Labour inspection sanctions and the judiciary comparative context

Labour inspection sanctions and the judiciary: comparative context (the case of Spain) Venice, September 2011 PABLO PÁRAMO

General features Ø Concurrence between criminal and administrative proceedings (OSH, Social Security, migration and employment); Ø Initiation of criminal proceedings involving Labour Inspection: a report to the Public Prosecutor; ØThe 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);

Main features ØAdministrative 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); ØLabour Inspectorate cannot appeal judicial decisions dismissing or quashing their own inspection reports/proposals/fines; ØAll fines stemming from the inspection action may be appealed before INDEPENDENT administrative courts; ØNew legislation has recently pointed towards a transfer of competence from administrative to labour courts.

Main features ØDecisions by the administrative Courts (revising financial fines) are in general communicated to labour Inspectorate, in particular where the fine is quashed). ØThe 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.

Labour Inspection and Labour Courts Ø LI initiates labour judicial proceedings through a lawsuit ex officio (the infringement notice functions/serves as 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; ØNo other tasks, such as labour inspectors participating in civil courts (France: some cases of dismissals, closing down the works in case of serious danger in OSH)

Labour Inspection and Criminal Courts: report to Public Prosecutor Ø Framework Protocol for Collaboration between Judicial General Council & Public Prosecutor Office and Ministry of Labour has been signed. Ø The Labour Inspectorate must provide: ü collaboration and technical assistance to Public Prosecutor; ü report of infringement notices on: q Serious breaches that may lead to a criminal accusation; q Serious violations related to accidents at work and occupational diseases; q 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) Ø Public Prosecutor must notify to the Labour Inspectorate: ü the opening of a criminal proceeding so the LI can suspend the administrative proceeding (not always there is this notification); ü files quashed; ü information, if so required, on proofs, documents, witnesses´ declarations, autopsy reports after accidents at work, etc; ü 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? Ø Periodical meetings between Public Prosecution Office 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 246 350

Cases reported to Public Prosecutor (OSH) Reasons 2008 2009 Number infringements 1277 (1812) 1321 Total number of very 59 serious infringements 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 Witness Legal/technical experts Position YES Remarks 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; In some EU MS inspectors may be called as witnesses, but not as legal/technical experts (MT)

Role of labour inspectors in relation to judicial proceedings in Spain Concept Providing evidences, documents and facts? Ratifying the report Inspectors become agents of the Court in cases of urgent proceedings? Parties in the judicial proceedings? Position YES NO NO Active cooperation with Public YES Prosecutor and Judicial Police? Remarks (imminent risk OSH, as in FR) In some countries LI is party in the administrative sanctioning proceeding (AU); Sometimes participation in taking declaration of witnesses and search warrants

Role of labour inspection in relation to judicial proceedings in Spain Concept May labour Inspectorate examine/cross-examine witnesses or make submissions in support of the charge and generally conduct the prosecution on behalf of the police? Who decides to call inspectors to court? Any role in the execution of judicial decisions? Position NO Remarks -Yes in MT Judge Not the law NO Only courts can enforce their own decisions through the police bodies. Inspectors do not have any role in the execution of judicial decisions

Problems related to judicial proceedings Specialization in the Courts Ø In Spain the setting up of a network of Public Prosecutors specialized on OSH matters has proved very useful for improving cooperation between labour inspection and Public Prosecutor before, during and after the judicial proceedings at national and regional level (other example is the Labour Auditor in BE). ØAfter a certain period of work, Public prosecutors and labour inspectors achieve a productive mutual understanding; üTraditionally, Spanish labour inspectors have complained that Public Prosecutors were not sufficiently specialized (as it has happened in FR); üNow, with specialised OSH Prosecutors this complaint is less relevant in criminal proceedings, though it lingers on in administrative judicial proceedings;

Problems related to duality of proceedings Double administrative-criminal liability Ø Triple identity: facts, defendant and cause; ØIn Spain the problem is: üconcurrence 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; üWhere the offender is a legal person, “non bis in idem” brings difficulties in order to identify the person directly responsible of the offence (it is not foreseen the criminal liability of legal person in these kinds of criminal offences); ü The High Constitutional Court and the Supreme Court in Spain have been bent on accepting this double sanction based on lack of identity between legal and natural persons;

