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Benzene Convention, 1971 (No. 136) - Brazil (RATIFICATION: 1993)

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In order to provide a comprehensive view of the issues relating to the application of ratified occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine Conventions Nos 136 (benzene), 139 (occupational cancer), 161 (occupational health services), 167 (OSH in construction), and 176 (OSH in mines) together.
The Committee notes the adoption of Act No. 13.467 of 2017 amending the Consolidation of Labour Laws (CLT). The Committee also notes that the Government indicates in detail the outcome of labour inspection activities, including the results of the action taken to correct the irregularities observed, in response to the Committee’s previous comments on Conventions Nos 136, 139, 167 and 176. With regard to the organization and provision of appropriate and adequate inspection services, the Committee refers to its detailed comment under the Labour Inspection Convention, 1947 (No. 81).

A. General provisions

Occupational Health Services Convention, 1985 (No. 161)

The Committee notes the observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI), those of the IOE received on 31 August 2017, and those of the CNI received on 29 August 2017, which emphasize that Act No. 13.467 of 2017 amending the CLT maintains the requirement for employers to take OSH measures.
Article 2 of the Convention. National policy. In its previous comment, the Committee requested the Government to provide information on aspects of the national OSH policy regarding occupational health services and the periodic consultation with employers’ and workers’ representatives on the subject. The Committee notes the Government’s indication in its report that, in the context of the adoption of the National OSH Policy (PNSST – Decree No. 7602 of 2011), the National OSH Plan (PLANSAT) was created, which is managed by the Tripartite OSH Committee (CTSST) (Inter-ministerial Decree No. 152 of 2008). The CTSST oversees the implementation of, and proposes the regular revision of, the PNSST and the PLANSAT. Furthermore, as part of the PLANSAT strategy for the coordination of government action on promotion, protection, prevention, assistance, rehabilitation and compensation with regard to occupational health, Action 3.1.8 on the inspection, supervision and promotion of OSH services in public and private institutions and enterprises was established. The Committee requests the Government to continue providing information on the implementation of a coherent national policy on occupational health services, including with regard to the implementation of Action No. 3.1.8 of the PLANSAT on occupational health services.
Article 3(1) and (2). Progressive development of occupational health services. In its previous comment, the Committee requested the Government to provide additional statistical information on the specialized occupational safety and medicine services, and on the consultations for the progressive development of such services. The Committee notes the Government’s indication that Regulatory Standard No. 4 (on specialized occupational safety and medicine services) establishes the parameters for the size of such services, and particularly the risk assessment of the main activity involved and the number of workers covered. The Government adds that, although the services cover only 1.5 per cent of private enterprises, other workers from the private sector can benefit from the same occupational health services by different means, such as the contracting of specialized enterprises or self-employed professionals. The Government also indicates that it is continuing to work on improving the information system for the compilation of data on this subject.
Articles 5 and 8. Adequate functions of occupational health services and participation of workers in OSH matters. Public sector of the Federal District. In its previous comment, the Committee noted the measures adopted to protect the OSH of teachers in the public sector, and requested the Government to continue providing information on the implementation of the health plan for the public sector in the Federal District. The Committee notes with interest the adoption of the integrated policy on the health of public servants (Decree No. 33.653 of 2012), the OSH manual for public servants in the Federal District (Decree No. 55 of 2012), which requires the State Secretariats of Public Administration Health and Education to establish multidisciplinary OSH teams, with the aim of promoting health and protecting the safety of public servants in the workplace, as well as the strengthening of the Health Care Institute for public servants in the Federal District.

B. Protection against specific risks

1. Benzene (Convention No. 136)

The Committee notes the information provided by the Government in reply to its previous comment on Articles 4 (prohibition of the use of benzene) and 8 (personal protective equipment), and on the application in practice of the Convention (court cases).
Article 2 of the Convention. Harmless or less harmful substitute products. The Committee notes that Annex 13-A (Benzene) of Regulatory Standard No. 15 (Unhealthy activities and operations), was amended by Decrees Nos 203 and 291 of 2011. Following these amendments, Regulatory Standard No. 15 establishes the mandatory registration with the OSH Department of the Ministry of Labour and Employment of all enterprises that use, produce, transport, store or handle benzene and liquid mixtures containing 1 per cent by volume or more of benzene. These enterprises must demonstrate that it is not technically or financially viable to use a benzene substitute in the Programmes for the Prevention of Occupational Exposure to benzene (PPEOBs). With regard to its previous comment on the application in practice of PPEOBs in the petrochemical sector, the Government indicates that Annex 13-A of Regulatory Standard No. 15 does not apply to the sector. However, Programmes for the Medical Supervision of Occupational Health (PCMSOs) and Programmes for the Prevention of Environmental Risks (PPRAs) provided for in Regulatory Standards Nos 7 and 9, respectively, guarantee the implementation of OSH measures in the sector.
Article 6(2). Concentration of benzene in the air of places of employment. In its previous comment, the Committee noted that dialogue was continuing in the National Standing Committee on Benzene (CNPB) to reduce the maximum value for the concentration of benzene in the air of places of employment. The Committee notes the Government’s indication that technical reference values of 2.5 and 1.0 ppm (for enterprises in the steel industry and other enterprises, respectively) are parameters for environmental control and not for occupational exposure. The Committee observes that section 6.2 of Annex 13-A of Regulatory Standard No. 15 provides that technical reference values shall refer to the time-weighted average concentration of benzene in the air, for an eight-hour working day. However, the Government indicates that it still intends to progressively reduce exposure levels through dialogue in the CNPB. The Committee requests the Government to continue its efforts to reduce exposure values to benzene and to continue providing information on the establishment, by the competent authority, of the maximum level of concentration of benzene in the air of places of employment.
Article 7. Enclosed systems. Removal of benzene vapour. With reference to its previous comment on the effect given to this Article of the Convention, the Committee notes the Government’s indication that, in accordance with section 6.1 of Regulatory Standard No. 15, every effort must be made to avoid the exposure of workers to benzene. Under section 5.5.2 of Regulatory Standard No. 9 (on the PPRAs), the examination, development and implementation of collective protection measures shall be in line with the following order of priorities: (a) to eliminate or reduce the use of hazardous substances; (b) to prevent the release or spread of such substances in the air of workplaces; and (c) to reduce the levels of concentration of such substances in the air of workplaces. The Government also indicates that all enterprises that use or produce benzene use enclosed systems, with the exception of analysis work carried out in laboratories and service stations that supply liquid fuel containing benzene. In this regard, the Committee refers to its comments on the application of Article 14 of the Convention.
Article 14(a). Legislative measures or other measures necessary to give effect to the provisions of the Convention. Petrochemical sector. With reference to its previous comment on the effect given to the provisions of the Convention with respect to workers who carry out work tasks involving the loading and unloading of fuel in the petrochemical sector, the Committee notes the Government’s indication that Regulatory Standard No. 20 on health and safety in relation to inflammable products and fuels regulates these activities. Furthermore, the Standing Joint Tripartite Committee (CTPP) is currently negotiating the adoption of an annex to Regulatory Standard No. 9 to establish minimum OSH requirements, including for the introduction of collective measures for the control of vapour at service stations that supply fuel. The Committee requests the Government to continue providing information on the measures adopted or envisaged, through legislation or any another method, in accordance with national practice and conditions, to give effect to the provisions of the Convention.

