Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s latest report in reply to its previous comments, in particular concerning the adoption of the Occupational Health and Safety (Promotion) Act of 1 March 1994 (Act No. VII of 1994) and the indication that the relevant EUC legislation in the field of safety and health of workers at the workplace shall be introduced into national law in the near future. The Occupational Safety and Health (Promotion) Act appears to cover all branches of economic activity, giving full application of Article 1 of the Convention and repeals the Factory’s Ordinance (Chapter 107) of 1940. The Committee also notes the information concerning the applications of Article 7, paragraph 2.

The Government is requested to provide further information on the following points.

1. Article 2, paragraph 2, of the Convention. The Committee notes the reply to its previous comments that the Maltese Government is currently in the process of implementing EUC legislation, including not only standards on air pollution, but also on the categories of hazards so far excluded, namely noise and vibration, into national law. It notes that the Government intends to complete this process in short term. The Government is requested to keep the Office informed on any developments in this regard and to provide particulars of the position of national law and practice with regard to each of the abovementioned categories of hazards, as well as copies of the new texts as soon as they have been adopted.

2. Article 4, paragraphs 1 and 2. The Committee noted previously that the Factory’s (Health, Safety and Welfare) Regulations of 1986 only provide very general measures for the prevention and control of, and protection against occupational hazards due to air pollution. The Committee notes that the Occupational Health and Safety (Promotion) Act of 1994, in addition, establishes a legal frame to be, for example, complemented by regulations of the competent minister concerning its practical implementation and by codes of practice, formulated and published by the Committee for the Promotion of Occupational Health and Safety (sections 2(1), 4(2) and (3), 6(1) in conjunction with 16 of the Act). No information has been provided in the latest Government’s report on the application of measures adopted in more developed countries and recognized by certain international organizations, which the Government had been referring to. It is therefore requested to indicate - as long as the relevant EUC legislation has not yet been fully implemented - the measures which it has taken to ensure the prevention and control of, and the protection against occupational hazards due to air pollution, including means for practical implementation such as technical standards and codes of practice.

3. Article 5, paragraphs 1, 2 and 3. Further to its previous comments, the Committee notes from the information provided in the latest Government’s report that the tripartite Commission for the Promotion of Occupational Health and Safety was established in 1994 and has been carrying out its functions since then (sections 3-7 of the Occupational Health and Safety (Promotion) Act). It further notes that the Government intends to eventually introduce a law setting up an Occupational Health and Safety Authority. As noted in its previous comments, this Authority shall probably be tripartite and, inter alia, facilitate the cooperation between workers and employers and the workplace. The Government is requested to provide information in its next report on the progress made in this regard and to supply a copy of the Occupational Safety and Health Authority Act once it is adopted.

4. Article 5, paragraph 4. The Committee notes from the information provided in reply to its previous request that the inspectors use the input of workers and their representatives during workplace inspections whenever possible. Please indicate the provisions which ensure that representatives of employers and representatives of workers have the right to accompany inspectors while they carry out their inspections, unless the inspector considers that this may be prejudicial to the performance of his or her duties.

5. Article 6, paragraph 2. The Committee notes that it would be the responsibility of the person giving out work to different employers undertaking activities simultaneously at his workplace to ensure their collaboration in order to comply with the prescribed measures. That may be done by the employer himself or by project supervisors or coordinators appointed by him, according to the generally applicable model code of practice for the building and construction industry in Malta published by the Commission for the Promotion of Occupational Health and Safety in 1997. The Government is requested to indicate particulars of any general procedures prescribed for collaboration between two or more employers undertaking activities simultaneously at one workplace not necessarily identical with one of their own workplaces, without prejudice to the responsibility of each of them for the health and safety of his employees.

6. Article 8, paragraphs 1, 2 and 3. The Committee notes the Government’s reply to its previous comments that no criteria for determining the hazards of exposure have been established yet and that the inspectorate uses the Threshold Limit Values published by the American College of Government Industrial Hygienists as guidelines. The Committee further notes the Government’s reference to the intended introduction of the relevant EUC legislation into national law in the near future. The Committee would be grateful if the Government would nonetheless provide the information previously requested regarding an indication on the manner in which the opinion of technically competent persons designated by the most representative organizations of employers and workers is taken into consideration by the competent authority when elaborating criteria and determining exposure limits. It also reiterates its previous request for a description of the procedures by which the criteria and exposure limits to air pollution in the working environment are supplemented and revised at regular intervals in the light of new national and international knowledge and data.

7. Article 9. The Committee notes the information provided by the Government in reply to its previous comments concerning the general duties of the employer to keep the working environment free from all dangers to health and safety according to section 8 of the Occupational Health and Safety (Promotion) Act and to take specific measures according to for example sections 18, 23, 33, 40 and 49 of the Factory’s (Health, Safety and Welfare) Regulations of 1986. Independently on the intended implementation of EUC legislation, the commission again requests the Government to provide particulars on (a) the technical measures to be applied to new plant or processes in design or installation and (b) the technical measures to be added to existing plant or processes or where necessary on any supplementary organizational measures adopted with a view to eliminating from the workplaces any risk resulting from air pollution.