Problems related to duality of proceedings Double administrative-criminal liability Ø Solutions: liability of legal persons, BUT in Spain, after a recent legislative initiative (Ley Orgánica 5/2010, 22 -6), the Penal Code lays down criminal liability of legal persons only in cases of illegal migration (not labour or OSH); Ø Solutions: Where the administrative proceeding fails (fine not paid or order not complied with), the criminal proceeding takes the lead. In IT, for instance, the Public Prosecutor keeps the criminal action suspended 120 days until the Labour inspector has informed about the compliance with the order or improvement notice or the payment of the fine; Ø Solutions: Art. 54 Convention for application of Schengen states that the subject´s identity (between legal and natural person) 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 of the entity;

More/less active role of labour inspectors: advantages and disadvantages Advantages of labour inspectors as Judicial Police? ü better information (notification of all decisions, better access to the judicial proceeding and its documents, witness declarations, autopsy reports); Disadvantages of labour inspectors as Judicial Police? üless autonomy, assignment of labour inspection force to tasks which are not properly inspection tasks;

Some other specific problems concerning administrative sanctioning proceeding as compared to the judicial proceeding: the case of Spain KEY ELEMENTS Procedure rules ADMINISTRATIVE Administrative rules influenced/ruled by criminal procedural principles JUDICIAL/CRIMINAL Penal principles Evidences Burden of proving Presumption of legality Freedom of evidence Presumption of certainty (gives Presumption of innocence in to presumption of innocence) Rights of defendant Ruled by criminal procedural All rights, including right to rules. BUT it is not clear the plead not guilty 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

Some other specific problems of the administrative sanctioning proceeding as compared to the judicial proceeding: the case of Spain KEY ELEMENTS Declaration of witnesses ADMINISTRATIVE Presumption of certainty if given to inspectors viva voce. Written declarations of a witness (“affidavit”) is admissible as evidence. No clear separation (sanctioning authority is judge and party at the same time). Decisions may be appealed to independent courts JUDICIAL/CRIMINAL Must be confirmed viva voce in penal trial. Written declarations of a witness (“affidavit”) is much more limited than in civil suits. Absolute separation Value of “infringement notice” Presumption of certainty Civil courts: value of evidence Criminal courts: freedom of evidence Appeal and execution of sanction Solve et repete Plea bargaining proceedings ES has not this possibility of regularizaion or plea bargaining. Employer may regularize situation and no prosecution is initiated (as in FR and IT). Specific regulation. (In some EU MSMT- 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. ) Separation of examining and decision stage

EXAMPLE OF GOOD PRACTICE IN JUDICIAL/ADMINISTRATIVE COOPERATION (Labour inspection and Public Prosecutor) Ø Ibiza May 2010; ØHotel chain; Ø Breaches: illegal & abusive posting of workers, working conditions far below the law, strong Social Security fraud, labour exploitation of foreign workers and excess of working time, bogus self-employment; ØInspection team: three labour inspectors and two sub-inspectors; ØPublic Prosecution team: two senior officials, Court secretary, other officials and judicial police; ØActivities by the labour inspectors, in collaboration with Public Prosecutors and Judicial Police: ü carrying out search warrants in different addresses; ü examining of all labour and Social Security documents in order to decide its confiscation; üassisting Public Prosecutors on different documents (labour contracts, etc); ütaking statements from executives and workers; üreporting Public Prosecutor with necessary elements for the accusation; assisting on the documents once they were confiscated.

Conclusions Ø 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 ); ØMixed systems: in case of concourse of an administrative proceeding and a penal proceeding, the penal aspect always takes over the lead (DE). Law clearly defines but there is room for assessment by: § The Public Prosecutor (IT), or labour inspector plus 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, depending on law and seriousness of facts;

Conclusions Advantages /disadvantages of both judicial/administrative systems Criminalization üAdvg: separation of powers üDisadvg: difficulty and slowness sometimes, excess of reproach for less serious offences; Administrative/civil measures ü Advg: swiftness and timely proceedings üDisadvg: Judge and party are the same: no real separation of examining and decision stages; Double via of punishment (administrative and criminal) üDisadvg: requires coordination between judicial authorities 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 ü Social policy makers must discuss and decide on: q the best system to combat social crime: criminalization or administrative sanctions; q a clear defining line between criminal and administrative offences (where non bis in idem arises: the higher the free assessment is the less sharp separation of powers is achieved); q appropriate measures to intensify, where necessary, cooperation and coordination between judges, public prosecutors, police and labour inspectors; q How to develop a clear role of labour inspectors in the judicial proceedings; q reach new approaches regarding whether LI may/may not be party and appeal judicial decisions dismissing or quashing inspection reports/proposals/fines stemmed from Inspection action. .

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