Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s first two reports and the comments made by the Government concerning the observations submitted by the Latin American Confederation of Workers (CLAT) and the World Confederation of Labour (WCL), to which it referred briefly in its previous observation.

Article 5, paragraphs (a), (b) and (f), of the Convention. Occupational health services which ensure that the functions set out in this Article are adequate and appropriate to the occupational risks of the undertaking. The observations allege a failure to comply with the above provisions in relation to the Chilean National Copper Corporation (Codelco), Andina Division, in which there was allegedly a silicosis epidemic caused by a dust and silica concentration which exceeded the maximum permitted. It is indicated that the company threatened workers, denied the existing epidemic and failed to assume responsibility. According to the observation between 2000 and 2003, following the assessment of occupational diseases carried out by the Preventive Medicine and Disability Committee (COMPIN), Aconcagua Health Service, 171 cases of silicosis were detected. The trade unions state that, taking into account that there was a total of 600 employees, the figure of 171 cases of silicosis indicates that 28 per cent of the company’s workers were affected. The trade unions state that the real situation could be even more serious given that the tests were limited to only a group and not to all workers in the company. Only 271 workers were examined using computerized axial tomography (CAT), which revealed 171 cases of silicosis. In other words, 60 per cent of the workers who underwent the examination were found to have silicosis. According to the communication, this indicates that the workers were exposed to physical agents which exceeded the permissible limits. The trade unions indicate that, as a result of this, the company prohibited the use of CAT and doctors were limited in the future to using only conventional X-ray systems, which, according to the trade unions, are clearly not sufficient for diagnosing silicosis. The Committee notes that, according to the Government, during the period mentioned in the observation, the authority of the Aconcagua Health Service declared 115 workers to be disabled. The Government indicates that 50 per cent of these declarations were subsequently overturned by the health authority on the basis of various technical arguments put forward in the respective appeal processes initiated in accordance with the law. The Government indicates that approximately half of the cases in which partial disability was originally declared as a result of silicosis were rejected on appeal on the basis of false positives and incorrect diagnosis using the CAT technique, which is not suitable for diagnosing this disease. The Government also indicates that, in November 2003, the country’s 28 COMPINs met together and concluded that CAT scans of the chest would not be used to assess silicosis. Instead, X-rays would be carried out every six months. With regard to exposure levels, the Government indicates that levels of exposure to silica decreased between 1999 and 2004, including exposure thereto by staff. In the working areas of the underground mine and crushing plant plans were implemented to mitigate and reduce dust contamination. The Committee recalls that under Article 5 of the Convention, occupational health services shall ensure that the functions set out in paragraphs (a), (b) and (f) of that Article (identification and assessment of risks, surveillance of factors in the working environment and surveillance of workers’ health) are adequate and appropriate to the occupational risks of the undertaking. The Committee cannot fail to note that the use of a methodology determined by a COMPIN and subsequently declared unsuitable by the same institutions once serious diagnoses have been established, as well as the uncertainty thereby created among the workers initially diagnosed with silicosis, raises doubts as to whether these functions have been carried out in an adequate and appropriate manner. With regard to paragraphs (a) and (b) of this Article, the Committee requests the Government to provide detailed information on the manner in which occupational risks are identified and how factors in the working environment are subject to surveillance, including information on prevention and exposure levels in the copper industry and in particular in the company concerned, and to include documentation on this matter, such as reports of the company’s joint health and safety committees. With regard to paragraph (f) of this Article, the Committee requests the Government to provide detailed information on the manner in which surveillance of workers’ health is carried out in the copper industry and, in particular, in the company in question, indicating, in particular, the type and frequency of examinations carried out by the medical services to prevent and detect silicosis. It also requests information on the current state of health of the 171 workers whose initial diagnosis of silicosis was reversed by subsequent X-ray examinations.

Article 5(h). Vocational rehabilitation. According to the observation, the company has not transferred the workers, in accordance with section 71 of Act No. 16744, to other workplaces where they would not be exposed to the agent which caused the disease and the Aconcagua Health Service expressly indicates that it has not been established that the workplaces to which workers were transferred were free of the agent which caused the disease. In this regard, the Government indicates that, on 1 January 2005, the Andina Division had already transferred all workers for whom a valid decision had been issued declaring incapacity due to silicosis to other jobs in which they were not exposed to dust. The Committee requests the Government to continue to provide information on this matter, including on the measures taken in respect of the workers who have lodged appeals against the invalidation of their initial diagnosis.

Article 10. Full professional independence of health services personnel. According to the observation, Coldelco, the Andina Division, has the delegated administrative authority provided for in Act No. 16744, but it adds that this authority is not appropriate given that section 72 of the Act concerned requires an enterprise to have at least 2,000 employees before it can act as a delegated administrator and the company in question only has 600 employees. It indicates that by having delegated administration, Codelco, the Andina Division, controls the entire system of health and management of risk prevention plans and operates as a closed system in which workers are unable to resort to an external system. The Committee notes that, according to the Government, Codelco, the Andina Division, is authorized to act as a delegated social insurance administrator in accordance with section 71 of the above Act and section 23 of the Ministry of Labour Supreme Decree No. 101 of 1968. The Committee requests the Government to provide information on the manner in which it ensures the professional independence of the personnel providing occupational health services in relation to the functions listed in Article 5 of the Convention as required under Article 10 of the Convention, in the case of delegated administrators, including Codelco, the Andina Division.

Part IV of the report form. Judicial and administrative decisions. The Committee notes that, according to the observation, among the 171 workers diagnosed by COMPIN as having silicosis and a disability causing them a loss of earning of between 27.5 and 80 per cent, 41 had been relieved of their functions and, at the time of the submission of the observation, another 23 were in the process of being relieved. It indicates that, at the end of 2003, a group of 23 active workers who were sick took legal action against the company, claiming compensation for damages, while, 17 of the workers relieved of their functions filed a criminal complaint alleging responsibility on the part of the company for what they referred to as an epidemic of silicosis. They referred to the defencelessness and helplessness of the workers, who were to receive $10,000 due to having contracted silicosis. They indicated that the company denied everything, and even questioned the validity of the examinations requested by the company itself at the Clínica Santa María and the Clínica las Condes, calling into question these institutions and the responsibility of health services, in particular of COMPIN, for certifying disability. The Committee notes that the Government indicates that there have been no dismissals but that workers who requested it were able to take advantage of voluntary retirement plans which included special compensation. It also indicates that the Social Security Supervisory Authority reported that eight workers had taken legal action against the company attributed delegated administration and that the Supervisory Authority had received a series of appeals from workers from the Andina Division of Codelco-Chile which have not yet been resolved and are awaiting a judicial decision. The Committee requests the Government to provide detailed information on any developments relating to the cases which are being dealt with through judicial and/or administrative channels with regard to the situation being examined.

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