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Asbestos Convention, 1986 (No. 162) - Germany (Ratification: 1993)

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Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the information provided by the Government in its report in reply to its previous request concerning the application of Article 21(4) of the Convention on the provision of other means of maintaining income to all workers, irrespective of their nationality, work permit or residence status.

Application of the Convention in practice. The Committee notes the Government’s indication that by 31 December 2013, a total of 564,927 workers in 17,337 enterprises had been exposed to asbestos in their current or previous activities and that 88,979 workers were currently exposed to asbestos, particularly in demolition, renovation and repair work. The Committee also notes that, according to the Government, new cases of occupational cancer were attributable to earlier exposure to asbestos and that in 2013 there were 3,636 suspected cases of asbestosis, 1,926 confirmed cases and 159 fatalities; 4,079 suspected cases of lung cancer, 794 recognized cases and 559 fatalities; and 1,425 suspected cases of mesothelioma, 978 recognized cases and 734 fatalities. The Committee requests the Government to continue providing information on the number and nature of occupational diseases reported as being caused by asbestos, and the measures taken to reduce this number.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 21(4). Provision of other means of maintaining income. The Committee notes with interest the general information provided by the Government that relevant legislation including, in particular, section 3 of the Occupational Illness Ordinance (BKV) is fundamentally preventive in its intentions, that where there is a risk for of contracting an occupational illness, or of a recurrence or deterioration of an existing illness, the accident insurer is required to try to prevent this using all appropriate means, and that, unlike general prevention, the measures implied here are intended to avert a specific risk of illness associated with a particular job. The Government further indicates that for insured persons, there must be a real risk of falling ill and that individual risk to health must be reflected in a prognosis of probable illness if the person concerned continues to work in the activity in question. The Government underscores that this entitlement does not require the occupational illness to have appeared but the aim is to take preventive action as far in advance as possible to avert the risk of future health damage. While efforts should be made to eliminate the danger at issue through technical or organizational means, or indeed through medical treatment, the Government indicates that if the threat to health cannot be eliminated through such measures, the insured persons concerned must be asked to stop the hazardous activity. In such cases and where the workers suffer a loss of income or other economic disadvantages, the workers are entitled to a transition allowance under section 3(2) of the BKV. Depending on the individual case, a lump sum payment may be made of up to a full year’s pension (two-thirds of the previous year’s gross wages), or a regular monthly sum of up to the full pension amount, for no longer than five years. The Government emphasizes that this transition benefit is not compensation for damage suffered to health, as no occupational illness has at this stage appeared, but it is intended to compensate for differentials between the original and the new activity during a transition period than can last several years. The Committee also notes the information provided that, in practice, these provisions are not longer relevant as the production and use of asbestos has been generally prohibited in Germany since 1993 and that there are thus no longer any jobs involving asbestos processing where insured persons could be exposed to asbestos and the associated health risks. Although asbestos fibres still can be released in the course of renovation work or demolition of older buildings, the Government indicates that in these cases effective application of rules regarding protection from asbestos and preventive measures can to a large extent prevent direct contact with asbestos fibres. The Government finally indicates that there is accordingly no statistic of any measures taken under section 3(2) of the BKV. The Committee notes that the referenced information in all cases refers to workers insured under the national insurance system and that the incidence of workers not fully covered national insurance schemes may be significant, particularly in the construction sector. The Committee requests the Government to provide further information on how this Article of the Convention is applied in the cases of workers not fully covered by the national health insurance schemes.

Part V of the report form. Application in practice. The Committee notes the information that inspection reports are not evaluated in relation to specific substances and that statistics on the number of workers still working with asbestos and on the number and type of contraventions of the relevant regulations are therefore not available in Germany. It also notes that the Government indicates that there are many cases of cancers appearing now as a result of earlier exposures to asbestos. In this respect is refers to statistics for the commercial sector in 2009 including reports of 3,736 suspected cases, 1,921 confirmed cases and 108 fatalities of asbestosis; 3736 reports of suspected cases, 686 confirmed cases and 498 fatalities of lung cancer; and 1,386 suspected cases, 970 confirmed cases and 722 fatalities in mesothelioma. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in the country and attach any available information from inspection reports and, where such statistics exist, information on the number of the workers covered by the legislation, the number and nature of the contraventions reported, the number of occupational diseases reported as being caused by asbestos etc.

