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Occupational Cancer Convention, 1974 (No. 139) - Peru (Ratification: 1976)

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Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative, Vice-Minister of Labour, referring to the prevention and control of occupational risks caused by carcinogenic substances or agents, noted the comments of the Committee of Experts regarding the elaboration and adoption as soon as possible of the study on the prevention and control of occupational cancer. In the absence of an organisation or arrangements with a governmental or private organisation that would carry out more effective control over the risks to which certain industrial workers were exposed, the Ministry of Labour, through its occupational health and safety inspectorate-general, had prepared as a temporary measure a project for the protection of workers exposed to dangerous substances. Furthermore, joint actions would be taken to deal with this problem in cooperation with the National Institute of Neoplastic Diseases, the National Institute of Occupational Health, and the Peruvian Institute of Social Security, the Pan-American Organisation of Health and non-governmental organisations. These measures would be included in the corresponding sectoral programmes. Due to the peculiar health situation prevailing in his country, the competent bodies had been engaged in fighting outbreaks like cholera. Currently they were trying to implement the study on the prevention and control of occupational cancer published by the ILO to which the Committee of Experts had made reference in its observations.

The Employers' members expressed their surprise that 16 years after its ratification the Government was setting up an inter-agency committee to draft laws to implement the Convention. They felt that this as well as the idea of conducting a study on the subject at this stage were steps, backwards. At present, there was a need for drafting the necessary legislation using as a guide the ILO's study referred to by the Experts. Given the fact that this Convention is not a self-executing instrument, it was necessary to prepare and adopt legislation based on the above-mentioned ILO study which could be done with the technical assistance of the ILO.

The Workers' members shared the views expressed by the Employers' members. They considered this Convention to be an important one in today's world. They regretted to note that Peru has not taken steps to implement this Convention since its ratification in 1976. It was not sufficient for the Government to make inquiries of the two institutes on information concerning the application of the Convention. They recalled that the Committee of Experts has for several years been requesting the adoption of specific provisions to prevent and control occupational cancer. They urged the Government to take immediate action in this regard and encouraged it to seek the assistance of the Office for this purpose.

The Government representative stated in reply that, contrary to the understanding expressed by certain speakers, his Government was not about to conduct a study at this stage. He said it was proposing to implement a study which already exists. He believed that his Government will succeed in resolving these problems that have lasted many years with the assistance of this Committee, the Committee of Experts and the ILO. He also made reference to the possibility of his Government requesting technical or financial assistance from the ILO regarding the programmes that concern matters of this Convention.

The Committee noted with regret that no progress seems to have been made in the application of this Convention which has been examined by the Committee of Experts for several years. It considered that it was high time for taking immediate action and reminded the Government that the ILO's technical assistance was not limited to the legislative aspects of the question but includes matters relating to the implementation of the Convention. It urged the Government to bring the situation in Peru into conformity with the Convention as soon as possible.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: C.62, C.127, C.139 and C.176

In order to provide a comprehensive view of the issues relating to the application of ratified occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine Conventions Nos 62 (safety provisions (building)), 127 (maximum weight), 139 (occupational cancer) and 176 (safety and health in mines) in a single comment.

The Committee notes the decision of the Tripartite Committee set up to examine the representation made in 2020, under article 24 of the ILO constitution, by the National Federation of Mine, Metal and Steel Workers of Peru (FNTMMSP) alleging non-observance by the Government of Peru of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Workers with Family Responsibilities Convention, 1981 (No. 156), and the Safety and Health in Mines Convention, 1995 (No. 176). The Committee notes that the Tripartite Committee did not find any violations of Convention No. 176 relating to the allegations. The Committee also notes that, taking into account the context of the acute health crisis caused by the COVID-19 pandemic in which the representation was made, the Tripartite Committee highlighted the importance of holding broad social dialogue with all representative workers’ and employers’ organizations of affected sectors when adopting measures aimed at finding effective and sustainable solutions to crises (such as the crisis caused by the COVID-19 pandemic), including preventive and protective measures to guarantee safety and health in mines.

National occupational safety and health policy. The Committee notes the Government’s indication that the National Occupational Safety and Health Council adopted the “National occupational safety and health policy until 2030 (PNSST until 2030)” at its ordinary session No. 52 on 24 September 2019, which was approved by Supreme Decree No. 018-2021-TR. The Committee notes the CATP’s indication in its observations that the PNSST needs to be updated since there are economic sectors which have not been considered in relation to OSH. The Committee requests the Government to provide its comments in this respect.

A. Protection against specific risks

Maximum Weight Convention, 1967 (No. 127)

Article 2(2) of the Convention. Scope of application. The Committee notes the Government’s indication that the application to all workers of the “Basic Standard on ergonomics and procedures for the assessment of non-ergonomic risks”, approved by Ministerial Decision No. 375-2008-TR, is mandatory. In this regard, the Government indicates that the purpose of the Standard is to enable enterprises to apply it to their various work areas and jobs and their respective tasks, thereby contributing to the physical, mental and social welfare of the workers, and that, in accordance with section 1 of the Standard, the ergonomic assessment must form part of preventive procedures in enterprises, whatever their activity. The Committee takes note of this information, which addresses its previous request.

Article 5. Measures to ensure adequate training or instruction in working techniques, with a view to safeguarding workers’ health and preventing accidents. The CATP indicates that section 37(d) of the “Basic Standard on ergonomics and procedures for the assessment of non-ergonomic risks” establishes the obligation for employers to provide training relating to professional development but does not stipulate that workers must receive adequate training or instruction in the relevant working techniques prior to engaging in the manual transport of loads. The Committee requests the Government to provide its comments in this respect.

