Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information provided by the Government in its report.

It notes in particular the adoption of the Health and Safety at Work Act, 1999. The Committee also notes that the Health Care Activities Act, 1992, has been amended and it would be grateful if the Government would provide a copy of the consolidated text of this latter Act.

It draws the Government’s attention to the following points:

Article 1(a) of the Convention. The Committee notes section 1 (respecting health services) of the Act on Health Care and Health Insurance of 1992, and sections 42, 43 and 44 (on the Council for Health and Safety at Work) of the Health and Safety at Work Act. However, these provisions do not define the functions of occupational health services. The Committee notes that the preventive functions and those relating to the provision of advice to the employer, the workers and their representatives in the enterprise are set out in section 28 of the Health and Safety at Work Act, which provides that within each enterprise the "works council" must be consulted on any measure which might affect health and safety at work. The works council is composed of the employer, workers and their representatives. However, this provision only requires consultation in the field of health, while the texts do not determine the objectives of the health service, particularly with regard to establishing and maintaining mental health or the adaptation of work to the capabilities of workers, as required by this Article of the Convention. The Committee therefore requests the Government to indicate whether "occupational health services", within the meaning of the Convention, exist in practice and to indicate their functions. The Committee also notes that the Government indicated in its first report that it would take the necessary measures concerning health services when adopting the Health and Safety at Work Act. However, this Act, adopted in 1999, does not contain provisions defining and establishing the functions of health services. The Committee therefore requests the Government to take the necessary measures for the adoption of such provisions so as to give effect to this Article of the Convention.

Article 1(b). The Committee requests the Government to indicate the persons who are recognized as "workers’ representatives in the undertaking" under national law or practice.

Article 2. The Committee notes the provisions of the Health and Safety at Work Act, and particularly sections 4, 44 and 64, under which the Government, in consultation with occupational experts, employers’ organizations and trade unions, has to prepare a draft national programme of health and safety at work. This draft programme must then be adopted by the National Assembly. The Committee requests the Government to indicate whether this national programme has been adopted and, if so, whether it provides for the establishment of occupational health services. If this national programme has been adopted, it requests the Government to provide a copy of the adopted programme, and of its implementing measures. Furthermore, the Committee requests the Government to indicate whether it is envisaged that the programme shall be periodically reviewed, and the relevant procedures for this purpose.

Article 3. The Committee notes that sections 2 and 3 of the Health and Safety at Work Act provide that it applies in all spheres of economic activity and to all workers. However, section 2(2) excludes from the scope of the Act persons working in spheres of economic activity where health and safety at work is governed by special regulations. Furthermore, the Government does not indicate in its report whether all workers in the public sector and production cooperatives, in all branches of economic activity and all enterprises, benefit from the establishment of health services. The Committee therefore requests the Government to indicate the means by which all workers in all branches of economic activity and all enterprises are covered by the establishment of occupational health services. The Committee requests the Government to specify whether, by virtue of sections 20 and 21 of the Health and Safety at Work Act, medical services have been established and, if so, the manner in which they operate. It also requests the Government to indicate the procedures followed for the consultation of representative organizations of employers.

Article 5(b). The Committee notes that the functions of medical services, as set out in section 20 of the Health and Safety at Work Act, do not include those set forth in this provision of the Convention. It therefore requests the Government to take the necessary measures to ensure the surveillance of the factors in the working environment and working practices which may affect workers’ health, including sanitary installations, canteens and housing, where these facilities are provided by the employer.

Article 5(c). The Committee notes section 20(7) and (8) of the Health and Safety at Work Act, which provide that those responsible for medical services shall propose preventive and curative measures and measures of protection for employees exposed to severe danger. The Committee recalls that, in accordance with this provision of the Convention, occupational health services are under the obligation to provide advice on the planning and organization of work, including the design of workplaces, on the choice, maintenance and condition of machinery and other equipment and on substances used in work. The Committee accordingly requests the Government to take the necessary measures to ensure that advice is provided by the medical services envisaged in section 20 of the Health and Safety at Work Act on the measures necessary for the planning and organization of work, including the design of workplaces, on the choice, maintenance and condition of machinery and other equipment and on substances used at work.

Article 5(d). The Committee notes that, under the terms of section 20(9) and (10) of the Health and Safety at Work Act, medical services have the task of advising employers on safe working practices and keeping records and collecting data on the health of employees. The Committee recalls that, under the terms of the Convention, health services have to participate in the development of programmes for the improvement of working practices, as well as the testing and evaluation of health aspects of new equipment. The Committee therefore requests the Government to take the necessary measures to ensure that the medical services envisaged by the Health and Safety at Work Act carry out the above functions.

Article 5(e). The Committee notes that section 20(9) and (2) of the Health and Safety at Work Act provides that medical services shall provide advice on the hazards and risks related to work. However, it is not envisaged that such advice should be provided on ergonomics and individual and collective protective equipment. The Committee requests the Government to take the necessary measures to ensure that medical services provide advice on these matters.

Article 5(f). The Committee notes that section 20(4) provides for the performance of preventive health examinations by the medical services in accordance with special regulations. The Committee requests the Government to indicate the special regulations concerned and to state whether they have been adopted. It also requests it to provide further information so that it can ascertain whether these examinations constitute adequate health surveillance of workers within the meaning of the Convention.

