Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Communication by the Latin American Confederation of Workers (CLAT) and the World Confederation of Labour (WCL). Background. In its previous comments, the Committee examined a communication by the CLAT and the WCL alleging a failure to comply with Articles 5(a), (b), (f) and (h) and 10 in relation to the Chilean National Copper Corporation (Codelco), Andina Division, in which there was allegedly a silicosis epidemic between 2000 and 2003 caused by a dust and silica concentration which exceeded the maximum permitted. The Committee noted in its previous comments that, according to the trade unions, 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. The Committee also noted that, according to the Government, during the period mentioned in the communication, the authority of the Aconcagua Health Service declared 115 workers to be disabled and 50 per cent of these declarations were subsequently overturned by the health authority on the basis of false positives and incorrect diagnosis using the CAT technique, which is not suitable for diagnosing this disease.

Article 5(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. Identification and assessment of the risks from health hazards in the workplace; surveillance of the factors in the working environment and working practices which may affect workers’ health and surveillance of workers’ health in relation to work. In its previous comments, the Committee requested 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 mentioned. It also asked the Government to provide information on the manner in which surveillance of workers’ health is carried out in the copper industry and, in particular, in the company concerned and requested the Government to indicate, in particular, the type and frequency of examinations carried out by the medical services to prevent and detect silicosis. The Committee notes the Government’s report and the report prepared by Codelco, Andina Division, attached to the Government’s report. This report contains information concerning the handling of this issue at the national level and concerning Codelco, Andina Division, which is only part of Codelco.

National measures. The Committee notes the relevant legislative provisions relating to the employer’s responsibility concerning prevention and information and also notes that, according to the Government, section 71 of Act No. 16744 establishes the requirement to carry out chest x-rays every six months. It also notes that Ministry of Health Order No. 4D/5809 of 1992 provides that x-rays shall be carried out periodically and shall take into account the environmental concentration, years of exposure, working day and altitude of the workplace and that circular B2 No. 32 of 10 June 2005 of the Ministry of Health instructs that the diagnosis and evaluation of silicosis shall be carried out by means of a chest x-ray in accordance with ILO standards and that once this has been carried out, it shall be compared with the ILO’s standard plates. However, the Committee understands that in the specific case of crystallized silica, the method established by the “Manual on the minimum standards on the surveillance of silicosis”, which establishes four levels of risk, should have been followed at the national level from April 2010. According to Codelco, the four levels of risk are determined by the relation between the concentration level and the weighted permissible limit (LPP). For risk level 1, the concentration is less than 0.25 times the LPP and a chest x-ray is carried out every four years; for level 2, the concentration is equal to or higher than 0.25 times and less than 0.5 times the LPP and a chest x-ray is carried out every three years; for level 3, the concentration is equal to or higher than 0.5 times and up to 1 time the LPP and a chest x-ray is carried out every two years; and for level 4, the concentration is higher than 1 time the LPP and a chest x-ray is carried out every year.

Measures implemented in Codelco, Andina Division. Codelco indicates that it is the only mining enterprise in Chile to have implemented a laboratory for the measurement of free silica with a system that enables the results of the silica measurements to be obtained within 24 hours, so that operational decisions can be taken at the right time, thereby increasing the confidence of workers and their representatives. Both the laboratory and the methodology for measurement and the taking of samples are validated by the quality programme of the Institute of Public Health of Chile (ISP) and the measuring equipment used by Codelco, Andina Division is the same as that used by the National Institute for Occupational Safety and Health (NIOSH) in the United States. Furthermore, Codelco, Andina Division is certified under Standard OSHAS 18000 under version OSHAS 18001:2007 and has specific surveillance programmes for silica, noise, vibrations, geographic altitude and ionizing radiation. Codelco provides detailed information on methodologies relating to: (1) the identification of risks; (2) risk assessment; (3) preventive action; and (4) corrective action. Furthermore, Codelco indicates that its Andina Division ensures that all workers exposed to silica above the Standard undergo annual checks from the start of their work and that for the last four years, checks are also carried out in respect of workers who are exposed to environments with silica concentrations above 50 per cent but below 100 per cent of the LPP, by means of a chest x-ray using the ILO technique and a spirometer. Furthermore, it indicates that since 2005 it has had a risk map and that a plan on improving environmental conditions is in the process of being implemented, which has achieved a significant reduction in exposure to breathable dust and crystallized silica in the areas of mines and plants and that it hopes to achieve, as the first major goal, permissible limits in at least 85 per cent of jobs by 2011.

Based on the above information, the Committee understands that Codelco, Andina Division implements rules, methodology and advanced technology for the identification of risks, surveillance of the work environment and the health of workers which are beyond those applied at the national level. The Committee hopes that Codelco can be a driving force of scientific progress at the national and international levels for other sectors with less developed standards, given that occupational safety and health is closely linked to research and is constantly developing. The Committee notes that only one of the four levels of exposure taken as a reference at the national level to determine the frequency of medical examinations is lower than the LPP and notes that Codelco also takes as a reference for its examinations values above the LPP. The Committee indicates that it is essential to achieve the objective of not exceeding the maximum exposure limit for all workers and that examinations should also be carried out where there is a risk of exposure to silica, even if the permitted exposure limits have not been exceeded. It is not a question of exceeding the limits and then carrying out periodic examinations, but rather a question of not exceeding the maximum permitted limit and carrying out periodic examinations. The Committee therefore stresses the need to place the emphasis on prevention so as not to exceed the maximum permitted limit. The Committee requests the Government to indicate whether the concept of LPP corresponds to the international terminology of Maximum Permitted Limit. The Committee requests the Government to continue its efforts to give full effect to paragraphs (a), (b) and (f) of this Article, so as to ensure that the work environment and practices are such that no workers are exposed to levels exceeding the maximum permitted exposure limit and to provide information in that regard. Furthermore, the Committee requests the Government to extend the medical surveillance relating to silicosis to categories of workers who, without exceeding the permitted exposure limits, work in places where there are risks of exposure and to provide information in that regard.

Workers presumably affected mentioned in the communication. With regard to the information requested concerning the current state of health of the 171 workers whose initial silicosis diagnosis was overturned as a result of the change in methodology relating to medical surveillance, the Committee notes that the Government has not provided any new information on this matter. The Committee emphasizes that the cause of this communication was the health of these workers. The Committee confirms that life is at the centre of OSH and that, regardless of the new methodology relating to examinations and the development of prevention, the life and health of these workers continues to be a source of concern for the Committee. The Committee therefore urges the Government to provide information on the current state of health of these workers.

Furthermore, the Committee notes that the Government has not provided certain information requested in its previous observation and that it indicated in general that it would provide further information when it received it from the central authority. Some of the questions for which no information has been provided relate to the allegations concerning the lack of vocational rehabilitation and the abandonment of the 171 workers concerned. The Committee is therefore bound to repeat its previous comments as follows:

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.

Furthermore, in relation to the regular follow-up to the application of the Convention, the Committee repeats its request to the Government to provide the information requested in its previous direct request concerning Articles 9(1) and (2) and 10 and their application in practice.

[The Government is asked to reply in detail to the present comments in 2012.]