Article 3. Manual transport of a load likely to jeopardize a worker’s health or safety. Application in practice. The Committee notes the Government’s indication that violations of safety standards relating to the handling and transport of materials constitute serious or very serious offences under sections 27 and 28, respectively, of the Regulations implementing the General Labour Inspection Act, adopted by Supreme Decree No. 019-2006-TR. In particular, the Committee notes the Government’s indication that in 2022 and 2023 the labour inspection system concluded 62 inspection orders, of which 18 derived from the filing of complaints and 44 from operations in the area of safety standards relating to the handling and transport of materials. In this regard, 22 of the inspection orders culminated in infringement reports and 40 in investigation reports. The Government also indicates that the total fines imposed on employers for non-compliance with binding safety standards relating to the handling and transport of materials amounted to 136,913 Peruvian soles (PEN) in 2022 and PEN 12,561 in 2023. The Committee notes the CATP’s claim that: (i) Act No. 29088 on occupational safety and health for land-based dockworkers and manual carriers, Act No. 29873 on occupational safety and health and its Regulations, and the “Basic Standard on ergonomics and procedures for the assessment of non-ergonomic risks” do not cover self-employed workers and informal workers, who account for the majority of workers in the manual transport of loads sector; (ii) delivery staff for digital platforms must transport on their backs voluminous, non-ergonomic boxes whose weights exceed the limits established in the national legislation and they do not receive training in relation to their work; and (iii) as regards supervision of Act No. 29088 and specifically section 23 thereof, competence for supervising and coordinating compliance with the Act is patchy, which means that no institution assumes responsibility for compliance and hence the Act is totally ineffective. The Committee requests the Government to provide its comments with respect to the observations of the CATP. Noting the information provided by the Government, the Committee requests the Government to indicate the sectors in which inspections were conducted and violations of safety standards relating to the handling and transport of materials were detected. The Committee also requests the Government to continue providing information on the total number and type of inspections conducted and violations identified, disaggregated by sector, in the context of the application of the Convention.

Occupational Cancer Convention, 1974 (No. 139)

Article 2(1) of the Convention. Levels of exposure. Replacement of carcinogenic substances and agents by non-carcinogenic substances or agents or by less harmful substances or agents. Further to its previous comments, the Committee notes the Government’s indication that the Regulations implementing Act No. 29662, which prohibits amphibole asbestos and regulates the use of chrysotile asbestos, were adopted by Supreme Decree No. 028-2014-SA, published on 4 October 2014, and are in force. The Government also indicates that section 11 establishes the requirements for authorization of the regulated use of chrysotile asbestos and establishes the Directorate-General for Environmental Health and Food Safety (DIGESA) as the agency responsible for handling authorization requests. The Government points out that DIGESA has not received any requests for authorization of the regulated use of chrysotile asbestos. The Committee observes that the Government does not provide any information on the replacement of other carcinogenic substances and agents by non-carcinogenic or less harmful substances or agents. The Committee notes the CATP’s indication in its observations that it has no evidence of the prohibition on amphibole asbestos or of the effectiveness of the procedure for authorization of the regulated use of chrysotile asbestos by DIGESA. The Committee requests the Government to provide its comments in this respect.The Committee also requests the Government to provide information on the measures taken or envisaged to ensure the replacement of carcinogenic substances and agents to which workers may be exposed in the course of their work by non-carcinogenic or less harmful substances or agents.

Articles 3 and 6. Establishment of an appropriate system of records. The Committee notes the Government’s indication that, by Supreme Decree No. 012-2014-TR, the single register of information on occupational accidents, dangerous incidents and occupational diseases was adopted. The Committee also notes that section 20 of the Regulations on the prevention and control of occupational cancer, adopted by Supreme Decree No. 039-93-PCM, establishes the obligation for employers to preserve the clinical histories of workers for at least 40 years after the end of exposure to carcinogenic agents and indicates that these histories must be available to the National Health Institute. The Committee notes the CATP’s assertion in its observations that although there has been progress in the reporting and recording of dangerous incidents and occupational accidents, including fatal accidents, there is still significant under-recording of occupational diseases, and even more so in relation to exposure to carcinogenic agents. The CATP also refers to the annual report on notifications of occupational accidents, hazardous incidents and occupational diseases, published by the Ministry of Labour and Employment Promotion (Ministry of Labour), and indicates that 362 cases of occupational disease were reported in 2022 and that no cases of occupational cancer were specified. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to continue providing information on the measures taken to ensure the creation and maintenance of an appropriate system of records in relation to exposure to carcinogenic substances or agents, including in the context of the single register of information on occupational accidents, dangerous incidents and occupational diseases.

Article 5. Medical examinations during and after employment. The Committee notes that section 19 of the Regulations on the prevention and control of occupational cancer provide for the implementation of periodic medical controls to monitor the exposure of workers to carcinogenic and co-carcinogenic agents but does not provide for the implementation of medical examinations after employment. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that workers are provided with such medical examinations or biological or other tests or investigations after the period of employment as are necessary to evaluate their exposure or their state of health in relation to the occupational hazards.

Article 6(c). Work of the inspection services. The Committee notes that the CATP emphasizes the limited priority given by the Ministry of Labour to the prevention of risks in the workplace, particularly in relation to exposure to carcinogenic substances. The CATP also points out that there is no evidence of inspection activity in this area and that the Ministry of Labour and the inspection system should attend to complaints related to the prevention of occupational diseases and should not just focus on occupational accidents. The Committee requests the Government to provide its comments in this respect. Noting the lack of information in this regard in the Government’s report, the Committee also requests the Government to provide information on labour inspection activities relating to the control and prevention of occupational cancer.

B. Protection in specific branches of activity

Safety Provisions (Building) Convention, 1937 (No. 62)

The Committee recalls that the ILO Governing Body, at its 334th Session (October–November 2018), on the recommendation of the Standards Review Mechanism Tripartite Working Group (SRM TWG), confirmed the classification of Convention No. 62 in the category of outdated instruments, and placed an item concerning its abrogation or withdrawal on the agenda of the 112th Session (2024) of the International Labour Conference. The Governing Body also requested the Office to take follow-up action to actively encourage ratification of the up-to-date instruments on safety and health in construction work. The Committee therefore encourages the Government to follow up on the Governing Body’s decision at its 334th Session (October–November 2018) approving the recommendations of the SRM TWG, and to consider ratifying the Safety and Health in Construction Convention, 1988 (No. 167), as the most up-to-date instrument in this subject area.

