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

Mongolia

Occupational Safety and Health Convention, 1981 (No. 155) (Ratification: 1998)
Safety and Health in Mines Convention, 1995 (No. 176) (Ratification: 2015)

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 155 (OSH) and 176 (safety and health in mines) together.

The Committee notes the observations made by the Confederation of Mongolian Trade Unions (CMTU) on Convention No. 155, which were included in the Government’s report.

Legislation. The Committee notes the adoption of the new Labour Law in July 2021, which will enter into force on 1 January 2022.

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

Articles 4 and 8 of the Convention. National OSH policy. Laws or regulations giving effect to the national OSH policy. The Committee notes the Government’s indication that the 5th National Programme on Occupational Safety and Health (2017–20) was developed and approved by Government Resolution No. 243 of 2017. The Government also indicates that an action plan under this Resolution was approved by Order No. A/210 of the Minister of Labour and Social Welfare in 2017. The Government indicates that the main goal of the national programme is to improve occupational safety and health laws and standards, implement the state policy to protect the lives and health of workers, identify the causes of industrial accidents and occupational diseases, and reduce accidents. The Committee also notes that, in reply to its previous comment concerning the review of OSH standards and the consultations held with employers’ and workers’ organizations in this regard, the Government refers to the review undertaken in 2018 of 145 national legislative OSH standards (53 related to occupational safety and 92 related to occupational health). The Committee notes that, in its observations, the CMTU considers that the participation of trade unions in the process of the revision of OSH instruments is insufficient. The Committee requests the Government to provide detailed information on the consultations held with the most representative organizations of employers and workers on the measures taken to implement and review the national OSH programme in accordance with Article 4 of the Convention. It also requests the Government to provide information on the progress made in the revision of the national programme 2017-20 and in the adoption of a new programme and plan of action for the following period.

Article 5(b) of the Convention. Adaptation to workers’ capacities. In its previous comment, the Committee requested the Government to provide information on the manner in which working time arrangements, the organization of work and work processes are adapted to the physical and mental capacities of workers as part of the OSH policy. The Committee notes the Government’s reference to the provisions of the law related to hours of work and rest breaks. The Committee also notes that section 43.2.3 of the new Labour Law provides that an employer shall provide employees with a workplace that meets the requirements and standards specified in the Law on Occupational Safety and Health (OSH Law), and that is free from harassment, violence and sexual harassment. It also notes that section 3.1.4 of the OSH Law provides that working environment means the environment which has a direct or indirect impact on the ability to work and on the health of employees in the course of their employment. The Committee once again requests the Government to indicate the measures adopted to ensure that the organization of work and work processes are adapted to the physical and mental capacities of the workers.

Articles 5(e) and 13. Protection of workers from disciplinary measures and undue consequences. In its previous comment, the Committee requested the Government to provide information on the manner in which it is ensured that workers and their representatives are protected from disciplinary measures as a result of actions properly taken by them in conformity with the national OSH policy. The Committee notes the Government’s reference to the provisions of the Labour Law related to the right of employees to appeal to the courts concerning the imposition of disciplinary sanctions. The Committee also notes that, in reply to its previous comment on the application of Article 13, the Government indicates that there is no official interpretation of the terms “certain conditions” in section 18.1.4 of the OSH Law. This section provides that workers have the right to suspend work in the event of a breach of work safety regulations or if there are certain conditions which could cause danger to human life and health. The Committee also notes that, according to the CMTU, the assessment of the conditions which might cause danger to human life and health is left to the employee. It adds that, depending on the circumstances, disciplinary measures may be taken against the employee as a consequence of the actions taken pursuant to section 18.1.4 of the OSH Act. The CMTU states that, in the context of the labour law reform, it proposed that, when considering a disciplinary sanction, the employer should obtain an explanation of the employee’s action. The Committee recalls that Article 5(e) provides for the protection of workers and their representatives from disciplinary measures taken as a result of actions properly adopted by them in conformity with OSH policies. It also recalls that Article 13 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. Considering the recent adoption of the new Labour Law, the Committee requests the Government to provide information on the measures taken to give effect to these Articles of the Convention.

