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Safety and Health in Mines Convention, 1995 (No. 176) - Brazil (RATIFICATION: 2006)

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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 to its observation and requests the Government to supply information on the following points.

Article 3 of the Convention. National policy. The Committee refers to Regulatory Standard No. 22 (NR 22), as amended on 1 October 2007, concerning occupational safety and health in mining, and other additional regulatory standards, drawn up through a tripartite process, which constitute the basis of national policy in this sphere. The Committee requests the Government to supply information on the manner in which national policy on safety and health in mines is periodically reviewed, particularly regarding the measures taken to give effect to the provisions of the Convention. In view of the fact that this Article of the Convention provides for ongoing implementation and review in order to take the necessary remedial measures regarding the implementation of national policy in practice, the Committee requests the Government to supply information, if applicable, on the most relevant aspects of such revision.

Articles 5(1) and 16(b). Competent authority for monitoring and regulating the various aspects of safety and health in mines. Appropriate inspection services. The Committee notes the indication in the Government’s report that occupational safety and health (OSH) legislation is primarily regulated in the Consolidated Labour Legislation having the status of a federal Act, of which Title II in Chapter V lays down provisions on occupational safety and occupational medicine and assigns the Ministry of Labour the power to draw up additional provisions issued in the form of regulatory standards, drawn up through a tripartite process. The monitoring of these standards comes within the competence of the labour inspectorate within the Ministry of Labour and Employment. In view of the technical nature of this Convention, for example Article 7, which states, inter alia, that the mine must be designed and constructed in such a way as to provide conditions for safe operation and a healthy working environment, the Committee requests the Government to indicate whether the Ministry of Labour is responsible for monitoring and follow-up with regard to all the provisions of the Convention, or whether certain provisions such as the aforementioned are the responsibility of the Ministry of Mines or another ministry and, if so, to indicate the provisions for which each institution is responsible and the coordination mechanisms that exist. Accordingly, the Government is also requested to supply information on the technical competencies of the inspection services with regard to the matters covered by the Convention.

Article 5(2)(c). Procedures for reporting and investigating fatal and serious accidents, dangerous occurrences and mine disasters. As regards reporting, the Committee notes that NR 22.37.7 establishes that, in the event of a fatal accident, it is obligatory to inform the Regional Labour Delegation (DRT). As regards investigation, the Committee notes that NR 22.3.7.3 and NR 22.37.6.1 refer to the investigation of occupational accidents. The Convention refers in various provisions to “dangerous occurrences”, and the Committee, noting that the Government does not supply any information on this in its report, wishes to point out that the objective of reporting with regard to the above is prevention. The Committee requests the Government to provide information on compulsory reporting procedures for non-fatal serious accidents, dangerous occurrences and mine disasters. The Government is also requested to provide information on the investigation of dangerous occurrences and mine disasters.

Article 5(2)(d). Compilation and publication of statistics on accidents, occupational diseases and dangerous occurrences. The Committee notes the information supplied in the report on the manner in which effect is given to this provision with respect to accidents and diseases and notes that no information is supplied with regard to dangerous occurrences. The Committee requests the Government to provide information on the compilation and publication of statistics relating to dangerous occurrences.

Article 5(2)(e). Power of the competent authority to suspend or restrict mining activities on safety and health grounds. The Committee notes that section 3.1 of NR 3 states that the competent authority shall be able to order, on the basis of a technical report, the suspension or restriction of activities. The Committee requests the Government to supply information on the application in practice of this provision with regard to mines. In particular, the Committee wonders whether the requirement for a technical report will obstruct the taking of prompt action to suspend or restrict activities.

Article 9(d). Provide workers who have suffered from an injury or illness at the workplace with first aid, appropriate transportation from the workplace and access to appropriate medical facilities. The Committee notes the provisions relating to first aid. The Committee requests the Government to supply information on the obligation to provide appropriate transportation from the workplace and access to appropriate medical facilities, in cases covered by this provision.