Legislation. The Committee notes the Government’s indication that since 2019 the following standards on OSH in the construction industry have been adopted: (i) the Regulations on occupational safety and health in the construction industry, adopted by Supreme Decree 011-2019-TR; (ii) the guide to the election of workers’ representatives to the Subcommittee on Occupational Safety and Health in Construction Work, adopted by Ministerial Decision No. 256-2020-TR; (iii) Ministerial Decision No. 251-2021-TR, adopting the list of activities in the construction industry to which the Regulations on occupational safety and health in the construction industry are applicable; and (iv) Supreme Decree No. 018-2022-TR, adopting specific protocols for monitoring the health of workers in the construction industry.

Articles 2 and 4 of the Convention. Effective system of inspection. The Committee notes the CATP’s assertion in its observations that in practice the National Labour Inspection Supervisory Authority (SUNAFIL) does not have competence to inspect civil construction works in the public sector, even though the legislation does not provide for any exclusions in its mandate. The CATP also indicates that SUNAFIL takes action following a complaint from an individual or from the trade union, but there are no checks on compliance through routine inspections or inspection campaigns in the construction industry. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to provide information on the measures taken or envisaged to guarantee that there is an inspection system in practice which ensures the application of the legislation relating to OSH in the construction industry, in both the public and private sectors.

Article 6. Requirement to provide the latest statistical information relating to the number and classification of accidents. The Committee notes that, according to the information contained in the sectoral compendiums of statistics, the total number of non-fatal accidents in the construction industry was 2,206 in 2018, 4,031 in 2019, 2,474 in 2020 and 3,297 in 2021, while the number of fatal accidents was 26, 35, 19 and 29, respectively. The Committee also notes the Government’s indication that, according to the information provided by SUNAFIL, in 2022 and 2023 there were 18 finalized orders relating to the reporting or notification of fatal occupational accidents or hazardous incidents in the construction industry. With regard to complaints of occupational accidents made against enterprises in the construction industry, the Government indicates that in the same period there were 128 relating to the investigation of occupational accidents or hazardous incidents and 46 relating to the recording of occupational accidents. In this regard, it also indicates that in SUNAFIL’s virtual complaint system there is no record of any complaint filed by trade unions. The Committee notes that, according to the CATP, there are serious shortcomings in OSH conditions in the industry, with extremely hazardous work taking place, and that even though the number of occupational accidents reported is low, this is because over 85 per cent of workers in the construction industry are in informal employment, according to data from the National Institute for Statistics and Information Technology. However, the CATP points out that the “PNSST until 2030” does not make any reference to the problem of informality in the construction industry. The CATP also asserts that in many cases the workers themselves are unaware that they must inform their doctor that their accident was of an occupational nature or they omit to do so for fear of losing their jobs. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to continue providing statistical data on the number and classification of occupational accidents in the construction industry.

Safety and Health in Mines Convention, 1995 (No. 176)

Article 3 of the Convention. National policy on safety and health in mines, after consultations with the most representative employers’ and workers’ organizations concerned. The Committee notes that the new Regulations on occupational safety and health in mining were adopted by Supreme Decree No. 024-2016-EM, as amended by Supreme Decree No. 023-2017-EM, repealing the previous regulations, which were adopted by Supreme Decree No. 055-2010-EM. The Committee notes the CATP’s indication in its observations that, as at August 2023, there is no national tripartite dialogue in the mining sector, which is reflected by the absence of a national policy on OSH in mining, after consultations with the social partners. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to provide information on the mechanisms established for the periodic review of occupational safety and health standards in the mining sector in consultation with the social partners.

Article 5(4)(c). Legislation which specifies protective measures to secure abandoned mine workings so as to eliminate or minimize risks to safety and health. The Committee notes that section 30 of the new Regulations on occupational safety and health in mining provides for measures to identify and evaluate risks in workings or environments which have been temporarily or permanently abandoned. It also notes that section 254 establishes safety measures only in abandoned workings where gas is present. In addition, the Committee notes that Act No. 28090 regulating the closure of mines establishes the obligation for the mining operator to submit a mine closure plan, including, inter alia, measures to ensure the long-term physical and chemical stability and rehabilitation of affected areas. However, the Committee notes that these measures refer to the closure of mines in general but no specific protection measures are established with regard to abandoned mine workings. The Committee also notes the Government’s indication that Protocol No. 004-2017-SUNAFIL/INII was adopted in 2017 relating to OSH inspection in the mining subsector, having been approved by Supervisory Authority Decision No. 265-2017. The Government also indicates that in 2022 and 2023 SUNAFIL carried out 643 inspections in mining and quarrying operations to check compliance with OSH regulations. In this regard, the Committee notes that the Government has not provided any specific information on inspections relating to abandoned mine workings. The Committee requests the Government to indicate any other legislative provisions that establish protection measures aimed at ensuring safety in any abandoned mine working. The Committee also requests the Government to provide information on labour inspections carried out in relation to abandoned mine workings.

Article 5(4)(e). Legislation which specifies an obligation to supply sufficient sanitary conveniences and facilities to wash, change and eat, and to maintain them in hygienic condition. The Committee notes sections 205–212 of the new Regulations on occupational safety and health in mining, which regulate sanitary facilities and cleaning; section 82, which provides for facilities for changing clothes; and section 188, which regulates canteens. The Committee also notes the Government’s indication that in 2022 and 2023 SUNAFIL issued 23 orders (20 in 2022) relating to canteens, changing rooms and sanitary facilities in the mining and quarrying sector. The Committee takes note of this information, which addresses its previous request.

