Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Ukraine

Radiation Protection Convention, 1960 (No. 115) (Ratification: 1968)
Occupational Cancer Convention, 1974 (No. 139) (Ratification: 2010)
Occupational Safety and Health Convention, 1981 (No. 155) (Ratification: 2012)
Safety and Health in Mines Convention, 1995 (No. 176) (Ratification: 2011)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine Conventions Nos 115 (radiation protection), 139 (occupational cancer), 155 (OSH) and 176 (safety and health in mines) together.

The Committee notes the joint observations of the Confederation of Free Trade Unions of Ukraine (KVPU) and the Federation of Trade Unions of Ukraine (FPU), received 6 October 2022, concerning the Draft Law on Labour and the Draft Law on Safety and Health at Work.

The KVPU and the FPU indicate that the Draft Law on Labour is not in conformity with Convention No. 155, with respect to Articles 4 (consultation with the most representative organizations of employers and workers in the development, implementation and review of the national OSH policy), 5(e) (the protection of workers and their representatives from disciplinary measures), 8 (implementation of the national policy) and 10 (measures to provide guidance to employers and workers). The KVPU and FPU further state that the Draft Law on Safety and Health at Work is not in conformity with Convention No. 155, and in particular, Articles 4, 5(e), 8, 10, 13 (protection for a worker that has removed themself from a dangerous work situation) and Article 19 (arrangements at the level of the undertaking relating to rights and duties of workers and their representatives, and cooperation). The unions indicate that the Draft Law on Safety and Health at Work has been developed to replace the current Labour Protection Act, and that it will significantly narrow the content and scope of existing guarantees and rights of employees related to safe and healthy working conditions. The unions allege that this Draft Law will remove the right to benefits and compensation for work in difficult and harmful working conditions, currently contained in the Labour Protection Act, and that the Draft does not stipulate minimum funding for preventive measures. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to take the necessary measures to ensure that any legislation adopted on safety and health is in conformity with ratified OSH Conventions, and it recalls that the Government can avail itself of the technical assistance of the ILO in this regard. Lastly, recalling the importance of consultations with the representative organizations of employers and workers in the implementation of Convention No. 155, it requests the Government to provide information on the consultations held with the organizations of employers and workers on the development of the Draft Law on Labour and the Draft Law on Safety and Health at Work.

Application of Conventions No. 115 and No. 155 in practice. Nuclear power plant workers. The Committee notes that the Report on developments relating to the resolution concerning the Russian Federation’s aggression against Ukraine from the perspective of the mandate of the International Labour Organization, presented to the Governing Body at its 346th Session, October–November 2022 (GB.346/INS/14), noted rising concerns about the safety of workers in the occupied Zaporizhzhya Nuclear Power Plant. The Report highlighted concerns regarding the deteriorating working conditions and the safety of workers, mainly due to potential increased exposure to radiation, which would require continuous on-site and off-site monitoring and emergency preparedness measures. In a report published on 6 September 2022, the International Atomic Energy Agency (IAEA) underlined that substantial risks remain to the safety and integrity of the plant. In a statement released 20 November 2022, the Director General of the IAEA reiterated the urgent need for measures to help prevent a nuclear accident at the Zaporizhzhya Nuclear Power Plant. The Committee urges that all necessary measures be taken to protect the safety and health of nuclear power plant workers. In particular, it urges the strengthening of the implementation of Convention No. 115 with a view to ensuring the effective protection of workers against ionising radiations in the course of their work.

The Committee notes the extremely difficult situation in the country since 24 February 2022, and notes that in this context, no reports have been sent from the Government on the application of ratified OSH Conventions. The Committee therefore repeats its previous comments:

The Committee takes note of the observations of the International Trade Union Confederation (ITUC) on the application of Conventions Nos 155 and 176, received on 16 September 2020, alleging that there is a lack of preventive and protective measures to protect workers against the spread of COVID-19 and a shortage of personal protective equipment throughout the country, but especially in the healthcare and mining sector. The Committee requests the Government to provide its comments in this respect.

The Committee also notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU) on the application of Conventions Nos 155 and 176, received in 2019.

Occupational Safety and Health Convention, 1981 (No. 155)

Article 11(c) of the Convention. Notification of occupational accidents and diseases. The Committee notes that, according to the observations of the KVPU, employers do not follow, in practice, the notification procedures established by Decision No. 337 of the Cabinet of Ministers of Ukraine of 17 April 2019 approving the Procedure for Investigating and Recording Accidents and Occupational Diseases. The KVPU alleges that employers transmitted the notifications in violation of the deadlines, for 120 out of the 209 accidents registered by the State Labour Service (SLS) in the first half of 2019. The Committee requests the Government to provide its comments in this respect, and to take the necessary measures to ensure that Decision No. 337 is fully applied in practice with a view to ensuring the notification of occupational accidents and diseases by employers.

