analysis, is in the process of finalization, which will ensure the application of standard rules in the planning and implementation of OSH inspections for the ten sectoral agencies. This methodology will be monitored and coordinated by the SLI. The Government further refers to separate consultations held with the World Bank and the International Finance Corporation on the development of a regulatory framework on OSH. It states that an e-learning training system will be developed in 2019 to provide training to staff in the field of OSH, but that the system still requires financial means. The Government further indicates that until 23 May 2019, responsibility for the investigation of severe and fatal work-related accidents will remain with the SLI (by virtue of Law No. 79/2018). In addition, the Government indicates that most, but not all, of the sectoral agencies have territorial offices, and that inspectors with OSH responsibilities within the agencies will be provided with the status of civil servants. Further, the Government states that the ten sectoral agencies have been provided with forms for monthly reporting and that the Ministry of Health, Labour and Social Protection has requested that the agencies submit information on a weekly basis on the OSH activities carried out. The Committee observes, in this respect, that the annual labour inspection report of 2017, submitted by the Government, appears to only reflect the activities of the SLI and not the OSH activities of the sectoral agencies.

The Committee notes the Government’s reference to the ILO mission which visited the country in December 2017, and notes the report of the mission subsequently transmitted to the Government. The Committee notes that according to the report of the ILO mission, the reform in the area of OSH has adversely impacted staff retention and the conditions of service of inspectors. The staff of some of the sectoral agencies do not have the status of civil servants and the transfer of 36 labour inspectors from the SLI to the agencies resulted in half of the transferred inspectors resigning. The report further indicated that not all of the sectoral agencies with OSH responsibilities had yet been established, and they did not all have territorial or local units, which risked certain sectors and workers not being covered, or the offices not being easily accessible to concerned parties. Recalling the importance of ensuring that organizational changes 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, the Committee once again urges the Government to take all necessary measures in that respect. The Committee accordingly requests the Government to provide specific information on the concrete measures taken to ensure coordination among the various sectoral agencies, as well as between these agencies and the SLI, including further steps taken to ensure monitoring by the SLI of the implementation of OSH inspection visits. Furthermore, the Committee requests the Government to provide information on: (1) the number of inspectors appointed in the sectoral agencies as well as the number of inspections undertaken by them (Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129); (2) 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 progress in providing all inspectors the status of civil servants (Article 6 of Convention No. 81 and Article 8 of Convention No. 129); (3) further steps taken to ensure that inspectors are adequately trained, including the establishment of an e learning system; (4) the manner in which technical occupational safety and health experts and specialists are associated in the work of inspection (Article 9 of Convention No. 81 and Article 11 of Convention No. 129); and (5) 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 (Article 11 of Convention No. 81 and Article 15 of Convention No. 129). It also requests the Government to indicate if all of the sectoral agencies to which inspection functions have been assigned have now been established, and to provide information on the monitoring of enterprises not covered by the respective sectoral agencies. Lastly, the Committee requests the Government to take measures to ensure that the activities of OSH inspectors in the sectoral agencies are separately reflected in the annual report on labour inspection, with respect to 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 notes the Government’s reference, in response to the Committee’s request concerning the significant decline between 2012 and 2016 in the number of infringement reports submitted to courts (from 891 to 165 such reports), to the decrease in the number of entities subjected to inspection visits since the adoption of Law No. 131 in 2012. The Government also refers to the six-month moratorium on state inspection that took place in 2016. The Government indicates that in 2017, the Contravention Code was amended to introduce a section on violations of OSH provisions by the employer, and that it therefore expects the number of infringement reports produced by inspectors to increase in the future. In this respect, the Committee notes the information in the 2017 annual labour inspection report that there was a slight increase in the number of reports submitted to courts by inspectors, rising from 165 in 2016 to 197 in 2017. The Committee requests the Government to continue to provide information on the number of infringement reports submitted to courts, indicating the number of such reports submitted by SLI inspectors and, separately, by OSH inspectors in the sectoral agencies. In addition, and noting an absence of information in response to the Committee’s previous request, it once again requests 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 Government’s indication that the functioning of the OSH system was subject to discussions within the National Commission for Collective Consultations and Negotiations. In this respect, the Committee notes the statement of the CNSM that in April 2018, the National Commission for Collective Consultations and Negotiations requested that the Ministry of Economy and Infrastructure create a working group with the participation of the competent institutions in the field of OSH and representatives of employers and the trade unions, with a view to identifying solutions for the existing issues relating to the functioning of the authorities in the field of OSH. The CNSM indicates that subsequently, no working group was established. The Committee requests the Government to provide further information on the measures taken to promote effective dialogue with employers’ and workers’ organisations concerning labour inspection matters, including in particular dialogue on OSH concerns. 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.

