Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Occupational Safety and Health Convention, 1981 (No. 155) - El Salvador (Ratification: 2000)

I. Convention No. 155

Article 4 of the Convention. Formulation, implementation and periodic review of national policy in consultation with the social partners. In relation to its previous comments, the Committee notes the Government’s indication that although the National Policy of 2006 was due to end in 2010, it is still in force. The Ministry of Labour and Social Security (MTPS) considers that this policy does not meet current needs and requirements and, in addition, contains points that do not coincide with the recent General Act concerning the prevention of occupational risks, which was adopted by Legislative Decree No. 254 of 2010. The Committee notes that the Government has not supplied the requested information on how, and how often, the policy is reviewed, or the results of the evaluation and areas for future action. Moreover, it does not provide information on the activities relating to the review of national policy undertaken by the National Occupational Safety and Health Board (CONASSO), which, according to the Government’s indication in its previous report, is the tripartite social dialogue body that constitutes the forum for the analysis, definition, consultation and promotion of policies, programmes, projects and actions for the prevention of occupational risks. Furthermore, the Government indicates that, at the time of preparing its report, there were no worker representatives on the Higher Labour Council, the body to which CONASSO is attached, and so the workers were not consulted on the report. This suggests that there is no active consultation regarding the implementation and revision of the national policy. The Committee emphasizes that the national policy provided for in Article 4 of the Convention entails a dynamic, cyclical process and requires periodic review to ensure that progress including scientific and technological change occurring in the working environment can be incorporated into the national policy. Accordingly, Article 4 provides that the formulation, implementation and periodic review of a national policy on occupational safety and health (OSH) must be undertaken in consultation with employers’ and workers’ representatives. The Committee requests the Government to take the necessary measures to ensure a periodic review of national OSH policy, in consultation with the most representative organizations of employers and workers, and to supply information in this respect, indicating the consultations held. The Committee once again requests the Government to provide information on the manner in which the national policy is reviewed and at what intervals, indicating the results of the evaluation of the areas of action for making future improvements. The Government is also requested to provide any related documentation.

Article 5(e). Protection of workers and their representatives. The Committee notes that the information supplied is not relevant to this Article. As the Committee indicated in paragraph 73 of its 2009 General Survey on occupational safety and health, Article 5(e) of the Convention refers to the protection of workers and their representatives from disciplinary measures as a result of actions properly taken by them in conformity with the national policy referred to in Article 4 of this Convention. The Committee requests the Government to provide information on the effect given in law and in practice to Article 5(e) of the Convention.

Article 7. Overall and sectoral reviews. The Committee notes that the Government provides information on medical examinations and reviews of the working environment, which does not correspond to this Article of the Convention. The present Article refers to reviews of the situation in specific sectors (such as mining) or in relation to specific subjects (for example, the most vulnerable workers) and indicates that the purpose of such reviews is to identify major problems, devise effective methods for dealing with them, set priorities for action and evaluate the results. The Committee requests the Government to provide information on the existence of mechanisms for undertaking the types of review referred to above, and to indicate any reviews that have been undertaken and the results thereof.

Article 8. Adoption of the necessary measures to give effect to the Convention, including legislative measures, in consultation with the social partners. The Committee notes the information supplied by the Government concerning the adopted legislation. It notes in particular the adoption of Decree No. 89 of 27 April 2012 (General Regulations on Occupational Risk Prevention). Observing that the Government has not supplied any information on consultations held, the Committee notes that this Article requires that the measures concerned, including legislative measures, must be adopted in consultation with the representative organizations of employers and workers concerned. The Committee requests the Government to ensure consultations with the social partners on the adoption of measures to give effect to the Convention, and to supply information on the measures taken, the legislation adopted, and the consultations held in relation to those measures, including the abovementioned Regulations.

