Administrative and infringement procedures

In order to disclose the reasons of discrimination and prevent actions that may infringe laws in the field of labour the Parliamentary commissioner of National and Ethnic Minorities (hereinafter minority commissioner) has initiated a national investigation in 1998.[1] The investigation showed that the sanctions laid down in the law on labour supervision that are seemingly strict and theoretically have a restraining effect are in reality not really applied. The commissioner voiced his astonishment that while reports sent to him and sociological studies prove that certain employers discriminate Roma applicants during the establishment of labour relations and its termination, no ethnic infringement procedures were initiated and no labour fines were charged in the year of the investigation and before.

The government decree on certain infringements of rights effective even now regulates the state of affairs of the negative discrimination of employees.[2] According to this the employer who refuses to hire an applicant on basis of their gender, age, race, origin, religion, political conviction, membership of employee interest representing organisation, or activities connected to this organisation, or administers discrimination among workers because of the above mentioned can be fine 100.000 Forints. Such a procedure is the scope of authority of labour safety and labour inspector.

According to the investigation of the minority commissioner, it is due to the interpretation of an improper law that the labour inspectorates do not carry out a single procedure against negative discrimination. According to 133. § of the law on infringement (hereinafter Szabs. tv.)[3], the person acting on behalf of the bodies established in the law (e.g. the labour inspectorate), upon noticing infringement during an official investigation can impose a fine on the spot against the perpetrator or he can pass on-the-spot judgement over the infringement, if further evidence is not necessary.

The inspectorate argued that pursuant to this they can only conduct procedures based on the findings of the person that the inspectorate has sent out. Also, in case of prosecution only local government infringement authorities with general competence are eligible to proceed. If the declaration is made at the labour inspectorate after all, the case has to be transferred to the infringement authority of the local authority.

The minority commissioner disputed this interpretation of the law in his report, claiming that it draws the line of the scope of labour inspectorates in far too small a circle. According to his point of view, the purpose of formulating the special regulations that apply to the imposing a fine on the spot is not to eliminate procedures based on prosecution, but to assist the quick, immediate, single and successful conduct of the infringement procedure. In the course of on the spot investigation carried out by the inspectorates they can reveal facts based on which the fact of infringement, the person of the perpetrator, and the extent of danger he means for society can be established. According to the minority commissioner this is the reason why the law on infringement makes it possible, if the specified conditions are upheld, to omit ordinary procedure regulations. However he draws attention to the fact that compliance with the regulations prohibiting discrimination cannot be controlled within the framework of special procedures, on the spot judgement of infringements in not possible because of proving difficulties. Irrespective of the special regulations the legal possibility of inspectorates proceeding upon prosecution – which means conducting the infringement procedure according to ordinary regulations – also exists in connection with this infringement.

The problems stemming from dilemmas of competence are illustrated well with the case of F. Katalin, whose legal representation was undertaken by the Bureau.

In her case we turned to the labour inspectorate with a complaint. During the porcedure the hotel director denied ever having met the girl and his colleagues also confirmed this. The inspectorate – having accepted the reasoning of the hotel – asked the plaintive to prove that she has been in the hotel. However, apart from the testimony of the girl we only had indirect proof: the concordant presentations of 2 social workers, and the Matáv call-list that was acquired in the meantime, which proves that F. Katalin has called the hotel on the day in question twice from the public payphone at her workplace. The labour inspectorate stayed proceedings based on the absence of direct evidence.

F. Katalin appealed against the decision, claiming that the indirect evidence supported her statements and the Matáv call-list also confirmed her complaint. The presiden tof the National Laboursafety and Labour Inspectorate affirmed the decisionof the autority of first instance but justified the reason for rejecting the appeal differently. According to his standpoint the Inspectorate was not the competent authority in cases where no wrok relation has been established and F. Katalin has indeed never been legally employed by the hotel.

However, at the time the Inspectorate made this decision, the aforementioned infringement law was already in effect, and as the minority commissioner drew attention to this, the procedure should have been carried out in compliance with it.

