Asbestos Convention, 1986 (No. 162) - Guatemala (RATIFICATION: 1989)

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The Committee notes the observations of the General Confederation of Workers of Guatemala (CGTG), received on 3 September 2014, and the Government’s reply.

Legislative and other measures to give effect to the Convention. The Committee recalls that for many years it has been requesting the Government to adopt the necessary legislative measures to give effect to the Convention. In this regard, the Committee notes the adoption of Government Decision No. 229-2014 issuing the new Regulations on occupational safety and health, and particularly Chapter II on hazardous substances, inflammable or hazardous dusts, gas or vapours. With reference to the draft Government Decision to regulate the use of asbestos in Guatemala, the Committee notes that the Government has requested the assistance of the National Occupational Safety and Health Council (CONASSO) and the Guatemalan Standards Commission (COGUANOR), which have established a subcommittee to analyse the draft text, taking into account the provisions of the Convention and the Committee’s comments. The Committee recalls that in its previous comments it indicated that the draft Government Decision was not fully in conformity with the provisions of the Convention. While noting the initiatives taken to bring the law and practice into conformity with the Convention, the Committee trusts that the Government Decision to regulate the use of asbestos in Guatemala will fully take into account the comments that it previously made. The Committee requests the Government to provide information on any developments in this regard.

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The Committee notes the observations made by the General Confederation of Workers of Guatemala (CGTG), received on 3 September 2014. The Committee requests the Government to provide its comments in this respect.

Legislative and other measures to give effect to the Convention. The Committee recalls that for many years, it has requested the Government to adopt the necessary legislative measures to give effect to the Convention. The Committee welcomes the Government’s request, in its report, for technical assistance from the Office in relation to the adoption of measures on the use and regulation of asbestos; and that the National Occupational Safety and Health Council (CONASSO) agreed exceptionally to specifically consider the Convention in 2014 and to include in its ordinary agenda for 2014–16 action on all ratified Conventions and their corresponding Recommendations which are related directly or indirectly to occupational safety and health. The Committee also notes that the Government forwarded to the Office a draft government decision to regulate the use of asbestos in Guatemala.

In this respect, while welcoming the Government’s initiative to give effect to the Convention, the Committee however notes that the draft government decision in question is not in full compliance with most of the Articles of the Convention. In particular, the draft does not provide for specific provisions concerning: the prohibition of the use of crocidolite (Article 11); the prohibition of spraying of all forms of asbestos (Article 12); the requirement in law of employers to notify, in a manner and to the extent prescribed by the competent authority, certain types of work involving exposure to asbestos (Article 13); and the prescription of exposure limits (Article 15). The Committee also recalls that the Convention requires the competent authority to establish a system for the authorization of employers or contractors qualified to carry out the demolition work referred to by Article 17; and specify methods to measure the concentrations of airborne asbestos dust and determine the intervals at which such monitoring shall be carried out, and other matters relating to the monitoring of the workplace (Article 20). The Committee notes that the draft does not give effect to these Articles of the Convention. With reference to Article 21 of the Convention (surveillance of workers’ health), the Committee observes that, although the draft provides that medical examinations shall be carried out, it does not specify the type of medical examination nor does it contain provisions on the notification of occupational diseases caused by asbestos as required by this Article of the Convention.

In light of the above, the Committee expresses the firm hope that, following previous consultations with the most representative of workers’ and employers’ organizations, the government decision regulating the use of asbestos in Guatemala referred to by the Government will be issued in the near future; and that it will give full effect to the Convention and will take full account of the comments made by the Committee. The Committee requests the Government to provide information on any development in this regard. Finally, the Committee trusts that the ILO will provide the technical assistance requested by the Government.

[The Government is asked to reply in detail to the present comments in 2015.]

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Article 3 of the Convention. Laws and regulations concerning the prevention and control of, and protection of workers against, health hazards due to occupational exposure to asbestos. Since its first comments in 1994, the Committee has repeatedly requested the Government to adopt the necessary legislative measures to give effect to the Convention. In its previous observation, it noted with regret that, according to the Government’s brief report, no law had been adopted in Guatemala on asbestos-related issues. It reminded the Government that, under article 19(5)(d) of the ILO Constitution, any member State which ratifies a Convention undertakes to “take such action as may be necessary to make effective the provisions of such Convention”. This obligation not only consists in incorporating the Convention into national law, but also entails the need to give effect to it in legislative terms or by means of any other measures that are consistent with national practice, such as those provided for by the Convention (for example, court decisions, arbitration awards or collective agreements), and to enforce it in practice. Furthermore, the Convention requires national law to regulate certain matters in particular, in addition to those covered by the present Article: Article 9 (prevention and control measures); Article 11 (prohibition of the use of crocidolite); Article 12 (prohibition of spraying of all forms of asbestos); and Article 13 (employers’ obligation to notify to the competent authority types of work involving exposure to asbestos). In the case of Article 13, the Government has not provided any information. The Committee notes with concern that, 20 years after ratification, no progress has been made in implementing the Convention in either law or practice. Furthermore, noting the information supplied by the Government in its report that the Ministry of Environment and Natural Resources issues recommendations against the spraying of asbestos and other mineral fibres, the Committee observes that this is not enough to give effect to the Articles that the Committee has been referring to, including the provisions on spraying, since Article 12 of the Convention refers not to recommendations but to the prohibition of the spraying of all forms of asbestos. The Committee furthermore notes with regret that, according to the Government’s report, no limits have been prescribed for the exposure of workers to asbestos or other exposure criteria for the evaluation of the working environment, as required by Article 15 of the Convention. The Committee once again urges the Government to adopt the necessary measures rapidly to give effect to the Convention in law and practice. It again invites the Government to avail itself of the technical assistance of the Office and to provide detailed information on the matters referred to above.

