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2006, Labour Inspection: Chapter VIII - Prosecution and penalties for violation of legislationDescription:(General Survey) Convention:C081 Convention:P081 Convention:C129 Recommendation:R081 Recommendation:R082 Recommendation:R133 Subject classification: Labour Inspection Subject: Labour Administration and Inspection Document:(Report III Part 1B) Session of the Conference:95 Display the document in: French Spanish Document No. (ilolex): 252006G10 Chapter VIII Prosecution and penalties for violation of legislation 279. To secure the enforcement of the legal provisions relating to conditions of work and protection of workers, the Conventions provide, inter alia, that the system of labour inspection shall have the task of supplying technical information and advice to employers and workers (Article 3, paragraph 1(b), of Convention No. 81 and Article 6, paragraph 1(b), of Convention No. 129). While such advice and information can only encourage compliance with legal provisions, it should nonetheless be accompanied by an enforcement mechanism enabling those guilty of violations reported by labour inspectors to be prosecuted. 280. The credibility of any inspectorate depends to a large extent on its ability to advise employers and workers on the most effective means of complying with the legal provisions within its remit; however, it also depends on the existence and implementation of a sufficiently dissuasive enforcement mechanism. For the labour inspectorate, the functions of enforcement and advice are inseparable in practice. I. Scope of the principle of prompt legal proceedings281. Accordingly, under Article 17, paragraph 1, of Convention No. 81 and Article 22, paragraph 1, of Convention No. 129, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal or administrative proceedings without previous warning. However, exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given. 282. Violations may be the result of failure to understand the terms or scope of the applicable laws or regulations. Therefore the labour inspector must always have discretion to choose not to impose penalties as a means of enforcing legal provisions. To this end, Article 17, paragraph 2, of Convention No. 81 and Article 22, paragraph 2, of Convention No. 129 provide that it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings. This discretion implies that inspection staff have the necessary capacity for judgement to be able to distinguish between serious or repeated wilful non-compliance, culpable negligence or flagrant ill will, which call for a penalty, and an involuntary or minor violation, which may lead to a mere warning. 283. Competent and experienced inspectors are aware of the value of advice and warnings as incentives for the proper application of legal requirements. Generally, it is enough to make a follow-up visit after giving the employer a time limit within which to take remedial action. Hence, in most countries, labour inspectors prefer in practice – except in cases of wilful or serious non-compliance, culpable negligence or flagrant ill will – to rely on advice and persuasion before instituting or recommending proceedings. The latter course of action is usually taken only in the case of uncooperative employers, particularly where non-compliance exposes workers to safety and health risks. (Endnote_1) 284. Non-compliance with the legal provisions on conditions of work has a direct or indirect impact on the health of the workers and their families, as well as their safety and that of the work environment. In some occupations, such as road transport or the medical professions, failure to abide by working time provisions not only affects the workers concerned, but may also have repercussions on the health or lives of many others. Inspectors should therefore be able to deal with non-compliance with appropriate severity. 285. The legislation of some countries provides expressly that it shall be left to the inspector's full discretion to choose information, advice and warnings rather than initiating proceedings. (Endnote_2) In other countries, (Endnote_3) it is not excluded that inspectors have such discretion in practice, even in the absence of a legal provision to that effect. In some countries, previous issuance of a compliance order is the rule. For example, in Jordan inspectors are obliged in every case to issue a compliance order to the employer. (Endnote_4) 286. It is important, however, to ensure that this power of labour inspectors to avoid the application of penalties is not used in a manner in which it was not intended, as has been suggested by some trade union organizations. In Romania, for example, a trade union confederation considers that inspectors confine their action, even in cases of repeat offences, to mere notifications which are without effect, although the law establishes a series of penalties ranging from a fine to the closure of the workplace. (Endnote_5) 287. In Brazil, a protocol of agreement between the inspectorate and the employer has been introduced for cases of non-compliance that