Labour Inspection Sanctions and Remedies Workshop Venice, 2-3 December 2010

1. Labour Inspection Sanctions and Remedies Workshop Venice, 2-3 December 2010 PABLO PARAMO www.ilo.org/labadmin

2. Judicial Decisions (administrative, civil, penal) • Sanctionsimposedbyadministrativeauthorities. Appealbeforeadministrative judicial Courts • Labour and Civil Courts do notimposesanctions • Criminal Courtsimpose fines and imprisioment

3. Exclusions or limitations in the application of the sanctioning system • Self-employment • Employers of domestic workers (particular regime) • Public Administration only can be sanctioned as long as it is an employer of workers in the fields of Social Security, labour law or employment. • It also depends to which Administration (central, autonomous, agencies) belongs the Labour Inspectorate

4. Exclusions or limitations in the application of the sanctioning system • On OSH matters the Administration cannot be sanctioned, only warnings and correction measures • sovereign immunity” o “Crown immunity”: “the Crown cannot prosecute the Crown” • For OSH sanctions there are other exclusions such as: • Urgency civil protection services; • Mine; • Industry of explosive devices; • Diplomatic institutions in Spain

5. Range of penalties available to labour inspectors according to the nature of the violation • Warning • Improvement notice • Proposal of administrative fines • Order to stop • Lodging claims before labour courts (“demandas de oficio”)

6. Range of penalties available to labour inspectors according to the nature of the violation • Proposing reductions of Social Security taxes (taxes for insurance of accidents at work and occupational diseases) when a company reduces accidents at work statistics • Initiating Social Security administrative proceedings (register of workers, settling of Social Security debts, etc) • Reports to Public Prosecutor

7. How do repeated violations or the severity of the offence (e.g. child or forced labour) affect the sanction • Repeated violations lead to double increased fines • Child labour is a very serious infringement and leads to administrative fines from 6.251 € to 187.515 €, without prejudice of criminal liability • If OSH infringements (e.g. dangerous machinery) affect children (less that 16 or 18 years old) the breach is very serious and may lead to fines 40.986 € a 819.780 €. Also criminal liability.

8. Warnings and advice instead of imposing penalties as a means of enforcement? • Inspector has freedom to warn, issueimprovementnotice or proposesanctions • The inspectors areobligued to proposesanctionswhen a damage has beencaused to workersbytheemployer´saction. • Law provides for a report to the competent authoritywhere a breach has notbeensubject to a proposal of sanction.

9. What is the procedure in practice that labour inspectors follow in such circumstances • No detailed regulation on warning proceeding, contrary to sanction proceeding. • Are there any guidelines for inspectors to help make such decisions? • The so called “criteriostecnicos”, which are binding technical guidelines for inspectors. There are also “criteriosoperativos” (operational guidelines) • Are there penalties for obstructing or corrupting (bribes) labour inspectors? How are these concepts defined under national law • Fines from 60 € 187.515 €. These infringements could be concurrent with employer´s criminal liability.

10. What methods exist for adjusting the amount of fines (e.g. to keep pace with inflation)? • The law provides for indexation of fines is according with cost-of-living index, but there is not a yearly automatic indexation • A Royal Decree has to be adopted by the Government. • Last indexation took place in 2007 (RD 306/2007, de 2 de marzo).

11. Method for determining the adequacy or quantum of fines • The following criteria are applied by Laboour Inspectors: • Fraud o connivence • Non-compliance with inspectors warnings and notices • Company´s turnover • Number of workers affected by the breach • Damage caused to workers

12. Method for determining the adequacy or quantum of fines (OSH matters) • Dangerousactivities • Permanentor temporal risk • Seriousness of damagesproduced • Shortcoming of the protection measures adopted by the employer • Number of workers affected by the breach • Individual or collective measures that were taken by the employer • Instructionsprovidedbytheemployer • Non-compliance with previous inspectors´ notices or warnings • Non-observance of proposals issued by OSH services or workers representatives with competences on OSH matters • Employer´s general behavior

