Labour inspection sanctions and the judiciary: comparative context

(the case of Spain)Venice, September 2011

PABLO PÁRAMO

General features

Concurrence between criminal and administrative �

proceedings (OSH, Social Security, migration and employment);

Initiation of criminal proceedings involving Labour �

Inspection: a report to the Public Prosecutor;

The inspector, however, does not play an active role (as �

in FR) or in MT (where the OHS Authority conducts the prosecution on behalf of the police, though not as judicial police);

Administrative sanction is always subject to an appeal �

before an administrative/civil court (as in PT). BUT NOT to a criminal Court (as in DE, AU, IT);

Labour Inspectorate cannot appeal judicial decisions �

dismissing or quashing their own inspection reports/proposals/fines;

All fines stemming from the inspection action may be �

appealed before INDEPENDENT administrative courts;

New legislation has recently pointed towards a transfer �

of competence from administrative to labour courts.

Main features

Decisions by the administrative Courts (revising �

financial fines) are in general communicated to labour Inspectorate, in particular where the fine is quashed).

The State Attorney/Solicitor defends Inspectors´reports �

(fines) and notifies Court´s decisions and rulings to the Labour Inspectorate, so the inspectorate has the opportunity to study and analyze the reasons for dismissals of files, if any.

Main features

LI initiates labour judicial proceedings through a lawsuit ex �

officio (the infringement notice functions/serves a s a lawsuit):

Discrimination at work;•

Nature of contract between employer and worker (commercial, labour, •temporal, indefinitive, etc);

Damages caused by the employer to workers´wages;•

Workers’ fundamental rights and working conditions;•

Illegal temporary agencies activities;•

No other tasks, such as labour inspectors participa ting in civil �

courts (France: some cases of dismissals, closing d own the works in case of serious danger in OSH )

Labour Inspection and Labour Courts

Labour Inspection and Criminal Courts: report to Public Prosecutor

Framework Protocol for Collaboration between Judic ial �

General Council & Public Prosecutor Office and Ministry of Labour has been signed.

The Labour Inspectorate must provide:�

collaboration and technical assistance to Public Prosecutor;�

report of infringement notices on:�

Serious breaches that may lead to a criminal accusation;�

Serious violations related to accidents at work and occupational �

diseases;

Offences related to specific groups of workers who are specially �

protected by law (e.g. child labour, pregnant women or women after giving birth)

Protocol for Collaboration (continue)

Public Prosecutor must notify to the Labour Inspect orate:�

the opening of a criminal proceeding so the LI can suspend the �

administrative proceeding (not always there is this notification);

files quashed;�

information, if so required, on proofs, documents, witnesses´ �

declarations, autopsy reports after accidents at work, etc;

Criminal Courts also facilitate (where the proceeding has not �

been declared secret) the access to documents or evidences and witnesses´ declarations to the Labour Inspectorate.

How does this collaboration work in practice?

Periodical meetings between Public Prosecution Offi ce and �

Labour inspectorate at national and regional level. Discussion about:

stage of the files reported by labour Inspectorate to the Public -Prosecution Office;

solving situations related to “non bis in idem” situations;-

as a good practice, the labour Inspectorate provides the Public -Prosecutor with probative material (photographs, documents, sketchs or information that facilitates understanding on, for example, working equipment, files reported, technical legislation, etc);

In an informal way, inspectors meet/talk with Public Prosecutor -on the different files and inspectors provide Public Prosecutors with technical assistance just before the judgement takes place;

Cases reported to Public Prosecutor (OSH)

Outcomes 2008 2009

Files dismissed 200 241

Criminal prosecution 264 345

Files pending 350 246

Cases reported to Public Prosecutor (OSH)

Reasons 2008 2009

Number infringements 1277 (1812) 1321

Total number of very serious infringements

59 21

Fatal accidents 174 175

Serious accidents 532 490

Orders to stop work 92 69

Role of labour inspection in relation to judicial proceedings in Spain

Concept Position RemarksWitness YESLegal/technical experts YES In some EU MS inspectors may

be called as witnesses, but not as legal/technical experts (MT)

Judicial Police NO Labour inspectors don’t have the quality nor capacity of judicial police officers (same as in BE labour Inspection Act of 16 November 1972). Other countries: yes (IT), no (DE);

Power of judicial police NO yes in FR.DE: FKS (Finanzkontrolle Schwarzarbeit) on ilegal work: investigating officers of the Public Prosecution officers and act on its behalf;

Role of labour inspectors in relation to judicial proceedings in Spain

Concept Position Remarks

Providing evidences, documents and facts?

