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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 the information provided regarding effect given to Article 5(4)(a) and (d) and Article 13(1) of the Convention.

Part V of the report form. Application in practice. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied in the country and supply extracts from inspection reports including information on the number and the nature of the infringements reported.

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1. The Committee notes the information provided in the Government’s report in response to its previous comments. It would nevertheless appreciate additional information on the following points.

2. Article 5, paragraph 4(a), of the Convention. Requirements relating to mine rescue and first aid. The Committee notes the information that the employer is responsible for organizing mine rescue and that, given the positive nature of the experiences garnered in this field, there is no need for new legislation to be adopted at present. The Committee requests the Government to keep it informed of any new developments in this area and to provide a copy of the relevant texts as soon as they have been adopted.

3. Article 5, paragraph 4(d). Removal of waste produced at the mine. The Committee notes the information that the specific legislation relating to mines takes precedence over the legislation on hazardous substances, which is more general and is applied in principle. The Committee requests the Government to indicate the provisions of the national legislation or regulations prescribing the safe transportation and disposal of hazardous substances used in the mining process, as well as waste produced at the mine.

4. Article 13, paragraph 1. Right of workers to remove themselves from any location posing a serious danger. The Committee notes the information that the restriction set out under section 22 of the General Mining Ordinance (ABBergV) essentially refers to rescue services in mines and that no amendments are planned. It is thus possible that the safety and health interests of other employees can prevent a worker from removing himself/herself from a work situation when he/she has reasonable grounds for believing that there is an imminent and serious danger to his/her own life or health. The Committee requests the Government to take the measures needed to bring the legislation into conformity with this provision of the Convention.

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The Committee notes the Government’s reports and the texts of the legislation giving effect to the provisions of the Convention. The Committee notes that there is legislative conformity with a large number of the provisions of the Convention. It would be grateful if the Government would provide a copy of the Works Constitution Act (BetrVG), as amended to date. It would also be grateful if the Government would provide further clarifications on the following points.

Article 4, paragraph 2, of the Convention. Please provide information on the accident prevention regulations issued by the Accident Insurance Funds, as well as a copy of these regulations.

Article 5, paragraph 2(a). Please provide information as to whether a mining ordinance has been adopted as provided for in section 66, first sentence, Nos. 5a and 6, section 55, paragraph 1, first sentence, No. 3, and section 68 of the Federal Mining Act (BBergG), and if so, please provide a copy of this ordinance.

Article 5, paragraph 2(b), and Article 16(b). Please provide information as to whether a mining ordinance has been adopted as provided for in section 65, first sentence, Nos. 4 and 6, section 55, paragraph 1, first sentence, No. 3, and section 65, second sentence and section 68 of the Federal Mining Act (BBergG), and if so, please provide a copy of the ordinance.

Article 5, paragraph 2(c). Please indicate whether the Federal Ministry of Labour has made use of the authorization provided for in section 24, No. 3, of the Occupational Safety Act (ArbSchG), to issue administrative regulations on the duty of the competent Länder authorities to inform it on matters that have to be included in the annual Report on Accidents Prevention (section 25, paragraph 2, of the Social Code-Book VII)

Article 5, paragraph 2(d). Please indicate the provisions of national legislation that requires annual reporting on mining operations and provide a copy of the text concerned. Please provide additional information on the methods by which the Länder comply with the reporting duties concerning the application of international legislation on safety and health at work, as provided for in section 24, paragraph 4 of the Occupational Safety Act (ArbSchG).

Article 5, paragraph 2(f). Please provide further information on how the consultations that are called for by this paragraph of Article 5 of the Convention are provided for nationally.

Article 5, paragraph 3. Please indicate the provisions of national laws or regulations that require that, not only the use but also the manufacture, storage, and transport of explosives and initiating devices at the mine, shall be carried out under the direct supervision of competent and authorized persons.

Article 5, paragraph 4(a). Please provide information on whether an ordinance provided for in section 131, paragraph 2, of the Federal Mining Act (BbergG) has been adopted, and if this is the case, please provide a copy of the text.

Article 5, paragraph 4(c). The Committee would be grateful if the Government would indicate the protective measures required to secure abandoned mines in accordance with section 55, paragraph 1, first sentence, No. 3 of the Federal Mining Act (BBergG), section 15, paragraph 3, first sentence of the General Mining Ordinance (ABBegV), and section 9 of the Occupational Safety Act (ArbSchG). Please indicate whether a more detailed mining ordinance has been adopted in accordance with section 66, first sentence, No. 6, and section 55, paragraph 1, first sentence, No. 3 of the Federal Mining Act (BbergG); if so, please provide a copy of such text.

Article 5, paragraph 4(d). Please indicate whether the handling provisions for hazardous substances of the Dangerous Substances Ordinance (sections 16 to 40, and more particularly section 24 of the GefStoffV) are applicable in accordance with section 2, paragraph 4, No. 1 of the same Ordinance, or whether their application is excluded by the Mining Ordinance on Health Protection of Workers (Gesundheitsschutz Bevergordnung). If their application is thus excluded, please provide a copy of the Mining Ordinance on Health Protection of Workers. Please indicate the provisions of national laws or regulations for prescribing the safe transportation and disposal of hazardous substances used in mining process and waste produced at the mine.

Article 5, paragraph 5. Please indicate whether there is a requirement in national laws or regulations for the plans of working to be kept available at the mine site.

Article 7(b). Please indicate the provisions of national laws or regulations requiring employers to ensure that the mine is decommissioned in such a way that workers can perform the work assigned to them without endangering their safety and health or that of other persons. Please also indicate whether the ordinances, administrative acts and operating plans referred to in section 58 of the Federal Mining Act (BBergG) regulate decommissioning of mine, and if so, please provide copies of these texts.

Article 7(e). Please provide information on the extent of practical compliance by employers with the various provisions of national legislation requiring them to ensure the monitoring, assessment and regular inspection of the working environment as required by this paragraph of Article 7.

Article 9(c). Please indicate whether the definition of personal protective equipment given in section 18, paragraph 1 of the General Mining Ordinance (ABBergV), and section 1, paragraphs 2 to 5 of the Eighth Ordinance based on the Equipment Safety Act (8.GSGV), includes clothing and other facilities, as required by the Convention.

Article 10(a). Please indicate the provisions of national laws or regulations requiring the employer to ensure that retraining programmes are provided for workers and that all training and retraining programmes and comprehensible instructions are provided at no cost to the workers.

Article 10(d). Please indicate the provisions of national laws or regulations requiring the employer to ensure that all accidents and dangerous occurrences, as defined by national laws or regulations, are investigated and appropriate remedial action taken.

Article 10(e). Please indicate whether the employers covered by the Occupational Safety Act (ArbSchG) are required to ensure that a report is made to the competent authority on accidents and dangerous occurrences.

Article 13, paragraph 1(e). Please indicate whether, under section 22 of the General Mining Ordinance (ABBergV), the safety and health interests of other employees can prevent a worker from removing himself/herself from a work situation when he/she has a reasonable justification to believe that there is an imminent and serious danger to his/her own life or health. In the event that the worker is so prevented, please indicate the measures taken or envisaged to remove such restriction and thus put national legislation in conformity with the requirements of this Article of the Convention.

Article 16(b). Please indicate how practical collaboration is effectively ensured between the Länder mining authorities and Labour Inspectorates and the Technical Inspection Services of the Competent Accident Insurance Fund.

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