13. Inspectionmeasures to enforcetheapplication of penalties and theoutcomes of procedures for non-compliance? • Execution and enforcement of sanctions is not in the hands of labour inspectorates. This power belongs to other administrative authorities: • Central Revenue authorities from Minister of Economics and Taxes • Revenue Authorities of the Autonomous Communities • The Inspectorate receives information on sanctions collected, though this information is not always available or complete

14. Inspectionmeasures to enforcetheapplication of penalties and theoutcomes of procedures for non-compliance? • A recent Report from the Directorate General of the Spanish Labour Inspection shows that only 13 out of 17 Autonomous Communities reported on number of fines collected (OSH and labour law sanctions), being only 11 authorities reporting significant data. • The results of these reports showed that 75% fines are collected and out of these 70% are collected by voluntary payment by the employers • Average time of execution and collecting of fines procedures: no available data

15. How are labour prosecutions initiated and what is the role of labour inspectors in this process? • Labour inspector in Spain areentitled to: • Issueproposals for sanctions “actas de infracción” • Lodge a lawsuitagainsttheemployer on labourissues (e.g. nature of therelationshipbetweenemployer and worker, labourcontract, labourdiscrimination) • The proposal of lawsuit is issuedthroughtheHead of Regional Inspectorate and is dealtwithbythelabourjudge.

16. How arethe social partnersinvolved in prosecutions (i.e. testifying, documentation etc.)? • Inspectors in their OSH inspectionson-sitehave to ask for theworkers´representativepresenceduringtheinspection. On othersubjects, it all depends on thenature of theinspection • Inspectors areentitled to enquirewitnesses and workers and their representatives • But law does not contain detailed regulation of social partners´ rights in the prosecution proceedings. • Trade Unions have a role in thesanctioningproceedingwherethefineimposed has aneffect on the legal sphere of a group of workers (TS de 17 de diciembre de 2001).

17. How arethe social partnersinvolved in prosecutions (i.e. testifying, documentation etc.)? • In criminal proceedings, whenit comes to OSH breachesTrade unions canappear in theprocededingswheretherearecollectiveinterests at stake • Workers are active parties in the proceedings in two cases: • Social security proceedings settling debts related to underdeclared salaries or illegal employment • Accidents at work • .

18. How accessible, timely and expensivearesuchprosecutions? • The inspectionactivitymaynotdelay for moret han 9 months and maynot be interrupted for morethan 3 months, saveifthedelay is due to thesubject to inspection or due to difficultiesrelated to internationalcooperation • Equally, theproceedingfromthestart (“acta”) untiltheadministrativedecisionimposing a finemaynotlastmorethan 6 months • No data available on how expensiveareprosecutions • Judicial prosecutionshaveotherdifferentdeadlines

19. How does the labour inspectorate support prosecution cases (i.e. providing testimony, documentation, etc • Inspetors help theJudges and PublicProsecutorsprovidingthemwith reports, documents, and “actas” • There is a narrowcooperationbetweenthelabourInspectorate and PublicProsecutors, especiallysincethesetting up of theSpecialPublicProsecutors on OSH matters • In general, thelabourInspectorateforwards to theSpecialPublicProsecutor all the reports and “actas” in case of seriousbreaches and breachesthataffectcertainspecificgroups (pregnant women, etc)

20. What sanctions or remedies are available to the court or judicial body in deciding such cases? • Criminal proceedings (inspector support as witness or expert and reports) • Administrativeproceedings (inspectors haveanactiverole) • Labourproceedings(inspectors canbringaboutthisproceedings) • Civil proceedingsfor declaration of civil liability (in accidents at work- no relevantrole of thelabour inspectors, theyareinitiatedbytheworkers). • It is important to note that labour inspectors can start a proceeding for declaring surcharge on disability allowances (from 30% al 50%) if the company failed to comply with OSH regulations and this non-compliance was the cause of the accident/disease • .

21. What sanctions or remedies are available to the curt or judicial body in deciding such cases? • Settlement of unpaid Social Security taxes proceedings (undeclared workers, under-declared wages and several responsibility: e.g. subcontracting) • Proposals to exclude or limit public procurement to companies that fail in the compliance of OSH regulations or other serious labour breaches.