Article 12. Duty of the employer in charge of the mine to coordinate and assume primary responsibility for the safety of the operations. The Committee notes that although section 54(e) of the former Regulations on occupational safety and health in mining, adopted by Supreme Decree No. 055-2010-EM, provided that the senior management of the mining enterprise bore responsibility for OSH, the new regulations provide that the senior management shall determine responsibility at all levels (section 54(e)). The Committee also notes the Government ‘s indication that in 2022 and 2023 SUNAFIL concluded 202 orders with investigations into occupational accidents in the mining and quarrying sector. The Committee notes that the CATP expresses concern at the lack of measures taken by the Government to prevent the death of workers in recent years. It refers to the serious occupational accident which occurred in Yanaquihua in May 2023, in which 27 workers died from carbon monoxide inhalation resulting from a fire caused by a short circuit. With regard to the accident, the CATP indicates that the regional government authorities said that they lacked the resources to fulfil their inspection duties in relation to OSH. The CATP also asserts that subcontracted workers are generally the worst affected by most fatal accidents and accidents causing disability because of the lack of appropriate OSH conditions, equipment and training in safety protocols. In this regard, it refers to the information provided by the Ministry of Labour, according to which 117 fatal accidents occurred in the mining sector between 2018 and August 2022, of which over 85 per cent were linked to companies providing outsourced services. The Committee requests the Government to provide its comments in this respect. In the context of the new Regulations on occupational safety and health in mining, the Committee also requests the Government to provide detailed information on the measures taken or envisaged to ensure that whenever two or more employers undertake activities at the same mine, the employer in charge of the mine shall coordinate the implementation of all occupational safety and health measures and shall be held primarily responsible for the safety of the operations, including in companies providing outsourced services or in other forms of subcontracted work. The Committee further requests the Government to continue providing information on labour inspections conducted in the mining sector with respect to subcontracting.

Article 13(1)(a). Right of workers to report accidents, dangerous occurrences and hazards to the competent authority. The Committee notes that section 44 of the new Regulations on occupational safety and health in mining establishes the obligation for workers to report any dangerous occurrence or occupational accident to their immediate superior or the representative of the mining operator, but that it does not establish any provisions on reporting to the competent authority. The Committee requests the Government to indicate the legislative provisions which establish the right of workers to report accidents, dangerous occurrences and hazards to the competent authority.

Article 13(2)(c) and (e). Right of safety and health representatives to have recourse to advisers and independent experts and to consult with the competent authority.Noting the Government’s lack of reply to its previous request, the Committee requests the Government to provide information on the measures taken or envisaged to ensure that safety and health representatives have the right of recourse to advisers and independent experts and to consult with the competent authority.

Article 16. Application in practice. The Committee notes the Government’s indication that SUNAFIL undertakes inspections and imposes penalties in relation to OSH in the mining, electricity and hydrocarbon subsectors. The Government also indicates that under the Regulations on the structure and functions of SUNAFIL, the Special Operations Sub-directorate (SDIE) of the Inspection Intelligence Directorate has competence to take action before and during inspection activities with regard to OSH in the hydrocarbon, electricity and mining subsectors at the national level. The SDIE also uses a “previous actions” technological tool, which makes it possible to reach 100 per cent of formal enterprises in every region of the country and refers inspection activity files to the competent regional authority for the initiation of administrative penalty proceedings. In reply to the CATP’s 2014 observations on Act No. 30222, amending Act No. 29783 on occupational safety and health, which enables labour inspection to be more flexible with regard to occupational risk prevention, the Committee notes the Government’s indication that the reduction of fines provided for in the transitional supplementary provision of Act No. 30222 was applicable for a period of three years and is therefore no longer in force. In addition, the Committee notes the CATP’s indication in its observations of 2023 that: (i) according to the statistics of the Ministry of Energy and Mining, the total number of occupational accidents was 4,426 in 2018, 4,340 in 2019, 3,171 in 2020, 3,843 in 2021 and 4,365 in 2022; (ii) with regard to occupational diseases, hearing loss (hypoacusis) was the most common disease in the mining sector between 2011 and 2022, and DIGESA and the National Centre for Occupational Health and Environmental Protection for Health have been doing minimal work in this regard, despite the fact that mining is one of the key pillars of the country’s economy. The CATP also indicates that drillers have a significantly higher risk of suffering hearing loss than other mineworkers and that 90 per cent of cases of hearing loss recorded between 2011 and 2020 corresponded to these workers; and (iii) there is a problem of under-recording by mining enterprises, especially artisanal enterprises and those operating in the informal economy, including with regard to the use of hazardous substances such as mercury and sodium cyanide. The Committee requests the Government to provide its comments in this respect.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 1 September 2023.

Article 1(1) and (3) of the Convention. Periodic determination of the carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization or control. The Committee notes the Government’s indication in its report that Supreme Decree No. 015-2005-SA, approving a Regulation on threshold limit values (TLVs) for chemical agents in the workplace, is currently in force. The Committee notes the CATP’s indication in its observations that this Regulation do not cover all carcinogens and the established exposure limits are significantly higher than those of other countries. The Committee requests the Government to provide its comments in this respect. Furthermore, noting that Supreme Decree No. 015-2005-SA was adopted in 2005 and that it has not been revised since then, the Committee requests the Government to take the necessary steps to adopt and periodically revise: (i) the list of prohibited carcinogenic substances and agents; and (ii) the list of carcinogenic substances and agents which are subject to authorization or control. The Committee also requests the Government to indicate the manner in which the list of prohibited substances or agents is formulated and approved, and the manner in which the identified authorization or control is carried out.