2. Occupational cancer (Convention No. 139)

The Committee notes the information provided by the Government in reply to its previous comment on Articles 1 (periodic determination of carcinogenic substances and agents), 2 (replacement of carcinogenic substances and agents), 3 (protection against the risks of exposure and system of records), 5 (evaluation of exposure or state of health in relation to occupational hazards), 6(c) (labour inspection in the petrochemical sector) of the Convention, and on the application of the Convention in practice.
Article 3 of the Convention. Protection against risks of exposure and system of records. In its previous comment, the Committee requested the Government to provide information on the maintenance and content of medical records on carcinogenic substances and agents other than benzene. The Committee notes that, in accordance with Regulatory Standards Nos 7 (on the PCMSO) and 9 (on the PPRAs), all employers are required to keep records of administrative and technical data on the implementation of the PPRAs and individual medical records of workers, for a period of 20 years after workers have left their employment (section 4.5.1 of Regulatory Standard No. 7).
Article 5. Evaluation of exposure or state of health in relation to the occupational hazards. In its previous comment, the Committee requested the Government to adopt the necessary measures to ensure that all workers exposed to carcinogenic substances or agents are provided with the medical or biological examinations, during or after their employment, as are necessary to evaluate their exposure and state of health in relation to occupational hazards. The Committee notes that, in accordance with sections 4.1 to 4.4 of Regulatory Standard No. 7, the PCMSOs provides for the mandatory medical examination of workers, including after employment.

C. Protection in certain branches of activity

1. Safety and health in construction (Convention No. 167)

Article 3 of the Convention. Consultation with the most representative organizations of employers and workers. Informal work. The Committee notes the statistics provided by the Government in response to its previous comment on informal work in the construction sector, and the consultations held in the Standing Regional Committees, the Standing National Committee, the CTPP and the Tripartite OSH Committee. Many consultations resulted in the National Commitment to Improve Working Conditions in the Construction Industry, the implementation of which is scheduled until 31 December 2018 and is accompanied by a standing tripartite roundtable, which is also responsible for the evaluation of the Commitment. The Commitment establishes, inter alia, guidelines for contractual formalization, recruitment and selection, as well as vocational training and qualifications.
Article 35. Appropriate inspection system. Application in practice. With regard to the inspection system, the Committee notes the Government’s indication that it gives priority to the construction sector, in which around 8 per cent of all occupational accidents occur, based on the latest statistics. The Government emphasizes the high risk of construction, in which accidents have a high rate of mortality and permanent disability in comparison with other activities. Consequently, in the construction sector, the labour inspectorate carries out 25 per cent of all activities to examine and investigate occupational accidents. The Committee requests the Government to continue its efforts to analyse the statistics on occupational accidents and diseases to establish the appropriate inspection programmes, and to continue providing statistics on occupational accidents and diseases that occur in the sector, including fatal accidents.

