Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

Germany

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1955)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1973)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos. 81 (labour inspection) and 129 (labour inspection in agriculture) together.

Article 3(1) and (2) of Convention No. 81 and Article 6(1), (2) and (3) of Convention No. 129. Protection of the rights of foreign workers in an irregular situation concerning their residence status and cooperation with government services and public or private institutions. With regard to the Committee’s previous request on notifications made by labour inspectors to immigration and/or prosecution authorities, the Government indicates in its report that while violations are reported to the appropriate authorities in accordance with section 23(3) of the Occupational Safety and Health Act (OSH Act), statistics on these reports are generally not collected. The Committee notes that in its 2021 report, the Government indicated that such statistics were collected as it indicated that there were no notifications provided by the labour inspectors to the immigration authorities in 2016 and 2017 pursuant to section 23(3) of the OSH Act.

With regard to the Committee’s previous request on information on the actions undertaken by labour inspectors when they encounter violations of the legal provisions related to conditions of work and protection of wages for migrant workers, the Government indicates that OSH inspectors address any associated violations as part of their regular inspection duties without distinguishing between migrant and national workers. Furthermore, the Committee notes that the Agricultural Employers Liability Insurance Association within the Social Insurance Fund for Agriculture, Forestry and Horticulture (SVLFG), as part of its statutory obligations, provides information on individual cases to the appropriate authorities, such as the customs authorities. The Committee notes the Government’s indication that the responsibility for verifying the provision of the working conditions stipulated by the Minimum Wage Act, the Posted Workers Act and the Employee Leasing Act lies with the Customs Authority’s Tax Enforcement Unit for Undeclared Work (FKS). If the FKS identifies any violations in the course of its duties, it initiates non-compliance or criminal proceedings. In this respect, the Government indicates that the labour statistics from the FKS are publicly available online and include information on the number of investigation proceedings initiated due to criminal offences and the total fines from court judgements and penal orders. The Committee notes that these statistics contain information on the cases of preliminary proceedings initiated, cases concluded, number of fines and sentences imposed but do not provide breakdown statistics for cases involving foreign workers. The Committee further notes that most of the employers' liability insurance associations and statutory accident insurance institutions do not perform systematic recording of the outcome of judicial proceedings.

The Committee further notes that, at state level, in October 2023, the first joint event for exchanging knowledge and experiences and exploring opportunities for mutual support was held between the OSH authority and the Fair Mobility Hesse advisory service to better address the often-critical working conditions in precarious economic sectors and among migrant workers. Furthermore, talks were held in Hesse with the FKS, also with the aim of establishing and improving cooperation. Noting the overall lack of statistics on the enforcement of provisions concerning OSH and working conditions in relation to migrant workers, the Committee requests the Government to strengthen its efforts in order to improve the data collection of enforcement and supervisory activities conducted by the labour inspection authorities in relation to vulnerable categories of workers, including migrant workers, and on the application of section 23 of the OSH Act. The Committee requests the Government to provide information in this respect. The Committee also requests the Government to continue to provide information on mechanisms for information sharing between labour inspectors and other authorities to address working conditions in precarious sectors, including those employing a high share of migrant workers, and to indicate whether similar initiatives to the ones undertaken in Hesse on information sharing have been initiated in other states.

Article 21 of Convention No. 81 and Article 27 of Convention No. 129. Content of the annual labour inspection reports. In its previous comments the Committee noted the Government’s indication that a Länder working group had started working in order to improve the reporting and the collection of sector-based statistics by the inspection authorities of the Länder. The Government indicates that the reporting system is still being revised. The Committee notes that the labour inspection reports for 2020, 2021 and 2022 contain information on all the subjects listed in Article 21(a)–(g) of Convention No. 81. With regard to agriculture, the Committee notes that the labour inspection report contains breakdown statistics for the agricultural sector with regard to workplaces liable to inspection and employees working therein, as well as industrial accidents and occupational diseases. However, the Committee notes that the labour inspection reports do not include disaggregated data for the agricultural sector with regards to the number of inspection visits and the violations and penalties imposed by the inspection authorities. The Committee once again requests the Government to provide information on the progress made by the Länder working group in order to improve the reporting of labour inspection activities in the agricultural sector. The Committee requests the Government to continue to publish and communicate the annual reports of the labour inspectorate to the ILO, and ensure that they contain information on all the subjects listed in Article 21 of Convention No. 81 and Article 27 of Convention No. 129, including information on statistics of visits conducted in agriculture, and violations and penalties imposed in agriculture (Articles 27(b), (d) and (e) of Convention No. 129).

