Occupational Health Services Convention, 1985 (No. 161) - Germany (RATIFICATION: 1994)

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The Committee notes the observations of the German Confederation of Trade Unions (DGB), received on 4 September 2015.

Article 2 of the Convention. National policy. With reference to its previous comment concerning the reform of the provisions on standard occupational health services (OHS) provisions for larger enterprises, the Committee notes that new accident prevention regulations entitled “Occupational Physicians and OSH Professionals” (DGUV Regulation 2) entered into force on 1 January 2011. The Government reports that one of the main objectives of DGUV Regulation 2 is to optimize the standard supervision provided by occupational physicians and occupational safety and health (OSH) professionals for larger enterprises employing more than ten workers. Moreover, the reformed regulation constitutes a joint accident prevention regulation for both industry and public sector occupational accident insurance schemes in Germany. The Government adds that the supervisory bodies of the occupational accident insurance institutions provide support for enterprises and public administrations in the practical implementation of DGUV Regulation 2. The Committee notes this information.

Article 5. The functions of occupational health services. The Committee notes the information provided by the Government in response to its previous comment regarding the functions of OHS required by the national legal framework. The Committee notes that, in addition to a non-exhaustive list of OHS functions prescribed in section 3 of the OSH Act (ASiG), DGUV Regulation 2 contains detailed provisions on the scope of the supervision to be provided, composed of basic and company-specific supervision, which includes the provision of support for risk assessments, the investigation of accidents, fundamental work-design activities and the action taken to address company-specific accident and health hazards. The Committee requests the Government to provide further information on the practical application of the OHS functions set out under section 3 of the ASiG and DGUV Regulation 2.

Application in practice. The Committee notes the indication by the DGB that there is an estimated shortfall of 4.7 million hours per annum of health-care provision, according to a 2014 study by the Federal Institute for Occupational Safety and Health, and that it is likely to increase to 6.8 million hours per annum over the next ten years due to the shortfall in occupational health physicians. The Committee requests the Government to provide its comments on this subject.

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The Committee notes the information provided regarding effect given to Articles 7(2), 8 and 12 of the Convention.

Article 2 of the Convention. National policy. With reference to its previous comments, the Committee notes the information provided indicating that the reform regarding standard occupational health service (OHS) provisions for larger enterprises has been delayed due to the proposed accident prevention provisions being too diverse, but that the Government expects the new rules to come into force on 1 January 2011. The Committees requests the Government to continue to provide information on legislative measures taken or envisaged to ensure the application of the Convention and to provide copies of legislative enactments.

Article 5. The functions of the occupational health services. The Committee notes the information provided indication that a non-exhaustive list of OHS functions are given under section 3 of the Safety at Work Act 2003 (ASiG). The Committee further notes that the draft proposal for the standard occupational health services provisions for larger enterprises, that is due to come into force on 1 January 2011, will describe in greater detail the basic provisions to be made in all enterprises in addition to the enterprise-specific component. The Committee requests the Government to provide information on the application of the functions of OHS under section 3 of the ASiG in practice.

Part VI of the report form. Labour inspections. The Committee notes the information that according to national statistics, some 350,000 inspections per year were carried out between 2006 and 2008, and that during this period an average of some 140,000 enterprises were inspected. It also notes that according to the 2008 federal Government report on the status of OHS, and the incidence of occupational accidents and diseases in Germany, all official insurers conducted a total of 690,658 inspections in a total of 384,914 enterprises. With reference to the information provided regarding the inspections services in the country, the Committee requests the Government to provide further information on the findings of the inspections carried out, including on contraventions relevant to the application of the present Convention.

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1. The Committee notes the information provided in the Government’s report and the attached legislation.

2. Article 2. National policy. The Committee notes with interest the adoption of the Accident Prevention Regulations “Company doctors and occupational safety and health specialists” (BGV A 2) establishing the possibility for small enterprises (employing less than ten workers) to provide occupational health services under the Safety at Work Act by applying either the standard health service provision or an entrepreneur model. It further notes the Government’s statement that it is currently revising the legislation applicable to larger enterprises and that it estimates this to be terminated by the end of 2008. The Committee requests the Government to continue to provide information on legislative measures taken or envisaged to ensure the application of the Convention and to provide copies of legislative enactments.