2. Safety and health in mines (Convention No. 176)

The Committee notes the information provided by the Government in response to its previous comment on Articles 3 (national policy), 5(1) (competent authority), 5(2)(c) and (d) (notification and investigation of accidents and dangerous occurrences, and disaster, compilation and publication of statistics on dangerous occurrences), 5(2)(e) (suspension and restriction of mining activities), 10(d) and (e) (investigation of and reports on dangerous occurrences), 9(d) (appropriate transportation and access to appropriate medical facilities in the event of injury or illness), 10(b) (adequate supervision and control on each shift), 11 (regular health surveillance of workers), 12 (two or more employers undertaking activities at the same mine), 13(1)(b) (right of workers to request and obtain inspections and investigations to be conducted by the employer and the competent authority), 13(1)(c) (right of workers to know and be informed of workplace hazards), 13(2)(f) (right of OSH representatives to receive notice of dangerous occurrences) of the Convention, and on the application of the Convention in practice.
Article 3 of the Convention. National policy. In its previous comment, the Committee requested the Government to provide information on the periodic review of the national policy on OSH in mines. The Committee notes the Government’s indication that the principle of the PNSST (Decree No. 7602 of 2011) is the universal promotion of OSH. The CTSST supervises the implementation of and proposes the periodic review of the PNSST and the PLANSAT. Furthermore, the Ministry of Labour and Employment coordinates the tripartite Standing National Committee for the Mining Sector (CPNM), which is of tripartite composition and has the specific objective of supporting the implementation of and proposing amendments to Regulatory Standard No. 22 of 2000.
Article 5(2)(e). Suspension and restriction of mining activities. In its previous comment, the Committee noted that, in accordance with Regulatory Standard No. 3, the competent authority could suspend or restrict activities on the grounds of safety and health. However, the Committee noted that the decision to suspend or restrict activities had to be based on a technical report prepared by labour inspectors and transmitted to the Regional Superintendent. In this regard, the Committee requested the Government to provide information on the possible obstruction of prompt action by procedural requirements in safety and health cases. The Committee notes with interest the court decision of January 2014, in accordance with which all labour inspectors have the authority to order immediately applicable measures in cases of serious and imminent risk. The Government indicates that the decision was the result of a public civil action (Case No. 0010450 12.2013.5.14.0008) initiated by the Labour Prosecution Office, which alleged the inconsistency of section 161 of the CLT with Article 13 of Convention No. 81. Moreover, Ministry of Labour and Employment Decree No. 1.719 of 2014 authorizes all labour inspectors to order immediate measures in cases of risk to the life, health or safety of workers. The Committee requests the Government to provide information on practical cases in which labour inspectors have requested immediate measures to be taken.
Article 10(c). Probable location and names of all persons who are underground. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention. The Committee notes that the Government has not provided information in this regard. The Committee once again requests the Government to provide information on the measures adopted or envisaged to ensure that employers establish a system which makes it possible to know, with precision and at any time, the names of all persons who are underground, and their probable location, in accordance with Article 10(c) of the Convention.
Article 13(1)(a). Right of workers to report accidents, dangerous occurrences and hazards to the employer and to the competent authority. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention. The Committee notes the Government’s indication that, in accordance with section 4.1 of Regulatory Standard No. 22, workers have a duty to inform their supervisors of situations that may present a risk to their health or the health of others, while the Convention provides that national laws and regulations shall confer or provide workers the right to report accidents, dangerous occurrences and hazards to the employer and to the competent authority. In this regard, in its General Survey of 2017, paragraph 282, the Committee emphasized that workers’ participation in matters relating to safety and health at the workplace is fundamental and integral to the achievement of a safe and secure working environment. In order to give effect to Convention No. 176, the participation of workers must be guaranteed as a right, and procedures should be established to facilitate the exercise of this right. The Committee requests the Government to provide information on the measures adopted or envisaged to establish procedures to facilitate the exercise of the right of workers to report accidents, dangerous occurrences and hazards to the employer and the competent authority, in accordance with Article 13(1)(a) of the Convention.
Article 13(2)(c). Right of workers’ representatives to have recourse to advisers and independent experts. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention. The Committee notes the Government’s indication that there are no provisions that give effect to this Article of the Convention, and that it would therefore be necessary to amend Regulatory Standard No. 22. The Committee requests the Government to take the necessary measures to ensure that OSH representatives have the right to have recourse to advisers and independent experts, in accordance with Article 13(2)(c) of the Convention.
Article 13(2)(f). Right of safety and health representatives to receive notice of dangerous occurrences. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention with regard to dangerous occurrences. The Committee notes the Government’s indication that, in accordance with sections 36.7 of Regulatory Standard No. 22 and 1.2.1.20.1 of the Mining Regulatory Standard, the Internal Commission for the Prevention of Accidents in Mining (CIPAMIN) must be informed of any significant changes in work processes and the working environment, including dangerous occurrences.

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The Committee refers the Government to its observation and requests it to send additional information on the following points.
Articles 4 and 7(1) of the Convention. Prohibition on the use of benzene in certain work processes specified by law and the requirement to carry out work processes involving the use of benzene in a closed system. Further to its previous comments, the Committee takes note of the information sent by the Government but observes that it does not allow a clear understanding of the extent to which these Articles of the Convention are applied. The Committee requests the Government to indicate the standards giving effect to these Articles of the Convention.
Article 6(2). Level of concentration of benzene in the air of places of employment. The Committee takes note of the continuation of the discussions in which, according to the report, a dialogue on the reduction of the reference value applying to metallurgy is ongoing in the National Standing Committee on Benzine (CNPBz) but notes that the matter is not a priority for the employers. Pointing out that the American Conference of Governmental Industrial Hygienists (ACGIH) recommends a value of 0.5 ppm as an upper limit for the concentration of benzene in the air of places of employment, the Committee requests the Government to indicate whether Brazil continues to apply a ceiling value of 1.0 ppm for the concentration of benzene in the air for the enterprises covered by this appendix and 2.5 ppm for enterprises in the steel industry, and to take measures as appropriate, and to provide information thereon.
Articles 7(2) and 8(1). The removal of benzene vapour and adequate means of personal protection against the risk of absorbing benzene through the skin. The Committee notes that the Government does not reply directly to its request but indicates that it encloses material from FUNDACENTRO (not received at the Office), and refers to the website of the CNPBz. Having viewed the report of September 2010, the Committee finds that the information posted on the website does not reply to the questions raised. It again asks the Government to indicate the legislation giving effect to these provisions of the Convention.