do not constitute a serious and imminent danger to health and safety. The inspector is responsible for ensuring that the employer remedies the violation within the time-limit and the case is not referred to the prosecutor-general's office for the institution of judicial proceedings unless it is a repeat offence. (Endnote_6) However, one trade union organization (Endnote_7) regrets what it sees as a tendency of the inspectorate to focus on negotiation to the detriment of its core function of supervision and punishment of violations. II. Initiation of proceedings288. In some cases, penal proceedings are the only way to enforce the law. The ensuing publicity can have an additional deterrent effect. The Government of Brazil has indicated that publication by the labour inspection secretariat of the names of employers who are repeat offenders in the area of forced labour has enabled public institutions to restrict their access to credit, subsidies and social benefits. 289. All countries make provision in their labour inspection legislation for the involvement of labour inspectors in the system of punishing violations of the legal provisions relating to conditions of work and protection of workers. (Endnote_8) The Conventions provide that it shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings (Article 17, paragraph 2, of Convention No. 81 and Article 22, paragraph 2, of Convention No. 129). Convention No. 129 provides in addition in Article 23 that if labour inspectors in agriculture are not themselves authorized to institute proceedings, they shall be empowered to refer reports of infringements of the legal provisions directly to an authority competent to institute such proceedings. 290. This is the case in Slovakia, where labour inspectors are empowered to submit proposals for penalties or legal proceedings to their hierarchical superiors. (Endnote_9) In the Russian Federation, labour inspectors are empowered to institute administrative proceedings against persons guilty of violating federal labour and occupational safety and health legislation, but they must defer to the competent authorities in cases where penal proceedings are recommended. (Endnote_10) The legislation of several African countries empowers labour inspectors to institute legal proceedings directly against persons guilty of violating labour legislation. (Endnote_11) In other countries they have the prerogatives of judiciary police officers (Endnote_12) and are empowered to impose penalties. (Endnote_13) In Fiji a person found guilty of a violation has the choice between paying a fine fixed by the inspector or facing legal prosecution. (Endnote_14) III. Penalties291. Under Article 18 of Convention No. 81 and Article 24 of Convention No. 129, adequate penalties for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties shall be provided for by national laws or regulations and effectively enforced. A. Adequate penalties provided for by national laws or regulations292. It is essential for the credibility and effectiveness of systems for the protection of workers for violations to be identified by national legislation and for the proceedings instituted or recommended by labour inspectors against employers guilty of violations to be sufficiently dissuasive and to make employers in general aware of the risks they run if they fail to meet their obligations. In order to be credible, it is important for penalties to be defined in proportion to the nature and gravity of the offence. 293. The legislation of most countries provides for penalties for violation of the legal provisions enforceable by labour inspectors. Most prescribe both fines and terms of imprisonment. 294. Penalties for obstructing inspectors in the performance of their duties are also commonly found, in most countries in the form of fines. (Endnote_15) Prison sentences are also prescribed for this offence in Benin, (Endnote_16) Singapore (Endnote_17) and Poland, where any person who prevents or obstructs the conduct of a labour inspection is liable to a prison term of over three years. (Endnote_18) In Viet Nam, the Labour Code provides for an administrative or penal sanction depending on the gravity of the offence, not only for obstructing a labour inspector, but also for corrupting an inspector or reprisals against an inspector. (Endnote_19) The Committee notes that it appears that obstructing an inspector generally carries higher penalties than offences related to conditions of work and protection of workers. 295. It recalls moreover that, if penalties are to have a deterrent effect, the amount of fines should be regularly adjusted to take account of inflation. It would be regrettable in every respect if employers preferred to pay fines as a less costly alternative to taking the measures necessary to ensure compliance with the legal provisions on working conditions. Several trade union organizations have expressed concerns to this effect. (Endnote_20) 296. The Committee has noted the existence of provisions to that effect in Lesotho. (Endnote_21) In countries that have adopted such measures, an improvement in the application of legal provisions relating to certain conditions of work has been observed. According to the Government of Saudi Arabia, there has been a substantial decrease in the number of offences relating to the payment of wages, owing in part to the revision of circulars concerning penal sanctions. 