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Safety and Health in Construction Convention, 1988 (No. 167) - Lesotho (Ratification: 1998)

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Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine Conventions Nos 45 (underground work (women)), 155 (OSH) and 167 (safety and health in construction) together.

A. General provisions

Occupational Safety and Health Convention, 1981 (No. 155)

Article 9(2). Adequate penalties. In its previous comment, the Committee noted the Government’s indication that employers who breach OSH provisions may be sentenced by the court to a fine of 600 Lesotho Loti (39 USD) or to imprisonment for three months, or both, in accordance with section 239 of the Labour Code. However, the Committee notes that, according to the Government, in the case of any OSH violations there are no prosecutions and the owner of the enterprise would be given a warning and would be instructed to rectify. The Committee requests the Government to take the necessary measures to ensure the provision of adequate penalties for OSH violations and their effective application. It also requests the Government to provide information on the application of the relevant provisions in practice, including the violations detected and the penalties imposed.

Article 11(d). Inquiries. The Committee notes the Government’s indication, in reply to its previous request, that when occurrences are designated as dangerous by the Labour Commissioner, they are subject to an inquiry. The Committee notes the “Incident Investigation Form” transmitted by the Government together with its report, which contains information on the company, the incident descriptions and/or injury information, the incident classification, the root causes, the recommended corrective actions to prevent future incidents and the summary of principal key learning from the incident. The Committee takes note of this information, which addresses its previous request.

Article 14. Promotion of occupational safety and health in education. Following its previous comment, the Committee notes the Government’s indication that, although there are no specific legislative provisions regarding the promotion of OSH at all levels of education, the Council of Higher Education has been made aware that OSH principles should be observed and incorporated in the manual of instructions of higher learning. The Government indicates that it hopes that the same sensitization and awareness-raising will be extended to other levels of education. The Committee requests the Government to continue to provide information on the measures taken in practice to include OSH issues at all levels of education and training.

Article 19(c) and (e). Information and consultation at the level of the undertaking. The Committee notes the Government’s indication in its report submitted under Convention No. 167, that section 93 (4) of the Labour Code provides that every employer shall consult employees’ representatives who sit on the safety and health committee, with a view to making and maintaining arrangements which will effectively promote measures of safety and health at work, and in checking the effectiveness of such measures. The Committee also notes the Government’s indication that the national OSH policy provides for workers to take part in hazard identification and risk assessment. The Committee requests the Government to indicate the provisions of national legislation ensuring that workers or their representatives and their representative organizations are enabled to enquire into all aspects of OSH associated with their work.

B. Protection in specific branches of activity

1. Underground Work (Women) Convention, 1935 (No. 45)

The Committee recalls that the ILO Governing Body (at its 334th Session, October–November 2018), on the recommendation of the Standards Review Mechanism (SRM) Tripartite Working Group, classified Convention No. 45 as an outdated instrument, and has placed an item on the agenda of the International Labour Conference in 2024 (112th Session) for due regard to be given to its abrogation. The Governing Body also requested the Office to follow up with member States currently bound by Convention No. 45 to encourage the ratification of up-to-date instruments related to OSH, including but not limited to the Safety and Health in Mines Convention, 1995 (No. 176), and to undertake a campaign to promote the ratification of Convention No. 176. 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 Tripartite Working Group, and to consider ratifying the most up-to-date instruments in this subject area.

2. Safety and Health in Construction Convention, 1988 (No. 167)

Legislation. Following its previous comment, the Committee notes the Government’s indication that the national OSH policy adopted in 2020 will set the foundation for the enactment of the OSH Act, which will give effect to the principles provided by the Convention. The Committee further notes that the information provided by the Government responds to its previous request on the effect given to Articles 6, 10, 13, 14, 17(3) and 21 of the Convention. The Committee requests once again the Government to indicate how effect is given to Article 5 on technical standards and codes of practice; Article 8 on cooperation between two or more employers simultaneously undertaking activities at one construction site, and on cooperation duties of self-employed persons; Article 23(3) on safe and sufficient transport where work is done over or in close proximity to water; Article 27(b) on explosives not to be stored, transported, handled or used except by a competent person; Article 28(2)(a) on replacement of hazardous substances by harmless or less hazardous substances and disposal of waste; Article 31 on removal for medical attention. The Committee also refers to 2021 observation under Convention No. 155 regarding the adoption of the OSH Act.