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Rio Grande Do Sul Petrochemical Sector. Article 5 of the Convention. Effective protection of workers exposed to benzene. Article 6. Measures to prevent the escape of benzene vapour into the air of places of employment. Article 8. Adequate means of personal protection against the risk of absorbing benzene through the skin and of inhaling benzene vapour. Article 9. Periodical medical examinations and exceptions. Article 14(c). Labour inspection. In its previous comments, the Committee took note of a communication from the Union of Workers in the Road Transport of Liquids and Gases, Oil Derivatives and Chemical Products of the State of Rio Grande Do Sul (SINDILIQUIDA/RS) and of the Government’s report. It noted that the communication alleged breach of the abovementioned provisions in the petrochemical sector, particularly by Petrobras Distribuidora SA, Shell Brazil and Distribuidora de Produtos de Petróleo Ipiranga SA, with special reference to “driver-operators”. The trade union said that some products handled by workers in the sector contain more than 3 per cent of benzene and that the workers are exposed to serious risks, particularly “driver-operators” in view of the absence of prevention and protection measures. The driver-operators are not as a rule employees of the enterprises concerned since their legal status as employees varies and they perform the tasks of loading and unloading without protection and without any supervision by the appointed employees in the enterprises. The union also asserted that since 2003 these enterprises have not adopted the necessary technical measures to give effect to this Article of the Convention despite instructions from the labour inspectorate and convictions in the courts. Lastly, the organization asserts that the fact that inspection exists but produces no improvement amounts to a “legal fiction” and an instance of failure to apply Article 14(c) of the Convention.
Government’s report. Labour inspection. The Committee notes that, at the Government’s request, in September 2011 the Office again sent the Government the documents appended to the SINDILIQUIDA/RS communication, including reports by the Regional Labour Delegation of Rio Grande Do Sul, that the union had sent as an attachment to the communication and which the Office forwarded to the Government on 8 November 2007. The Committee also notes that the Government emphatically refutes the union’s assertion that there is supervision by the labour inspectorate but that it is a “legal fiction”, and denies that matters may be at a standstill. The Government states that the labour inspectorate of Brazil is respected worldwide and that when an enterprise breaks the law, the democratic system can resort to instruments such as administrative and judicial sanctions, to be applied in observance of due process, and if the system proves inadequate, the solution is to get parliament to pass stricter laws. The Committee invites the Government to send its comments on the reports of the Regional Labour Delegation attached to the SINDILIQUIDA/RS communication.
Labour inspectorate’s work relating to the issues raised in the communication. The Committee notes with interest the information sent by the Government on the labour inspectorate’s work relating to the enterprises and issues referred to in the communication. The Government indicates that Petrobras, Shell Brazil and Ipiranga were inspected regularly in 2009 in connection with the regulatory standards on occupational safety and health (OSH), as well as on general issues, individual protective equipment, and programmes on environmental risk prevention and health conditions and amenities at the workplace. The Government reports on infringements that were remedied and others that were reported after it was found that the enterprise failed to apply adequate risk-prevention measures; failed to develop adequate planning measures; failed to specify strategies and methodologies and overlooked the views of the workers; disregarded the need for joint measures where two or more employers carry on activities simultaneously in the same workplace; and failed to ascertain the absence of any risks and to carry out proper supervision. The Committee also notes that, according to the Government, two Petrobras units were inspected: Petrobras Transporte SA – TRANSPETRO and Petrobras Distribuidora in Canoas, Rio Grande do Sul. TRANSPETRO was inspected in connection with regulatory standards on general aspects of OSH, individual protective equipment, medical occupational health supervision programmes, environmental risk prevention programmes, unhealthy activities, and operations. These inspections also involved the State Benzene Committee (CNBz). The Government also indicates that in March 2009, Petrobras Distribuidora was inspected and deficiencies that had been found were put to right. The Committee requests the Government to continue to provide information on the impact of the work done by the labour inspectorate on the issues raised in the communication, including on other enterprises mentioned in the communication, such as Shell.
Court cases. The Committee notes the information sent by the Government on judicial proceedings under way as a result of reports of infringements submitted by the labour inspectorate. As regards compliance with Decision No. 00075-2003-024-04-00-0 of the District Labour Court No. 24 of Puerto Alegre, referred to by the union in its communication, the Committee notes that a hearing of 22 August 2008 dealt with the execution of the decision, and that SINDILIQUIDA/RS concedes that the enterprise (Petrobras Distribuidora) is complying as regards the issues mentioned. An extract of the hearing record, provided by the Government, states that the drivers of the service providers are no longer carrying on activities outside the scope of their occupation as lorry drivers, having concluded a contract the latter capacity with the company Servale. The enterprise also submitted programmes for risk-prevention in the workplace which recommend the use of respirators for workers responsible for unloading lorries. The Government also reports a court case against Shell Brazil in Esteio, Rio Grande do Sul where a prohibition was sought on safety grounds; a case against Ipiranga in which the Public Prosecutor for Labour, assisted by SINDILIQUIDA/RS, applied to have the lorry drivers barred from the tasks of loading and unloading regardless of whether they were employees of the enterprise, or of subcontractors or self-employed. The case is still pending. Referring to the latter case, the Government indicates that the judges deemed the issue of driver-operators to be a “highly controversial” one. The Committee asks the Government to continue to provide information on developments in these cases and to indicate why the courts deem the driver operator issue to be “highly controversial”, insofar as the matter relates to the application of the Convention or any other ratified Convention on occupational safety and health.
Part IV of the report form. Application in practice. The Committee requests the Government to send its comments on the effect given to the Convention by enterprises in the petrochemical sector, including in the Rio Grande Do Sul region. Please provide information on the manner in which the Articles of the Convention cited at the beginning of this comment apply to persons engaged in the loading and unloading of fuels, whether they are employed directly by enterprises in the sector or by subcontractors, as in the case of the enterprise Servale referred to by the Government in its report on the Occupational Cancer Convention, 1974 (No. 139). The Committee also asks the Government to state whether it envisages the possibility of examining, together with the social partners and in the course of the reviews provided for in Article 7 of the Occupational Safety and Health Convention, 1981 (No. 155), how application of the Convention is faring in the petrochemical sector.
Programmes for the prevention of occupational exposure to benzene (PPEOB). In its previous comments, the Committee asked the Government to provide copies of a few PPEOB together with information on the manner in which they are applied in practice, including in the enterprises mentioned in the communication. The Committee notes that in its report, the Government indicates that the labour inspectorate is responsible for supervising implementation of such programmes and that information on such programmes may not be forwarded for examination by third parties because copies may not be provided to any institutions, except in the case of court rulings. The Committee requests the Government to provide information allowing it to ascertain whether the programmes are effectively applied in the petrochemical industry, including in the enterprises mentioned in the communication.
The Committee is raising other points in a request addressed directly to the Government.