22. Aretheresults of prosecutionssharedwithlabourinspectorates ? • The PublicProsecutormustnotifytheLabourInspectorate and the competent administrativeauthoritythestart of a penal proceeding and thefactsthatcouldturnrelevant in order to discontinueanadministrativeproceeding for thesamefacts; • In thiscase, theadministrativeproceeding is resumedoncethe judicial decision is definitive or thecasedismissed; • In praticethesenotificationsarenot always communicated.

23. What follow up is carried out by labour inspectors with respect to prosecution decisions? Do inspectors have a role in enforcing the decision of the court or judicial body? • The lawlaysdownthatCourtsmustconvey to thelabourInspectorate data whichcould be relevant for theinspectionwork • Decisions bytheadministrativeCourts (revisingadministrative fines) are in general communicated to thelabourInspectorate, in particular wherethefine is overturned • Criminal CourtsalsofacilitatethelabourInspectorate, (wheretheproceeding has notbeendeclared secret), theaccess to documents and evidences, witnessesdeclarations • Inspectors do nothaveanactiverole in theexecution of judicial decisions. Only theCourtcanenforcetheirown decisions through, wherenecessary, thepolicebodies.

24. Does the law provide for concurrent administrative, penal and/or civil procedures? • There is several responsibility in some cases (subcontracting is the most important). • There is also the possibility of concurrent procedures for the same facts to legal persons (administrative fine) and natural persons responsible of legal person(criminal liability)

25. Does the law provide for appeals All decisions may be appealed before independent courts.

26. Where collected fines are deposited (e.g. general Labour Ministry or labour inspectorate account) • Tax authorities • Social Security authorities.

27. Whataretheviews of employers’ and workers’ organizations on theuse of sanctions and themanner in whichlabour inspectors administerthem? No official position. Different positions in the media and several forums (tripartite bodies, conferences, etc)

28. Do the social partners play any specialrole (in particular trade unions) in thesanctioningprocess? • In general they are not interested parties in the administrative proceedings •  Case law attributes them the position of interested parties where there is a special connexion between the proceeding core object and a collective interest related to the union´s activity or objectives (STC 215/2001, de 29 de October de 2001). Example: administrative proceeding imposing a fine for employer´s failure to comply with occupational diseases regulations and serious risk for workers´health (STSJ Castilla y León de 31 de marzo de 2003)..

29. Other issues related to social partners • Tripartite committee with competences to deal with issues related to sanctions? • Since 2006, Tripartite National Commission of labourInspection • TherearealsoCommissions at regional level • Views of employers’ and workers’ organizations on theuse of sanctions and themanner in whichlabour inspectors administerthem? • No offfcial position.

30. Other issues related to social partners • Are there any existing agreements between the social partners and labour inspectorates on the use of preventive programs? • Tripartite National Commission discuss inspection objectives and priorities • Recently, at national and regional level, PREVEA is being implemented (similar to USA VPP o SHARP) • Since 2006, therearealsoCommissions at regional level

31. Are there any initiatives to raise awareness among workers and employers on the sanctioning system applied by labour inspectors? • At Ministry level • At regional level (administrative authorities of the Autonomous Communities) • Publishing sanctions for very serious OSH infringements • Are there any unique sanctions applied by inspectors such as mandatory training courses for those who violate the law or fines put towards a solidarity fund which can be recuperated by an employer through tax credits upon eventual compliance? • No provisions at this respect PROACTIVE AND INNOVATIVE APPROACHES TO SANCTIONS

32. TRANSNATIONAL SANCTIONS AND PROSECUTIONS EXPERIENCE WITH CROSS BORDER INSPECTIONS • Judicial vsadministrativesystems; • Directive 52/2009, standards on sanctions to employerswhoemployillegalthird countries workers; • FD 214/2005; • Convention 29 May 2000; • Project CIBELES; • Bilateral operationalagreements (PT-ES) • Spanish Law (vague references to cooperationwithother MS)