Articles 1(3) and 7 of the Convention. Self-employed persons. The Committee notes the Government’s statement in its report, in reply to its previous request, that the new OSH Act, which the Government intends to adopt, will cover all workers and employers in all sectors of the economy and in all forms of employment relationships, including self-employed persons. Taking due note of this information, the Committee requests the Government to provide information on the developments in this respect.

Articles 11(d) and 12. Workers’ rights to report any situation presenting a risk and which they cannot properly deal with themselves and right to removal. The Committee notes that according to the Government, the national OSH policy includes the right of the workers to refuse to undertake any work that is not safe because of hazards existing before the commencement of the job. The Government indicates that the policy also provides for workers to take part in hazard identification and risk assessment. The Committee request the Government to take the necessary measures, in the context of the adoption of the OSH Act, in order to ensure that workers have the right to report to their immediate supervisor, and to the workers' safety representative where one exists, any situation which they believe could present a risk, and which they cannot properly deal with themselves. It also requests the Government to take measures to ensure that a worker shall have the right to remove himself from danger when he has good reason to believe that there is an imminent and serious danger to his safety or health.

Application of the Convention in practice. Following its previous comment, the Committee notes the statistical information provided by the Government on the number of occupational injuries with a breakdown by cause, nature and outcome of the accident for the period 2019–20. However, the Committee notes that the Government does not provide information on the number of workers covered by the legislation and the cases of occupational disease. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including on the number of workers covered by the legislation, the number, nature and cause of occupational disease and extracts from the reports of inspection services.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Legislation. Further to its previous comment in which it noted that the review and amendment of the Labour Code Order No. 24 (1992) and the Labour Code (Construction Safety) Regulations (2002) was not yet completed, the Committee takes note of the Government’s indication that it has initiated a new labour law review process in 2014. In this regard, the Government specifies that provisions pertaining to occupational safety and health (OSH) will be included in a separate piece of legislation (OSH Act). It adds that the process is still at its initial stage as the social partners requested to be able to consult first with their constituencies. The Government also indicates that these consultations should take into account the issues previously raised by the Committee with a view to addressing them. While duly noting these developments, the Committee wishes to emphasize that the indication that new legislation is being prepared does not release the Government from its obligation to give effect to the Convention pending the adoption of the new legislation, and to provide information to the Committee in this respect, to enable it to have the necessary overview of the current application of the Convention. Therefore, the Committee requests the Government to indicate how effect in law and practice is currently given to Articles 1(3), 7 and 8 of the Convention, including in relation to self-employed workers; Article 5 on practical application through technical standards and codes of practice; Articles 6 and 10 on cooperation between employers and workers; Article 8 on two or more employers undertaking activities simultaneously at one construction site; Article 11 on workers’ rights to report any situation presenting a risk and which they cannot properly deal with themselves; Article 12 on the right to removal; Article 13 on safety at workplaces; Article 14 on scaffolds and ladders; Article 17(3) on pressure plant and equipment; Article 21 on work in compressed air; Articles 23 and 31 on work over water and first aid; Article 27 on explosives; and Article 28 on health hazards. The Committee also requests the Government to provide information on any progress made towards the adoption of the OSH Act and to provide a copy of the relevant legislation as soon as it has been adopted, indicating the specific provisions which give effect to the Convention.

Application of the Convention in practice. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied in practice, including detailed information on the number of workers covered by the legislation, the number, nature and cause of occupational accidents and cases of occupational disease and extracts from the reports of inspection services.

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

The Committee notes that the Government has not yet adopted its proposed amendments to the Labour Code Order No. 24 (1992) nor reviewed the Labour Code (Construction Safety) Regulations (2002). The Committee previously noted that this draft legislation appeared to give effect to a number of the provisions of the Convention and that the National Advisory Committee on Occupational Safety and Health (NACOSH) intended to address a number of other issues that the Committee had raised in previous comments. The Committee hopes that such amendments will be adopted soon and asks the Government to provide a copy of the relevant legislation once adopted, indicating the specific provisions that give effect to Articles 1(3), 7 and 8 of the Convention on self-employed workers; Article 5 on practical application through technical standards and codes of practice; Articles 6 and 10 on cooperation between employers and workers; Article 8 on two or more employers undertaking activities simultaneously at one construction site; Article 11 on workers’ rights to report any situation presenting a risk and which they cannot properly deal with themselves; Article 12 on the right to removal; Article 13 on safety at workplaces; Article 14 on scaffolds and ladders; Article 17(3) on pressure plant and equipment; Article 21 on work in compressed air; Articles 23 and 31 on work over water and first aid; Article 27 on explosives; and Article 28 on health hazards.