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Further to its observation, the Committee requests the Government to provide additional information on the following points.

Articles 4 and 7, paragraph 1, of the Convention. Prohibition to use benzene in certain legally specified work processes and requirement to carry out work processes involving the use of benzene in a closed system. With reference to its previous comments, the Committee notes that the Standing National Benzene Commission (CNPBz) continues its discussion on the adoption by companies of best practices and the use of new technologies and equipment with a view to achieving the objectives set out in Annex 13 of Normative Regulation No. 15 of Ordinance No. 3214 of 1978. It notes, inter alia, that in 2009 a metallurgical company which will use the heat recovery process which prevents the exposure to benzene will be put in operation. The CBPBz will evaluate the efficiency of this project. A similar project is already in operation in Spirito Santo. The Committee also notes that the CBPBz has set the following priorities for the negotiations: objective criteria for creating an inventory of enterprises that produce, use, handle, and transport benzene; training for workers and specialists; construction of offices for the promotion of the application by employers of Decree No. 776/2004; and a research project on the exposure of workers to benzene in petrol stations. The Committee requests the Government to provide information on the implementation of these priorities, on all measures taken or envisaged to ensure a full implementation of these Articles and their impact in practice.

Article 6, paragraph 2. Level of concentration of benzene in the air of places of employment. The Committee notes that according to the report, the question of lowering the reference value in metallurgical industries is being discussed in the CNPBz, but that this question is not a priority for the employers. As a result, the CNPBz has decided to focus its efforts on the development of best practices and the incorporation of new technology. The Committee asks the Government to continue to inform it on progress made on this issue and on the impact of these measures in practice.

Article 7, paragraph 2, and Article 8, paragraph 1. The removal of benzene vapour and adequate means of personal protection against the risk of absorbing benzene through the skin. With reference to its previous comments, the Committee notes that, according to the report of the Government, activities which imply handling of benzene are regulated by specific legislation on benzene (Annex 13-A of the National Agreement on Benzene, 1995) and general laws which impose on the employer the obligation to prevent risks and to take certain measures to ensure that benzene vapour is removed as well as protection against the risk of absorbing benzene through the skin. The Committee requests the Government to provide information on the application of these measures in practice including any progress achieved, with reference, as appropriate, to extracts from relevant documents such as research projects or labour inspection reports.

Part IV of the report form. Application in practice. The Committee notes that, according to the Government, the Programme for the Prevention of Occupational Exposure to Benzene (PPEOB) is a programme of risk prevention which is coupled with specific requirements concerning working environments where benzene is used. It is a programme that should be developed by employers that produce, use, handle or transport benzene and is subject to the control of the Ministry of Labour as well as the national and regional benzene committees. The Committee asks the Government to submit copies of some examples of PPEOB and to provide information on how they are applied in practice, including in the enterprises the Committee refers to in its observation.

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The Committee notes the Government’s report, received on 31 October 2008, with its reply to the comments made by the Workers’ Union of the Road Transport of Liquids and Gases, Oil Derivatives and Chemical Products of the State of Río Grande do Sul (SINDILIQUIDA/RS), with the attachments referred to in the Committee’s comments under the Occupational Safety and Health Convention, 1981 (No. 155).

The Committee notes that SINDILIQUIDA/RS’s allegations concern the application of the Convention more specifically in the petrochemical sector. These allegations relate to the application of the following Articles of the Convention:

–           Article 5 of the Convention. Effective protection of workers exposed to benzene in the petrochemical sector. SINDILIQUIDA/RS indicates that since 2003 and up to the present time, the enterprises Petrobras Distribuidora SA, Shell Brazil and Distribuidora de Produtos de Petróleo IPIRANGA S/A have not adopted appropriate measures to ensure the effective protection of workers exposed to benzene, despite the instructions of the Ministry of Labour and a conviction of Petrobras in the labour courts. It affirms that in the present case there is a deliberate intention not to comply with clear legal provisions and the orders of the labour delegation and the courts. SINDILIQUIDA/RS states that certain products handled by workers in the sector contain over 3 per cent of benzene and that the workers are exposed to serious risks, with particular reference to “driver-operators”, in view of the absence of prevention and protection measures in the sector. In general, these driver-operators are not employees of the enterprises concerned, as their services are engaged under different forms, and they perform the tasks of loading and unloading without protection or supervision of any type by the approved employees of these enterprises.