Article 12 of Convention No. 81 and Article 16 of Convention No. 129. Unannounced inspection visits. The Committee previously noted the application of Law No. 131 to the SLI (pursuant to paragraph 27 of its annex) and that section 18(1) of the Law provides that notice of a decision to carry out a control shall be sent to an enterprise at least five working days prior to the carrying out of the control. Section 18(2) provides that this notice is not provided in the case of an unannounced control, and section 19 outlines the specific limited circumstances under which an unannounced control can be undertaken irrespective of the established schedule of control. In this respect, the Committee noted the statement of the Government that there was a contradiction between the general rules for initiating an inspection (sections 14 and 20–23 of Law No. 131) and Article 12 of Convention No. 81, which would be removed as part of a proposed legislative package.

The Committee notes that the CAS recommended that the Government bring national legislation and practice into line with Conventions Nos 81 and 129 to enable labour inspectors to carry out visits to workplaces liable to inspection without prior notice in order to guarantee adequate and effective supervision. The Committee notes with interest that by virtue of Law No. 185 of 2017, section LXXXV, section 1(6) of Law No. 131 was amended to specifically exclude the application of section 18 of the Law to inspections undertaken in the area of labour relations and OSH. It further notes that section LXVII of Law No. 185 amends section 237 of the OSH Law (No. 186/2008) to provide that labour inspectors in the field of OSH shall have the power to enter workplaces freely at any time of the day or night, without prior notification of the employer. The Committee requests the Government to provide information on the impact of these amendments on the undertaking of inspections without prior notice in practice, including information on the number of labour inspections undertaken with and without the provision of prior notice by inspectors identified separately for the SLI and the sectoral agencies as well as the violations found and sanctions imposed for both announced and unannounced inspections, again identified separately for the SLI and the sectoral agencies.

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 response to the receipt of a complaint. The Committee previously noted information from the Government which indicated that unscheduled inspections (which had been the only inspections undertaken without prior notice, by virtue of Law No. 131) were only undertaken as a result of a complaint or to conduct an investigation following an accident.

The Committee notes that the annual labour inspection report of 2017 once again refers to unscheduled inspections as those relating to complaints received or following an accident. The Committee notes, however, the Government’s indication that the OSH Law (No. 186/2008) was amended in 2017 to provide for the obligation of labour inspectors to keep the confidentiality of any complaint received relating to OSH, as well as to not disclose to the employer the fact that an inspection was carried out as a result of a complaint. Noting the removal of the requirement to provide prior notice for regular inspections and referring to its comments above under Article 12, the Committee requests the Government to provide further information on any additional measures taken to ensure that a sufficient number of inspections without prior notice are undertaken 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.

The Committee recalls that the CAS requested the Government, in June 2018, to ensure that inspections are proportionate to the legitimate aim pursued and are possible as often as necessary.

The Committee notes the observations by the ITUC that Law No. 131 substantially reduced the capacity of labour inspectorates by limiting the frequency of inspections in individual firms. The Committee also notes with concern the Government’s statement in its report that following the adoption of Law No. 131, the number of entities subjected to inspection visits decreased annually. The Committee further notes the information in the 2017 annual labour inspection report that the number of unscheduled inspections (based on complaints or following an accident) was 545 in 2017, indicating a further decrease from the 1,317 unscheduled inspections undertaken in 2015 and 610 such inspections in 2016. Only ten follow-up inspections were undertaken in 2017, in comparison to 117 such inspections in 2015 and 42 in 2016. The Committee 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.

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 the operation of a company/employer 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.

The Committee notes the observations of the ITUC that Law No. 131 introduces 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 once again recalls that Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provide that, with certain exceptions (not directed at new operations), 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. Noting with regret the absence of a reply to its previous request, the Committee urges the Government to provide information on the measures taken to ensure that labour inspectors are able to initiate or recommend immediate legal proceedings. 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 violations detected by inspectors, the sanctions proposed by inspectors, and the penalties ultimately applied.

Issues specifically concerning labour inspection in agriculture

Article 9(3) of Convention No. 129. Adequate training for labour inspectors in agriculture. The Committee notes the information provided by the Government, in response to the Committee’s previous request, that the National Agency for Food Safety is in charge of OSH inspections in agriculture. The Government indicates that labour inspectors at the Agency shall carry out inspections in cooperation with other field inspectors of the Agency. The Committee also notes the information provided by the Government on the measures planned to provide general OSH training to inspectors of the sectoral agencies. 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.

[The Government is asked to reply in full to the present comments in 2019.]