Apart from the above mentioned infringement regulations, the law on labour supervision (hereafter Met) also deal with the prohibition of labour discrimination. According to Met regulations that were in effect at the time of the procedure, labour supervision also covers the prohibition of discrimination. However, the regulations of that time did not extend the competence of labour supervision to the proceedings that preceed the establishment of labour relations. The inspectorate referred to this when it rejected F. Katalin’s appeal based on the lack of competence, thus disregarding the possibility of an infringement procedure, as already mentioned.

The problem introduced above is resolved by a new Met resolution that was modified in March 2000. According to this resolution, with respect supervising the observation of the prohibition of discrimination, the force of the law expands to i.a. the preparations that the employer makes for the establishment of employment relations, particularly application and selection.

Labour supervision can be carried out by the inspector ex officio, or in certain cases on the report of the person whose rights or rightful interests the law affects.[4]

Experience shows that there are significantly more cases of labour discrimination than the number of cases the inspectorate has investigated. The regional job centres have the greates insight into labour discrimination, as they are in daily contact with both employers and employees. As we have already mentioned, the administrators of the branch offices are often confronted with a request from the employer: not to be sent Roma candidates.

The inspectorates keep in touch with the leaders of the job centres. During the course of their work the 2 organs are obliged to cooperate, harmonize their actions, and to hand over the necessary information, data, and signals in time.[5] The minority commissioner in his investigation also called attention to the problem that the workers of job centres see a lot of discrimination during their work, but nothing is done about these cases. The problem gets blocked in the phase of „official observation” and does not reach the inspectorate. The minority commissioner reacted to this by turning to the minister of social and family affairs with a recommendation for the minister to initiate the amendment of laws in order for:

a)      the job centres and their branch offices to have a signalling obligation towards the labour inspectorates upon observing violation of the prohibition of discrimination based on their own findings or the report of their clients,

b)      the labour inspectorates to be able to proceed on the account of not only personal (client) reports but also based on information coming from job centres, other state and social organs. In this case signalling also includes putting putting proofs at each other’s disposal.

From the annual report of the minority commissioner published in 2000 it can be established that the competent ministerium accepted the recommendation but when the law on labour supervision was amended, his proposal was not passed.[6]

The investigations carried out by the minority commissioner and the Bureau confirm the assumption that a large percentage of discrimination in the world of labour is „officially” known but nothing happens to a big majority of these. Upon hearing the illegal request of employers, the most that job centres can do is not to allot Roma candidates to the workplace, thus protecting them from certain rejection.

The question of what the inspectorate can do in case the job centre reports a complaint against discrimination arises. Similarly to the fact-finding practice of the Bureau it is our standpoint that the inspectorate can only start the investigation with the testing method. This, however, raises other question that naturally also have to be solved.:

Ø      a uniform practice of how the administrators of job centres should act upon coming across discrimination should be developed. The question of whether these should be recorded and in what form also arises.

Ø      We consider it necessary to legally regulate the question of whether a branch office should be obliged to report discrimination to the inspectorate or other authorities.

Ø      Labour inspectors have to learn the methods of revealing discrimination, with special attention paid to testing.

Summing up it can be stated that in the field of labour law a relatively wide scale of sanctions are at the disposal of administrartive authorities but their application in practice is often ineffective. That is the reason why it seem inevitable to straighten out the relationship between the authority being set up on basis of the law on equal opportunities and other, already existing authorities (e.g. labour inspectorates). Besides all this we would consider it useful for recommendations and methodological circulars to assist the existing organs during the course of their proceedings against discrimination.

If the labour inspector carrying out the investigation experiences any malpractices there are several opportunities: he can draw the attention of the employer to complíing with the regulations; he can oblige the employers to terminate these malpractices within a certain anount of time; he can recommend a so-called labour fine or can carry out an infringement procedure.[7]

The amount of labour fine upon the first violation of a single legal provision is between 50.000 and 2.000.000 HUF. Upon the violation of several legal provision and violating the law again within 3 years of the coming into effect of the resolution stipulating the earlier fine, this amount can be between 50.000 and 6.000.000 HUF. The fine can be imposed by the head of the county (capital) inspectorate of of the county in which the investigated workplace can be found.[8]

In another case of discrimination that the Bureau represented, the county labour inspectorate established the lack of competence. The Bureau considers the reasoning of the inspectorate to be completely well-grounded but we believe that it is worthwhile to include the case in the study as it is not a case of eceryday infringement in the world of labour.

