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Chemicals Convention, 1990 (No. 170) - Germany (RATIFICATION: 2007)

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In order to provide a comprehensive view of the issues relating to the application of occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine Conventions Nos 148 (working environment (air pollution, noise and vibration), 170 (chemicals), 176 (safety and health in mines) and 187 (promotional framework for OSH) together.

A. General provisions

Convention No. 187

The Committee notes the observations of the German Confederation of Trade Unions (DGB), received in 2012 and 2015, as well as the Government’s reply to the 2012 observations.

Articles 2(1), 5(1) and 5(2)(c) of the Convention. Continuous improvement of occupational safety and health (OSH). Formulation, implementation, monitoring, evaluation and periodical review of a national programme on OSH. Consultation with the most representative organizations of employers and workers. The Committee notes the observations of the DGB indicating that the evaluation of the Joint German Occupational Safety and Health Strategy (GDA) for 2008–12 pointed to shortfall and deficiencies in the application of the legal provisions in enterprises. The DGB indicates that, for example, in 75 per cent of enterprises, there was insufficient risk assessment or none at all, and, in particular, there was inadequate consideration of psychological stressors.

The Committee also notes the information provided by the Government in its report, in response to its previous comment that the evaluation of the GDA for the period 2008–12 showed positive developments and significant progress in the implementation of OSH measures. The Government indicates that the establishments that were involved in the implementation of the 11 work programmes of the GDA performed significantly better in the core elements of OSH (risk assessment, training, occupational safety and health services) than those that were not, regardless of factors such as the size of the company, the sector and the region. The Government adds that the evaluation of the GDA also showed that it was necessary to improve the organization of occupational safety and health, particularly in small and medium-sized enterprises (SMEs) and the inclusion of aspects relating to work organization in risk assessments, working arrangements and psychological stress. Against this background, the responsible institutions for the GDA had agreed, together with the social partners, on three concrete OSH goals for the period 2013–18: improvement of OSH organization; reduction of work related health hazards and musculoskeletal disorders; and protection and strengthening of health in cases of work-related psychological stress, for which three corresponding work programmes were launched. In the context of these programmes, the responsible institutions for the GDA work closely with the social partners and other stakeholders, such as health insurance funds, professional associations and networks. The Committee requests the Government to provide information on the evaluation of the GDA for the period 2013–18, when it is available, including the progress achieved as regards the three abovementioned goals and the related work programmes.

Article 2(2). Account taken of the principles set out in instruments of the ILO relevant to the promotional framework for OSH. With reference to its previous comment concerning account taken of the principles set out in the ILO instruments relevant to the promotional framework for OSH, the Committee notes the Government’s indication that not only the Conventions but also the Recommendations of the ILO are taken into account in discussions on possible legislative initiatives.

Article 2(3). Measures that could be taken, in consultation with the social partners, to ratify relevant occupational safety and health Conventions. The Committee notes that, in reply to its previous comment regarding periodic consideration given with regard to possible ratification of relevant OSH Conventions, the Government indicates that it undertakes periodic reviews, in consultation with the social partners, of possibilities of ratification of further ILO Conventions, including the Occupational Safety and Health Convention, 1981 (No. 155), the Prevention of Major Industrial Accidents Convention, 1993 (No. 174) and the Safety and Health in Agriculture Convention, 2001 (No. 184). The Committee takes note of this information.

Article 4(1). Obligation to establish, maintain, progressively develop and periodically review a national OSH system in consultation with the social partners. With reference to its previous comment, the Committee notes the information provided by the Government about the national OSH system, and notes the Government’s indication that six OSH advisory committees were established for the purpose of drawing up national labour protection rules. The OSH advisory committees have representatives of employers, trade unions and authorities at the Länder level and from the statutory health insurance funds as well as scientific experts.

Article 4(2)(d). Arrangements to promote, at the level of the undertaking, cooperation between management, workers and their representatives. In its previous comment, the Committee requested the Government to provide information on arrangements to promote cooperation in enterprises employing less than 20 workers. The Committee notes that, in reply, the Government refers to the provisions of the Safety and Health at Work Act and the Occupational Safety Act concerning cooperation and relationships between occupational physicians and OSH specialists, on one side, and works council, on the other side, in the context of workplace-related prevention measures. Taking into account the Government’s indication that the evaluation of the GDA indicated that the organization of OSH, in small and medium-sized enterprises (SMEs) could be improved, the Committee requests the Government to provide information on measures taken in practice in such enterprises to promote cooperation on OSH matters.