Part VI of the report form. Application in practice and labour inspection. The Committee notes the comprehensive information on labour inspection and application of the Convention in practice submitted by the Government in its report on the Occupational Safety and Health Convention, 1981 (No. 155). The Committee asks the Government to provide information on measures taken to address the high number of accidents recorded in the construction sector, and to continue to provide information on the application of this Convention in practice.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the responses provided by the Government in its latest report, including information on further effect given to Article 13 of the Convention. The Committee notes with interest the ongoing efforts by the Government to bring national law and practice in line with the provisions of the Convention. It notes that the Government intends, inter alia, through a proposed revision of the Labour Code, to give effect to Articles 1(3), 5, 7 and 11, and that the National Advisory Committee on Occupational Safety and Health (NACOSH) will address a number of other issues raised by the Committee in its comments. The Committee asks the Government to keep it informed of any results of its efforts to give effect to the Convention and to provide copies of any legislative amendments as soon as they have been adopted.

Articles 6 and 10. Cooperation between employers and workers, and the right and duty of workers to participate in ensuring safe working conditions. The Committee notes the information provided by the Government indicating that the formulation of a safety policy at a workplace is undertaken by the employers in consultation with workers. The Committee asks the Government to indicate the specific provisions which provide for cooperation between employers and workers in an undertaking and to provide information on measures taken or envisaged to ensure that workers have both a right and a duty to participate in ensuring safe working conditions, to the extent of their control over equipment and methods of work, and to express views on the working procedures.

Article 28. Replacing of hazardous substances by harmless or less hazardous substances and disposal of waste. The Committee notes the Government’s reference to the Labour Code (Chemical Safety) Regulations 2003, with regard to the requirement of an employer who manufactures, supplies, imports or distributes chemical substances which constitute danger to, or in any other way affects, the health and safety of the workers, to notify the competent authority. The Committee reiterates its request that the Government provide information in its next report on measures taken or envisaged to replace hazardous substances by harmless or less hazardous substances wherever possible and measures taken with respect to the disposal of waste.

Part VI of the report form. Labour inspection and application in practice. The Committee notes that the Government has not included information in its latest report on the application of the Convention in practice. The Committee reiterates its request that the Government provide detailed information in its next report on the number of inspections carried out, their findings and the measures taken; and to provide a general appreciation of the manner in which the Convention is applied in the country including statistics, if available, of the number of workers covered by the Convention, disaggregated by sex, and the number of accidents and diseases reported in the construction sector.

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

1. Further to its observation, the Committee requests the Government to provide additional information on the following points.

2. Articles 1 (paragraph 3), 7 and 8 of the Convention. Self-employed workers. The Committee notes that the Labour Code Order, 1992 is only applicable to the private sector. It also notes the Government’s indication that the Labour Code (Construction Safety) Regulations would include provisions with respect to self-employed workers. However, noting that self-employed workers are not mentioned in the Regulations, the Committee asks the Government to take the necessary steps to ensure that self-employed workers are included in the scope of application of the legislation, that they have a duty to comply with health and safety prescriptions at the workplace and that they are obliged to cooperate whenever more than two employers undertake activities simultaneously at one construction site. It asks the Government to provide information in this respect in its next report.

3. Article 5. Technical standards and codes of practice. The Committee notes the Government’s statement that no code of practice has been adopted with respect to occupational safety and health in construction work. It requests the Government to provide information in its next report on measures taken or envisaged to ensure that effect is given to the provisions of laws and regulations ensuring the safety and health of workers in the construction sector. It also asks the Government to indicate how the standards adopted by recognized international organizations in the field of standardization are taken into account, as required by this Article of the Convention.

