Underground Work (Women) Convention, 1935 (No. 45) - Lesotho (Ratification: 1966)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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 45 (underground work (women)), 155 (OSH) and 167 (safety and health in construction) together.

A. General provisions

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

Article 9(2). Adequate penalties. In its previous comment, the Committee noted the Government’s indication that employers who breach OSH provisions may be sentenced by the court to a fine of 600 Lesotho Loti (39 USD) or to imprisonment for three months, or both, in accordance with section 239 of the Labour Code. However, the Committee notes that, according to the Government, in the case of any OSH violations there are no prosecutions and the owner of the enterprise would be given a warning and would be instructed to rectify. The Committee requests the Government to take the necessary measures to ensure the provision of adequate penalties for OSH violations and their effective application. It also requests the Government to provide information on the application of the relevant provisions in practice, including the violations detected and the penalties imposed.

Article 11(d). Inquiries. The Committee notes the Government’s indication, in reply to its previous request, that when occurrences are designated as dangerous by the Labour Commissioner, they are subject to an inquiry. The Committee notes the “Incident Investigation Form” transmitted by the Government together with its report, which contains information on the company, the incident descriptions and/or injury information, the incident classification, the root causes, the recommended corrective actions to prevent future incidents and the summary of principal key learning from the incident. The Committee takes note of this information, which addresses its previous request.

Article 14. Promotion of occupational safety and health in education. Following its previous comment, the Committee notes the Government’s indication that, although there are no specific legislative provisions regarding the promotion of OSH at all levels of education, the Council of Higher Education has been made aware that OSH principles should be observed and incorporated in the manual of instructions of higher learning. The Government indicates that it hopes that the same sensitization and awareness-raising will be extended to other levels of education. The Committee requests the Government to continue to provide information on the measures taken in practice to include OSH issues at all levels of education and training.

Article 19(c) and (e). Information and consultation at the level of the undertaking. The Committee notes the Government’s indication in its report submitted under Convention No. 167, that section 93 (4) of the Labour Code provides that every employer shall consult employees’ representatives who sit on the safety and health committee, with a view to making and maintaining arrangements which will effectively promote measures of safety and health at work, and in checking the effectiveness of such measures. The Committee also notes the Government’s indication that the national OSH policy provides for workers to take part in hazard identification and risk assessment. The Committee requests the Government to indicate the provisions of national legislation ensuring that workers or their representatives and their representative organizations are enabled to enquire into all aspects of OSH associated with their work.

B. Protection in specific branches of activity

1. Underground Work (Women) Convention, 1935 (No. 45)

The Committee recalls that the ILO Governing Body (at its 334th Session, October–November 2018), on the recommendation of the Standards Review Mechanism (SRM) Tripartite Working Group, classified Convention No. 45 as an outdated instrument, and has placed an item on the agenda of the International Labour Conference in 2024 (112th Session) for due regard to be given to its abrogation. The Governing Body also requested the Office to follow up with member States currently bound by Convention No. 45 to encourage the ratification of up-to-date instruments related to OSH, including but not limited to the Safety and Health in Mines Convention, 1995 (No. 176), and to undertake a campaign to promote the ratification of Convention No. 176. The Committee therefore encourages the Government to follow up on the Governing Body’s decision at its 334th Session (October–November 2018) approving the recommendations of the SRM Tripartite Working Group, and to consider ratifying the most up-to-date instruments in this subject area.

2. Safety and Health in Construction Convention, 1988 (No. 167)

Legislation. Following its previous comment, the Committee notes the Government’s indication that the national OSH policy adopted in 2020 will set the foundation for the enactment of the OSH Act, which will give effect to the principles provided by the Convention. The Committee further notes that the information provided by the Government responds to its previous request on the effect given to Articles 6, 10, 13, 14, 17(3) and 21 of the Convention. The Committee requests once again the Government to indicate how effect is given to Article 5 on technical standards and codes of practice; Article 8 on cooperation between two or more employers simultaneously undertaking activities at one construction site, and on cooperation duties of self-employed persons; Article 23(3) on safe and sufficient transport where work is done over or in close proximity to water; Article 27(b) on explosives not to be stored, transported, handled or used except by a competent person; Article 28(2)(a) on replacement of hazardous substances by harmless or less hazardous substances and disposal of waste; Article 31 on removal for medical attention. The Committee also refers to 2021 observation under Convention No. 155 regarding the adoption of the OSH Act.

