CMNT_TITLE

Occupational Safety and Health Convention, 1981 (No. 155) - Türkiye (RATIFICATION: 2005)

Other comments on C155

Observation

Direct Request

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The Committee notes the observations made by the Confederation of Turkish Trade Unions (TÜRK-İŞ), the Confederation of Progressive Trade Unions of Turkey (DISK) and the Confederation of Public Employees’ Trade Unions (KESK), all received on 1 September 2014. The Committee also notes the observations made by KESK, TÜRK-İŞ and the Confederation of Turkish Real Trade Unions (HAK-IŞ), as well as the observations submitted by the Turkish Confederation of Employers’ Associations (TISK), annexed to the Government’s report and received on 3 November 2014.

The Committee further notes that referring to the observations made by TÜRK-İŞ and KESK, received on 1 September 2014, the Government indicates, in a communication received on 12 November 2014, that at this stage, it has no comments to provide thereon.

The Committee also takes note of the observations made by the All Municipality Workers Trade Union (TÜM YEREL-SEN), received on 30 October 2014. The Committee requests the Government to provide its comments on these observations.

Articles 1 and 2 of the Convention. Scope of application. Exclusions. The Committee notes the observations made by KESK, according to which the Occupational Safety and Health Act No. 6331 of 2012 (OSH Act No. 6331) excludes from its scope of application a number of activities and persons and that the application of sections 6 and 7 of this Act is postponed to July 2016 as regards public employees. In its observations, TISK indicates that Regulation No. 28710 on safety and health measures to be taken at the workplace, adopted pursuant to the OSH Act No. 6331, does not cover means of transport used outside of the undertaking and means of transport used at the workplace for temporary or mobile construction, mining, oil and gas industries, fishing boats and agricultural and forestry zones. TISK considers that these provisions are in line with Articles 1(2) and 2(2) of the Convention. The Committee notes that these exclusions do not seem to correspond to those indicated in the Government’s first report. It recalls that under Articles 1(3) and 2(3) of the Convention, member States may exclude particular branches of economic activity in respect of which special problems of a substantial nature arise, or limited categories of workers in respect of which there are particular difficulties, only in their first report, giving the reasons for such exclusions, and shall indicate in subsequent reports any progress made towards wider application. In its direct request of 2005, the Committee noted the Government’s indication that a new draft bill would include all branches of economic activity and all the workers therein. The Committee requests the Government to ensure that exclusions provided under the OSH Act No. 6331 and its Regulations are not broader in scope than those indicated in its first report and to provide detailed information thereon. The Committee also requests the Government to describe the measures taken to give adequate protection to workers in excluded branches and to indicate any progress towards wider application.

Article 4. Formulation, implementation and periodical review of the national policy on OSH, in consultation with the most representative organizations of employers and workers. Article 8. Measures to be adopted, including legislation, in consultation with the representative organizations of employers and workers, to give effect to the national policy. In its observations, TÜRK-İŞ refers to the National Occupational Safety and Health Policy for 2014–18, submitted to the National OSH Council, and identifies several areas of action which would need to be addressed or improved: activities aimed to promote the implementation of the OSH Act No. 6331; training and promotional activities in the field of OSH; effective workplace inspection visits; and decreases in the number of workplace accidents, in particular in the mining, construction and metal sectors. Furthermore, the Committee notes that according to DISK, the social partners are underrepresented within the National OSH Council and that it is not convened often enough to ensure its functioning (currently twice a year). In their observations, DISK, TÜRK-İŞ and KESK allege that OSH Act No. 6331 was adopted without the agreement of the social partners and did not meet their expectations. According to DISK, a number of amendments were introduced in other general laws and regulations with negative effects on the implementation timeframe of the OSH Act No. 6331. The Committee also notes that the national OSH policy framework under Articles 4 and 7 of the Convention, implies a dynamic and cyclical process and requires regular review to ensure that the national OSH policy and measures, adopted in line with Article 8 of the Convention to give effect to the national OSH policy, are appropriate and adequate and remain constantly updated. The Committee invites the Government to take measures to ensure that the national OSH policy is formulated, implemented and periodically reviewed in consultation with the social partners, as required by Article 4 of the Convention. In view of the ongoing process of legislative reform, the Committee requests the Government to ensure effective consultation of the social partners in this process and to provide detailed information on the consultations held and their results.

