REPRESENTATION (article 24) - URUGUAY - C155 - 1997

1. Latin American Central of Workers (CLAT)

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Report of the Committee set up to examine the representation alleging non-observance by Uruguay of the Occupational Safety and Health Convention, 1981 (No. 155), made under article 24 of the ILO Constitution by the Latin American Central of Workers (CLAT)

Report of the Committee set up to examine the representation alleging non-observance by Uruguay of the Occupational Safety and Health Convention, 1981 (No. 155), made under article 24 of the ILO Constitution by the Latin American Central of Workers (CLAT)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. By communications dated 14 February 1996 and supplementary information provided in June and December 1996, the Latin American Central of Workers (CLAT), referring to article 24 of the Constitution of the ILO, made a representation alleging non-observance by Uruguay of the Occupational Safety and Health Convention, 1981 (No. 155).
2. The Occupational Safety and Health Convention, 1981 (No. 155) was ratified by Uruguay on 5 September 1988 and came into force in the country on 5 September 1989.
3. The provisions of the ILO Constitution relating to the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure followed in the case of representations is based on the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution, as revised by the Governing Body at its 212th Session (March 1980).
5. In accordance with article 2, paragraph 1, of the above Standing Orders, the Director-General brought the representation before the Officers of the Governing Body.
6. In accordance with the Standing Orders, the representation was presented on 14 February 1996. With instructions from the Officers of the Governing Body, the Office requested the complainant organization to provide supplementary information. CLAT sent the information required in June and December 1996. At its 268th Session (March 1997), the Governing Body decided that, on the basis of the report made by its Officers, the representation was receivable. In order to examine the representation, a Committee composed of Mr. Rivas Gómez (Government, Chile), Mr. Durling (Employer member) and Ms. Rozas (Worker member) was set up. Mr. Durling being unable to be present at its 270th Session, the Governing body designated Mr. De Arbeloa as Employer member of the Committee to replace him.
7. In accordance with the provisions of article 4, paragraph 1(a) and (c) of the Standing Orders, the Committee invited the Government to provide the information regarding the representation which it considered appropriate. The Government sent its observations in a communication dated 16 May 1997.
8. The Committee met in Geneva on 18 November 1997 in order to examine the representation together with the observations received and the information available.
Examination of the representation
A. Allegations made by the Latin American Central of Workers (CLAT)
9. In this representation, the Latin American Central of Workers (CLAT) alleges the non-observance of the provisions on the prevention of industrial accidents and protection of workers which emerges from the high incidence of accidents, including fatal accidents in the construction sector (31 fatal industrial accidents in 1995, compared to a total number of 30,000 workers in the construction sector and 15 fatal accidents in 1996).
10. According to CLAT, the most important reason for the high incidence of accidents is the lack of preventive measures taken by enterprises and the Ministry of Labour, in particular the absence of a safety and health policy, as provided for in Article 4 of the Convention. In the opinion of the complainant organization neither the functioning of the inspection system nor the system of sanctions imposed on enterprises is effective, in contravention of Article 9 of the Convention. In 1995, 2,800 construction sites were covered by 12 inspectors, only five of whom belonged to the sector. As for the inspection system, the organization believes that problems arise since a larger body of inspectors, in accordance with the site-inspector ratio, is not available and there is no rapid means of transport for the inspectors. The organization recalls that a reliable body of inspectors is lacking, since such a body must comprise a multidisciplinary team of technicians including doctors, architects, engineers and also a technical laboratory. The lack of effectiveness of the system of sanctions is based on the delay in implementing the procedure in force, and the existence of a certain tendency to favour the appeals lodged by enterprises which have been sanctioned. Furthermore, attention was drawn to the need for better and more comprehensive training of the site representatives appointed by the workers of an enterprise under Decree No. 53/996 of 14 February 1996, in accordance with the provisions of Article 5(c) of the Convention.
11. CLAT states that in its opinion the accidents could have been avoided if, in accordance with the provisions of Article 16 of the Convention, employers had been required to guarantee safety in the workplaces under their supervision and to provide protective clothing and equipment in order to prevent the risks of accidents.
