Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 81) sur l'inspection du travail, 1947 - Kirghizistan (Ratification: 2000)

The Committee notes the observations made by the Kyrgyzstan Federation of Trade Unions (KFTU) received on 30 September 2020.

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. The Committee notes the Government’s indication in its report regarding the adoption of Government Decision No. 586 of 2018 on the introduction of a temporary ban on the inspection of economic entities. The Committee notes with deep concern that Government Decision No. 586 provides for such a temporary ban between 1 January 2019 and 1 January 2021 (section 1). The Government Decision states, in its preamble, that it aims to: create favourable conditions for business development, improve the investment climate, support the economic activities of business entities and prevent interference of authorized bodies in the activities of business entities. However, the Committee notes the KFTU’s statement that since inspections have been prohibited, any violation of workers' labour rights can only be investigated on the basis of a worker's complaint, which creates favourable conditions for employers to cover up any violation of labour rights and industrial accidents. The KFTU further states that the moratorium has had a negative impact on occupational safety and the prevention of occupational accidents.

While noting that inspections may be carried out in connection with applications from individuals and legal entities concerning violations of labour rights (section 1(4)), the Committee recalls that Article 16 of the Convention provides for the undertaking of labour inspections as often as is necessary to ensure the effective application of the relevant legal provisions. Recalling that a moratorium placed on labour inspection is a serious violation of the Convention, the Committee urges the Government to eliminate the temporary ban on inspections and to ensure 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. The Committee also requests the Government to provide its comments with respect to the KFTU observations.

2. Other limitations on labour inspection. The Committee previously noted with concern that Law No. 72 of 2007 (as amended) on the conduct of inspections in enterprises 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 (sections 6(5) and 7(4)). 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 inspector shall be removed from office. 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.

The Committee notes that the Government indicates that there have been no amendments to these provisions of Law No. 72 and that it plans to consider the issue within the framework of the National Tripartite Commission. The Government states that in accordance with Law No. 72, the authorized state body may carry out unplanned on-site inspections only after the Ministry of Economy has given its consent. The Committee notes with deep concern the Government’s statement that this is the only form of inspection during which labour inspectors can check that employers comply with the requirements of labour legislation, and its further statement that if the organization has a qualified lawyer, any inspection with prior notice or limited to the study of documents provided by the employer has almost no chance of identifying evidence of actual labour law violations. The Committee also notes the observations of the KFTU referring to the number of occupational accidents and indicating that Law No. 72 has had a negative impact on occupational safety and the prevention of occupational accidents.

The Committee recalls its General Observation of 2019 on the labour inspection Conventions, expressing concern at reforms that substantially undermine the inherent functioning of labour inspection systems and urging governments to remove these restrictions, with a view to achieving conformity with Convention No. 81. The Committee once again 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 initiate or recommend immediate legal proceedings without prior warning, where required, in conformity with Article 17 of the Convention. It further urges the Government to take the necessary measures to ensure 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. The Committee also requests the Government to provide information on the progress made in this regard, including the consideration given to this issue within the National Tripartite Commission. It recalls that the Government can avail itself of the technical assistance of the ILO in this regard.

Article 13(2)(b). Measures to ensure the safety and health of workers. In its previous comments, the Committee referred to section 17 of the Occupational Safety and Health Act and section 402 of the Labour Code and requested the Government to bring the national legislation into compliance with the requirements of the Convention by empowering labour inspectors to take measures with immediate executory force in case of imminent danger to the health or safety of workers, even where no specific violation of the legislation is identified. The Committee notes that the Government indicates that it plans to consider the issue within the framework of the National Tripartite Commission. The Committee once again requests the Government to take measures to bring the national legislation into conformity with Article 13(2)(b) of the Convention and to provide information on the measures taken.

Articles 20 and 21. Annual labour inspection report. In its previous comments, the Committee requested the Government to provide information on the measures taken by the central labour inspection with a view to publishing and transmitting to the Office the annual labour inspection report. In this respect, the Committee notes the statistical data on labour inspection visits and violations detected provided in the Government’s report in 2019, but notes that the Government has not submitted an annual report on the work of the labour inspection activities. The Committee urges the Government to take the necessary measures to ensure that annual inspection reports are published and transmitted to the ILO in accordance with the requirements of Articles 20 and 21.

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 2021.]