4. Articles 6 and 10. Cooperation between employers and workers. The Committee notes that section 98 of the Labour Code provides that cooperation between employers and workers is ensured through the establishment of safety and health committees for employers employing 15 persons or more. The Committee also notes that section 98(2) provides that when the Labour Commissioner considers it necessary, by reason of the dangerous nature of the plant, process or substances used by an employer of fewer than 15 persons, he/she may, in writing, direct an employer to establish a safety and health committee. The Committee requests the Government to provide information in its next report on how this cooperation is carried out in enterprises with less than 15 workers and where the Labour Commissioner has not established a safety and health committee. It also asks the Government to provide information on how it is ensured that workers have both a right and a duty to participate in ensuring safe working conditions to the extent of their control over equipment and methods of work and to express views on the working procedures adopted as they may affect safety and health.

5. Article 8. Two or more employers undertaking activities simultaneously at one construction site. The Committee notes the Government’s statement that there is no regulation ensuring the coordination of prescribed safety and health measures where two or more employers undertake activities simultaneously at one construction site. The Committee asks the Government to take the necessary steps to ensure the coordination of safety and health measures when two or more employers undertake activities simultaneously at one construction site, in accordance with the Convention and asks the Government to provide information in this respect in its next report.

6. Article 11. Workers’ right to report any situation presenting a risk and which they cannot properly deal with themselves. The Committee notes that section 94 of the Labour Code regulates workers’ obligation to cooperate with their employer, to take reasonable care for their own safety and that of other persons who may be affected by their acts or omissions at work, to wear any protective equipment or clothing, to report to the employer any loss, destruction or other defect in the protective equipment or clothing and not to smoke at the place of work, except at specific areas demarcated for that purpose. The Committee notes however that there is no provision concerning the right of workers to report to the employer or supervisor and to the safety representative (if any) any situation which they believe could present a risk, and which they cannot properly deal with themselves. The Committee asks the Government to take the necessary steps to ensure the workers’ right to report any situation they believe could present a risk and which they cannot properly deal with themselves, in accordance with the Convention and asks the Government to provide information in this respect in its next report.

7. Article 12. Right to removal. The Committee notes the Government’s statement that the Labour Code (Construction Safety) Regulations would contain a rule concerning workers’ right to removal if he/she has reasonable cause to believe that there is an imminent or serious danger to his/her safety. However, noting that there is no such provision and that there is no provision ensuring that the employer shall take immediate steps to stop the operation and evacuate workers as appropriate, the Committee asks the Government to take the necessary steps to ensure the workers’ right to remove themselves when they believe there is an imminent danger and also to ensure that the employer takes immediate steps to stop the operation and evacuate workers as appropriate. The Government is requested to provide information in this respect in its next report.

8. Article 13. Safety at workplaces. The Committee notes that the Labour Code (Construction Safety) Regulations provide in great detail for safe workplaces, such as: demolition, scaffolding and gantries, hoardings and barricades, working on lifts, form-work or false-work, electrical work, excavation and tunnelling work and that Schedule 6 of the Labour Code provides for safe means of access and a safe place of employment (sections 1 and 2). However, it notes that there is no provision concerning the obligation to take all appropriate precautions to protect persons present at or in the vicinity of a construction site from all risks that may arise from such site, in accordance with Article 13, paragraph 3. The Committee asks the Government to take the necessary steps to ensure that appropriate precautions are taken to protect persons present at or in the vicinity of a construction site from all risks that may arise from such site and to provide information in this respect in its next report.

9. Article 14. Scaffolds and ladders. The Committee notes that the Labour Code provides for the use of safe and suitable scaffolds and the use of ladders and that section 18 of the Labour Code (Construction Safety) Regulations stipulates that the removal or alteration of any part of scaffolding on any construction site shall not be done without the authority of a competent person. In addition, the first schedule to the Regulations provides for how scaffolding shall be erected. It notes however that there is no provision requiring a competent person to inspect scaffolds. The Committee requests the Government to take the necessary steps in law and practice to ensure that a competent person inspects scaffolds in accordance with the Convention and asks the Government to provide information in this respect in its next report.

10. Article 17, paragraph 3. Pressure plant and equipment. The Committee notes the Government’s statement that there is no legal provision governing the examination and testing of pressure plant and equipment. The Committee requests the Government to take the necessary steps in law and practice to ensure the examination and testing by a competent person of pressure plant and equipment in accordance with the Convention. It asks the Government to provide information in this respect in its next report.