Article 4(3)(a). National tripartite advisory body addressing OSH issues. The Committee notes that the DGB states that the social partners do not have full voting rights at the National OSH Conference (NAK) – which is tripartite, and are instead only advisory members. It also notes the Government’s reply that with regard to the national OSH system, the Convention only assigns an advisory role to the social partners and that despite not having a direct voting right in the NAK, the social partners exercise tangible and direct influence on the voting procedure in the NAK due to their presence in the self-management bodies of accident insurance institutions (UVTs), which constitute one of the three GDA parties entitled to vote in the NAK. The Committee takes note of this information.

Article 4(3)(f). Mechanisms for the collection and analysis of data on occupational injuries and diseases, taking into account relevant ILO instruments. The Committee notes the information provided by the Government, in response to its previous comment, regarding the ILO instruments that are taken into account in the national mechanisms for the collection and analysis of data on occupational injuries and diseases, including the Labour Inspection Convention, 1947 (No. 81), the Labour Inspection Recommendation, 1947 (No. 81), the Labour Statistics Convention, 1985 (No. 160) and the Labour Statistics Recommendation, 1985 (No. 170). The Committee takes note of this information and also draws the attention of the Government to the detailed and useful prescriptions contained in the Protocol of 2002 to the Occupational Safety and Health Convention, 1981 (No. 155), in this respect.

Article 4(3)(h). Support mechanisms for progressive improvement of OSH conditions in micro-enterprises, small and medium-sized enterprises and the informal economy. The Committee notes the information provided by the Government, in response to its previous comment, regarding support mechanisms for SMEs. The Committee requests the Government to provide information on support mechanisms for the progressive improvement of OSH conditions in micro-enterprises and the informal economy, if any.

Article 5(2)(d). Objectives, targets and indicators of progress. The Committee takes note of the information provided by the Government, in response to its previous request, concerning the key indicators of progress used to evaluate the OSH goals and work programmes of the 2013–18 period of the GDA.

Article 5(2)(e). Complementary national programmes. The Committee notes that the Government, in response to its previous request concerning complementary programmes and plans, refers to the “Every Age Counts” demographic strategy, implemented since 2012, whose goals include maintaining and encouraging good health at work and avoiding or minimizing risks. It also mentions that the Prevention Act, adopted on 18 July 2015, improves the basis for prevention and promotion of health at all ages and in all areas of life as a shared responsibility of social insurance providers and the actors in the Länder and local authorities. The Committee takes note of this information.

B. Protection against specific risks

Convention No. 170

Article 1(2) of the Convention. Scope of application. Legislation. Exemption. The Committee previously noted that the national legislation, namely the Ordinance on Hazardous Substances (the Ordinance), gives effect to most of the provisions of the Convention. It also noted that the competent authority may permit exemptions from the application of most provisions of the Ordinance (such as in relation to the duties of employers including risk assessments, protective measures and training of workers, etc.). It further noted that these exemptions are rarely used and only granted if the application of its provisions would represent a disproportionate hardship and the protection of workers is afforded in another way.

The Committee notes the Government’s indication in its report, in reply to its request, that the granting of exemptions is subject to the strict obligation on the employer to provide the information, as set out in section 19(1), points 1 to 6, of the Ordinance to enable the competent authority to assess whether the request meets the requirements of disproportionate hardship and whether the deviation is compatible with the protection of the workers concerned. The Committee takes note of this information.

Article 12(d). Keeping of records of exposure. With reference to its previous request concerning the time period for which records of the exposure of workers must be kept, the Committee notes the Government’s indication that pursuant to section 14(3)(4) of the Ordinance, employers must keep record of workers who carry out activities involving the hazardous substances listed in the Ordinance for a period of 40 years. The Committee also notes that according to the Government, a revised version of the Ordinance is expected to include a minimum retention period of ten years for risk assessments. The Committee requests the Government to provide information on any developments regarding the revision of the Ordinance on Hazardous Substances in this respect, and to communicate a copy of the revised Ordinance once adopted.