Article 6(a). Requirement to take steps to give effect to the provisions of the Convention in consultation with the most representative employers’ and workers’ organizations concerned. The Committee notes the Government’s indication that the National Occupational Safety and Health Committee established the tripartite Standing Technical Committee on Occupational Cancer and Chemical Agents in the Workplace on 24 October 2018, with a view to taking action to promote, coordinate and supervise compliance with the Convention. The Committee notes the CATP’s indication that the Ministry of Labour and Employment Promotion does not comply with the agreements of the above-mentioned Technical Committee and that this is counterproductive as regards promoting tripartite dialogue. In particular, the CATP indicates that at session No. 12 of the Technical Committee, agreement was reached on the proposal to update the Regulations on the prevention and control of occupational cancer, adopted by Supreme Decree No. 039-93-TR and published on 28 June 1993. This proposal received scientific approval from experts of the National Institute for Neoplasic Diseases, who have also participated in the Technical Committee since it was first established. However, as at 15 August 2023, the CATP has expressed concern at the lack of information on the status of the update of the Regulations. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to take the necessary steps to ensure tripartite social dialogue in the context of the Standing Technical Committee on Occupational Cancer and Chemical Agents in the Workplace.

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

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

With reference to its observation, the Committee wishes to raise the following additional points.

The Committee welcomes the information provided in the Government’s report that, under section 11(c) of Act No. 29783 (Act on occupational safety and health), the National Occupational Safety and Health Council approved, at its seventh ordinary session on 11 April 2013, the establishment of a temporary technical committee to analyse the possible ratification of Conventions Nos 102, 121, 155, 161 and 187. The Committee also notes that the Government is analysing the possibility of submitting a formal request for technical assistance from the Office.

Article 2(1) of the Convention. Levels of exposure. Replacement of carcinogenic substances and agents by non-carcinogenic substances or agents or by less harmful substances or agents. With reference to its previous comments, the Committee notes with interest the Government’s indication that progress has been made relating to the prohibition of asbestos through the adoption of Act No. 29662, of 21 January 2011, prohibiting amphibole asbestos and regulating the use of chrysotile asbestos, under which, from 1 July 2011 throughout the entire territory, the possession, elaboration, export, import, distribution, manufacture and transfer of all varieties of asbestos fibres is prohibited on the grounds of being considered carcinogenic (section 1), and provides for the regulation of chrysotile asbestos (section 2). The Committee also notes the publication of the draft implementing regulations to Act No. 29662, through Ministerial Resolution No. 425 2012/MINSA (Ministry of Health) on 30 May 2012. In addition, the Committee notes that, according to the Autonomous Workers’ Confederation of Peru (CATP), the enactment of Act No. 29662 only allowed for the adoption of regulations which do not provide for an immediate prohibition of asbestos but which propose an adjustment period, and that this is due to the fact that various government bodies were targeted by lobby groups against the prohibition of asbestos. The Committee requests the Government to provide its comments in this respect and to report on whether the draft implementing regulations (Ministerial Resolution No. 425-2012/MINSA) have already entered into force and whether they have been implemented throughout the entire national territory.

Article 6(c). Work by the inspection services. Application of the Convention in practice. The Committee notes the details on the work of the inspection services regarding the prevention and control of occupational cancer, attached to the Government’s report. The Committee also notes the Government’s indication that the Ministry of Health has not provided additional information regarding the project on the prevention and control of occupational cancer, referred to in its previous report. The Committee therefore once again requests the Government to provide detailed information in its next report on the above project.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 1 September 2014.

Article 1(1) and (3) of the Convention. Periodical determination of the carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization or control. The Committee notes that, according to the Government, the carcinogenic level of substances or agents is determined in accordance with the provisions of section 21 of the Regulations for the prevention and control of occupational cancer, adopted by Supreme Decree No. 039-93-PCM, of 28 June 1993. The Supreme Decree provides that the National Health Institute shall establish permissible limit values based on information from relevant international organizations and national research studies. The Committee also notes that, according to the Government, the National Occupational Safety and Health Plan 2014–17, approved by the National Occupational Safety and Health Council at its 14th ordinary session on 12 December 2013, envisages, among the action to be taken, the development of additional standards for the appropriate implementation of the Occupational Safety and Health Act No. 29783 (LSST), including updating lists of carcinogenic agents and threshold limit values (TLVs) for chemical agents. The Committee also notes that, according to the CATP, the provisions referred to were adopted over 21 years ago. The Committee invites the Government to provide a copy of the National Occupational Safety and Health Plan 2014–17 referred to above, particularly with regard to the updating of lists of carcinogenic agents, and to indicate whether those lists have already been updated, in accordance with the provisions of the Convention.

Article 3. Establishment of an appropriate system of records. Article 6. Adoption of measures to give effect to the provisions of the Convention in consultation with the most representative organizations of employers and workers concerned. The Committee notes with interest the information provided by the Government concerning the operation, under the responsibility of the Ministry of Labour and Employment Promotion, of the Computerized System for the Notification of Employment Accidents, Hazardous Incidents and Occupational Diseases (SAT), through which medical assistance personnel (in public or private health institutions) notify occupational diseases, including occupational cancer, in accordance with section 110 of the Regulations of the LSST, as approved by Supreme Decree No. 005-2012-TR. The Committee also notes the proposal for the single register of information on employment accidents, hazardous incidents and occupational diseases proposed in September 2013 by the Multi-sectoral Technical Committee, which was established by Supreme Decision No. 069-2013-PCM within the framework of the legislation referred to above. The Committee requests information on the operation in practice of the Computerized Notification System (SAT). The Committee also requests the Government to provide information on any progress achieved in the approval of the single register of information on employment accidents, hazardous incidents and occupational diseases in the near future.

Article 6(a). Requirement to take steps to give effect to the provisions of the Convention in consultation with the organizations concerned. The Committee notes that, according to the CATP, the State is denying the inclusion and active participation of trade union organizations in the various initiatives relating to the protection of health and life in relation to occupational cancer. In this regard, the Committee notes that, according to the CATP, the National Occupational Cancer Commission, established 21 years ago, does not provide for participation by trade unions. The Committee accordingly reminds the Government of the requirements set out in Article 6(a) of the Convention for the adoption, through laws or regulations or any other method, of the necessary steps to give effect to the provisions of the Convention, in consultation with the most representative organizations of employers and workers concerned. The Committee therefore requests the Government, when adopting the necessary measures, to give effect to the provisions of this Convention, through laws or regulations or any other method, to do so in consultation with the most representative organizations of employers and workers concerned, as required by this Article of the Convention.