YES

Ratifying the report YESInspectors become agents of the Court in cases of urgent proceedings?

NO (imminent risk OSH, as in FR)

Parties in the judicial proceedings?

NO In some countries LI is party in the administrative sanctioning proceeding (AU);

Active cooperation with Public Prosecutor and Judicial Police?

YES Sometimes participation in taking declaration of witnesses and search warrants

Concept Position RemarksMay labour Inspectorate examine/cross-examine witnesses or make submissions in support of the charge and generally conduct the prosecution on behalf of the police?

NO -Yes in MT

Who decides to call inspectors to court?

Judge Not the law

Any role in the execution of judicial decisions?

NO Only courts can enforce their own decisions through the police bodies. Inspectors do not have any role in the execution of judicial decisions

Role of labour inspection in relation to judicial proceedings in Spain

Problems related to judicial proceedings

Specialization in the Courts

In Spain the setting up of a network of Public Pro secutors specialized on OSH �

matters has proved very useful for improving cooper ation between labour inspection and Public Prosecutor before, during and after the judicial proceedings at national and regional level (other e xample is the Labour Auditor in BE).

After a certain period of work, Public prosecutors and labour inspectors �

achieve a productive mutual understanding;

Traditionally, Spanish labour inspectors have compl ained that Public �

Prosecutors were not sufficiently specialized (as i t has happened in FR);

Now, with specialised OSH Prosecutors this complain t is less relevant in �

criminal proceedings, though it lingers on in admin istrative judicial proceedings;

Problems related to duality of proceedings

Double administrative-criminal liability

Triple identity: facts, defendant and cause;�

In Spain the problem is: �

concurrence between a natural person accused in the criminal proceeding �

and a legal person in the administrative proceeding ; there is a discussion as whether both can be sanctioned for the same facts;

Where the offender is a legal person, “ non bis in idem” brings difficulties �

in order to identify the person directly responsibl e of the offence (it is not foreseen the criminal liability of legal person in these kinds of criminal offences);

The High Constitutional Court and the Supreme Cour t in Spain have been �

bent on accepting this double sanction based on lac k of identity between legal and natural persons;

Problems related to duality of proceedings

Double administrative-criminal liability

Solutions: liability of legal persons, BUT in Spain, after a recent legislative �

initiative (Ley Orgánica 5/2010, 22-6), the Penal C ode lays down criminal liability of legal persons only in cases of illegal migration (not labour or OSH);

Solutions : Where the administrative proceeding fails (fine n ot paid or order not �

complied with), the criminal proceeding takes the l ead. In IT, for instance, the Public Prosecutor keeps the criminal action suspend ed 120 days until the Labour inspector has informed about the compliance with the order or improvement notice or the payment of the fine;

Solutions: Art. 54 Convention for application of Schengen sta tes that the �

subject´s identity (between legal and natural perso n) must be observed when there is acquittal due to non-existent facts or the crime has been committed by a legal person through its proxies acting on behalf o f the entity;

More/less active role of labour inspectors: advantages and

disadvantages

Advantages of labour inspectors as Judicial Police?

better information (notification of all decisions, better access to the �

judicial proceeding and its documents, witness decl arations, autopsy reports);

Disadvantages of labour inspectors as Judicial Police?

less autonomy, assignment of labour inspection forc e to tasks which �

are not properly inspection tasks;

Some other specific problems concerning administrative sanctioning proceeding as compared t o

the judicial proceeding: the case of Spain

KEY ELEMENTS ADMINISTRATIVE JUDICIAL/CRIMINALProcedure rules Administrative rules

influenced/ruled by criminal procedural principles

Penal principles

Evidences Presumption of legality Freedom of evidenceBurden of proving Presumption of certainty (gives

in to presumption of innocence)Presumption of innocence

Rights of defendant Ruled by criminal procedural rules. BUT it is not clear the application of some, as:Admit to committing -

infringements (right to plead not guilty)There is an obligation of -

collaboration with administrative authorities and inspection services

All rights, including right to plead not guilty

Some other specific problems of the administrative sanctioning proceeding as compared to the judicial

proceeding: the case of Spain

KEY ELEMENTS ADMINISTRATIVE JUDICIAL/CRIMINALDeclaration of witnesses Presumption of certainty if given to

inspectors viva voce. Written declarations of a witness (“affidavit”) is admissible as evidence.