Article 10(b). Adequate supervision and control on each shift. The Committee notes that the Government refers to NR 22.24.24, which covers the controls to be effected on each shift in mines where there is the risk of firedamp or other toxic, explosive or inflammable gases. The Committee requests the Government to supply information on the manner in which effect is given to this provision, which not only covers the contingencies established in NR 22.24.24 but also covers all mines according to the terms laid down by Article 1(a) and (b) of the Convention.

Article 10(c). System to enable the names of all persons who are underground to be accurately known at any time. Noting that the Government’s report does not supply any information in this respect, the Committee requests the Government to supply information on the effect given to this provision.

Article 10(d) and (e). Investigation and report on accidents and dangerous occurrences. The Committee requests the Government to supply information on the manner in which effect is given to these provisions of the Convention as regards dangerous occurrences.

Article 11. Regular health surveillance of workers. The Government states that NR 22.3.6 lays down the obligation to formulate and implement the Occupational Health Medical Programme (PCMSO) pursuant to the terms of NR 7. The Committee recalls that the regular health surveillance of workers is compulsory under the terms of the Convention and requests the Government to indicate whether the formulation of the PCMSO is compulsory and indicate the manner in which it is implemented in practice.

Article 12. Two or more employers in the same workplace. The Committee notes that NR 22.3.5 gives effect to this Article of the Convention with regard to subcontracting. The Committee requests the Government to indicate the manner in which effect is given to this Article in cases involving the presence of two or more employers without the use of subcontracting.

Article 13(1)(a). Right of the workers to report accidents, dangerous occurrences and hazards to the employer and to the competent authority. The Committee notes the Government’s indication in its report that section 22.4.1(b) of NR 22 states that workers have the duty to report situations to their hierarchical superior that they consider to represent a health and safety hazard. The Committee points out to the Government that this provision does not establish an obligation but a right, and that this right consists of notifying not only the hierarchical superior but also the competent authority. The Committee therefore requests the Government to supply information on the manner in which effect is given to this provision, including notification of the competent authority with regard to the eventualities covered by this paragraph of the Convention.

Article 13(1)(b). Right to request and obtain, where there is cause for concern on safety and health grounds, inspections and investigations to be conducted by the employer and the competent authority. The Committee notes that the report refers to section 22.4.1(a) of NR 22, which does not specifically guarantee this right. The Committee requests the Government to provide detailed information on the effect given to this provision, with respect to both the employer and the competent authority.

Article 13(2)(c). Right to have recourse to advisers and independent experts. The Committee notes that the report does not contain any information on the manner in which effect is given to this provision. The Committee requests the Government to supply information on the effect given to this provision.

Article 13(2)(f). Right to receive notice of accidents and dangerous occurrences relevant to the area for which they have been selected. The Committee requests the Government to supply information on the effect given to this provision in relation to dangerous occurrences.

Part V of the report form. Application in practice. The Committee notes the information supplied by the labour inspectorate, whose work focused essentially on the states of Espírito Santo, Bahia and Minas Gerais on account of the scale of mining activities in these states. The Committee requests the Government to provide a general description of the manner in which the Convention is applied in its country. It also requests the Government to provide information on the number of workers protected by the measures that give effect to the Convention, indicating the number of workers involved in small and medium-sized mines and the manner in which the Government applies these measures to this sector.

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The Committee notes the first and second reports of the Government and notes with interest the adoption of Regulatory Standard No. 22 (NR 22), as amended on 1 October 2007, concerning occupational safety and health in mining, which gives effect to the Convention and was drawn up through a tripartite process. NR 22 regulates, inter alia, fundamental aspects relating to the Convention, such as the participation of workers through the Internal Commission for the Prevention of Accidents in Mining (CIPAMIN), established by section 22.36, and the right of workers to remove themselves from any sector of the mine when there are reasonable grounds to think that the situation poses a serious danger to their safety or health, as established by Article 13(1)(a) of the Convention.

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