3. Article 5. The functions of the occupational health services. With reference to its previous comments concerning the extent to which certain functions enumerated in this Article could be have been exempted by an order issued by the Federal Minister of Labour, the Committee notes with interest that section 14, subsection of the ASiG has been repealed and that section 3 of the AsiG, section 23 of the BGV A 2 provide detailed regulations on the functions of occupational health services. The Committee requests the Government to provide additional information in its next report on the practical application of the functions of the occupational health services.

4. Article 7, paragraph 2. Organization of occupational health services. With respect to its previous comments concerning the manner on how employers may organize their occupational health services under section 19 of the AsiG, the Committee notes that, under section 24 of Book VII of the Social Code (SGB VII), the accident prevention and insurance associations, Berufsgenossenschaften (BG), can establish inter-enterprise occupational health services and can issue detailed regulations. It notes that the occupational health services shall be separate from the organizational units of the accident prevention and insurance associations as regards their organization, location and staff, and that these regulations may provide that an employer failing to appoint a company doctor or a safety specialist, or fails to do so within a specific time period, may be obliged to join an inter-enterprise occupational health service. The Committee requests the Government to provide additional information in its next report on the practical application of these inter-enterprise occupational health services, for example, the number of services in existence and the number of workers covered by them.

5. Article 8. Cooperation between the employer, the workers and their representatives. The Committee notes the Government’s statement with respect to the cooperation and participation in undertakings employing less than 20 workers, that BGV A 2 provides that employers must inform the workers of the type of occupational health service provided and the name of the contact persons. It further notes that section 89 of the Works Constitution Act provides for close cooperation between the works council and the employer and authorities responsible for OSH in all matters related to OSH and accident prevention. The Committee notes that work councils are normally set up in workplaces with five or more permanent workers eligible to vote. The Committee requests the Government to provide further information on the cooperation between the employer, the workers and their representatives in enterprises with less than five permanent workers.

6. Article 11. Qualifications of the occupational health services personnel. The Committee notes with interest the information provided by the Government that the authorization of not fully qualified company doctors and occupational safety experts under section 18 of the ASiG will only be granted if the employer undertakes to have the person concerned undergo further training within a specified time limit as a mandatory prerequisite for obtaining an authorization.

7. Article 12. Surveillance of workers’ health. The Committee notes that the Government omits to provide any information with respect to its previous comments concerning that the surveillance of workers’ health should take place as far as possible during working hours. The Committee therefore reiterates its previous requests and asks the Government to provide information in its next report on measures taken or envisaged to ensure that medical surveillance of workers’ health takes place a far as possible during working hours.

8. Part VI of the report form. Labour inspections. The Committee notes the Government’s statement that the implementation of the ASiG is the responsibility of OSH offices of Länder, whereas the implementation of the accident prevention regulations is the responsibility of the technical inspection services of the BG. The Committee requests the Government to provide additional information in its next report on measures taken by the offices of Länder and the technical inspection services of the BG to ensure the application of the Convention, including the number of inspections carried out, their findings, the number of workers covered by the legislation, disaggregated by gender if available.

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1.  The Committee notes the information provided by the Government in its reports. It requests the Government to provide copies, with its next report, of the Accident Prevention Regulations "Industrial Medical Prevention" (VBG 100) and of some of the federal and Länder directives, mentioned with respect to the application of Article 3, paragraph 1, and Article 6 of the Convention. The Committee further requests the Government to provide additional information on the following points.

2.  Article 3, paragraph 1.  In its report, the Government indicates that the Occupational Health and Safety Act allows no exceptions as regards the obligation of the employer to provide occupational health services. Sections 2 and 5 of the Law on Accident Prevention (ASIG), however, appear to leave it to the employer’s discretion, to a certain extent, as to whether the employer will appoint occupational health and safety personnel or not. Moreover, section 17 of the ASIG allows the non-application of the Occupational Health and Safety Act in several sectors of activity. The Committee requests the Government to indicate the criteria used: (a) to determine the extent of the employer’s discretion to appoint occupational health and safety personnel, and (b) to allow the non-application of the ASIG in several sectors of activity.