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

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

The Committee refers the Government to its observation and asks it to provide information on the following points.

The Committee notes the attachments sent including the Occupational Health Handbook, published in 2005 by the Directorate General of Environmental Health, the Module on Safety and Health at Work and the Health at Work Strategy, published by the Institute of Trade Union Studies. Furthermore, it notes with interest the Occupational Safety and Health Regulation, approved by Supreme Decree No. 009-2005-TR and amended by Supreme Decree
No. 007-2007-TR, which establish the foundations for the national occupational safety and health policy. Pointing out that the key occupational safety and health Conventions are the Occupational Safety and Health Convention, 1981 (No. 155) and its Protocol of 2002, and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), and noting that Supreme Decree No. 007-2007-TR appears to facilitate application of these Conventions, the Committee draws the Government’s attention to the fact that under the Plan of Action (2010–16) to achieve widespread ratification and effective implementation of these three instruments, it may seek technical assistance from the Office should it see fit, and asks the Government to provide information on all developments in this regard.

Article 2 of the Convention. Replacement of carcinogenic substances and agents by non-carcinogenic substances or agents or by less harmful substances or agents. With reference to its previous comments, the Committee notes that, according to the Government, in 2005 the Occupational Health Directorate prepared a proposal for the prohibition of asbestos and a bill on the same subject was debated by Congress. Both instruments are being reviewed. The Committee requests the Government to provide information on all developments in this regard.

Article 6(c) and Part IV of the report form. Work by the inspection services to ensure application of the Convention in practice. The Committee notes the information sent by the Government on the conveyance of information to workers, consultations held with workers and related publications such as the outline of the project on the prevention and control of occupational cancer. Noting that the information supplied on inspection work does not refer specifically to the Convention. The Committee asks the Government to provide practical information, including extracts from inspection reports, that is related to the provisions of this Convention. It would also be grateful if the Government would provide further information on the outline of the project on the prevention and control of occupational cancer, referred to in its report.

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

Article 1(1) and (3) of the Convention. Periodic determination of carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization or control. In its previous comments, the Committee pointed out that the prohibition, authorization and control of substances and agents that are periodically determined to be carcinogenic to which occupational exposure shall be prohibited or controlled are very important aspects of the application of the Convention, and noted that the Ministry of Labour and Employment Promotion and the Ministry of Health had established the Occupational Cancer Prevention and Control Commission. It expressed the hope that the Government would, in the near future, complete the process of determining the carcinogenic substances and agents to which exposure shall be prohibited or made subject to authorizational control, and asked the Government to provide information on progress made in this respect. The Committee notes with satisfaction Supreme Decree No. 15-2005-SA approving the Regulation on maximum permissible values for chemical agents in the workplace, and repealing Supreme Decree No. 025-75-SA on the grounds that its coverage was limited because it omitted certain chemicals currently in use. The Regulation applies countrywide and covers all areas of work involving the use of chemical or carcinogenic agents or substances which may present risks and/or be harmful to the health and safety of workers. The values must be applied by professionals who are well versed in occupational safety and health issues. The Committee asks the Government to specify how often and in what manner it determines and updates the carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization or control, and those to which other provisions of this Convention apply.

Article 3. Establishment of a system of records. The Committee notes that, according to the Government’s report, the National Centre for Occupational Health and Environmental Protection for Health which reports to the National Health Institute, has been conducting occupational medical assessments since 2003 though it keeps no occupational cancer records. Furthermore, technical guidelines have been produced – jointly by public and private entities – for medical diagnosis in occupational health and they include guidance on the diagnosis of pneumoconiosis (silicosis, asbestosis and other forms) and are awaiting approval. The Government also refers to other measures. However, the Committee again notes that the country has not as yet any system for recording cases of occupational cancer and/or occupational diseases. It again reminds the Government that this Article of the Convention requires the establishment of an appropriate system of records, and asks the Government to take the necessary steps to ensure that such a system is established in the near future and to provide detailed information on any developments in this regard.

Communication from the General Confederation of Workers of Peru (CGTP). The Committee notes the comments of the CGTP sent by the Government with its report in 2009. Noting that the comments appear not to be directly related to this Convention the Committee suggests that the CGTP, should it see fit, provide information on the manner in which its comments relate to the provisions of this Convention.

The Committee raises other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Further to its observation, the Committee notes that a draft General Labour Act has been formulated containing a section on occupational safety and health, which has been sent to the Office with a view to receiving comments on the text.

2. Article 2 of the Convention. Replacement of carcinogenic substances and agents by non-carcinogenic substances or agents or by less harmful substances or agents. The Committee notes that section 8 of the Regulations on the permissible limits for chemical agents in the working environment establishes measures to prevent risks, guarantee the protection of workers’ health and undertake controls of the environment at workplaces. The Committee requests the Government to indicate whether one of the measures taken includes the replacement required by this Article of the Convention and to indicate the provisions which provide the legislative basis for such replacement.

3. Article 5. Medical examinations. The Committee notes the Government’s reference to the Regulations on safety and health in mining, Supreme Decree No. 046-2001-EM, section 24(n), which establishes the obligation to introduce and ensure that all workers undergo pre-employment, annual and retirement medical examinations. It also notes that the draft Regulations on occupational safety and health also establish the same obligation. Recalling that, in accordance with this Article of the Convention, measures have to be taken to ensure that workers are provided with such medical examinations or biological or other tests or investigations during the period of employment and thereafter as are necessary to evaluate their exposure and supervise their state of health in relation to occupational hazards, the Committee requests the Government to indicate whether the text referred to establishes the obligation to carry out the medical examinations provided for in this Article and requests the Government to provide a copy of the text with its next report when it has been adopted.