Articles 1(3) and 7 of the Convention. Self-employed persons. The Committee notes the Government’s statement in its report, in reply to its previous request, that the new OSH Act, which the Government intends to adopt, will cover all workers and employers in all sectors of the economy and in all forms of employment relationships, including self-employed persons. Taking due note of this information, the Committee requests the Government to provide information on the developments in this respect.

Articles 11(d) and 12. Workers’ rights to report any situation presenting a risk and which they cannot properly deal with themselves and right to removal. The Committee notes that according to the Government, the national OSH policy includes the right of the workers to refuse to undertake any work that is not safe because of hazards existing before the commencement of the job. The Government indicates that the policy also provides for workers to take part in hazard identification and risk assessment. The Committee request the Government to take the necessary measures, in the context of the adoption of the OSH Act, in order to ensure that workers have the right to report to their immediate supervisor, and to the workers' safety representative where one exists, any situation which they believe could present a risk, and which they cannot properly deal with themselves. It also requests the Government to take measures to ensure that a worker shall have the right to remove himself from danger when he has good reason to believe that there is an imminent and serious danger to his safety or health.

Application of the Convention in practice. Following its previous comment, the Committee notes the statistical information provided by the Government on the number of occupational injuries with a breakdown by cause, nature and outcome of the accident for the period 2019–20. However, the Committee notes that the Government does not provide information on the number of workers covered by the legislation and the cases of occupational disease. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including on the number of workers covered by the legislation, the number, nature and cause of occupational disease and extracts from the reports of inspection services.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the Government’s latest report, including information that no legislative changes had been adopted, which had had an impact on the application of the Convention which thus continues to be fully applied. The Committee notes with interest the appended report on an inspection conducted at Letseng Mining from 2 to 4 August 2005, which concluded that, at that mine, the management and the human resources, as well as safety and health departments, were fully aware of their obligations and duties and of workers’ rights, and that the mine has in place a comprehensive occupational safety and health management system for managing occupational risks involved, which included significant exposure to noise, low temperature and rock dust. The Committee requests the Government to continue to submit information, in accordance with Part V of the report form concerning the practical application of the Convention, including all available statistical data.

The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that, with respect to underground work, the States parties to Convention No. 45 should be invited to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176), and possibly denouncing Convention No. 45, even though the latter instrument has not been formally revised (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its 2001 General Survey on night work of women in industry in relation to Conventions Nos 4, 41 and 89, “the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial” (paragraph 186).

In the light of the foregoing observations, and also considering that the present trend is no doubt to remove all gender-specific restrictions on underground work, the Committee invites the Government to give favourable consideration to the ratification of the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers, and possibly also to the denunciation of Convention No. 45.

The Committee recalls that, according to established practice, the Convention will be next open to denunciation during a one-year period from 30 May 2017 to 30 May 2018. The Committee requests the Government to keep it informed of any decisions taken in this regard.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee notes the Government’s latest report, including information that no legislative changes had been adopted, which had had an impact on the application of the Convention which thus continues to be fully applied. The Committee notes with interest the appended report on an inspection conducted at Letseng Mining from 2 to 4 August 2005, which concluded that, at that mine, the management and the human resources, as well as safety and health departments, were fully aware of their obligations and duties and of workers’ rights, and that the mine has in place a comprehensive occupational safety and health management system for managing occupational risks involved, which included significant exposure to noise, low temperature and rock dust. The Committee requests the Government to continue to submit information, in accordance with Part V of the report form concerning the practical application of the Convention, including all available statistical data.

2. The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that, with respect to underground work, the States parties to Convention No. 45 should be invited to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176), and possibly denouncing Convention No. 45, even though the latter instrument has not been formally revised (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its 2001 General Survey on night work of women in industry in relation to Conventions Nos. 4, 41 and 89, "the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial" (paragraph 186).

3. In the light of the foregoing observations, and also considering that the present trend is no doubt to remove all gender-specific restrictions on underground work, the Committee invites the Government to give favourable consideration to the ratification of the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers, and possibly also to the denunciation of Convention No. 45. In this respect, the Committee recalls that, according to established practice, the Convention will be next open to denunciation during a one-year period from 30 May 2007 to 30 May 2008. The Committee requests the Government to keep it informed of any decisions taken in this regard.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee has noted the information provided by the Government in its report. The Committee notes with satisfaction the provisions of section 132 of the new Labour Code which puts into effect the requirements of the Convention.

The Committee requests the Government to keep it fully informed on the practical application of the Convention.