11. Article 21. Work in compressed air. The Committee notes the indication of the Government that the Labour Code (Construction Safety) Regulations, 2002 do not prescribe the medical examinations to establish the physical aptitude of workers working in compressed air. It recalls that the Government had in its previous report indicated that work in compressed air is not undertaken in the country. The Committee therefore requests the Government to clarify whether work in compressed air is undertaken in the country and, if so, to indicate the measures taken or envisaged to give effect to Article 21 of the Convention.

12. Articles 23 and 31. Work over water and first aid. The Committee notes that section 94 of the Labour Code (Construction Safety) Regulations provides that when there is water in or near a construction site to a depth greater that 2.5 metres that gives rise to risk of injury or drowning, the employer shall provide life jackets or a lifebuoy and line that are maintained ready for use. The lifebuoy and line shall be of approved type and shall be placed in a readily accessible position. The Committee also notes that section 93(5) of the Labour Code states that employers shall at their own expense furnish and maintain at the place of employment equipment and facilities for the rendering of first aid to her/his employees according to such scale as the Minister may by regulation require for employers of the particular class or of the particular industry to which the employer belongs. The Committee recalls that Article 23, subparagraph (c), of the Convention requires adequate provision for safe and sufficient transport to be made when work is done over or in close proximity to water and Article 31 requires arrangements to be made for ensuring the removal for medical attention of workers who have suffered an accident or sudden illness. The Committee asks the Government to provide information in its next report on measures taken or envisaged to ensure the removal for medical attention of a worker who has suffered an accident or sudden illness, in accordance with Articles 23, subparagraph (c), and 31.

13. Article 27. Explosives. The Committee notes there is no legislative provision ensuring that a competent person shall take such steps as necessary to ensure that workers and other persons are not exposed to the risk of injury from explosives. It requests the Government to provide information on the measures taken in law and practice to ensure application of this provision, in its next report.

14. Article 28. Health hazards. The Committee notes that section 95 of the Labour Code requires manufacturers, importers or suppliers of any substance for use at work to take such steps as are necessary to ensure that users are provided with adequate information about any risk to health and any conditions necessary to ensure that the substance will be safe and without risks to health. Section 105 of the Labour Code stipulates that, workers who may, during the course of work, handle or use any toxic substance, shall be fully instructed as to the risks associated with the toxic substance and the necessary precautionary measures to be observed for protection against such risks. Section 109 of the Labour Code states that, where any process carried out at a place of work or where the nature of the worker’s employment, or any substance used therein is likely to cause a person bodily injury, or impairment of health and the occurrences cannot be prevented by other means, such worker shall be provided with appropriate personal protective equipment or clothing. The Committee asks the Government to provide information in its next report on measures taken or envisaged to replace hazardous substances by harmless or less hazardous substances wherever possible and measures taken with respect to the disposal of waste.

15. Part VI of the report form. Labour inspection. The Committee notes that the Occupational Safety and Health Inspectorate carries out inspection of all construction sites and that it compiles statistical information and investigates serious accidents. It requests the Government to provide detailed information in its next report on the number of inspections carried out, their findings and the measures taken. The Committee notes that 39 disabling accidents in the building and construction industry were reported to the labour department in the year 2004 and that between January and October 2005, 22 such accidents were reported. It also notes that the majority of the accidents were caused by falls from heights. The Committee requests the Government to indicate the measures taken to prevent the occurrence of such accidents. It also requests the Government to continue to provide a general appreciation of the manner in which the Convention is applied in the country including statistics, if available, of the number of workers covered by the Convention, disaggregated by sex, and the number of accidents and diseases reported in the construction sector.

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

1. The Committee notes the information contained in the Government’s first report and the attached legislation.

2. The Committee notes that the Labour Code Order, 1992, contains the general occupational safety and health rules for construction work and notes with interest the adoption, under section 100 of the Labour Code, of the Labour Code (Construction Safety) Regulations 2002 (Legal Notification No. 145 of 2002). It notes with satisfaction that these are applicable to all workplaces in which construction or demolition activities are carried out (section 2) and, in particular, that it ensures the full application of Articles 2, 9, 13, 15, 16, 18, 19, 20, 22, 24, 25, 26, 29, 30, 32, 33 and 35 of the Convention.

3. The Committee is raising certain other points in a request addressed directly to the Government.