4. Article 6(c) and Part IV of the report form. Activities of the inspection services for the purpose of supervising the application of the Convention in practice. The Committee notes that the National Health Institute, through the Centre for Occupational Health and Protection of the Environment for Health, undertakes advisory missions, courses, workshops and assessments of occupational health, based on the method of recognition, assessment and control, both in medical evaluations and in evaluation studies in work centres, on the basis of which preventive occupational safety, health and hygiene measures are identified that are to be adopted in work centres. It also notes the Government’s indication that the Ministry of Labour and Employment Promotion is currently undertaking general occupational safety and health inspections, but does not carry out specific inspections to give effect to the precise requirements of the Convention. The Committee hopes that the Government will take the necessary measures to ensure that appropriate inspection services are provided with a view to giving full effect to the provisions of the Convention and requests it to provide information on any progress achieved in this respect.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee notes the information contained in the Government’s report.

2. Article 1, paragraphs 1 and 3, of the Convention. Periodic determination of the carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization or control. With reference to its previous comments, the Committee notes that for many years it has been drawing the Government’s attention to the need to take measures to determine periodically the carcinogenic substances and agents to which occupational exposure shall be prohibited or authorized or controlled by a special body. The Committee notes that the Government, according to its last report, has not undertaken a revision of the schedule to Supreme Decree No. 007-93-TR determining carcinogenic and co‑carcinogenic substances and agents. It also notes the Government’s reference to ministerial resolution No. 243-2005/MINSA of 22 March 2005, through which the Ministry of Health published on its web site draft amendments to the permissible limit values for chemical agents in the working environment, approved by Supreme Decree No. 0258-75-SA, indicating that schedule II to the above document contains permissible limit values for carcinogenic chemical agents in the working environment and that schedule III includes the list of carcinogenic chemical agents with which contact shall be avoided. Noting that the prohibition, authorization and control of substances and agents that are periodically determined is a very important aspect of the application of the Convention, and that the Ministries of Labour and Employment Promotion and of Health have established the Occupational Cancer Prevention and Control Commission, the Committee hopes that the Government will, in the near future, complete the process of determining the carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization or control, and it requests the Government to provide information on the progress achieved in this respect.

3. Article 3. Establishment of a system of records. The Committee notes that, according to the Government’s report, there is no system in the country for the recording of cases of occupational cancer and/or occupational diseases and that the National Health Institute nevertheless registers occupational diseases when medical assessments are undertaken in work centres or when workers undergo occupational medical assessment. The Committee recalls that, in accordance with this Article, an appropriate system of records has to be established and it trusts that the Government will take the necessary measures to ensure the existence of such a system in the near future. It requests the Government to provide information on the progress achieved in this respect.

4. The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Article 1, paragraphs 1 and 3, of the Convention. The Committee notes the reference to regulation 5 of the Regulations on the Prevention and Control of Occupational Cancer enacted as Supreme Decree No. 039-93-PCM of 11 June 1993. Regulation 5 lays down some of the obligations of employers, particularly that of assessing the risks to which workers may be exposed. The Committee recalls that the requirement set forth in Article 1, paragraphs 1 and 3, of the Convention concerns the periodical determination of the carcinogenic substances and agents to which occupational exposure must be prohibited or made subject to authorization or control. This obligation lies specifically with the Government. The Committee therefore again asks the Government to state whether the annex to Supreme Decree No. 007-93-TR establishing the list of carcinogenic and co-carcinogenic substances and agents, has been reviewed by the National Health Institute, as prescribed by section 22 of Supreme Decree No. 039-93-PCM, and to indicate the sources of information used in the review.

Article 3. The Committee notes the information supplied by the Government in response to the previous direct request, concerning the particulars that employers must submit to the National Health Institute pursuant to section 12 of Supreme Decree No. 039-93-PCM. The Committee also notes document No. 502-001-TR/OAJ sent by the Ministry of Labour and Social Welfare to the National Health Institute seeking information on the application in practice of the periodical check-ups of workers exposed to carcinogenic agents. The Committee recalls that Article 3 of the Convention requires an appropriate system of records to be set up by the Government. It asks the Government to provide information on the existence of such a system, indicating the number and nature of the diseases recorded, their causes and any contraventions reported. The Committee also asks the Government to provide a copy of the report it is to receive from the National Health Institute in response to the instructions sent by the Ministry.

Article 5. The Committee notes the information provided by the Government in response to its previous direct request. The Committee recalls that this Article of the Convention requires workers to be provided with such medical examinations or biological or other tests or investigations during the period of employment and thereafter as are necessary to evaluate their exposure and supervise their state of health in relation to occupational hazards. While noting the duties assigned to the National Health Institute, the Committee asks the Government to indicate whether the obligation to carry out the medical examinations prescribed by this Article is established in any law or regulation.

Article 6, paragraphs (a) and (c), and Part IV of the report form. The Committee asks the Government to specify the appropriate inspection services provided for the purpose of supervising the application of the Convention, or to indicate how it satisfies itself that appropriate inspection is carried out, in accordance with paragraph (c) of Article 6. The Committee also requests the Government to provide samples of reports showing how the obligations imposed on employers by sections 5 to 16 of Supreme Decree No. 039-93-PCM are supervised and to indicate the penalties for failure by employers to comply with these obligations.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the information supplied by the Government in its report.

Article 1, paragraphs 1 and 3, of the Convention. The Committee notes the reference to regulation 5 of the Regulations on the Prevention and Control of Occupational Cancer enacted as Supreme Decree No. 039-93-PCM of 11 June 1993. Regulation 5 lays down some of the obligations of employers, particularly that of assessing the risks to which workers may be exposed. The Committee recalls that the requirement set forth in Article 1, paragraphs 1 and 3, of the Convention concerns the periodical determination of the carcinogenic substances and agents to which occupational exposure must be prohibited or made subject to authorization or control. This obligation lies specifically with the Government. The Committee therefore again asks the Government to state whether the annex to Supreme Decree No. 007-93-TR establishing the list of carcinogenic and co-carcinogenic substances and agencies, has been reviewed by the National Health Institute, as prescribed by section 22 of Supreme Decree No. 039-93-PCM, and to indicate the sources of information used in the review.