B. Observations by the Government
12. In its communication of 12 September 1996, the Government rejected the receivability of the representation made by CLAT. It considered that it was not possible to make a further representation for non-observance of Convention No. 155, since a representation dated 17 June 1994 had already been made for non-observance of this Convention together with Conventions Nos. 62, 81, 150 and 161. In the Government's opinion, this would imply a violation of the principle "non bis in idem". Furthermore, the Government alleged that the CLAT representation was not receivable, since it covered only one specific sector, that of construction, whereas Convention No. 155 was applicable to all branches of economic activity in accordance with Article 1.1 thereof.
13. In its communications of 12 September 1996 and 16 May 1997, the Government pointed out that as part of the activities conducted by the General Labour and Social Security Inspectorate (IGTSS), 3,688 inspection visits were made within the construction industry, which represented an increase of 23 per cent on the number made in 1995. The inspections in question meant that of a total of 34,000 construction workers, 20,078 had received protection; i.e. 60 per cent of construction workers were covered. In the period from 1 January to 15 May 1997, 1,195 inspection visits were made within the 1997 Emergency Plan. Coverage was therefore extended to a total number of 13,022 workers. The procedures concerned led to the partial or complete closure of 142 enterprises.
14. In its communication of 12 September 1996, the Government indicated that an Emergency Plan for the Construction Industry was adopted in February 1996, after it had been drawn up by the IGTSS on the basis of its Annual Inspection Plan. The Plan comprised the following component programmes: a programme for the provision of human and material resources by the IGTSS; a programme of cooperation with other institutions operating in the construction industry; the programme of inspection of environmental working conditions in the construction industry; a safety training programme in the construction industry; and a programme for disclosing the risks presented by the construction industry and the safety measures to be adopted.
15. The IGTSS programme for the provision of human and material resources was designed to (a) increase the number of inspectors working on the environmental working conditions programme, with a view to providing new resources, to 28; (b) acquire appropriate vehicles enabling inspection visits to be made in rural areas; (c) begin to computerize the IGTSS.
16. From the information provided by the Government, it emerges that the safety training programme for the construction industry, as part of the emergency plan, is designed for workers, employers, trade union organizations, architects, engineers and employees of the IGTSS. The programme facilitates the participation of all social players in organizing and supervising the construction safety system. The aims of this programme include the following: detecting unsafe conditions and processes; proposing preventive and corrective measures in order to avoid risks in the construction process; becoming familiar with the responsibilities for safety at work corresponding to each of the participants in the project and construction design. This activity is complemented by various publicity-related schemes and other activities conducted as part of the disclosure programme referred to above.
17. According to the Government's communication, new safety and health standards were adopted for the construction sector including the following: Decree No. 53/996 of 14 February 1996 and Decree No. 76/996 of 1 March 1996 which established the post of works representative and determine the required qualifications; Decree No. 82/996 of 7 March 1996 according to which any construction site comprising safety services must have available a works handbook containing notes on the detected risks at work, the instructions given to workers in order to prevent risks and also accident prevention programmes; Decree No. 83/996 of 7 March 1996 under which the National Council for Safety and Health at Work was set up on a tripartite basis, designed, inter alia, to promote the development of legislation on the prevention of risks at work and to improve working conditions. This Decree contains a recommendation to establish regional or sectoral councils for labour activities, where circumstances warrant such a measure; Decree No. 103/996 of 20 March 1996 provides that personal protection equipment and industrial machinery must be adjusted to the technical standards approved by the Uruguayan Institute for Technical Standards; Decree No. 283/996 of 10 July 1996 and the ministerial resolution of 12 August 1996 establish the obligation to submit to the General Labour and Social Security Inspectorate, prior to the beginning of a project and at its various stages, safety and health studies and the safety and health plan with reference to measures taken to prevent the risks which are explained in the study in question.
18. The Government stated that it had sent a request to the national Parliament for approval of the Safety and Health in Construction Convention, 1988 (No. 167), having obtained a consensus on its ratification by professional sectors.
19. Finally, the Government pointed out that the practical consequences of the series of measures adopted were reflected in the data for 1997 (site closures, a clear decrease in the number of victims) and expressed the hope that the activities conducted would be considered as satisfactory.
C. Conclusions of the Committee
Receivability of the representation
20. The Committee has examined the two pleas made by the Government regarding the receivability of the representation. As to the previous representation made by the Inter-Union Assembly of Workers-National Convention of Workers (PIT-CNT) and its affiliated organization, the Single National Union for Construction and Related Areas (SUNCA), the Committee recalls that the allegations and the organization making the representation are not the same in both cases. As regards the second plea, the Committee recalls that, in accordance with Article 1, paragraph 1, the Convention applies to all branches of economic activity including the construction branch and that the Government has not availed itself of the possibility provided for by Article 1, paragraph 2, of excluding from its application, in part or in whole, this branch of economic activity. Consequently, the Committee considers that examination of the case must be pursued.