An advertisement appeared in the Superinfo newspaper in the middle of July 2002, according to which a mulitnational company with premises in the countryside was looking for workers and job agencies. K. Ernő j.r and sr. were operating a limited partnership which also functioned as a job agency. They applied for an interview. They were informed by the representative of the company first over the phone, then in person that the factory needed several new workers However, when K. Ernő sr. Mentioned on the interview that he would be able to allot 30 Roma workers, the director of the factory told him that he cannot employ so many Romas as the proportion of Roma workers was limited to 10%. The director informed them that he would consider their proposal and get back to them in a couple of days. A the director did not keep his promise, K. Ernő sr. Called the company several times but he was sent away on every occasion with the explanation that the factory does not need any more workers. K. Ernő jr. asked his colleague to call the company and inquire about the job as if he had also applied for it and just wanted to know whether they still had openings. He was told that, yes, there is a constant neew for new workers and he should send in his application. K. Ernő jr. tried again. He asked a female colleague of his to call the company and pretend that she was a Roma woman and 5 people from her village would like to work for the company, can they apply? The representative told her on the phone that there are openings and that they should go in in person.

K. Ernő contacted the Bureau after this. He was convinced that the company did ot enter into an agreement with his father because he would have allotted a large number of Romas to the company. Both men found the practice of the company extremely humiliating and wanted the Bureau to investigate the case.

During the course of our investigation we used undercover testing – as already mentioned . i.e. we asked 2 Roma persons to apply for  a job at that certain workplace and work there for at least a week. According to their account the number of Roma workers in the factory did not reach 10% and the factory did not comply with even the most basic worksafety rules and healthy working conditions. We attached the report of the two tester to our complaint and sent them to the labour inspectorate.

The inspectorate initiated a procedure and carried out labour control at the premises of the company. Within the framework of this they talked to the director of the factory, the personnel offier and a couple of employees on random. The director and representative of the company gave a straightforward answer to the labour inspector’s clear and direct question: according to a report, Roma employees are discriminated in the factory and a percentage measure is apecified of how many Roma employees there can be. The director and personnel offic firmly denied these „accusations” of the inspector.

The Bureau has received 2 notifications about the labour preoceedings at the same time. In one of them, the Bureau was notified that since K. Ernő and his son did not turn to the company as potential employees and the discrimination did not affect them personally, a part of their declaration is being considered as a declaration of public interest. According to the investigation carried out on the basis of this, it was established that when hiring employees the employer does not make a difference between people based on nationality, race, ethnic group and the proportion of Romas allowed among the workersis not stipulated beforehand.

At the same time we received a resolution claiming that due to the lack of competence, the administrative procedure was stayed, because K. Ernő did not want to work for the company but made a business proposal as the representative of his limited partnership, which the other party did not accept. Accordingly, this act falls under the regulations of civil law and the inspectorate is not the competent authority to investigate the matter.

Although we accept the reasoning of the resolution concerning the lack of competence, we cannot let the method of the procedure go by uncriticised. No legal practice is necessary to realise that the discriminator was obviously going to give a negative answer to the yes or no question asked. We have called the inspectorates attention in our report to the fact that although Romas do work in the factory, the policy of the company is still discriminative, as it draws a percentiage line between the Roma and non-Roma employees. In this case even the testing method does not bring absolute success, as the question is not whether the company employs Romas or not, but if the percentage rate complained about by the plaintive really exists.

Based on the question of the labour inspectorate it is unlikely that a genuine picture can be created about the employment policy of the company. Luckily, the invetsigatio and sanctioning of such cases of discriminatin will be a lot simpler under the Egyb. Law. The reason for that is that the scope of the law encompasses other relations in connection with work and within the framework of reversed burden of proof, the factory has to explain why it did not enter into a contract with the job agency if it hired new manpower after the receipt of the company’s offer.

We also wish to note that although the Bureau can only deal with complaints of discrimination, our testers on the case have observed many irregularities in connection with the working conditions in the factory and the emloyment practice to which we felt necessary to draw the attetion of the inspectorate to. However, we have received no notification on whether any proceedings have been started with respect to the infringement and discrepancies that effect huge numbers of employees or if any sanctions have been imposed.

