Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Safety and Health in Mines Convention, 1995 (No. 176) - Zambia (Ratification: 1999)

The Committee has been informed that the Office is providing technical assistance to ensure effective follow-up of the Committee’s comments on the application of the Convention. The Committee hopes that this technical assistance will enable the Government to improve its application of the Convention and asks the Government to provide detailed information in its next report on the outcome of this technical assistance.

The Committee notes the information on the effect given to the Articles 11 and 4(2) of the Convention. With regard to the latter provision, the Committee would draw the Government’s attention to the new ILO Code of Practice, Safety and Health in Underground Coalmines, 2006, which is available, inter alia, on the ILO’s website: www.ilo.org/public/english/dialogue/sector/techmeet/meshcm06/ code.pdf.

The Committee notes the Government’s clarification that the Mines Safety Department is responsible for the administration of occupational safety and health matters in mines, including through application of the Mines and Minerals Development Act (No. 7 of 2008), as amended in 2009 (which repealed and replaced the Mines and Minerals Act of 1995) and related mining legislation, and that the Occupational Safety and Health Services Department is responsible for enforcing the Factories Act (No. 2 of 1996), which does not apply to mines. The Committee further notes that the Mines and Minerals Development Act includes provisions which impose obligations on licence holders to ensure that any mining or mineral processing activity prevents harm to human health (section 115(b)) and creates entitlement to compensation in the event of harm (section 123(9). With reference to the information provided on the development of a national safety, health, environmental and quality policy and on the ongoing legislative reform, the Committee invites the Government to take into account the issues raised in the present direct request to ensure full compliance with Convention No. 176 and to consider measures that could be taken to ensure that the relevant national legislation fully reflects the modern, systemic approach to occupational safety and health as discussed, inter alia, at the 98th Session (2009) of the International Labour Conference in the context of the examination of the 2009 General Survey on occupational safety and health. The Government is asked to send copies of the national policy and relevant new legislation once adopted.

Article 2(2). Scope. The Committee notes the Government’s statement that no exemptions have been made under section 2101 of the 1973 Mining Regulations, but that several exemptions have been granted under section 2102. The Committee notes the information that such exemptions are normally requested by employers for specific operations or on behalf of individual employees. It notes that the employers and workers concerned have been fully consulted and that exemptions have been granted in situations where some provisions of the Mining Regulations have been considered inapplicable or unduly onerous to a particular mine or mines, for example in mines where there is new technology, whereas the Regulations related to archaic organizational structures. It also notes that some exemptions have led to the lifting of the ban on the employment of women in underground work. The Government indicates that every time an exemption is granted, it is accompanied with conditions ensuring that the protection is not inferior in comparison to the protection afforded by full application of the Convention. The Committee notes that some of the exemptions granted seem to indicate a need to revise the Mining Regulations and observes that such a revision could be considered in the context of the current legislative reform. The Committee also notes that Article 2 requires that consultations be held with the employers and the workers concerned as well as with the most representative organizations of employers and workers. The Committee requests the Government to provide further information on the measures taken to ensure that all the provisions of Article 2(2) of the Convention are taken into account when exemptions are granted, and to continue to send information showing how Article 2(2) is applied in practice.

Article 5(2)(d) and (f). Compilation and publication of statistics on accidents. The Committee notes the Government’s statement that the Mining Regulations, the Explosives Regulations and the Mines and Minerals (Environmental) Regulations, 1997, require the notification of accidents and dangerous occurrences to the Mines Safety Department or the Environmental Council of Zambia, but do not require the compilation and publication of statistics of such accidents. Referring to the abovementioned Conference discussion in the context of the examination of the 2009 General Survey on occupational safety and health, the Committee would like to emphasize the importance of collecting data on occupational accidents and diseases in the process of improving national action on occupational safety and health, as such data are an essential tool in understanding and assessing the risks to the health of workers in the workplace. The Committee requests the Government to provide information on all measures taken or envisaged, in law and in practice, to give full effect to this Article of the Convention.

Article 5(5). Plans of working. The Committee notes the Government’s statement that although mines employing less than 100 workers are not currently required to maintain mines plans according to Mining Regulation 501(2), it is the Government’s intention that the national legislation will be amended so that the above requirement will be applicable to all mines, in accordance with Article 5 of the Convention. The Committee requests the Government to provide information on all measures taken or envisaged, in law and in practice, to give full effect to this Article of the Convention.