Article 13. Protection from undue consequences. In relation to its previous comments, the Committee notes the Government’s indications that the Director-General of Social Welfare is empowered, when the seriousness of the risk justifies it, to ask the Director-General of Labour Inspection to close some or all parts of workplaces or to ban the use of machinery. The Committee indicates that even though the closure of workplaces by the authorities contributes to the health and safety of workers, it does not give effect to the present Article of the Convention. The Committee recalls that Article 13 of the Convention provides that a worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health shall be protected from undue consequences. This Article does not refer to the closure of workplaces but to stoppages of work in the circumstances indicated in Article 13, where it is the worker who takes the decision and who must be protected accordingly. This provision is linked to Article 19(f), which provides that arrangements must be made in the undertaking, under which a worker reports forthwith to his supervisor any situation which presents an imminent and serious danger. The Committee notes that section 85(3) of Decree No. 254 establishes penalties for any failure by the worker to inform his/her immediate superior at once of any situation which, in his opinion, could present a serious and imminent risk in terms of OSH, and also of any defects identified in protection systems. On the other hand, the aforementioned provision does not establish the protection due should the worker deem it necessary to stop work because he/she believes that there is an imminent and serious danger. The Committee requests the Government to take the necessary measures to give effect to Article 13 of the Convention and to provide information in this respect.

Article 17. Obligation to collaborate whenever two or more undertakings engage in activities simultaneously at one workplace. The Committee notes that the information supplied by the Government does not correspond to this Article of the Convention. The Government refers in its report to section 6 of Decree No. 254 regulating the coordination between state institutions with regard to OSH (Article 15 of the Convention), whereas Article 17 of the Convention covers a different situation. In this regard, the Committee refers to paragraph 174 of its 2009 General Survey on occupational safety and health, which reads as follows: “The task of ensuring that an adequate level of safety and health is maintained at worksites, such as large public works or other construction sites, involving several contractors of all sizes and trades, requires the establishment of effective mechanisms for collaboration, coordination and communication, as well as the definition of the respective duties and responsibilities of each of the actors on the site. Article 17 provides that ‘whenever two or more undertakings engage in activities simultaneously at one workplace, they shall collaborate in applying the requirements of this Convention’, while Paragraph 11 of the Occupational Safety and Health Recommendation, 1981 (No. 164), specifies that in this case ‘they should collaborate in applying the provisions regarding occupational safety and health and the working environment, without prejudice to the responsibility of each undertaking for the health and safety of its employees. In appropriate cases, the competent authority or authorities should prescribe general procedures for this collaboration.’” The Committee requests the Government to provide information on the effect given to this Article of the Convention in law and in practice.

II. Protocol of 2002

The Committee notes the Government’s first report on the application of the Protocol of 2002 to the present Convention.

Legislation. The Committee notes that, according to the information supplied by the Government, the matters covered by the Protocol are regulated by Legislative Decree No. 254, referred to above, and its implementing regulations, adopted by Decree No. 89 of 27 April 2012. It also notes the user manual relating to the National Occupational Accident Notification System (SNNAT) and the “quick guide” to the SNNAT.

Article 1(d) of the Protocol. Commuting accidents. The Committee requests the Government to indicate whether the legislation covers the concept of “commuting accident”, namely an accident resulting in death or personal injury occurring on the direct way between the place of work and: (i) the worker’s principal or secondary residence; or (ii) the place where the worker usually takes a meal; or (iii) the place where the worker usually receives his or her remuneration.

Article 2. Establishment and periodic review of requirements and procedures for registration and notification. The Committee notes that section 2 of Legislative Decree No. 254 establishes the obligation of keeping an up-to-date register of occupational accidents, occupational diseases and dangerous occurrences. The Committee requests the Government to supply information on the consultations held with the most representative organizations of employers and workers with a view to establishing and periodically reviewing requirements and procedures for registration and notification, as referred to in this Article of the Convention, and to provide information on the results of those consultations. In view of the fact that the legislation does not appear to cover commuting accidents, the Government is requested to indicate the consultations held on this matter and the results thereof.

Article 5(b) and (c). Injured persons. Circumstances of the accident or disease. The Committee notes that the Government’s report does not contain any information on the effect given to these provisions, particularly as regards the circumstances of the exposure to health hazards in relation to occupational diseases. The Committee requests the Government to provide detailed information on the manner in which national law and practice ensures the notification of the information specified in Article 5(b) and (c).

Article 6. Publication of statistics. The Committee notes the Government’s indication that the SNNAT facilitated the dissemination of statistics during 2012 and 2013, and it notes the related bulletins which are attached. The Committee requests the Government to continue providing information in this respect.