Occupational Cancer Convention, 1974 (No. 139)

Articles 2, 3 and 4 of the Convention. Replacement of carcinogenic substances and agents, measures to be taken to protect workers, record keeping, and provision of information. The Committee notes that the Government’s report does not respond to its previous comments on the issues covered by Articles 2 (replacement of carcinogenic substances and agents), (measures taken to protect workers and for record keeping) and 4 (providing workers with information on the dangers involved and the measures to be taken) of the Convention. The Committee also notes with concern that the Government: (1) reiterates previously raised difficulties in the application in practice of those Articles, including lack of funding, leading to the absence of measures to replace carcinogenic substances and agents by non-carcinogenic or less harmful substances or agents, and of an appropriate system to record the number of workers exposed to carcinogenic substances and agents; and (2) indicates that there are currently no special measures to ensure that workers who have been, are or may be exposed to carcinogenic substances and agents, are provided with all possible information regarding the dangers involved and the measures that should be taken. Taking into account the difficulties raised, the Committee urges the Government to take all the necessary measures to ensure that full effect is given to Articles 2, 3 and 4 of the Convention in the near future, and to provide information on the measures taken in this respect.

Safety and Health in Mines Convention, 1995 (No. 176)

Articles 5(1), (2)(e) and 16 of the Convention. Supervision of safety and health in mines, suspension of mining activities, corrective measures and enforcement. In response to its previous comments on inspections undertaken in mines, the Committee notes the statistics provided in the Government’s report regarding the number of inspections conducted, violations detected and total amount of fines imposed. The Committee also notes the observations of the KVPU, alleging that the application of Act No. 877-V of 2007 on Fundamental Principles of State Supervision and Monitoring of Economic Activity restricts inspection in mines. The KVPU also refers to an incident in 2017–18 in which there were two fatal accidents at the same mining workplace within a year of each other, due to the failure to respect an order prohibiting the use of certain equipment, issued by the administrative court following an application by the State Labour Service (SLS). Referring to its comments concerning restrictions on the powers of labour inspectors, adopted in 2020 under the Labour Inspection Convention, 1947 (No. 81), and the Inspection (Agriculture) Convention, 1969 (No. 129), the Committee requests the Government to take all the necessary measures to ensure the effective enforcement of the provisions of this Convention, in accordance with Article 16. In this regard, the Committee requests the Government to continue to provide statistics on violations detected during inspections, and detailed information on the measures taken by inspectors in such cases, including penalties imposed and other corrective measures. In addition, the Committee requests the Government to provide further information on the application in practice of Article 5(2)(e), regarding the power of the competent authorities to suspend or restrict mining activities on safety and health grounds, until the condition giving rise to the suspension or restriction has been corrected.

Articles 5(2)(c) and (d), 7 and 10(d). Measures to eliminate or minimize the risks to safety and health in mines. Procedures for investigating fatal and serious accidents and the compilation and publication of statistics. Appropriate remedial measures and measures taken to prevent future accidents by employers as a result of investigations. Further to its previous comments, the Committee notes the Government’s reference to the procedure for investigating accidents in enterprises in the coal industry, pursuant to Decision No. 337 of the Cabinet of Ministers of Ukraine of 17 April 2019 approving the Procedure for Investigating and Recording Accidents and Occupational Diseases. The Committee notes, however, that, according to the Government, 23 per cent of investigations mandated in 2018 are still outstanding, along with 5 per cent of the ones mandated in 2017 and 5 per cent of those mandated in 2016, due primarily to the lack of conclusions that should result from the investigation procedure. The KVPU also alleges that the established notification procedures for occupational accidents and diseases are not followed in practice. As regards measures taken to address the causes of such accidents, the Government indicates that the SLS established a commission to review regulatory documents on removing gases, ventilation and combating gas-dynamic phenomena, but does not refer to measures taken in mines in general. The Committee nevertheless notes the observations from the ITUC, which refers to the high rate of occupational accidents and diseases in the mining sector, and alleges that occupational fatalities and diseases in mining are underestimated as there is scant data in the industry. The ITUC further alleges that, according to the SLS, 68.7 per cent of workers in mining have been working in conditions which fail to meet sanitary and hygienic standards, that 53.5 per cent work with excessive dust, 42.3 per cent with excessive noise, 14.2 per cent with excessive vibration, and 9.8 per cent with excessive exposure of harmful chemicals. The Committee requests the Government to provide its comments in respect of the ITUC’s observations. The Committee also requests the Government to take the necessary measures to ensure that full effect is given to Article 10(d) of the Convention, requiring that employers shall ensure that all accidents and dangerous occurrences are investigated and appropriate remedial action is taken in practice. As regards Article 5(2)(d) on the compilation and publication of statistics on accidents, occupational diseases and dangerous occurrences, the Committee refers to its comments adopted in 2020 concerning Article 11(c) of Convention No. 155. The Committee also requests the Government to provide further detailed information on the measures taken to ensure the application, in mines, of the employers’ duties contained in Articles 7 and 10.

Article 5(2)(f). Rights of workers and their representatives to be consulted on and participate in OSH measures. Further to its previous comments on procedures to implement the rights of workers and their representatives to be consulted on and participate in OSH measures (Article 5(2)(f)), the Committee notes that section 42 of the Labour Protection Act provides that OSH representatives may apply for assistance to the bodies in charge of state supervision over OSH, and have a right to participate and make appropriate proposals during inspections. The Committee also notes, however, the observations of the KVPU, alleging that the national legislation does not provide for mandatory and documented procedures to secure real forms of participation by workers’ and their representatives in consultations on OSH at the workplace. The Committee requests the Government to provide its comments in this respect and to provide further information on the establishment of effective procedures to ensure the implementation of the rights of workers and their representatives to be consulted on OSH matters, and to participate in measures, relating to safety and health at the workplace in accordance with the provisions of the Article.

The Committee is raising other matters in a request addressed directly to the Government.