Article 12. Responsibilities of those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use. In reply to its previous comment regarding the measures taken or envisaged to give effect to Article 12(a), (b) and (c), the Committee notes the Government’s reference to section 31.3.1 of the OSH Act, which provides that sectoral OSH legal documents shall be developed and approved in cooperation with the state administrative authority and relevant professional organizations. The Committee also notes that, as a result of this work, certification procedures on the production and service of machinery and equipment and model construction safety rules were adopted. The Committee requests the Government to indicate whether the rules and certification procedure, as indicated above, define the obligations of persons who manufacture, import, provide or transfer machinery, equipment or substances for occupational use and to provide information on the measures taken to give effect to Article 12(a) (ensure the absence of dangers entailed by machinery, equipment or substances). The Committee further requests the Government to indicate the measures adopted to ensure that the persons referred to in Article 12 make available information concerning the correct installation and use of all types of machinery and equipment (Article 12(b)), and to ensure that such persons keep abreast of the necessary scientific and technical knowledge (Article 12(c)).

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

Article 3 of the Convention. National policy on occupational safety and health in mining. The Committee notes that, in reply to its previous comment, the Government indicates that the National OSH Committee and the Mining Sub-Committee are composed of representatives of governmental and non-governmental organizations, employers and employees. The Committee also notes that the Government refers to the adoption of safety rules in the mining sector, such as the 2019 unified safety rules for blasting operations, the 2019 safety rules for open-pit mines, the 2019 comprehensive guidelines for disaster risk assessment of open pit mining and concentrators and the unified safety rules for mineral concentrators and processing plants, as revised in 2020. Noting the absence of information on this subject, the Committee requests the Government to provide information on the implementation and periodic review of the policy on safety and health in mines, and on the consultations held in this respect with the social partners. The Committee also requests the Government to provide an update on the implementation of the subprogramme on OST in the mining sector, within the framework of the Fifth National Programme on Occupational Safety and Health.

Articles 5(1) and 16. Competent authority to monitor OSH in mining, and inspection. The Committee notes the Government’s indication that the main body in charge of occupational safety and health and of monitoring the implementation of labour protection legislation is the General Agency for Specialized Inspection. The Committee also notes the Government’s indication that the Agency currently consists of 66 state labour inspectors, which will be increased by 16, and 31 state labour safety inspectors, to be increased by 3. The Committee further notes that, according to the Government, it will be possible to employ two state labour inspectors in prefecture-level subdivisions (aimags) with large mining and infrastructure facilities, by including these costs in the 2020 budget. The Committee notes the Government’s reference to Resolution No. 236 of June 2019, which requires the provision of the necessary tools and equipment to increase the capacity of state inspections in the mining and infrastructure sectors. The Committee requests the Government to provide further information on the organization and functioning of the General Agency for Specialized Inspection responsible for supervising safety and health in mining, on the resources available to this inspection service and on the applicable legal framework. In addition, the Committee requests the Government to provide further information on the number of inspections conducted, violations identified and penalties and corrective measures established in relation to OSH in mining, in accordance with Article 16(1) of the Convention.

Article 5(2)(e). Power of the competent authority to suspend or restrict mining activities on safety and health grounds. The Committee notes the Government’s indication that the General Agency for Specialized Inspection is entitled to close or restrict the operation of a mine based on safety and health conditions, and to close or restrict the operation of a mine until proper conditions are ensured. The Committee requests the Government to indicate the provisions of national law that establish the powers of the General Agency for Specialized Inspection to suspend or restrict mining activities on safety and health grounds, until the conditions giving rise to the suspension or restriction have been corrected.

Article 5(4)(b). Obligation to provide and maintain adequate self-rescue respiratory devices. The Committee notes the Government’s indication that the workers employed in the Oyu Tolgoi underground mine are fully equipped with personal protective equipment and respirators. The Committee recalls the importance of ensuring that adequate well-maintained self-rescue respiratory devices are provided for workers in underground mines, particularly coal mines. The Committee requests the Government to provide further information on the measures taken to ensure that employers have the obligation to provide and maintain adequate self-rescue respiratory devices for workers in underground coal mines and other underground mines, where necessary.

Article 5(4)(c). Abandoned mines. The Committee notes the Government’s indication that there are currently no decommissioned facilities at the Oyu Tolgoi mine complex. While noting this information, the Committee once again requests the Government to provide information on the measures taken or envisaged in law and in practice to give effect to Article 5(4)(c) of the Convention to ensure that protective measures are taken to secure abandoned mine workings so as to eliminate or minimize risks to safety and health.