Article 3. The Committee notes the information supplied by the Government in response to the previous direct request, concerning the particulars that employers must submit to the National Health Institute pursuant to section 12 of Supreme Decree No. 039-93-PCM. The Committee also notes document No. 502-001-TR/OAJ sent by the Ministry of Labour and Social Welfare to the National Health Institute seeking information on the application in practice of the periodical check-ups of workers exposed to carcinogenic agents. The Committee recalls that Article 3 of the Convention requires an appropriate system of records to be set up by the Government. It asks the Government to provide information on the existence of such a system, indicating the number and nature of the diseases recorded, their causes and any contraventions reported. The Committee also asks the Government to provide a copy of the report it is to receive from the National Health Institute in response to the instructions sent by the Ministry.

Article 5. The Committee notes the information provided by the Government in response to its previous direct request. The Committee recalls that this Article of the Convention requires workers to be provided with such medical examinations or biological or other tests or investigations during the period of employment and thereafter as are necessary to evaluate their exposure and supervise their state of health in relation to occupational hazards. While noting the duties assigned to the National Health Institute, the Committee asks the Government to indicate whether the obligation to carry out the medical examinations prescribed by this Article is established in any law or regulation.

Article 6, paragraph (a) and (c), and Part IV of the report form. The Committee asks the Government to specify the appropriate inspection services provided for the purpose of supervising the application of the Convention, or to indicate how it satisfies itself that appropriate inspection is carried out, in accordance with paragraph (c) of Article 6. The Committee also requests the Government to provide samples of reports showing how the obligations imposed on employers by sections 5 to 16 of Supreme Decree No. 039-93-PCM are supervised and to indicate the penalties for failure by employers to comply with these obligations.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. Article 1, paragraphs 1 and 3, of the Convention. The Committee notes that Supreme Decree No. 89-93-PCM, amended by Supreme Decree No. 007-93-TR, includes as an annex a list of carcinogenic substances and agents and that by virtue of section 22 of the Decree, the National Institute of Health determines periodically the carcinogenic substances and agents to which occupational exposure is prohibited or subject to authorization or control. The Committee requests the Government to indicate in its future reports the periodic determinations carried out, in the light of the information referred to in paragraph 3 of this article of the Convention.

2. Article 5 of the Convention. The Committee notes that under section 19 of Decree No. 89-93-PCM, the Ministry of Health, through the National Institute of Health, is responsible for monitoring the periodic evaluation of workers exposed. The Committee requests the Government to supply detailed information on how this monitoring is conducted. It recalls that under this article of the Convention, measures must be taken to ensure that workers are provided with such medical examinations or biological or other tests or investigations during the period of employment and thereafter as are necessary to evaluate their exposure and supervise their state of health.

3. Article 3 and part IV of the report form. The Committee requests the Government to supply information on the application in practice of the Convention and particularly information on the data which employers must provide to the National Institute of Health under section 12 of the Decree, relating specifically to the activities and procedures applied, the reasons for the use and production of carcinogenic substances, the number of workers exposed, the degree of exposure and prevention measures. It also requests to indicate the number and nature of violations recorded and diseases registered, as well as the cause of the diseases.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

With reference to the comments it has been making for many years, the Committee notes with satisfaction Supreme Decree No. 089-93-PCM, as amended by Supreme Decree No. 007-93-TR, issuing regulations on the prevention and control of occupational cancer.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. In comments it has been making for several years, the Committee has noted that no specific provisions to prevent and control cancer have been adopted since the Convention was ratified.

The Committee notes with regret that, according to the information supplied by the Government in its report, no significant results have been reached by the public agencies working group which was to propose legal measures to give effect to the Convention. It notes that, according to the information supplied by the Government, the General Directorate of inspection and occupational safety and health has been entrusted with drafting legislation to protect workers exposed to dangerous substances and recalls that States which have ratified the Convention are required, under most of its provisions, to take specific legal or technical measures concerning occupational cancer. In this regard, the Committee would call the Government's attention to the study on the prevention and control of occupational cancer, published by the ILO, which can serve as a guide in implementing the principles of the Convention and hopes that the necessary measures will be taken to protect workers against the risks of exposure to carcinogenic substances or agents as called for by the Convention. The Committee requests the Government to indicate any progress made in this regard.

2. The Committee notes that the Government has requested information concerning the application of the Convention from the National Institute of Neoplasic Diseases in connection with the National Institute of Occupational Health which it intends to transmit upon receipt. The Committee hopes that the Government will therefore furnish detailed information on the practical activities of these two Institutes in the area of occupational cancer prevention and control.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee notes from the Government's report that a working group made up of the Ministers of Labour, Health and the Peruvian Institute of Social Security is to be established in order to draft a decree to incorporate cancer within the scope of the regulations to the Act on occupational accidents and diseases (D.L. 18846). The Committee hopes that the most representative organisations of employers and workers concerned will be consulted in conformity with Article 6 of the Convention and that the Government will provide a copy of the text when adopted.

2. The Committee recalls that special measures for the prevention and control of occupational cancer must be taken in order to ensure application of the provisions of the Convention. They should provide, among other things, for (a) the replacement of carcinogenic substances and agents by less harmful substances or agents and the reduction to the minimum, of the number of workers exposed and the duration and degree of exposure (Article 2); (b) the obligation to protect workers against the risks of exposure by collecting the necessary data and informing the persons concerned accordingly (Articles 3 and 4); and (c) the obligation to submit workers exposed to this risk to medical examinations or biological or other tests, during and after their employment, with a view to evaluating their exposure and protecting their health (Article 5).

The Committee again expresses the hope that the Government will not fail to take the measures called for by the Convention and that in its next report it will indicate the progress made in this connection. Please also supply information on the practical application of the Convention mentioned in Point V of the report form adopted by the Governing Body of the ILO.