–           Article 6. Measures taken to prevent the escape of benzene vapour into the air of places of employment. SINDILIQUIDA/RS indicates that multinational enterprises in the sector do not take the technical measures for the implementation of the Article and adopt a confrontational attitude in relation to the labour inspectorate and the courts. According to the report of the labour inspectorate attached to the communication, Petrobras is not taking the measures required under this Article in relation to driver-operators, and Shell has reached the point of denying any responsibility in relation to these workers. The report adds that the Shell enterprise depends almost solely on appropriate human behaviour for the prevention of accidents in inflammable environments, in contradiction with international trends in this respect.

–           Article 8. Adequate means of personal protection against the risk of absorbing benzene through the skin and the risk of inhaling benzene vapour. SINDILIQUIDA/RS indicates that enterprises in the sector do not give effect to this Article and, according to the report of the labour inspectorate, driver-operators do not even use respiratory masks and, in certain enterprises, they do not even know what that means. SINDILIQUIDA/RS states that the administration has not adopted measures for the rapid imposition of penalties in such cases, and that the respective procedures can drag on indefinitely without any solution being found.

–           Article 9. Regular medical examinations and exemptions. According to the communication referred to above, medical examinations are not undertaken of workers exposed to benzene, particularly in the case of driver-operators. The union organization refers to the conclusions of the labour inspection report referred to previously.

–           Article 14(c). Labour inspection. SINDILIQUIDA/RS indicates that despite the existence of an appropriate inspection system to supervise the application of the provisions of the Convention, the notifications and orders that it issues, and the penalties imposed, have not resolved the major problems that arise, certain of which constitute serious and imminent risks to health. The trade union considers that the existence of supervision that is no more than “a legal fiction” amounts to a failure to give effect to Article 14(c).

The Committee notes that the reports of the labour delegation submitted by SINDILIQUIDA/RS confirm that enterprises in the sector do not give effect in practice to the legislation implementing the Convention. With regard to Petrobras, the report of the regional labour delegation indicates that no effect has been given to the requirement to formulate and implement the various prevention and monitoring programmes for occupational exposure to chemicals that are envisaged in the legislation, and that driver-operators do not use protective equipment, even though it is recognized that they are in contact with carcinogenic substances. The report of the labour delegation concludes that no effect has been given to the court ruling of 2003, and that the situation has deteriorated. The Committee considers that the conclusions of the report on Shell are a cause for even greater concern, as they indicate that the enterprise is persevering with their policy of excluding driver-operators from the process of the management and control of risks by transferring these responsibilities to third parties. The Committee further observes that, in its reply, the Government indicates that SINDILIQUIDA/RS represents workers who are engaged in the road transport of liquids or gases that are hazardous and inflammable, including benzene, and participates in the Benzene Commission of Río Grande do Sul. It refers to the various inspections carried out in areas where these workers operate, and principally in terminals of the petrochemical industry and refineries, which have resulted in various reports being drawn up indicating repeated violations. Some of these reports have been sent to the Office of the Public Prosecutor for Labour Matters and have provided the basis for public civil actions in the courts that are still ongoing. However, certain inspection activities carried out by the Ministry of Labour have been interrupted by court injunctions suspending them as a preliminary measure. The Government adds that, despite these circumstances, it has continued its efforts and it should be noted that all the supervisory measures taken have been intended to achieve compliance with the provisions of the Convention. The Government affirms that the labour inspectorate will continue to supervise the application of the Convention in the sector. The Committee observes that the Government does not deny the failure to give effect to the above Articles of the Convention in the present case. It also notes that the labour delegation of Río Grande do Sul appears to have followed the situation carefully. Violations have been reported, civil action taken against the enterprises and reports drawn up on the effect given to the recommendations made by the courts. The follow-up reports conclude however that none of the recommendations have been implemented and that the situation has deteriorated. The Committee therefore requests the Government to:

–           examine the causes of this situation and to undertake an assessment of the reasons why, in this case, its efforts have not resulted in an improvement in the situations described in practice;

–           work with the social partners to seek solutions with a view to drawing up proposals for action to find a way out of this impasse, which has occurred despite the efforts of the labour inspectorate;

–           take this situation into account when formulating the national policy envisaged by Convention No. 155, in consultation with the social partners;

–           make efforts to ensure that effect is given in practice to Articles 5, 6, 8 and 9 of the Convention in the present case and in all sectors engaged in activities resulting in the exposure of workers to benzene; and

–           provide detailed information on the measures adopted and the results obtained in practice. In particular, the Committee requests it to provide detailed information of developments in the situation in practice of driver‑operators in the Río Grande do Sul region.

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

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1. The Committee notes the comments of the Union of Workers in the Road Transport of Liquids and Gases, Oil Derivatives and Chemical Products (SINDILIQUIDA/RS), which were received with attachments on 4 October 2007 and sent to the Government on 8 November 2007. It notes that these observations relate to the alleged non-application of the following Articles of the Convention: Article 5, Preventive occupational hygiene and technical measures; Article 6, Measures taken to prevent the escape of benzene vapour into the air of places of employment; Article 8, Adequate means of personal protection against the risk of absorbing benzene through the skin and of inhaling benzene vapour; Article 9, Periodic medical examinations and exceptions; Article 14(c), Inspection services. The Committee requests the Government to reply to the observations made by SINDILIQUIDA/RS.

2. The Committee also notes its previous comments relating to the Government’s reply to the observations made by several unions from various industries, and it once again invites the Government to make comments on the following matters.