Article 6. Preventive and protective measures. The Committee notes the Government’s reply to its previous comment that before the Environmental Council of Zambia authorizes a project, the developer is required to prepare an emergency response plan. The Committee also notes that under paragraph 34 of the Mines and Minerals Development Act, the holder of a large-scale mining license may suspend or curtail production for an unsafe working environment. The Committee notes, however, that the relevant national laws and regulations do not appear to reflect the specific requirements set forth in Article 6. The Committee requests the Government to indicate the specific provisions of the national legislation that ensure that employers in all mines in the country take steps to assess and subsequently address risks in accordance with the order of priority prescribed in Article 6 of the Convention.

Article 7(a), (b) and (g). Responsibilities of employers. The Committee notes that the Government’s response regarding Article 7(a), (b) and (g) does not appear to address the issues dealt with in these provisions of the Article. The Committee again asks the Government to provide information on all measures taken or envisaged, in law and in practice, to give full effect to Article 7(a), (b) and (g) of the Convention.

Article 8. Emergency response plans. The Committee notes the information supplied by the Government to the effect that Statutory Instrument No. 28, 1997 (not available to the Committee) and Part XII, sections 1210–1214 of the Mining Regulations would appear to give effect to this provision, but that it also intends to revise section 1213 of the Mining Regulations to make specific reference to mine rescue teams. The Committee notes, however, that Part XII of the Mining Regulations is entitled “First-aid and firefighting” and that section 1201–1214 appear to be applicable only in these contexts. The Committee requests the Government to provide information on all measures taken and envisaged, in law and in practice, to ensure that employers are required to establish emergency response plans specific to each mine, taking into account the unique situation of each mine and its particular risks and hazards, in accordance with Article 8. The Committee also asks the Government to send a copy of Statutory Instrument No. 28, 1997, for review.

Articles 9(a) and 10(a). Information and training. The Committee takes note of the information that there are no laws which specifically require workers to be fully informed of their working conditions, but would like to point out that Article 9(a) of the Convention relates more specifically to the employers’ obligation to inform the worker, rather than to any obligation on workers. The Committee also notes that the Government’s report is silent on the matter of the employers’ obligations to provide workers with adequate training and retraining programmes and comprehensible instructions. The Committee requests the Government to send information on any measures taken or envisaged, in law and in practice, to give full effect to Articles 9(a) and 10(a) of the Convention.

Article 12. Responsibilities of the employer in charge of the mine when two or more employers undertake activities at the same time. The Committee notes the Government’s statement that according to section 204(1), read in conjunction with section 205, of the Mining Regulations, the appointment of assistant managers does not relieve managers of their responsibility. The Committee notes however, that these provisions appear to apply to a situation involving a single employer, whereas Article 12 refers to situations where two or more employers are conducting mining activities simultaneously in one mine, and reflect a requirement to allocate responsibilities regarding measures involving the safety and health of workers between them. The Committee invites the Government to include an examination of how the cooperation between employers and workers in mines required by Article 12 can be incorporated into the national legislation in the context of the ongoing legislative review, and to report on all measures taken or envisaged, in law and in practice, to give full effect to this Article of the Convention.

Article 13 (1)–(4). Rights of workers and their safety and health representatives. The Committee notes the Government’s statement that although full effect is not at present given to Article 13, the intention is to examine how the rights prescribed by this Article can be incorporated into national legislation. The Committee reiterates its request that the Government indicate all measures taken or envisaged, in law and in practice: (a) to guarantee, under provisions of the national legislation, all the rights of workers and their safety and health representatives recognized under Article 13(1) and (2) of the Convention; (b) to ensure that procedures for the exercise of such rights are specified both by national laws and regulations and through consultations between employers and workers and their representatives; and (c) to ensure that the rights referred to in Article 13(1) and (2) of the Convention may be exercised without discrimination or retaliation.

Article 15. Cooperation between employers and workers. The Committee notes that, according to the Government, an obligation for employers and workers to cooperate, as required by this Article of the Convention, will be included in the national Safety, Health, Environmental and Quality Policy, which is currently being drafted. While welcoming the drafting of such a policy, the Committee points out that Article 15 specifically calls for such an obligation to be reflected in national laws and regulations. The Committee invites the Government to include an examination of how the obligation for employers and workers to cooperate in mines can be incorporated in the national legislation in the context of the ongoing legislative review, and to provide information on all measures taken or envisaged, in law and in practice, to give full effect to Article 15.

Part V of the report form. Application in practice. The Committee takes note of the information that a number of infringements by supervisors and managers have been observed but notes that further details have not been provided. The Committee requests the Government to provide more information on the application of the Convention in practice, including: statistics pertaining to the abovementioned infringements; information on all measures taken in practice to address such infringements; information on the number of workers covered by the measures giving effect to the Convention. It also asks the Government to supply relevant excerpts from inspection reports. Lastly, it asks the Government to clarify which categories of workers the legislation favours as regards infringements.

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