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

Article 21(4) of the Convention. Provision of other means of maintaining income. With reference to its previous comments, the Committee notes from the Government’s response that by virtue of article 3(2) of the Ordinance on Occupational Diseases 2002, an employee who leaves an activity because an occupational disease is liable to develop, recur or get worse, that employee is entitled to further training, retraining measures and to compensation for loss of earning (for a limited period of time). The Committee would like to draw the Government’s attention that Article 21(4) also relates to situations before any occupational disease has been declared but after a determination that continued assignment to work involving exposure to asbestos has been found to be medically inadvisable. The Committee requests the Government to indicate the specific measures taken to ensure that the workers concerned are provided with other means of maintaining their income and to provide information on the practical application of this Article including information on the limited time period referred to above.

Part V of the report form. Application in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in the county and attach extracts from inspection reports and, where such statistics exist, information on the number of the workers covered by the legislation, the number and nature of the contraventions reported, the number of occupational diseases reported as being caused by asbestos, etc.

[The Government is asked to reply in detail to the present comments in 2011.]

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee notes the information provided in the Government’s report including replies to its previous comments. It also notes the information that the Hazardous Substances Ordinance (Gefarhstoffverordnung-GefStoffV) of 23 December 2004 (BGBl. I S 3758) came into force on 1 January 2005 and that an amended version of the Technical Rules for Hazardous Substances (TRGS) 519 Asbestos: Demolition, Reconstruction or Maintenance Work was issued in September 2001.

2. Article 6, paragraph 3, and Article 17, paragraph 3, of the Convention. Procedures preparing for emergency situations and consultations with workers or their representatives regarding workplans. The Committee notes with satisfaction that in reply to its previous comments regarding preparations for emergency procedures, the Government refers to Annex III, paragraph 2.4.2, of the newly adopted Hazardous Substances Ordinance requiring prior notification to the competent authority of any demolition, reconstruction or maintenance work (DRM work) involving products or materials containing asbestos and that through this procedure, the competent authority can, in each case, satisfy itself whether an emergency scenario is envisaged. The same ordinance, in section 20, subsection 4, entitles the competent authority to order any measures that would be called for in such cases. The Committee also notes with satisfaction that in reply to its comments regarding consultations with workers or their representatives, the Government refers to section 11, subsection 3, of the Hazardous Substances Ordinance which specifically provides for such consultations, specifically in relation to DMR work, on measures to limit exposure of workers as far as possible and to ensure protection of workers during such activities.

3. Article 21, paragraph 4. Provision of other means of maintaining income. The Committee notes that in reply to its previous comments on this issue, the Government indicates that section 16, subsection 5, of the Hazardous Substances Ordinance provides that additional protective measures required must be taken if the employer is aware that, owing to the conditions at the workplace, there are health reasons why an employee should not continue carrying out the activity. The Committee further notes that the Government indicates that this includes the possibility of assigning the employee to another activity that does not involve risk for further exposure. Recalling that Article 21, paragraph 4, of the Convention requires that every effort should be made, consistent with national conditions and practice, to provide the workers concerned with other means of maintaining their income, the Committee requests the Government to indicate the measures taken or envisaged, including their application in practice, to ensure a full application of this provision of the Convention.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information supplied by the Government in its report. It would draw the Government's attention to the following points.