Article 4. Consultation of the most representative organizations of employers and workers concerned on the measures to be taken to give effect to the provisions of this Convention. Further to its previous comments, in which the Committee urged the Government to give effect to this Article and to provide information in this regard, the Committee notes with regret that, in its report, the Government merely indicates that it is exploring efforts for the examination of the Convention by the Tripartite Committee of the Ministry of Labour and Social Welfare. It also notes that, according to a report of 14 July 2013 of the National Council on Occupational Health, Hygiene and Safety, in the Council’s archives “no record was found of any technical or administrative steps being taken or planned to draft provisions regulating the handling of asbestos”. The report reiterates that Guatemala lacks legal and technical standards that regulate, prohibit or sanction the use of asbestos. It also indicates that the Council agreed to include on its ordinary programme of work for its 2014–16 mandate the examination of all ILO occupational safety and health Conventions. The Committee once again urges the Government to take immediate steps to consult the most representative organizations of employers and workers concerned on the measures to be taken to give effect to the provisions of this Convention and to provide detailed information on the most representative organizations consulted and on the results of the consultations.

[The Government is asked to reply in detail to the present comments in 2014.]

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Article 3 of the Convention. Measures to be taken for the prevention and control of health hazards due to occupational exposure to asbestos. In its previous comments the Committee noted the Government’s indication that draft Occupational Safety and Health Regulations would form the foundations for regulation of the use of asbestos and that it was planned to draw up specific technical standards on the prevention of hazards arising from the use of asbestos. In view of the fact that the information available did not enable it to gain a full picture of the application of the Convention, the Committee asked the Government to supply a detailed report. The Committee notes with regret that, according to the Government’s brief report, no law has been adopted in Guatemala which regulates the use of asbestos. From its initial comments onwards, the Committee has repeatedly asked the Government to adopt the necessary legislative measures to give effect to the Convention. The Committee reminds the Government that under article 19(5)(d) of the ILO Constitution, any member State which ratifies a Convention undertakes to “take such action as may be necessary to make effective the provisions of such Convention”. The obligation does not merely consist of incorporating the Convention into national law but also entails the need to enforce its application in practice and give effect to it in legislative terms by any other measures that are in conformity with national practice, such as those provided for by the Convention (for example, court decisions, arbitration awards or collective agreements). Furthermore, the Convention requires national law to regulate certain matters covered by various Articles of the Convention, such as Article 9 (prevention and control measures), the effective application of which depends on the legislation adopted pursuant to Article 3 of the Convention; Article 11 (prohibition of the use of crocidolite); Article 12 (prohibition of spraying of all forms of asbestos); and Article 13 (employers’ obligation to notify the competent authority of the types of work involving exposure to asbestos). In the case of Article 13, the Government indicates “none” in its reply. The Committee understands this reply to indicate that no type of work involving exposure to asbestos has to be notified to the competent authority. The Committee notes with concern that no progress has been recorded in the implementation of the Convention, more than 20 years after its ratification. Nor does the report contain any indication that any action is being taken by the Government to ensure the application of the Article of the Convention in practice, wherever possible given the absence of legislation in this area. The Committee therefore urges the Government to take the necessary steps to give legislative effect to the Convention and to supply detailed information on this matter. The Committee invites the Government to submit a formal request for technical assistance from the Office in this respect.

Article 4. Consultations with the most representative organizations of employers and workers concerned regarding the measures to be taken to give effect to the provisions of the Convention. The Committee urges the Government to undertake all possible efforts to ensure that consultations are held as soon as possible, with the most representative organizations of employers and workers concerned, on measures to be taken to give effect to the provisions of the Convention and to provide detailed information on the outcome of these consultations.

[The Government is asked to reply in detail to the present comments in 2013.]