Issues specifically concerning labour inspection in agriculture

Articles 4 and 21 of Convention No. 129. Coverage of certain categories of agricultural workers by labour inspection and their registration to ensure their protection through labour inspection. Regarding the registration of workers in agriculture, the Government indicates that although agriculture is not specifically listed in Section 28a(4) of the Social Code (SGB) Fourth Book (IV), employers in agriculture are legally required to register employees for social security under Section 28a(1) of the SGB IV, as agriculture is a sector where employers must report employee information to the pension insurance provider's data centre. Regarding the availability of the data concerning the agricultural undertakings that have accident insurance coverage within the SVLFG’s agricultural accident insurance scheme to the inspection authorities of the Länder, the Government indicates that the OSH Act provides for the regular exchange of data between the Land authorities and the accident insurance institutions, from 2023 onwards. This is intended to ensure a coordinated process and to prevent such occurrences as duplicate inspections being performed by the SVLFG and the OSH authorities. In addition, the Government indicates that, although the Joint German Occupational Health and Safety Strategy (GDA), contains no specific components on cooperation in the agricultural sector, the SVLFG participates jointly with the Federal Government and the federal states in the third GDA period (2021–25), taking an active part in the coordinated actions and implementing the jointly agreed measures in agriculture. Under the GDA, state occupational health and safety authorities and accident insurance institutions have concluded a framework agreement on their cooperation for advising and monitoring companies and corresponding guidelines. Noting the information regarding the system of registration of workers in agriculture, the Committee requests the Government to indicate how it ensures in practice that relevant statistical data become available to labour inspection services to enable them to ensure an effective labour inspection strategy which includes the protection of particularly vulnerable workers.

Articles 6(1)(b), 14, 19 and 21 of Convention No. 129. Effectiveness of labour inspection activities in agriculture. In response to the Committee's request for statistics on agricultural workers not covered by mandatory social insurance, the Government once again only provides information on those covered by social security contributions, providing the approximate number of insured persons in the agricultural accident insurance scheme of the SVLFG for 2020, 2021, and 2022. The Government reiterates that staff of the supervisory authority for OSH are not generally assigned to specific economic sectors but highlights measures to meet staffing needs of supervisory authorities as a whole. The Committee notes the Government’s indication that the introduction in the OSH Act of a mandatory inspection quota in 2026, requiring state supervisory authorities to inspect a minimum of 5 per cent of firms annually per federal state, is expected to further support an increase in inspection personnel. The Government adds that, due to diverse agricultural hazards, farming operations are included among those operations selected according to the risk-based approach, and states like Thuringia also conduct seasonal audits. As for the number of inspectors working for the SVLFG, the Committee notes that, according to the labour inspection report, there were a total of 458 employees in 2022 (433 in 2019). With regard to the manner in which inspectors are associated with any inquiry on the spot into the causes of accidents with fatal consequences, the Government indicates that in cases of fatal accidents, the OSH authorities are informed by the accident insurance institutions, the police and fire department control centres, or by other means (third-party reports, media), as well through the employers’ accident reports, and that the OSH authorities carry out thorough investigations into all fatal and serious accidents. The Framework Agreement on the Collaboration of the Occupational Health and Safety Authorities of the Federal States, and the Statutory Accident Insurance Institutions within the Framework of the GDA, mandates the immediate sharing of information and the coordination on next steps, such as joint inspections. The Government indicates that, as a general rule, the SVLFG is involved by the labour inspectorates or the police. The Committee once again requests the Government to provide the statistics concerning agricultural workers that are not subject to mandatory social insurance.It also requests the Government to continue to provide information on the measures undertaken and planned in order to ensure that the number of labour inspectors is sufficient to secure the effective discharge of their duties and to ensure that agricultural undertakings are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. In this respect, referring to its comments under Article 21 of Convention No. 81 and Article 27 of Convention No. 129, the Committee requests the Government to provide information on the number of inspection visits conducted in agriculture, as well as the violations and sanctions imposed.