C. Protection in specific branches of activity

Convention No. 176

Articles 5 and 16 of the Convention. Statistics on occupational accidents and diseases and compliance with OSH legislation in mining. The Committee notes the indication of the Government in its report according to which the number of occupational accidents in the mining sector is declining and that the consistent application of strict provisions has, among other factors, led to greater awareness of occupational safety and health (OSH) issues. In this regard, the Committee notes the statistical data provided on the number of accidents in 2013 in the mining industry, disaggregated by severity and cause, and in particular that 22 fatalities occurred in 2013. Furthermore, the Committee notes the Government’s indication that no statistics are available on the number and nature of infringements of OSH legislation in mines. The Committee requests the Government to continue to provide information on the application of the Convention in practice, including the number and nature of occupational accidents and diseases recorded. It also requests the Government to provide information on the number and nature of the infringements detected related to OSH legislation in mines.

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The Committee notes with interest the Government’s response on the application of Article 13(1)(f) of the Convention under section 9 of the Ordinance on Hazardous Substances 2004.

Article 12(d) of the Convention. Keeping of records of exposure. The Committee notes the Government’s comments on the application of Article 12(d) of the Convention under sections 7(6), 10(2) and 19(2)(1) of the Ordinance on Hazardous Substances 2004, with regard to ensuring records for monitoring of the working environment are kept and are accessible to the workers and their representatives. However, the Ordinance does not contain provisions with regard to keeping records for the monitoring of the working environment for a prescribed period of time. The Committee also notes that the Government is in the process of reintroducing the provisions for monitoring and keeping records on the exposure of workers to hazardous chemicals for a prescribed period under section 14. The Committee requests the Government to provide further information and the corresponding legal provisions on the prescribed time period for which records on monitoring the working environment are to be kept and in what manner. The Committee would also request the Government to keep it informed on the reintroduction of the provisions concerning the monitoring and keeping of records on the exposure of workers to hazardous chemicals.

Part V of the report form. Application in practice. The Committee notes the Government’s response that the competent authorities of the individual Länder are responsible for authorizing exemptions, and that such exemptions are rarely used and only given if the circumstances involve “disproportionate severity” and the protection of the workers is still guaranteed. The Committee would appreciate if the Government can provide further information and the corresponding legal provisions that ensure the protection of workers is guaranteed under the application for an exemption by the employer.

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The Committee notes the Government’s first report and that the national legislation gives effect to most of the provisions of the Convention. It would however like to draw the Government’s attention to the following points.

Article 12, subparagraph (d), of the Convention. Keeping of records of exposure. The Committee notes that section 7, subsection 6, of the Ordinance on hazardous substances provides for the establishment of documentation concerning the results of the risk assessment, the workers’ exposure and the protective measures taken to this effect. However, the Ordinance does not contain a provision with regard to the keeping of records of workers’ exposure to chemicals for a certain period of time. The Committee therefore requests the Government to indicate whether, and in what manner, the keeping of workers’ records on exposure to hazardous chemicals is prescribed and the time period during which these records shall be kept.

Article 13, paragraph 1(f). Provision of personal protective clothing. The Committee notes that section 11, subsection 3, of the Ordinance on hazardous substances, requires the employer to provide personal protective clothing, and protective equipment such as breathing masks, only to workers exposed to carcinogenic substances or substances which alter women’s fertility (level of protection 4). However, Article 13(1)(f) provides for protective clothing and protective equipment to be provided to all workers exposed in one way or another to chemicals, irrespective of the level of exposure. The Committee requests the Government to indicate whether protective clothing and protective equipment is supplied to all workers exposed to chemicals and, if that is the case, to indicate the corresponding legal provision. The Committee also requests the Government to provide information on the manner in which the maintenance of protective clothing is handled.

Part V of the report form. Application in practice. The Committee notes that, although the Ordinance on hazardous substances does not provide for any exclusion of specific branches of economic activities, section 20, subsection 1, stipulates that the competent authority – on the grounds of a well-founded written request by the employer – may permit exemptions from the application of certain provisions of the Ordinance. These provisions refer to general protection and supplementary protection measures (sections 7–15) and to the prohibition of manufacturing and utilization of hazardous substances (sections 17–19). Such permission may only be granted if the application of the abovementioned provisions of the Ordinance on hazardous substances would represent an “unusual hardship” and on the condition that the overall protection of the workers concerned is afforded in another way. The Committee requests the Government to provide information, for example, statistical data, as to the number of permissions granted under section 20, subsection 1, of the Ordinance on hazardous substances. The Committee would also appreciate receiving further information on how other means of workers’ protection is afforded in practice under these circumstances.