297. In some countries, the amount of penalties is linked to the minimum wage. In Guatemala, for example, inspectors are empowered to impose penalties ranging from two to 12 times the minimum wage, depending on the gravity of the offence. (Endnote_22) In Cambodia the fine is a multiple of the daily reference wage; (Endnote_23) the same applies to Kazakhstan (Endnote_24) and the Bolivarian Republic of Venezuela. (Endnote_25) 298. In one country, the central inspection authority has suggested introducing a method of fixing fines based on confiscation of the profits derived from non-compliance. (Endnote_26) 299. Other methods of determining the amount of fines are applied in a number of countries with the aim of ensuring that they have the necessary deterrent effect. They are based on criteria such as repetition of the offence, (Endnote_27) business turnover, number of workers affected by the offence, (Endnote_28) or the nature and consequences of the violation. In Belgium, for example, violation of certain provisions carries a fine multiplied by the number of workers employed in the enterprise. (Endnote_29) 300. National legislation provides for a range of administrative sanctions as well as sentences of imprisonment. (Endnote_30) For example, in China the legislation provides for revocation of the employer's operating license for violation of the legal provisions on the employment of adolescents in hazardous work; (Endnote_31) in Jordan, the enterprise is closed in the event of failure to execute a compliance order issued by the labour inspector until remedial action is taken or a court decision is handed down. (Endnote_32) 301. In several countries, the penalty for non-compliance with occupational safety and health provisions is closure of the establishment, suspension of operations or revocation of the employer's operating licence. (Endnote_33) In Bulgaria, either at its own initiative or on a proposal from trade union organizations, the General Labour Inspectorate may order suspension of activities in the event of repeated failure to meet the obligation to conclude a written employment contract. (Endnote_34) 302. A repetition of the offence is generally deemed an aggravating circumstance. It may entail a doubling or even tripling of the amount of the fine or term of imprisonment. (Endnote_35) B. Effectively enforced penalties303. Penalties should not only be prescribed to punish violations of legal provisions relating to conditions of work and protection of workers, as is the case in most countries; they must also, according to the instruments, be effectively enforced. The available information suggests, however, that they are only rarely imposed and that an effective enforcement procedure is generally conducted only if the violation resulted in serious harm to health or safety. In general, the annual reports of the inspectorates that contain information on the outcomes of procedures for non-compliance indicate that legal proceedings mainly concern violation of provisions on illegal employment, failure to pay social contributions, and more rarely those relating to conditions of work. In this regard, the Committee considers that in order for the system of inspection to be consistent with its objectives, it is essential for the penalties imposed on persons guilty of violations of any kind to be effectively enforced, in conformity with the Conventions. 304. From the available information, it is clear that the punitive effect of the control measures taken by labour inspectors depends on a number of factors. In Germany, a large number of proceedings benefit from judicial consideration which deal with every case but which can be time consuming. In some countries, priority is clearly given to compliance orders and prompt payment of compensation to the workers affected by the violation. For example, the Government of New Zealand stated, in reply to a trade union organization (Endnote_36) that expressed concern about the small number of penalties imposed and lack of clarity of the relevant procedures, that the institution of court proceedings was not considered necessary except in the case of a serious offence. Several trade union organizations of Latin America that have complained of the inefficiency, lack of transparency and cumbersome nature of the system of punishing violations of laws and regulations on protection at work, partly blame lack of political commitment by the public authorities, exacerbated by inadequate cooperation between the labour ministries and the justice system. (Endnote_37) In Madagascar, although the new Labour Code provides that every violation report submitted by a labour inspector must be referred to a court through direct filing within one month, (Endnote_38) in practice measures should be taken to raise awareness among the magistrates of the bench and enforcement bodies so that penalties will be sufficiently high and be effectively and promptly enforced. In Rwanda, to ensure that the courts support the labour inspectorate, the Labour Code lays down the obligation for the public prosecutor's office to inform labour inspectors of the outcomes of their inspection reports. (Endnote_39) In Guatemala, inspectors may now obtain a writ of execution from the courts to enforce a decision imposing an administrative penalty. (Endnote_40) 305. In many African countries, the level of the penalties imposed and difficulty of enforcing them appears to have a serious impact on the motivation of labour inspectors to punish violations of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. 