3. Articles 4 and 7, paragraph 1, of the Convention. Prohibition to use benzene in certain legally specified work processes and requirement to carry out work processes involving the use of benzene in a closed system. With reference to its previous comments, the Committee notes that the Standing National Benzene Commission (CNPBz) has initiated a discussion on the adoption by companies of best practices and the use of new technologies and equipment with a view to achieving the objectives set out in Annex 13 of Normative Regulation No. 15 of Ordinance No. 3214 of 1978. Seminars and technical meetings have been organized with a view to reaching an agreement on substantive technical changes in industrial processes. Workshops are also envisaged to discuss the best practices to be adopted in relation to certain equipment, such as vents and flanges, oil–water separators, hermetic doors in coking plants and other relevant technical matters. The Committee hopes that these activities will result in a more effective application of these provisions of the Convention in the various types of factories, including those which use benzene in the process of producing alcohol anhydride as a dehydrating agent in azeotropic distillation, in relation to which Administrative Decree SSST No. 27 of 8 May 1998 establishes deadlines for the replacement of benzene. The Committee requests the Government to keep it informed of the outcome of these discussions and of any progress achieved in this respect. It once again requests the Government to provide a copy of the above Administrative Decree.

4. Article 6, paragraph 2. Level of concentration of benzene in the air of places of employment. The Committee notes the proposal made by employers during the ordinary meeting of the CNPBz in June 2005 to reduce the technical reference value applicable in the metal sector from 2.5 to 1 ppm. This value would be immediately applied to new enterprises, while others would have a period of ten years to adapt. The Committee also notes that the workers and the Government made a counterproposal of a reference value of 1 ppm for the steel sector and 0.5 ppm for petrochemicals. This value would be immediately applied to new enterprises, while other enterprises would have a period of five years to adapt. The Committee requests the Government to keep it informed of the outcome of the negotiations on reference values at forthcoming meetings of the Standing National Benzene Commission, and any progress achieved in this respect.

5. Article 7, paragraph 2. Measures taken to ensure that places of work in which benzene or products containing benzene are used are equipped with effective means to ensure the removal of benzene vapour. In its previous comment, the Committee drew the Government’s attention to the need to install ventilation systems in workplaces, not only when a high concentration of benzene may occur (as laid down in section 5.4 of Annex 13-A to the Agreement on Benzene, 1995), but also whenever it is not practicable for the work processes to be carried out in an enclosed system. As the Government’s latest report does not contain any information on this point, the Committee once again requests the Government to adopt measures to give effect to this provision.

6. Article 8, paragraph 1. Adequate means of personal protection against the risk of absorbing benzene through the skin. In its previous comments, the Committee drew the Government’s attention to the requirement to take measures to ensure the protection of workers whenever they may have skin contact with liquid benzene or products containing benzene, and not only in critical situations, as established in section 5.4 of Annex 13-A of the Agreement on Benzene, 1995. As the Government’s latest report does not contain any information on this point, the Committee once again requests the Government to adopt measures to give effect to this provision.

7. With reference to its previous comments and in the absence of specific information on this matter, the Committee requests the Government to indicate whether the Programme for the Prevention of Occupational Exposure to Benzene (PPEOB), which was to be established pursuant to section 5 of Annex 15-A to the national Agreement on Benzene, 1995, has already been adopted and has been implemented; it also requests the Government to provide a copy of the Programme with its next report.

[The Government is asked to reply in detail to the present comments in 2008.]

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1. The Committee notes the information contained in the Government’s report and the information provided in reply to a part of its previous comments. The Committee notes in particular the information with regard to Article 1 of the Convention (scope of application).

2. Articles 4 and 7, paragraph 1, of the Convention. Prohibition to use benzene in certain legally specified work processes and requirement to carry out work processes involving the use of benzene in a closed system. With reference to its previous comments, the Committee notes that: the Permanent National Benzene Commission (CNPBz) has initiated a discussion of the adoption by companies of best practices and incorporation of new technologies and equipment so as to achieve the objectives set out in Annex 13 of Normative Regulation No. 15 in Order No. 3,214 of 1978; seminars and technical meetings have been organized in order to reach an agreement on substantive technical changes in the industrial processes; workshops are also envisaged to discuss the best practices to be adopted in relation to equipment such as vents and flanges, oil-water separators, hermetic doors in coking plants and other relevant technical matters. The Committee hopes that such activities will lead to a more effective application of these provisions of the Convention in different types of factories including those which use benzene in the process of producing alcohol anhydride as a dehydrating agent in azeotropic distillation and for which Administrative Decree SSST No. 27 of 8 May 1998 established deadlines for the replacement of benzene. The Committee requests the Government to keep it informed of the results of such discussions as well as of any progress achieved in this regard. The Committee requests again the Government to provide a copy of the abovementioned Administrative Decree with its next report.

3. Article 6, paragraph 2. The level of the concentration of benzene in the air of places of employment. The Committee notes the proposal presented by the employers during the regular meeting of the CNPBz in June 2005, to reduce the technological reference value (TRV) applicable to the metal sector from 2.5 (two and one-half) ppm to 1 (one) ppm within a time frame of ten years to allow companies time to adapt, with immediate application to newly-formed companies. The Committee also notes that the workers’ and Government sides presented a counter proposal of values of 1 (one) ppm for the steel sector and 0.5 (half) ppm for the petrochemicals sector, both in the form of TRV with a time limit of five years to allow existing companies to adapt, with immediate application to newly-formed companies. The Committee requests the Government to keep it informed of the results of the negotiations concerning these values in forthcoming meetings of the CNPBz and about any progress achieved in this regard.

4. Article 7, paragraph 2. Measures taken with respect to places of work in which benzene or products containing benzene are used shall be equipped with effective means ensuring the removal of benzene vapour. In its previous comments, the Committee drew the Government’s attention to the necessity to establish ventilation systems in workplaces not only when a high concentration of benzene may occur as laid down in item 5.4 of Annex 13-A to the Agreement on Benzene, 1995, but each time when work processes are undertaken which, for practical reasons, cannot be carried out in an enclosed system. As the Government’s latest report contains no information on this issue, the Committee once again invites the Government to adopt measures in order to give effect to this provision.