Article 5(g). The Committee notes the provisions of section 6, point 4, of the Health and Safety at Work Act, which requires employers to promote the adaptation of work to individuals. The Committee requests the Government to indicate whether employers comply with this obligation through the medical services envisaged in section 20 of the above Act.

Article 5(h). The Committee notes that none of the provisions on medical services provide that one of the functions of these services is the vocational rehabilitation of workers. It therefore requests the Government to adopt the necessary provisions respecting the contribution of medical services to vocational rehabilitation measures.

Article 5(i). The Committee notes that section 20(2) of the Health and Safety at Work Act requires the provision of health education to employees. It also notes section 15, fourth point, of the Health and Safety at Work Act, which provides that employers shall inform employees or their representatives of the introduction of new technologies or means of work, as well as any potential or actual dangers of injury or health impairment related to them, and to issue the corresponding safe working practice instructions. This requires a certain level of surveillance of the workers by the employer or, if this function is delegated, by the medical service. The Committee requests the Government to indicate whether this obligation of information is fulfilled exclusively by the employer, or whether this function is delegated. Finally, it notes that section 15, fifth point, obliges employers to train employees in safe working practices. The Committee requests the Government to indicate whether this obligation is ensured through medical services. It also requests it to adopt appropriate measures to ensure collaboration in providing information, training and education in the fields of occupational health and hygiene and ergonomics.

Article 6(a). The Committee requests the Government to broaden the functions of the medical services established under the Act with a view to the establishment of occupational health services as envisaged by the Convention.

Article 6(b). The Committee notes that section 51 of the Health and Safety at Work Act provides that supervision of the implementation of the Act and the regulations issued thereunder, as well as other regulations governing health and safety at work, and the safety measures specified in internal rules or collective agreements shall be carried out by the Labour Inspectorate. This section presupposes that such texts are adopted under the Health and Safety at Work Act. The Committee requests the Government to provide information on the application of this provision.

Article 7. The Committee notes that the Government refers in its report to section 21 of the Health and Safety at Work Act, which indicates that the tasks specified for medical services may be performed by a public health institution or a legal or natural person with a concession for the performance of medical services within the medical service system in accordance with the laws governing medical services. The Committee therefore requests the Government to provide detailed information on the manner in which medical services are organized and discharge their functions in practice.

Article 9, paragraphs 1, 2 and 3. The Committee notes that the Government refers to section 22 of the Health and Safety at Work Act. However, this provision does not in any way provide for cooperation between health services and the other services concerned. The Committee requests the Government to indicate the manner in which collaboration, cooperation and coordination is secured with other services in the enterprise and the services concerned with the provision of health care, as envisaged in section 22 of the above Act. Furthermore, the Committee requests the Government to indicate the criteria set out with a view to determining that the composition of the services providing the care covered by the Convention is multidisciplinary.

Article 10. The Committee requests the Government to indicate the measures adopted to ensure that personnel providing occupational health services enjoy full professional independence from employers, workers and their representatives, where they exist.

Article 11. The Committee notes that section 20 of the Health and Safety at Work Act provides that employers must ensure that the provision of medical services is performed by an authorized medical practitioner, and that section 3(10) defines an authorized medical practitioner as a specialist in occupational medicine engaged by an employer to provide medical services at work. The Committee also notes that the Government, in one of its reports, explained that medical practitioners wishing to work in occupational health services are required to have an additional specialization which concludes with an examination and thesis or paper on the specialization. The Government added that most doctors also hold postgraduate degrees in occupational medicine. The Committee requests the Government to provide copies of the legal texts requiring such a specialization and indicating the authorities that are competent to recognize the professional qualifications of the personnel who are to provide care in the medical services envisaged in section 20 of the Health and Safety at Work Act.

Article 14. The Committee notes that, in its last report, the Government refers to sections 20 and 23 of the Health and Safety at Work Act. However, these texts do not provide that the employer and workers are required to inform occupational health services of any known factors and any suspected factors in the working environment which may affect the workers’ health. The Committee therefore requests the Government to take the necessary measures to ensure that health services are duly informed of such factors by the employer and the workers.

Article 15. The Committee notes that the Government refers to section 51 of the Health and Safety at Work Act. However, this provision relates to the functions of the labour inspectorate and does not apply this Article of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure that occupational health services are informed of occurrences of ill health amongst workers and absence from work for health reasons, in order to be able to identify whether there is any relation between the reasons for ill health or absence and any health hazards which may be present at the workplace. The Government should ensure that these measures do not provide that personnel providing occupational health services are required to verify the reasons for absence from work.

Part VI of the report form. The Committee notes that in 1998 the Labour Inspectorate reported that health examinations are rarely carried out when employment begins: a total of 425 such cases were reported, including 229 cases in which they had been carried out incorrectly and 121 cases in which the records to be kept relating to preventive medical inspection were not kept or were kept inadequately. The Government explains these deficiencies in the performance of preliminary medical examinations by the fact that employers are not notified of their obligations and the examinations are fairly costly in themselves. The Committee is bound to express its concern with regard to the deficiencies reported in the performance of preliminary medical examinations. It requests the Government to continue providing information to the International Labour Office on the manner in which the Convention is applied in practice.