306. The annual reports of inspectorates sent to the ILO rarely include information or statistics concerning the legal provisions whose violation led to the application of penalties. Such information is essential, however, for assessing the general situation and for planning future inspection activities, as well as for providing technical information and advice targeted at the most critical areas and activities.
EndnotesEndnote 1In Gabon, for example, under section 225 of the Labour Code, before a record is drawn up concerning non- compliance with general occupational safety and health provisions, the employer must be given notice to carry out remedial measures within a time limit fixed by the inspector in the light of the circumstances and the amount of work required to do so. Endnote 2For example, in the Comoros, where, under section 163 of the Labour Code, it is left to the full discretion of labour inspectors to give warnings, issue compliance orders or give advice instead of instituting or recommending proceedings; in Guinea, where under section 363 of the Labour Code, inspectors may, if they deem it appropriate, give advice or issue warnings before drawing up a record of non-compliance; and in Qatar, where, under section 140 of the Labour Code, inspectors have a choice between: (1) giving advice on how to remedy the situation; (2) issuing warnings and compliance orders to the employer to eliminate the violation; and (3) issuing a report of non-compliance and submitting it to the Department for appropriate action. Endnote 3For example, in China, where the Labour Code merely provides that non-compliance is prosecuted in the manner prescribed by law. Endnote 4Under section 9 of the Labour Code the inspector issues an order to take remedial action within seven days. Endnote 5National Trade Union Bloc. Endnote 6Under Intersectoral Regulatory Instruction No. 13 of 6 July 1999. Endnote 7Association of Labour Inspectors of Minas Gerais (AAFIT/MG). Endnote 8South Africa (section 69 of the Basic Conditions of Employment Act, No. 95 of 1995). In Cambodia, under section 347 of the Labour Code, inspectors are empowered to address observations to the employer, to issue compliance orders with a fixed time limit, to record non-compliance in inspection records and impose a financial penalty for non-compliance with the labour code and its implementing regulations. In Viet Nam, under section 22 of Government Decree No. 38/CP of 25 June 1996, on penalization for administrative violations in the field of labour legislation, inspectors may impose a fine. The right of inspectors to impose fines is also recognized in Mongolia, under section 16(1) of the law on state inspection. In the Russian Federation, Government Order No. 78 of 28 January 2000 provides that state labour inspectors are empowered to initiate administrative proceedings against persons guilty of violating federal labour and occupational safety and health legislation. They are also empowered to forward to the law enforcement bodies documents giving a detailed description of labour law violations with a view to penal proceedings. Endnote 9Under section 1, paragraph 13(3), of the Act of 8 February 2000 on labour inspection inspectors are authorized to submit proposals for penalties for violation of obligations or non-compliance with measures imposed by the labour inspectorate, or a recommendation to revoke the employer's operating license or to impose disciplinary penalties. Endnote 10Government Order No. 78 of 28 January 2000 of the Russian Federation. Endnote 11In Benin (section 271 of the Labour Code); in Mali (section L.295 of the Labour Code); in Senegal (section L.194 of the Labour Code); in Cameroon (section 109 of the Labour Code); in Madagascar (section 239, subsections (4) and (5), of the Labour Code). Endnote 12In particular, in Japan (section 102 of the Labour Standards Law, No. 49 of 1947); in Qatar (section 137 of the Labour Code). Endnote 13In Burundi (section 299 of the Labour Code); in Cambodia (section 347 of the Labour Code); in Fiji (section 73(2) of the Factories Act). In Kazakhstan, labour inspectors may impose administrative penalties (section 550 of the Code of Administrative Offences of 2001); in Mali, in police court matters (section L.296(f) of the Labour Code); in Mongolia (section 16(1) of the law on state