So far in the course of labour investigation the labour inspectorate has established the fact of discrimination in just one of the cases represented bt the Bureau. That was the only case in which a fine was imposed.

Cs. Gyula acquired the certification for security guard in 1996 and has a licence to carry arms. He also passed the psychological part of the aptitude test. However, he still has difficulties finding a job in his profession. He is constantly answering job advertisement in the Express. This also happened in 2002 and 2003, when he applied 3 times for the same job at a company that was looking for security guards above 35 years of age to guard offices and sites. He visited the company for the first time i autumn 2002. Prior to the personal interview, he called the company and was told by a lady that there was work for the taking and asked him to go into the office and fill out some forms. He went into the office the same day and filled out the forms. He was told that he would be notified of the result after the firms have been checked, but this did not happen. He applied the second time in August 2003. He called the number in the newspaper – which he already knew – and was given the same directions: go into the office and fill in the forms. After the personal interview he was told not to bother with filling out the forms, as it was unnecessary, because the clients of the agency do not employ Rome people- Cs. Gyula approached the company for the third time on an advertisement in the papers. Just like the before, he had been turned away with the same excuse again. However, on this occasion several people heard the humiliating interview.

Cs. Gyula filed a complaint against the company with the labour inspectorate and asked them to carry out an investigation. As a result of the investigation the inspectorate established that the reason the employer did not hire Cs. Gyula was that he was of Roma origin. During the procedure the employer – surprisingly – acknowledged the act of discrimination. As an excuse he said that he was sorry for what happened but he is forced by his clients not to employ Roma applicants as these clients do not wish to work together with Roma employees.

At the end of the procedure the labour inspectorate imposed a fine of 100.000 HUF on the employer. This decision was greatly welcomed. When applying sanctions the inspectorate considered the acknowledgement and regret of the company as mitigating circumstances and since this was the first time that the company was fined by the labour inspectorate, a sum that is only just above the minimum fine was imposed. It is our point of view that the effectiveness of the applied sanction and detering the perpetrator from committing further injustice will not really be realised. Paying a 100.000 Huf fine is not a serious burden, especially for the a well-running company. The employers in touch with the company will continue to request not to be sent Roma guards and the reputation of the company and its loyalty to its clients and economic interest will urge the company to carry on with this discriminating practice. Paying 100.000 Huf is far better than losing its clients.

According to the law, by the establishment of labour fine the timeperiod of the illegal state, the size of the damage caused and the number of employees concerned has to be particularily taken into consideration. The inspectorate considered the cooperation of the employer during the procedureand his plea agreement a factor that decreases the amount of the fine. The inspectorate established that no financial befell the applicant and finally that the infringement in the resolution only happened occasionally.[9]

As Cs. Gyula turned to our office after the deadline for appealing the resolution, we can only object to the resolution within this essay. It is a proven fact that Cs. Gyula has applied for a job with the company 3 times in 2003 and was always rejected with the same reasoning. The discriminative practice of the company – at least in the past year – is therefore proven. There is also no question about the possibility of another Roma security guard applying for the same job. The mere fact that only Cs. Gyula has filed a complaint in this case doe not exclude the possibility of this happening to someone else. The reasoning upon which the decision that infringement was only occasional was made is on the whole uninterpretable. In accordance with this we can question what qualifies as practice in the proceedings of the inspectorate? Following the logic of the reasoning it can be established that if such a „number ” does exist, it is probably higher that the number three.

Naturally it would be naív to think that due to the procedures of the inspectorates and the application of sanctions, the number of discrimination in the field of labour will decrease drastically and prejudice of employees will not change due to the condemning decision. But let us suppose that if a more severe fine was imposed, it would not be worthwhile for the employer to violate the rules laying down the prohibition of infringemen. The law also leaves the sum of the fines in the comptence of the inspectorates: This sum can reach the total of 2 million Huf in the first instance.

Finally, upon inspecting the effectiveness of the system of sanctions it is worthwhile to mention tha positive step that came with the acceptance of the 6/1996 labour mininster resolution. In compliance with this, the employer against whom labour fine was imposed cannot receive employment enhancing support for a year after the stepping into effect of the resolution.[10]