Articles 5(a) and (b), and 16. Workplace safety and health. The Committee notes, on the one hand, the concerns expressed by TISK regarding the obligation to recruit occupational physicians and occupational safety experts (OSEs) in all undertakings classified as dangerous or very dangerous, irrespective of the number of workers employed. According to TISK, such provisions result in a heavier burden on employers in small and medium-sized enterprises (SMEs). On the other hand, KESK recalls that the OSEs are not vested with any powers under the OSH Act No. 6331, but that in practice they are still held responsible for injuries sustained by workers and are liable for penalties. As regards Article 16 of the Convention, the Committee draws the Government’s attention to the fact that while it is not an obligation under this Convention to recruit occupational physicians and OSEs in all workplaces, employers are required to ensure, as far as is reasonably practicable, that workplaces and the working environment are safe and without risk to health. In respect to the observation made by KESK, the Committee notes that the designation of OSEs, or any other technical or professional bodies to assist the employer in relation to OSH matters, cannot replace or limit the responsibility resting with employers to ensure that workplaces and the working environment are safe and without risk to health, in accordance with Article 16. The Committee requests the Government to clarify the different roles and responsibilities of employers and the OSEs in ensuring safety in workplaces and the working environment and to provide information in this respect. The Committee also refers the Government to its comments under the Occupational Health Services Convention, 1985 (No. 161).

Article 7. Periodical review of the situation regarding OSH either overall or in respect of particular areas. Subcontracting, mining, metal and construction sectors. In its observations, DISK refers to an evaluation report on the OSH situation prepared by the Ministry of Labour and Social Security in 2005, according to which a number of deficiencies were identified in the OSH system, in particular concerning: the prevention of occupational hazards; the lack of supervision of the working environment; and the absence of recognition and notification of work-related diseases. DISK considers that, despite the adoption of new OSH legislation, these issues still persist. As for TÜRK-İŞ, it identifies the mining, construction and metal sectors as priority sectors in the development of an OSH policy aimed to prevent occupational accidents and to ensure workplace inspections. In this connection, TÜRK-İŞ also points out the unhealthy and insecure working conditions of workers of subcontracting companies, denounces the absence of effective labour inspection, and recalls that, according to official statistics, the number of workers employed by subcontracting companies would be 1 million. In addition, KESK considers that official data underestimate the phenomenon and that these workers would be as many as 2 million. The Committee refers to paragraph 78 of its 2009 General Survey on occupational safety and health which states that “the review of the national policy provided for in Article 4 of the Convention depends on, and should be informed by, the review of the national situation provided for in Article 7”. This revision allows the evaluation of the situation of OSH in practice. The Committee requests the Government to continue its efforts, in consultation with the social partners, with a view to identifying major issues, developing effective methods to address them, defining priorities of action and evaluating results achieved, in line with Article 7 of the Convention, and to provide information in this respect, including in the mining sector.

Article 9. Enforcement of laws and regulations by an adequate and appropriate system of inspection and adequate penalties. In its observations, DISK considers that there are not enough labour inspectors in the country. It adds that sanctions are not properly enforced. In the same vein, HAK-IŞ considers that measures should be taken to strengthen labour inspection and to ensure that sanctions are effectively enforced. KESK points out to the inefficiency of the labour inspection related to various forms of precarious work in the context of privatization, de-unionization, unregistered labour and subcontracting. The Committee refers the Government to its comments on the application of Labour Inspection Convention, 1947 (No. 81).

Article 11(c). Establishment and application of procedures for the notification of occupational accidents and diseases, and production of annual statistics on occupational accidents and diseases. According to the observations sent by KESK and DISK, Turkey allegedly ranks very high as regards the incidence of work-related accidents. In this connection, KESK calls into question the decrease in the number of fatal occupational accidents announced by the Government and points out that 9 million workers are undeclared in the country and that as a consequence, the actual number of fatalities is bound to be much higher. KESK also questions the accuracy of national statistics on the incidence of occupational diseases, estimated at 0.05 per thousand, while average data worldwide varies between four and 12 per thousand. According to KESK, the definition of occupational diseases, their registration and notification pose a serious problem in the country. In this regard, it points out deficiencies in the detection of occupational diseases in the private sector due to a lack of monitoring of the workers’ health. KESK further claims that in the public sector, occupational accidents and diseases are not recognized as such. In its observations, KESK and TÜRK-İŞ call for action to collect data on occupational accidents and diseases, and to improve the national system of identification and detection of occupational diseases so as to evaluate the situation in the country. The Committee requests the Government to provide its comments on the issues raised by the trade unions, including underreporting and subcontracting issues, and to provide information on the application in practice of procedures established for the notification of occupational accidents and diseases, and the production of annual statistics. It requests the Government to provide information on the measures taken to improve these procedures (including their definition and registration), in consultation with the social partners, in the framework of the national OSH policy.