inspection). In the Republic of Moldova, the labour inspector has the right to impose, in accordance with the procedure established by law, administrative penalties, including fines, for violation of the provisions of legislative and other enactments relating to conditions of work and protection of workers in the performance of their duties (section 4(2)(b) of the Act on labour inspection). In Viet Nam, in the case of violations not liable to penal prosecution, labour inspectors are empowered to issue a warning or impose a fine (section 22 of Government Decree No. 38/CP of 25 June 1996 on penalization for administrative violations in the field of labour legislation). Endnote 14Under section 48(1) of the Health and Safety at Work Act, No. 4 of 1996. Endnote 15Saudi Arabia (section 192 of the Labour Code); Argentina (section 8 of Appendix II of Act No. 25,212 of 1999 ratifying the Federal Labour Pact on the general system of penalties for labour offences); United Arab Emirates (section 181(2) of Federal Law No. 8 of 1980 on the regulation of labour relations); Slovakia (section 1(17)(a) and (c) of Act No. 95/2000 on labour inspection); Turkey (section 107 of the Labour Law of 22 May 2003). In Tunisia, under section 240 of the Labour Code, any person who obstructs a labour inspector in the performance of his duties shall be liable to a fine, without prejudice to the application of the provisions of the penal code applicable to insulting a public official in the performance of his duties. Endnote 16Under section 305 of the Labour Code any person who obstructs or attempts to obstruct labour inspectors and monitors in the performance of their duties or the exercise of their powers is liable to a fine or two months' to one year's imprisonment or both. Endnote 17Under section 107 of the Employment Act, Chapter 91, Act 17 of 1968, any employer who hinders or obstructs an inspection officer in the exercise of his powers is guilty of an offence and liable to a fine or up to six months' imprisonment or both. Endnote 18Section 225(2) of the Penal Code. Endnote 19Section 193 of the Labour Code of 1994. Endnote 20In India, the Centre of Indian Trade Unions (CITU) deplored the paltry nature of the penalties established by section 95 of the Factories Act, 1948, section 14 of the Dock Workers (Safety, Health and Welfare) Act, 1986, and section 15 of the Environment (Protection) Act. Endnote 21Under section 240(2) of the Labour Code Order, the Minister of Labour and Employment, in consultation with the National Advisory Committee on Labour, is empowered to adjust penalties, if deemed necessary, at least every two years. Endnote 22Under Decree No. 18-2001. Endnote 23Section 360 of the Labour Code. Endnote 24Code of Administrative Offences of 2001. Endnote 25Title XI of the Organic Labour Act. Endnote 26Annual report of the central labour inspection authority of Croatia. Endnote 27For example, in Fiji (under section 72(1) of the Health and Safety at Work Act, No. 4 of 1996); in Mongolia (section 141 of the Labour Law of Mongolia). Endnote 28For example, in South Africa (Schedule 2 of the Basic Conditions of Employment Act, No. 75 of 1997; in Benin (section 307 of the Labour Code); in Cameroon (section 172 of the Labour Code); in China (section 25 of the Regulations on labour inspections, Order No. 423 of 1 November 2004 of the State Council of the People's Republic of China); in Qatar (section 143 of the Labour Code). Endnote 29Section 82 of the Act of 4 August 1996 respecting the well-being of workers while engaged in their work. Endnote 30In Argentina in the case of a repeat offence the establishment may be closed for up to ten days, while the workers retain their entitlement to remuneration, with a minimum service being guaranteed in the case of essential public services (section 5(5) of Appendix II to Act No. 25,212 ratifying the Federal Labour Pact). Endnote 31Section 94 of the Labour Act. Endnote 32Section 9(2) of the Labour Code. Endnote 33Gabon (section 229 of the Labour Code); Honduras (section 226 of the Health Code), for example. Endnote 34Section 404(2) of the Labour Code. Endnote 35Tunisia (section 237 of the Labour Code); Cambodia (section 383(3) of the Labour Code). In Comoros, under section 232 of the Labour Code, if the offence is repeated twice, the employer is liable to imprisonment in the case of violation of the legal provisions concerning notification of occupational accidents and diseases and those governing the freedom to appoint staff delegates and their freedom to carry out their duties. Endnote 36The New Zealand Council of Trade Unions (NZCTU). Endnote 37In particular, the AGITRA in Brazil and the ASEPA in Costa Rica. Endnote 38Section 239(4) and (5) of the Labour Code also prescribes a time-limit of six days for labour inspectors to submit the original violation report to the judicial authorities, failing which it will be time-barred. Endnote 39Section 5(a) of the Labour Code. Endnote 40Under section 15 of Decree No. 18-2001, a decision by a labour inspector is an enforceable instrument. |
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