Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report received in July 2008, its replies to the Committee’s previous comments and the attached substantial documentation relating to the implementation of Legislative Decree No. 124 of 23 April 2004 on the rationalization of inspection duties relating to social security and labour.

Article 3, paragraph 2, of the Convention. Impact of monitoring and sanctioning of illegal employment and unauthorized work on inspection of conditions of work. In its previous comments the Committee had noted that numerous structural and legislative measures adopted to implement Legislative Decree No. 124/2004 focused on strengthening the powers of the Ministry of Labour and Social Policy for combating unauthorized work and illegal employment and that labour inspectors played a major role in this process. The Committee had emphasized the need to re-establish labour inspectors in their duties defined by the Convention and limit their cooperation with the immigration authorities to an extent that is compatible with the purpose of this Convention.

The Committee notes the indication by the Government that inspectors’ powers are not limited to the control of clandestine non-EU workers and their principal objective is to ensure observance of employment and social legislation. The Government enumerates the duties of the inspectors of the Ministry of Labour, Health and Social Policy under Act No. 628 of 22 July 1961 and Legislative Decree No. 124 of 23 April 2004. These include the monitoring of the application of all laws concerning civil and social rights, the protection of labour relations and the occasional control of contractual arrangements, typical or atypical; the monitoring of the correct application of contracts and collective agreements; the monitoring of occupational safety in the building sector only; the supervision of the functioning of pension funds and the welfare activities of professional associations; the carrying out of inquiries and investigations at the request of the Ministry of Labour; and the fulfilment of the functions required by legislation and regulations or delegated by the Ministry of Labour.

The Government adds that monitoring and control is entrusted not only to inspectors of the Ministry of Labour, Health and Social Policy but also to the Carabinieri of the Labour Protection Division, the inspectors of the social security and insurance institutions and the local health authority inspectors. The inspectors of the Ministry of Labour operate as officials of the criminal police “within the limits of the service assigned and under powers conferred under current legislation”. The Carabinieri of the Labour Protection Division perform similar functions to the inspectors of the Ministry of Labour, that is criminal police activities which, unlike those of labour inspectors, are not subject to “the limits of the service and under powers conferred under current legislation”. Monitoring and control functions in pensions and welfare matters are also exercised by the inspectors of the National Social Security Institute (INPS), the National Occupational Accidents Insurance Institution (INAIL) and other bodies who do not have the status of officials or agents of the criminal police. Finally, local health authorities also have staff responsible for monitoring and control of the application of legislation on occupational safety and health. Like the labour inspectors, this staff also has the status of criminal police officer.

The Committee also notes that, according to the comments of the Italian Confederation of Small and Medium Private Industry (CONFAPI) on the Government’s report, the Italian legislation in this area is largely in line with the Convention.

The Committee finally takes note of the detailed information attached by the Government on the results of special investigations carried out during the second half of 2006 and 2007 as well as several circulars issued by the General Inspectorate of the Ministry of Labour since 28 September 2006 for the implementation of Legislative Decree No. 124 of 23 April 2004. The Committee observes that the control of the legality of employment, including employment of clandestine migrants, appears to constitute one of the main targets of these circulars and investigations.

The Committee recalls from its previous comments that the role of the labour inspectorate, pursuant to the provisions of the Convention, is to monitor not the legality of the employment relationship but the conditions in which the work is performed and that the system of labour inspection must apply to all employees or apprentices, however they may be remunerated and whatever the type, form or duration of their contract. Cooperation with the immigration authorities should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve working conditions. In this respect, it should be emphasized that the expression “while engaged in their work” used in Article 3(1)(a) of the Convention indicates that the protection afforded by labour inspection must be provided to workers during their period of employment.

The Committee considers that the role assigned to labour inspectors as Carabinieri of the criminal police may severely jeopardize the performance of their original duties as defined by the Convention, namely to ensure that workers are protected against the imposition of conditions of work which are contrary to the legislation. As indicated in its previous comments, systematically involving labour inspectors in coordinated operations to combat illegal employment does nothing to promote a climate of confidence, which is necessary if cooperation on the part of workers with an irregular status of residency is to be achieved, especially in the form of reports and complaints to labour inspectors. On the contrary, it represents an obstacle to the opportunities for inspectors to obtain information regarding the conditions of work experienced by these workers.

The Committee therefore once again emphasizes the need for the Government to take measures to distinguish with sufficient clarity the powers and working methods of labour inspectors from those of the officials of other bodies responsible for combating illegal employment and migration. Such a separation in no way excludes the possibility of establishing a form of collaboration which involves labour inspectors drawing the attention of the competent authorities to employers in breach of the legislation regarding conditions of work and the protection of workers, especially as regards abuses reported with regard to workers whose situation is irregular. The Committee emphasizes once again that the financial consequences (fines and workers’ wage claims) resulting from the actions of the labour inspectorate can constitute an effective deterrent against the employment of persons in an irregular situation with regard to labour legislation. The Committee requests the Government to indicate in its next report any measures taken or envisaged to re-establish labour inspectors in their duties defined by the Convention and limit their cooperation with the immigration authorities to an extent that is compatible with the purpose of the Convention. It would be grateful if the Government would keep the Office informed of all progress made in this respect or, if necessary, inform it of any difficulties encountered.

Articles 20 and 21. Publication and communication to the ILO of an annual inspection report. In its previous comments, the Committee took note of the Government’s decision not to publish an annual report in the immediate future on account of institutional reforms concerning primarily the methods for the collection of statistics. The Committee notes from the Government’s latest report that, nevertheless, the results of inspection activities are published either on the Ministry of Labour web site or through press conferences. The Committee recalls that the publication of an annual inspection report is required by Article 20(1) and (2) of the Convention and once again requests the Government to publish such a report in the near future, containing detailed information on each of the matters covered by Article 21, and to ensure that a copy is sent to the ILO within the deadlines required by Article 20(3).