Recent developments and technical assistance. The Committee notes that the majority of the observations received refer to issues which pre-date the OSH Act No. 6331 and that these observations indicate that the Act has not resolved these issues in practice. The Committee also notes that a number of observations refer to an increase in work-related accidents in the mining sector and to the Soma mine accident which claimed the lives of 301 miners. The Committee notes that following this accident, the Office has been engaged in providing technical assistance on OSH issues. The Committee further takes note of the ILO press release of 17 October 2014, according to which the Government, workers’ and employers’ representatives and other relevant stakeholders agreed on the main elements of a roadmap on how to improve OSH in mines at the “National Tripartite Meeting on Improving Occupational Safety and Health (OSH) in Mining”, hosted by the Ministry of Labour and Social Security on 16–17 October 2014 in cooperation with the ILO. The Committee notes that while the workshop focused on the mining sector, the elements of the roadmap developed are broader in scope as they address OSH issues in general and not only those relevant to the mining sector. In this regard, it notes that among other elements, the issue of subcontracting is addressed and that, according to the press release, it was also agreed that a research institution would carry out further research on OSH on the context and extent of subcontracting arrangements in certain high risk sectors in Turkey. The Committee also notes that in its report on the application of the Underground Work (Women) Convention, 1935 (No. 45), the Government informs the Office and the Committee that a draft bill assenting the ratification of Safety and Health in Mines Convention, 1995 (No. 176), was submitted by the Government to the National Assembly of Turkey on 23 September 2014 for its approval.

Furthermore, the Committee takes note of the Government’s announcement, made on 12 November 2014, concerning the introduction of a series of occupational safety measures in the mining and construction sectors with the specific aim of reducing the incidence of fatal occupational accidents and enhancing safety standards at the workplace. Finally, the Committee notes that on 21 November 2014, the Turkish Parliament has endorsed the ratification of the Safety and Health in Construction Convention, 1988 (No. 167).

The Committee welcomes the ongoing efforts made by the Government and the social partners to improve safety and health at work and their intentions demonstrated during the national tripartite meeting to overcome the issues identified in a comprehensive and sustained way with, as appropriate, the support of the Office.

The Committee requests the Government to provide detailed information on any progress achieved concerning the issues and developments noted above and on the implementation of the elements of the roadmap concerning the improvement of OSH.

Other issues. In its previous comments, the Committee raised the following issues which are also relevant to the improvement of the prevention of work-related accidents and diseases in the country.

Articles 13 and 19(f). Serious and imminent danger. The Committee notes the Government’s reference to section 13 of the OSH Act No. 6331 which provides, in its first paragraph, that workers exposed to serious and imminent danger are required to file an application with the OSH committee, or in its absence with the employer, to request that the hazard be identified and emergency measures be adopted. Section 13(3) of the OSH Act No. 6331 also provides that in the event of serious, imminent and unavoidable danger, workers are entitled to leave their work situation or dangerous area without following the abovementioned notification procedure. The Committee emphasizes that this provision does not give full effect to Articles 13 and 19(f) of the Convention. It recalls that Articles 13 and 19(f) do not envisage the notification to a committee or the employer as a precondition to removal. In this connection, the Committee refers to paragraphs 145–152 of its 2009 General Survey on occupational safety and health and underscores that Articles 13 and 19(f) do not appear to be adequately reflected “where the right of workers to remove themselves, while not entailing undue consequences, is conditional on a decision by a safety officer or another person in a supervisory position”. As regards the preconditions set out in section 13(3) of the OSH Act No. 6331, the Committee understands that the condition of “unavoidability” of the danger means that an accident must occur. The Committee draws the Government’s attention to the fact that to benefit from the protection of Article 13 of the Convention, it is not necessary that the accident be unavoidable, but it is sufficient that the worker has reasonable justification to believe that the work situation presents an imminent and serious danger to his or her life or health, whether the accident occurs or not. The Committee therefore requests the Government to take the necessary steps to modify its legislation in order to give full effect to Articles 13 and 19(f) of the Convention and to supply information in this respect.

Article 17. Collaboration between two or more undertakings engaged in activities simultaneously at one workplace. In its report, the Government refers to provisions made to ensure the joint liability of the main employer and the subcontractor regarding the obligations provided under the Labour Act No. 4857. It adds that section 22 of the OSH Act No. 6331 now provides for the establishment of a joint safety and health committee to ensure cooperation and collaboration between the main employer and the subcontractor wherever the duration of the outsourcing contract exceeds six months. The Committee recalls that the prescribed collaboration of employers must be implemented from the start of the work and is not subject to their duration. The Committee also notes that section 23 of the OSH Act No. 6331 sets out a duty to cooperate for employers carrying out activities in the same work environment with a view to preventing, protecting from, and informing workers on, occupational risks. The Committee wishes to draw the Government’s attention to Paragraph 11 of the Occupational Safety and Health Recommendation, 1981 (No. 164), which provides that, in appropriate cases, the competent authority should prescribe general procedures for this collaboration. The Committee requests the Government to take the necessary measures to ensure that when two or more employers are engaged simultaneously in activities in one workplace, the prescribed collaboration is not subject to any period of time and to provide information in this regard, including information on the application in practice. The Government is also requested to provide information on any measures taken or procedures adopted by the authority to ensure this collaboration.

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

[The Government is asked to reply in detail to the present comments in 2015.]