5. Article 8, paragraph 1. Adequate means of personal protection against the risk of absorbing benzene through the skin.  In its previous comments, the Committee drew the Government’s attention to the requirement to take measures to ensure the workers’ protection each time when they may have skin contact with liquid benzene or products containing benzene and not only in critical situations as indicated in item 5.4 of Annex 13-A to the Agreement on Benzene, 1995. As the Government’s latest report contains no information, the Committee once again invites the Government to adopt measures in order to give effect to this provision.

6. With reference to its previous comments and in the absence of any specific information in this respect, the Committee requests the Government to indicate if the Protection Programme for Workers Exposed to Benzene (PPEOB), which was to be established pursuant to item 5 of Annex 13-A to the National Agreement on Benzene, 1995 already has been adopted and is in force, and supply a copy of it with its next report.

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The Committee takes note of the Government’s reports and of the documentation concerning the use of benzene in the country. It draws the Government’s attention to the following points on which additional information is required.

1. Article 1 of the Convention. The Committee notes item 2 of the National Tripartite Agreement on Benzene of 1995 and item 2 of Annex 13-A to this Agreement, according to which the provisions apply to all companies which produce, store, use or handle benzene and liquid mixtures thereof containing 1 per cent or more of benzene by volume, as well as to companies contracted by them. However, according to item 2.1 of Annex 13-A, the provisions do not apply to certain branches, i.e. the transport, the storage, the sale or use of combustible materials derived from petroleum, which have specific regulations. The Committee therefore requests the Government to specify the regulations applicable to the branches excluded from the scope of application and to provide a copy of them.

2. Article 4 and Article 7, paragraph 1. The Committee notes that item 3 of Annex 13-A to the Benzene Agreement prohibits since 1 January 1997 the use of benzene for any purpose, except the industries and laboratories enumerated. Article 1 of Administrative Decree No. 14 of 20 December 1995 provides for the prohibition of exposure to certain substances and processes, including products of benzidine. With regard to the use of benzene in factories producing alcohol anhydride for the use as a dehydrating agent in azeotropic distillation, Administrative Decree SSST No. 27 of 8 May 1998 establishes deadlines for the final replacement of benzene. The Committee requests the Government to indicate the provisions providing for the obligation to carry out as far as practicable certain work processes covered by Administrative Decree SSST No. 27 of 8 May 1998, in an enclosed system.

3. Article 6, paragraph 2. The Committee notes item 7 of Annex 13-A to the Agreement on Benzene, 1995, providing for maximum concentration limit of benzene in the air of 1.0 ppm for companies covered by this Annex and of 2.5 ppm for companies in the steel industry. The Committee states that both values comply with the value established under the Convention, which represents the value fixed when the Convention was adopted in 1971. This value is, however, outdated from the scientific point of view. The Committee notes that the American Conference of Industrial Hygienists (ACGIH) which is the body internationally recognized for its assessments of the state of the art in the field of exposure limits to chemical substances, recommends a value of 0.5 ppm as maximum concentration value of benzene in the air of places of employment. In view of this and the fact that pursuant to item 6 of Annex 13-A to the Agreement on Benzene, the technological reference values for the level of concentration of benzene in the air is subject to tripartite negotiation, the Committee invites the Government to consider the concentration levels recommended by the ACGIH at the occasion of the next tripartite negotiations on the subject.

4. Article 7, paragraph 2. The Committee notes that item 5.4 of Annex 13-A to the Agreement on Benzene, 1995, provides for procedures of collective and individual protection of workers against the risk of exposure to benzene in critical situations through various measures such as appropriate ventilation. The term "critical situation" is defined as a situation in which high concentrations of benzene may occur (item 5.4 of Annex 13-A). The Committee accordingly requests the Government to take the necessary measures to establish e.g. ventilation systems in workplaces not only when a high concentration of benzene may occur, but each time when work processes are carried out which, for practical reasons, cannot be carried out in an enclosed system.

5. Article 8, paragraph 1. The Committee notes that item 5.4 of Annex 13-A to the Agreement on Benzene, 1995, provides for procedures of collective and individual protection of workers against the risk of exposure to benzene in critical situations through measures such as adequate respiratory protection and protective clothing to avoid contact of benzene with the skin. Item 5.4 defines critical situations as situations in which high concentrations of benzene may occur. The Committee requests the Government to take the necessary measures to provide adequate means of personal protection against the risk of absorbing benzene through the skin not only in critical situations, but each time the workers may have skin contact with liquid benzene or products containing benzene.

6. In addition, the Committee notes that a number of protective measures applying the provisions of the Convention are elements to be contained in the Protection Programme for Workers Exposed to Benzene (PPEOB), which must be established pursuant to item 5 of Annex 13-A to the National Agreement on Benzene, 1995. Hence, the definite application of the Convention depends, as the Government confirms in its report, on the transmission of this Programme to the Secretariat for Occupational Health and Safety of the Ministry of Labour for its adoption in order to become effective. The Committee therefore requests the Government to indicate whether the PPEOB programme already has been adopted and is in force.

7. Finally, the Committee would be grateful, if the Government would supply the following legislation for further examination: Administrative Decree No. 27 SSST of 8 May 1998 establishing deadlines for the final replacement of benzene in factories producing alcohol anhydride for the use as a dehydrating agent in azeotropic distillation and Administrative Decree SSST of 1 October 1996 providing for the Technical Note on PCMSO.

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