3.  Article 3, paragraph 3.  The Government indicates that in some of the relevant accident prevention regulations of the accident insurance funds (Berufsgenassenschaften) the obligation to provide occupational health services is still made dependent on the size of the enterprise (number of workers). The Government further states that the relevant threshold values in the Accident Prevention Regulations "Company Doctors" (VBG 123) are of a merely transitional nature and that an increasing number of accident insurance funds have, up to now, revised VBG 123 in such a way that occupational health care is provided for all enterprises, irrespective of the number of persons employed.

The Committee notes that progress has been made in the extension of the coverage of VBG 123 to most branches of industrial activity and that, where this has so far not been done, its implementation is under further discussion. The Committee requests the Government to continue to report on any progress made in establishing occupational health services for all workers, including at small workplaces.

4.  Article 5(a)-(k).  The Committee notes that all of the obligations listed in Article 5 appear to be met by sections 3 and 6 of the ASIG in a manner related to the specific risks of the individual undertaking. With respect to the extent to which the functions in question are carried out, section 14(2), in conjunction with section 2(1), No. 2 and No. 3, and section 5(1), No. 2 and No. 3, of the ASIG, provides for the Federal Minister of Labour to determine by ordinance that in individual categories of undertakings such functions need not be carried out at all or need only be carried out partly, depending on the size and the composition of the labour force or on the number and the composition of the occupational health service personnel available. The Committee understands that this implies the possibility that, especially at small workplaces, the health care system might fulfil only the basic level of requirements. The Committee would be grateful if the Government would specify the extent to which the functions enumerated in Article 5(a)-(k) are guaranteed by occupational health services, in view of the abovementioned power of the Federal Minister of Labour to allow exceptions in accordance with section 14(2) of the ASIG.

5.  Article 7, paragraph 2(a)-(e).  The Committee notes from the Government’s report that the individual employer is given the choice of meeting his obligation of providing occupational health care by either appointing an independent occupational medical practitioner or employing a company doctor as staff or engaging an industry-wide occupational health service. The report further indicates in a general way that the occupational health services may be organized by private bodies or by public authorities, e.g. the accident insurance authorities, but it is silent with regard to the system and the methods of organizing such services, in accordance with the possibilities listed in Article 7, paragraph 2(a)-(e). The Committee requests the Government to provide more detailed information concerning the system and methods of organizing the occupational health services.

According to section 12 of the ASIG, the competent supervisory authorities may impose specific orders on an employer as to how to organize occupational health services. According to section 14(1) of the ASIG, the Federal Minister of Labour is entitled to define by ordinance the measures to be taken by the employer in order to fulfil his legal duties, especially as regards the nomination of company doctors and safety experts. The Committee requests the Government to provide more information on the extent to which the system and the methods of organizing occupational health services are regulated on the basis of sections 12 and 14(2) of the ASIG.

The Committee requests the Government to indicate the manner in which the accident insurance institutions organize occupational health services, e.g. as set forth in section 2 of VBG 123 in conjunction with the relevant implementing provisions.

Finally, the Committee requests the Government to indicate whether occupational health services are organized by a combination of the methods described under paragraphs 2(a)-(c) of this Article and if so, give examples.

6.  Article 8.  Section 11 of the ASIG provides, in enterprises with 20 employees upwards, for the establishment of an occupational safety and health committee. The Committee requests the Government to indicate the measures taken or envisaged to bring about the cooperation and participation of the parties concerned in companies with less than 20 employees.

The Committee notes the information regarding the participation and co-determination rights of workers, as well as works councils with respect to occupational health and safety matters. The Committee requests the Government to provide further information on the different modes of such participation of the parties concerned in the implementation of the organizational and other measures relating to occupational health services, especially according to sections 80-85, 87 and 89-91 of the Works Constitution Act.

7.  Article 11.  In the information provided in the report relating to Article 7, paragraph 2(a), the Government points out that whatever method of organizing the occupational health service the employer chooses the standards required would remain identical under the terms of national law. Section 18 of the ASIG, however, enables the competent authorities to allow not fully-qualified company doctors and occupational safety experts to execute their functions during a period of further training. Thus, the Committee requests the Government to indicate the measures adopted or envisaged to ensure that the personnel providing occupational health services has adequate and full qualification.

8.  Article 12.  Please indicate also the provisions that ensure that the surveillance of workers’ health takes place, as far as possible, during working time.

9.  Article 14.  The Committee requests the Government to provide information on the manner in which workers are required to inform the occupational health services about any factor or suspected factor in the working environment which may affect the workers’ health.