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

The Committee notes the information provided with the Government’s report. The Committee notes that the Occupational Safety and Health Act has been adopted in 1997 with the technical assistance of the ILO. It notes that the Act gives effect to Articles 4 and 6(b) and (c) of the Convention.

Moreover, the Committee notes that pursuant to section 75 of the Occupational Safety and Health Act, 1997, the Minister is empowered to issue regulations enforcing the provisions of the Act and that the ILO has retained a consultant to draft the regulations in order to make the Occupational Safety and Health Act fully operational. The Committee requests the Government to supply a copy of these Regulations as soon as they are adopted.

The Committee notes, however, that the Occupational Safety and Health Act, 1997, does not apply the Articles of the Convention mentioned hereafter on which the Committee has made comments for a certain number of years. The Committee accordingly draws the Government’s attention to the following points.

Article 1, paragraphs 1 and 2. The Committee notes that, according to section 59 of the Occupational Safety and Health Act, the use or intended use of chemical, biological or physical agents may be prohibited, limited or restricted or made subject to conditions, if their use, in the opinion of the Occupational Safety and Health Authority, is likely to endanger the health of workers. The Government indicates however that there is no regulatory mechanism to prohibit or grant certifications specifying conditions under which reasonable exposure of carcinogenic substances can be met. The Government further indicates that the Occupational Safety and Health Department, at present, does not determine specific exposure levels for the labour force from those chemical substances that are proven to be carcinogenic. The Committee recalls that Article 1 of the Convention requires the periodic determination of carcinogenic substances and agents to which occupational exposure shall be prohibited or made subject to authorization and control. It thus cannot be left to the discretion of the Occupational Safety and Health Authority to determine case by case whether a substance or agent endangers the workers’ health. The Government is accordingly requested to indicate the measures taken or contemplated to establish a mechanism ensuring that the substances and agents to which occupational exposure is prohibited or subject to authorization and control are determined periodically.

Article 2. The Committee notes that the Occupational Safety and Health Act, 1997, does not contain provisions requiring the replacement or substitution of substances or agents by non-carcinogenic or less harmful substances and agents. In this respect, the Government indicates that regulations do not provide for maximum exposure of workers to carcinogenic substances over an eight- hour workday. The Committee therefore points out that, in accordance with this Article of the Convention, the Government must make every effort to replace carcinogenic substances and agents to which workers may be exposed in the course of their work by non-carcinogenic or less harmful substances. Moreover, the number of workers exposed as well as the duration and degree of exposure to carcinogenic substances and agents is to be reduced to the minimum compatible with safety. In view of the absence of provisions providing for the above described measures, the Committee hopes that the Regulations, which will be drafted in order to make the Occupational Safety and Health Act, 1997, operational, will contain such preventive and protective measures, in accordance with the provisions of this Article of the Convention.

Article 3. The Committee notes that the Occupational Safety and Health Act, 1997, does not set or recommend permissible exposure limits for workers or specifies other protective measures to be taken in relation to workers’ exposure to carcinogenic substances or agents. The Committee therefore hopes that the Government will take the necessary steps in the near future to adopt appropriate measures to protect workers against the risks of exposure to carcinogenic substances and agents, as provided for in Article 3 of the Convention. With regard to the establishment of an appropriate system of records of the exposure of workers at risk, the Committee notes that section 61 of the Occupational Safety and Health Act, 1997, obliges only the employer to establish and maintain an inventory of all hazardous chemicals and physical agents that are present in the workplace. The Committee draws the Government’s attention to the ILO publication "Occupational cancer: prevention and control", Occupational Safety and Health Series, No. 39, indicating that the purpose of a register containing the names of exposed persons, the result of technical monitoring, special medical examinations and laboratory tests performed on these workers is to permit the competent authority "to keep a close watch on the magnitude of the problem of occupational cancer in the country, the level of risk involved in the various types of exposure, the dose-response relationship and the effectiveness of preventive action. In this way, increased knowledge of the various aspects of occupational epidemiology can be gained".

The Government is accordingly requested to indicate the measures taken or envisaged to establish an appropriate system of records in order to evaluate the different aspects of occupational cancer.

Article 5. The Committee notes that the Occupational Safety and Health Act, 1997, provides neither for medical examinations during the period of employment nor for post-employment medical examinations. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that medical examinations or other tests or investigations are carried out during the period of employment and thereafter as are necessary to evaluate the exposure of workers and to supervise their state of health in relation to occupational hazards, in order to give full effect to Article 5 of the Convention. In this regard, the Committee recalls the importance of both periodic health evaluations at appropriate intervals during employment to determine whether the worker’s health remains compatible with his or her job assignment and to detect any evidence of ill health attributed to employment, and post-assignment health examinations to state whether the job assignments have affected workers’ health, for workers may not reveal any symptoms of cancer until some time after the period of exposure and so there is a serious risk of cancer being undetected if the worker who has been exposed to carcinogenic substances or agents does not undergo medical examinations or tests after employment.

Article 6(a). The Committee notes the Government’s indication that the Occupational Safety and Health Act, 1997, only applies partly the provisions of the Convention, and that in addition methods such as "voluntary compliance" are used by the Occupational Safety and Health Authority to comply with this Act. The Committee accordingly requests the Government to explain the manner in which the methods called "voluntary compliance" apply to the Convention. The Committee further hopes that the Regulations to be issued in application of section 75 of the Occupational Safety and Health Act, 1997, will be elaborated and adopted in the near future in order to give full effect to the provisions of the Convention.

[The Government is asked to report in detail in 2003.]