8. Article 11, paragraphs 1 and 2. The Committee notes the indication provided in the Government’s latest report concerning the employer’s duty according to section 49, paragraphs 1 and 2 of the Factory’s Regulations to take all the necessary steps to ensure the health and safety of his employees and to carry out an assessment of the occupational risks which could elucidate the need of a medical examination. The Committee further notes that according to section 48 of the Regulations, any supervision of the health of the worker shall be free of cost to him. The Committee must recall, however, that the conditions and circumstances whereby such supervision is provided is to be determined by the competent authority and that supervision is to include a pre-assignment medical examination and periodical examinations. In its previous comments, the Committee noted that pre-assignment medical examinations according to section 43, paragraph 1, of the Factory’s Regulations appear to be limited to persons principally engaged in occupations with respect to dangerous machinery and that the Sanitary Authority and the superintendent may require medical examinations of other employees according to section 43, paragraphs 7 and 12 of the Regulations. The Government is again requested to indicate particulars of the circumstances determined by the competent authority in which supervision of the health of workers is required in order to ensure that workers exposed or liable to be exposed to occupational hazards due to air pollution are provided with pre-assignment and periodical medical examinations. Please also indicate who or which body finally constitutes the competent authority, the Sanitary Authority, the superintendent or the inspectors or which other person or body.

9. Article 11, paragraphs 3 and 4. The Committee notes the information supplied in the Government’s latest report that an employee suspended by the medical practitioner following a medical examination from an occupation listed in the Schedule (section 43, paragraph 5 of the Factory’s Regulations) may be relocated to an alternative post by his employer or sent on paid sick leave until recovery or for a period of up to one year as provided under the Social Security Act. Please indicate the provisions under which a worker is provided with alternative employment or income maintenance through social security in cases where continued assignment to work involving exposure to occupational hazards due to air pollution is medically inadvisable. The Committee would be grateful if the Government would also indicate the provisions which ensure that the rights of workers under social security or social insurance legislation shall not be adversely affected when the period of one year has elapsed. Please also communicate copies of the relevant provisions with the next report.

10. Article 12. The Committee notes the information provided by the Government in its latest report in reply to the Committee’s previous comments that the sale of toxic chemicals or materials is to be authorized by the inspector who may refuse it or impose conditions. It further notes that prior to issuing a trading licence to an employer, the competent police commissioner has to notify various government departments including the inspectorate of the labour department who, following an inspection of the proposed works may impose conditions or object to the issuing of the licence. Further to its previous comments, the Committee requests the Government again to indicate the manner in which the superintendent is notified of the intended use of a toxic chemical or material (section 38 of the Factory’s Regulations) and the measures taken or envisaged to ensure that the competent authority is also notified of the use of processes, machines or equipment, to be determined by the competent authority, which involve exposure of workers to hazards due to air pollution.

11. Article 13. The Committee notes that, according to section 4, paragraph 4, of the Occupational Health and Safety (Promotion) Act, the Commission for the Promotion of Occupational Health and Safety shall take the necessary measures so that all possible information be given at workplaces with regard to matters of occupational health and safety. In addition, section 8, paragraph 1(e) of the Act obliges the employer to inform every worker on the dangers to health and safety at the workplace and on the best methods of prevention. With regard to these provisions as well as to the employers’ information duties established under section 49, paragraphs 3 and 4, of the Factory’s Regulations, the Government is again requested to provide further details on the type of information and instruction provided with regard to occupational hazards due to air pollution and the manner in which and the frequency with which they are provided.

12. Article 15. The Committee notes from the information provided by the Government that, according to section 11 of the Occupational Health and Safety (Promotion) Act, an inspector may give an order to an employer to safeguard occupational health and safety and that according to section 10, paragraph 2(h) of this Act, the inspector may require an employer to provide at his expense an engineer’s certificate regarding the safety of any installation including ventilation equipment, filtering systems and protective enclosures. In its previous comments, the Committee noted that section 40, paragraph 5 of the Factory’s Regulations provided that when considered necessary by the sanitary authority, the employer must test the atmosphere of workrooms in which potentially dangerous or obnoxious substances are manufactured, handled or used and that these tests must be conducted by trained personnel and, where possible, supervised by qualified personnel who possess experience in occupational health or hygiene. The Government is again requested to indicate the manner in which the abovementioned provisions of the Occupational Health and Safety (Promotion) Act and of the Factory’s Regulations are applied in practice and whether there are any other circumstances determined by the competent authority in which recourse is had to a competent outside person in matters concerning the prevention and control of air pollution.