21. The Committee observes that the situation to which the representation refers as regards Convention No. 155, relates to the application of Articles 4, 5(c), 9 and 16 of the Convention. The text of these provisions is as follows:
Article 4
1. Each Member shall, in the light of national conditions and practice, and in consultation with the most representative organizations of employers and workers, formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment.
2. The aim of the policy shall be to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimizing, so far as is reasonably practicable, the causes of hazards inherent in the working environment.
Article 5
The policy referred to in Article 4 of this Convention shall take account of the following main spheres of action in so far as they affect occupational safety and health and the working environment:
...
(c) training, including necessary further training, qualifications and motivations of persons involved, in one capacity or another, in the achievement of adequate levels of safety and health;
...
Article 9
1. The enforcement of laws and regulations concerning occupational safety and health and the working environment shall be secured by an adequate and appropriate system of inspection.
2. The enforcement system shall provide for adequate penalties for violations of the laws and regulations.
Article 16
1. Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.
2. Employers shall be required to ensure that, so far as is reasonably practicable, the chemical, physical and biological substances and agents under their control are without risk to health when the appropriate measures of protection are taken.
3. Employers shall be required to provide, where necessary, adequate protective clothing and protective equipment to prevent, so far as is reasonably practicable, risk of accidents or of adverse effects on health.
Previous examination of the application of Convention No. 155 by ILO supervisory bodies
22. In its last direct request, made in 1994, the Committee of Experts on the Application of Conventions and Recommendations observed that the Government had not taken measures to ensure that the provisions of the Convention had the desired effect and expressed its hope that such measures would be adopted in the near future.
23. At its 267th Session (November 1996), the Governing Body adopted the report of the Committee set up to examine the representation made by the Inter-Union Assembly of Workers-National Convention of Workers (PIT-CNT) and its affiliated organization, the Single National Union for Construction and Related Areas (SUNCA) under article 24 of the ILO Constitution, alleging the non-observance by the Government of various Conventions including the Occupational Safety and Health Convention, 1981 (No. 155). The Governing Body recommended that the Government should take the necessary measures to ensure that health and safety standards are observed by enterprises in the construction sector, paying particular attention to enterprises engaged in subcontracting; to ensure the training of casual workers so that they can perform their duties in a safe manner; to strengthen the system of labour inspection and the other administrative bodies responsible for monitoring observance of health and safety standards; and to guarantee the systematic and rapid investigation of the complaints received.
National safety and health policy
24. The Committee notes the adoption since 1995 of various supplementary laws, in particular Decree No. 76/996 providing for the appointment of a works representative in enterprises with more than five workers or the establishment of a works handbook containing the notes provided for in Decree No. 53/996. It takes into account the existence of various institutions such as the National Safety and Health at Work Council, the Tripartite Commission for Safety and Health in the Construction Industry, the National Register of Safety and Health at Work Advisers for the Construction Industry, specially designed for the application of the Convention in the construction sector. The Committee also notes that an Emergency Plan for the Construction Industry has been adopted.
25. The Committee observes that the Tripartite Commission for Safety and Health in the Construction Industry plays an important role in the assessment mechanism. The Commission is designed to propose modifications to the safety standards in force in the construction industry (article 262 of Decree No. 89/995). Nevertheless, the functioning of the above mechanism continues to be out of step with the aims to be achieved.
26. The Committee considers that the number of fatal accidents is not in itself a sufficient indicator enabling the application of the Convention to be assessed. The Committee regrets that it does not have more precise information available, such as the number of industrial accidents causing complete disability on a temporary or permanent basis relative to the number of workers in the branch of activity concerned, or better still to the number of hours worked. The Committee considers, however, that an increase or decrease in the number of fatal industrial accidents is an indication of whether the Convention has been applied. Without dismissing the action taken by the Government with a view to ensuring that accidents are prevented and risks reduced, the Committee observes that the allegations made by the complainant organization regarding the health and safety situation of workers in the construction industry, call into question the results of the policy introduced to prevent accident and damage and to reduce risks. However, based on the information provided by the Government, the Committee recalls a downward trend in the number of fatal industrial accidents, although last year -- 1996 in comparison with 1995 -- it increased in absolute terms. The Committee considers the downward trend to be a consequence of the measures adopted after the representation was made, pursuant to Article 4 of the Convention. The Committee hopes that the determined and continued implementation of the measures in question, together with their evaluation, will ensure that the accidents and damage to health resulting from work are prevented.