Article 5(5). Plans of workings. In the absence of information provided by the Government in response to its previous comments, the Committee once again requests the Government to provide information on the measures taken or envisaged in law and in practice to give effect to Article 5(5) of the Convention to ensure that an employer in charge of mines has the obligation to prepare plans of workings before the start of operations, and in the event of any significant modification, that such plans are brought up to date periodically and kept available at the mine site.

Article 7(c). Measures to maintain ground stability. In the absence of information in this respect, the Committee once again requests the Government to provide information on the measures taken or envisaged in law and practice to ensure that employers have an obligation to take steps to maintain the stability of the ground in areas to which persons have access in the context of their work.

Article 7(i). Stopping operations and evacuation of workers to a safe location. The Committee previously noted the Government’s reference to section 28.1.2 of the OSH Act, which provides that in the event of a situation endangering human life or health, the operation shall be stopped immediately and the dangerous situation shall be promptly eliminated. In the absence of the requested information, the Committee once again requests the Government to provide information on the measures taken in law and practice to ensure that when there is serious danger to the safety and health of workers in mining, workers are evacuated to a safe location.

Article 10(b). Supervision and control at each shift. The Committee previously noted that section 15 of the underground ore safety rules (Joint Order No. 229 of 2015) provides that mine management, engineers and technicians are required to visit the mine regularly to ensure that mining operations are carried out in an orderly manner and that occupational safety and health is fully monitored. During the shift, the shift supervisor is required to inspect each workplace and personally supervise mining work undertaken under difficult working conditions. The Committee notes the Government’s reference to section 28.1.6 of the OSH Act, which requires the employer to approve and implement rules, regulations and procedures in accordance with the nature of the workplace. The Committee notes that section 423(a) of the general open pit safety rules requires the shift supervisor of an open pit to inspect each shift and record the results in the logbook. The Committee takes note of this information, which addresses its previous request.

Article 10(c). Measures and procedures to establish a recording system of the names and probable location of all persons who are underground. The Committee notes the Government’s indication, with reference to the underground ore safety rules, that all underground mines are required to keep regular records of all underground workers entering and exiting the mine in accordance with the relevant regulations. However, the Committee notes that the Government does not provide information on the manner in which the probable location of workers in the mine is recorded. The Committee therefore once again requests the Government to provide further information on how effect is given to this Article of the Convention, including specific reference to the relevant provisions of the legislation.

Article 12. Responsibilities of the employer in charge of the mine when two or more employers undertake activities at the same mine. Noting the absence of information on this subject, the Committee once again requests the Government to provide information on the measures taken in law and practice to ensure that whenever two or more employers undertake activities at the same mine, the employer in charge of the mine shall coordinate the implementation of all measures concerning the safety and health of workers and shall be held primarily responsible for the safety of the operations.

Article 13(1)(a), (b), (e) and (f), (2)(c), (d) and (f), (3) and (4). Rights of workers and their representatives. The Committee notes the Government’s reference to section 18.1.4 of the OSH Act, which provides that workers have the right to suspend work in the event of a breach of work safety regulations or if there are certain conditions which could cause danger to human life and health. The Committee notes that this provision ensures the application of Article 13(1)(e) of the Convention. Noting the absence of relevant information provided by the Government in response to its previous comments, the Committee once again requests the Government to indicate the legal provisions giving effect to the rights of workers: (i) to report accidents, dangerous incidents and hazards (Article 13(1)(a)); (ii) to request and obtain inspections and investigations (Article 13(1)(b)); and (iii) to collectively select safety and health representatives (Article 13(1)(f)). It also once again requests the Government to provide information on the measures taken in law and practice to ensure the rights of workers and their representatives: (i) to have recourse to advisers and independent experts (Article 13(2)(c)); (ii) consult with the employer in a timely fashion on safety and health matters, including policies and procedures (Article 13(2)(d); (iii) to consult with the competent authority (Article 13(2)(e)); and (iv) to receive notice of accidents and dangerous occurrences (Article 13(2)(f)). Noting its comments on the application of Articles 5(e) and 13 of Convention No. 155, the Committee further requests the Government to provide information on the legislative and other measures adopted to determine the procedures established for the exercise of the rights listed in Article 13(1) and (2), and to indicate the measures taken to ensure that these rights can be exercised without discrimination or retaliation, in accordance with Article 13(3) and (4).