Must be confirmed viva voce in penal trial. Written declarations of a witness (“affidavit”) is much more limited than in civil suits.

Separation of examining and decision stage

No clear separation (sanctioning authority is judge and party at the same time). Decisions may be appealed to independent courts

Absolute separation

Value of “infringement notice” Presumption of certainty Civil courts: value of evidenceCriminal courts: freedom of evidence

Appeal and execution of sanction Solve et repete Solve et repete

Plea bargaining proceedings ES has not this possibility of regulariza-ion or plea bargaining. Employer may regularize situation and no prosecution is initiated (as in FR and IT).

Specific regulation. (In some EU MS- MT- the intimated person needs not pay the fine, in which case, judicial proceedings would be initiated, not for failure to pay the fine, but for the contravention.)

EXAMPLE OF GOOD PRACTICE IN JUDICIAL/ADMINISTRATIVE COOPERATION (Labour inspection and Public Prosecutor)

Ibiza May 2010;�

Hotel chain;�

Breaches: illegal & abusive posting of workers, wo rking conditions far below the law, �

strong Social Security fraud, labour exploitation of foreign workers and excess of working time, bogus self-employment;

Inspection team: three labour inspectors and two su b-inspectors;�

Public Prosecution team: two senior officials, Court secretary, other officials and judicial �

police;

Activities by the labour inspectors, in collaborati on with Public Prosecutors and Judicial �

Police:

carrying out search warrants in different addresse s;�

examining of all labour and Social Security documen ts in order to decide its �

confiscation;

assisting Public Prosecutors on different documents (labour contracts, etc);�

taking statements from executives and workers;�

reporting Public Prosecutor with necessary elements for the accusation;�

assisting on the documents once they were confisca ted.

Conclusions

Genuine judicial systems : law clearly defines what behaviors are subject to �

criminal punishments and what other actions are to be sanctioned by an administrative fine (France, UK );

Mixed systems: in case of concourse of an administrative proceedi ng and a �

penal proceeding, the penal aspect always takes ove r the lead (DE). Law clearly defines but there is room for assessment by:

The Public Prosecutor (IT), or labour inspector pl us Public Prosecutor �

(Auditor in BE), depending on law and seriousness of facts;

It an official who decides whether the conduct is to be prosecuted by �

criminal courts or by administrative authorities, d epending on law and seriousness of facts;

Conclusions

Advantages /disadvantages of both judicial/administrative systemsCriminalization

Advg: separation of powers�

Disadvg : difficulty and slowness sometimes, excess of repr oach for less serious �

offences;

Administrative/civil measures

Advg: swiftness and timely proceedings�

Disadvg : Judge and party are the same: no real separation of examining and decision �

stages;

Double via of punishment (administrative and crimin al)

Disadvg : requires coordination between judicial authoritie s and administrative and �

implies lack of legal certainty

Note: some solutions ( intent forms in committing an offence for criminal liability and negligence forms for administrative responsibility)

Recommendations

Social policy makers must discuss and decide on:�

the best system to combat social crime: criminaliza tion or administrative �

sanctions;

a clear defining line between criminal and adminis trative offences (where �

non bis in idem arises: the higher the free assessm ent is the less sharp separation of powers is achieved);

appropriate measures to intensify, where necessary , cooperation and �

coordination between judges, public prosecutors, po lice and labour inspectors;

How to develop a clear role of labour inspectors i n the judicial �

proceedings;

reach new approaches regarding whether LI may/may not be party and �

appeal judicial decisions dismissing or quashing in spection reports/proposals/fines stemmed from Inspection act ion.

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