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Legislation. The Committee notes the indication in the Government’s report that section 201 of the new Occupational Safety and Health Regulations lays down provisions on hazardous substances, prescribing that workplaces where there is exposure to dust, gas or vapours that are flammable or harmful to health, especially containing asbestos and lead, must observe specific limits with regard to capacity, ventilation, lighting, temperature and humidity. Section 205 of the same Regulations states that special rules will apply to hazardous substances, and section 7 states that the employer must provide workers with all necessary information regarding hazards and preventive measures and provide workers with the necessary means of protection. The report also indicates that it is planned to draw up specific technical standards on the prevention of hazards arising from the use of asbestos. According to information supplied in other reports, the Committee notes that the Occupational Safety and Health Regulations are still in the process of being adopted. The Committee requests the Government to ensure that effect is given to the provisions of the present Convention in the Regulations and in the technical code of practice which it also plans to adopt. The Committee wishes to emphasize the indication that the new legislation is being drawn up does not free the Government from the obligation to ensure the application of the provisions of the Convention during the transition period and to provide such information in its report. Furthermore, with the view of the fact that the information available does not enable it to gain a full picture of the application of the Convention, the Committee requests the Government to supply detailed information on the application of the present Convention, including new legislation, if adopted, and were it has not been, the manner in which the Government ensures the application of the provisions of the Convention.

Part V of the report form. Application in practice. The Committee notes the Government’s statement that, when inspections are conducted by occupational safety and health officers, checks are made that asbestos is not being used in construction materials or in clutch and brake components in motor vehicle repair shops. It also indicates that inspections were conducted at an enterprise manufacturing pipes, laminates and reflective heat insulation material, and that checks were made that asbestos was not being used. The largest cement manufacturing company in Guatemala, Cementos Progreso, was also inspected to ensure that asbestos was not being used, and a letter from the occupational safety and health manager of the enterprise is attached, certifying that asbestos is not being used and that the enterprise has a specific procedure for the handling and disposal of any old structures that might contain asbestos. The Committee requests the Government to provide information on the requirements with which compliance is verified by the labour inspectorate as regards workers involved in demolition work, on infringements reported and measures adopted, and to continue to supply information on the application of the Convention in practice.

[The Government is asked to report in detail in 2012.]

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1. The Committee notes the information provided in the Government’s report, particularly concerning the draft reform of the Occupational Safety and Health Regulations, which is still under discussion. It also notes that a preliminary draft text proposed by the employer members of the National Occupational Safety and Health Commission is currently being analysed.

2. The Committee requests the Government to take all the necessary measures rapidly to ensure the application of the provisions of the Convention. It hopes that the next report will indicate the progress achieved in this respect and requests the Government to provide a copy of the above texts as soon as they have been adopted.

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The Committee notes the information provided by the Government in its report. The Committee notes once again that the draft amendments to the Occupational Safety and Health Regulations will contain a chapter on the prevention and control of exposure to asbestos. In this respect, the tripartite commission has set up a working group to examine the above draft.

The Committee once again hopes that the necessary measures will be taken in the near future by the Government to give effect to all the provisions of the Convention. The Committee requests the Government to provide information on any progress achieved in this respect and to transmit a copy of the relevant amendments to the above regulations as soon as they are adopted, and particularly of texts giving effect to Article 3 of the Convention, which provides that national laws or regulations shall prescribe the measures to be taken for the prevention and control of, and protection of workers against, health hazards due to occupational exposure to asbestos. It also hopes that the most representative organizations of employers and workers concerned will be consulted, in accordance with Article 4 of the Convention, when adopting the necessary measures to give effect to the Convention.

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The Committee notes the indication in the Government's report that no specific regulations concerning the use of asbestos currently exist, but that the draft amendments to the occupational safety and health regulations will include a chapter on the prevention or control of asbestos exposure, prescribing technical provisions and working methods, including health measures in the workplace, for the maximum protection of workers.

The Committee hopes that the necessary measures will be taken by the Government, in consultation with the most representative organizations of employers and workers concerned, in accordance with Article 4 of the Convention, to ensure the application of all the provisions of the Convention. The Committee requests the Government to provide information on progress achieved in this regard and to supply a copy of the relevant amendments to the above-mentioned regulations when they are adopted, and in particular of Article 3 of the Convention, which provides that national laws or regulations shall prescribe the measures to be taken for the prevention, control of, and protection of workers against health hazards due to occupational exposure to asbestos.

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The Committee notes with interest the information provided in the Government's first report. It notes that the legislation referred to in the Government's report only sets forth general occupational safety and health measures. The detailed technical provisions of the Convention, however, often call for specific measures to be adopted in national law or regulations. The Committee would recall that Article 3 of the Convention provides that national laws or regulations shall prescribe the measures to be taken for the prevention, control of, and protection of workers against, health hazards due to occupational exposure to asbestos and that the measures to give effect to the provisions of the Convention are to be taken in consultation with the most representative organizations of employers and workers concerned (Article 4). The Government is requested to indicate, in its next report, the measures taken or envisaged in this regard and the progress made towards ensuring the application of all the provisions of the Convention in consultation with the representative organizations concerned.