Supervision of the application of laws and regulations and related sanctions
27. The Committee notes an increase of 23 per cent in the activities conducted by the General Labour and Social Security Inspectorate (IGTSS) in 1996 including 3,688 inspection visits within the construction industry. It also notes the IGTSS programme for the provision of human and material resources which seeks to increase the number of inspectors working on the environmental working conditions programme to 28 and to acquire vehicles and other appropriate means for inspections.
28. The Committee notes that the national legislation provides for sanctions in case of the infringement of laws, regulations and also international Conventions (article 289 of Act No. 15.903 of 10 November 1987 and article 263 of Decree No. 89/995 of 21 February 1995). Referring to the allegations made by the complainant organization (paragraph 10 of this report), the Committee recalls that the effectiveness of the observance of the national health and safety policy for workers and the working environment depends partly on whether sufficiently dissuasive sanctions are applied in the cases where legislative or regulatory provisions are infringed, and on tripartite actions.
Training
29. Under Article 14 of the Convention, in accordance with the principles set forth in Article 5(c) of this instrument, measures should be taken with a view to providing instruction for workers on safety and health at work "in a manner meeting the training needs of all workers". Without dismissing the measures adopted by the Ministry of Labour and Social Security in cooperation with other institutions including the General Labour and Social Security Inspectorate and CINTERFOR, the Committee wishes to point out that the most effective manner of ensuring that industrial accidents are prevented, requires not only better training for works representatives and supervisors in the construction industry, but also training activities designed to disseminate knowledge of safety and health at work more broadly so as to reach the majority of workers in this sector.
Action at the enterprise level
30. The Committee notes that CLAT has not sent information substantiating its allegations on this matter. The Committee is therefore unable to take a position on the application of Article 16 of the Convention.
31. The Committee notes with interest the information provided by the Government relating to the consensus on ratification of the Safety and Health in Construction Convention, 1988 (No. 167) obtained by the professional sectors within the Tripartite Group on Standards and the request for approval of this instrument sent to the national Parliament.
D. The Committee's recommendations
32. The Committee recommends that the Governing Body:
(a) approve this report, in particular the conclusions contained in paragraphs 20 to 30, in which it is observed that, although within national legislation partial effect has been given to the Convention and the Government has made efforts to improve the system for preventing accidents in the construction sector, the number of industrial accidents, including fatal accidents, in the construction industry enables it to state that it is necessary to take more effective tripartite action and to apply strictly the measures adopted within the various aspects of the enhancement and assessment of the effectiveness of national policy designed to prevent industrial accidents;
(b) urge the Government of Uruguay to continue to take the necessary measures in order --
(i) to continue to strengthen the national legislative and regulatory provisions for the safety and health of workers in the construction industry with a view to promoting the prevention of accidents in this sector and, in particular, to stipulating in a more complete manner, the respective functions and responsibilities of the social players and other persons and institutions concerned;
(ii) to ensure that the safety and health standards in force are observed by all enterprises in the construction industry, irrespective of their status;
(iii) to examine, at appropriate intervals, the situation regarding the safety and health of workers in the construction industry so as to determine the problems which exist and devise effective measures to resolve them and especially to examine the provision and use of appropriate protection devices;
(iv) to maintain and reinforce the system of labour inspection in the construction industry which has already been strengthened, and reinforce the imposition of sanctions provided for;
(v) to expand training activities for safety and health at work so that the majority of workers in the construction industry continue to have access to them;
(vi) to foster and promote, within construction industry enterprises, cooperation between employers and workers or their representatives as an essential element of the activities designed to prevent industrial accidents;
(c) request that in the reports which it submits under article 22 of the Constitution on the application of Convention No. 155, the Government provide information on the application of the measures adopted in order to ensure that the recommendations made in the preceding paragraphs are implemented effectively so that the Committee of Experts on the Application of Conventions and Recommendations can examine follow-up on these issues;
(d) declare closed the procedure initiated as a result of the present representation.