1. Article 6, paragraph 3, of the Convention. The Committee notes the Government's indication to the effect that section 20 of the Ordinance on Dangerous Substances requires the employer to establish working instructions appropriate to the type of work and material indicating the health and environmental risks involved in handling dangerous substances and defining the requisite safety measures (first aid measures) and rules for conduct. These instructions are to be written in the language and manner comprehensible to the workers. In this regard, the employer's general obligation under section 87 of the Works Constitution Act to participate in the works council remains unchanged. The Committee recalls that Article 6, paragraph 3, of the Convention calls for the preparation of procedures dealing with emergency situations which have to be established by the employer in cooperation with the occupational safety and health services, and after consultation with the workers' representatives concerned. The Committee accordingly requests the Government to indicate whether, apart from the works council, the occupational safety and health services are involved in the preparation of procedures dealing with emergency situations, and if so, please provide full details.

Article 17, paragraph 3. The Committee notes again section 39, subsection 2, of the Ordinance on Dangerous Substances, requiring the employer to submit in advance detailed workplans before carrying out demolition, restoration and maintenance work on and in constructions, buildings and vehicles containing asbestos. These work plans have to be submitted together with the employer's licence, showing his qualification to carry out this kind of work, to the competent authorities for approval. According to the Government, this regulation ensures that the occupational safety and health services are extensively involved in the establishment of workplans. In this respect, the Committee recalls the provision of Article 17, paragraph 3, of the Convention providing for the consultation of workers or their representatives on workplans regarding the demolition of plants or structures containing friable asbestos insulation materials, and removal of asbestos from buildings or structures in which asbestos is liable to become airborne. The Committee accordingly requests the Government to indicate whether workers or their representatives are consulted on such workplans.

Article 21, paragraph 4. The Committee notes the Government's explanation to the effect that section 1 of the Ordinance on the Prohibition of Chemicals prohibits the trade, manufacture and use of asbestos in Germany. In addition, the exposure of workers to asbestos is prohibited under section 15a of the Ordinance of Dangerous Substances. However, demolition, restoration and maintenance work is exempted from this ban, but may only be carried out under the particular conditions prescribed in section 39 of the Ordinance on Dangerous Substances. Moreover, the Technical Rules for Dangerous Substances 519 (TRGS 519) contain specific provisions as concerns safety procedures for the protection of workers involved in these activities. The Committee further notes the Government's conclusion that these regulations, based on the technology available, minimize the workers' exposure to asbestos and thus guarantee a high level of protection. The Committee recalls the provision of Article 21, paragraph 4, of the Convention and requests the Government to explain the efforts made or envisaged to provide the workers, whose continued assignment to work involving exposure to asbestos is found medically inadvisable, with other means of maintaining their income.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information supplied in the Government's report. It would draw the Government's attention to the following points:

1. Article 6, paragraph 3, of the Convention. The Committee notes that section 26 of the Ordinance on Dangerous Substances prescribes procedures for dealing with emergency situations. Section 20 of this Ordinance requires the employer to establish work instructions which contain, inter alia, first aid measures. According to section 87 of the Works Constitution Act, the works council participates in the preparation of these instructions. The Committee would recall that Article 6, paragraph 3, of the Convention calls for the preparation of procedures dealing with emergency situations by the employer in cooperation with the occupational safety and health services, and after consultation with the workers' representatives concerned. The Committee requests the Government to indicate whether occupational safety and health services are involved in the preparation of procedures dealing with emergency situations, and if so, please provide full details.

2. Article 17, paragraph 3. The Committee notes that section 39, subsection 2, of the Ordinance on Dangerous Substances requires the employer to submit in advance detailed work plans before demolition of plants or structures containing friable asbestos insulation materials is carried out. The Committee would be grateful if the Government would indicate whether workers or their representatives are consulted on such work plans as required by Article 17, paragraph 3, of the Convention.

3. Article 19, paragraph 2. The Committee requests the Government to indicate the appropriate measures taken by the competent authority and by employers to prevent pollution of the general environment by asbestos dust released from the workplace.

4. Article 21, paragraph 4. The Committee requests the Government to explain the efforts made, or envisaged, to provide the workers, whose continued assignment to work involves exposure to asbestos which are found to be medically inadvisable, with other means of maintaining their income.