Solicitud directa (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the information regarding the effect given to Article 11 and Article 4(2) of the Convention. With reference to the latter provision, the Committee wishes to bring to the Government’s attention the newly developed ILO code of practice, Safety and health in underground coal mines, 2006, which is available, inter alia, at the ILO’s website: www.ilo.org/public/english/dialogue/
sector/techmeet/meshcm06/code.pdf.

The Committee notes the Government’s clarification that while the Mines Safety Department is responsible for the administration of occupational safety and health matters in mines, including the application of the Mines and Minerals Development Act (No. 7 of 2008) (as amended through 2009) (which repealed and replaced the Mines and Minerals Act of 1995) and related mining legislation, the Factories Act (No. 2 of 1966) which does not apply to mines, is enforced by the Occupational Safety and Health Services Department. The Committee also notes that the Mines and Minerals Development Act includes provisions which impose obligations on licence holders to ensure that any mining or mineral processing activity prevents, inter alia, any harm to human health (section 115b), and which create a legal entitlement to compensation if any such harm or damage is caused (section 123, paragraph 9). With reference to information provided regarding the development of a national Safety, Health, Environmental and Quality Policy as well as the ongoing legislative reform, the Committee invites the Government to take into account the issues raised in the present direct request to ensure full compliance with Convention No. 176 and to consider measures that could be taken to ensure that relevant national legislation fully reflects the modern, systemic approach to occupational safety and health (OSH) as discussed, inter alia, at the 98th Session (2009) of the International Labour Conference in the context of the examination of the General Survey of 2009 on OSH. The Government is requested to submit copies of the national OSH policy and relevant new legislation once adopted.

Article 2(2) of the Convention. Scope of application. The Committee notes the Government’s statement that while no exemptions have been made under section 2101 of the Mining Regulations 1973, several exemptions have been granted under its section 2102. The Committee notes the information that such exemptions are normally requested by employers for specific operations or on behalf of individual employees; that the employers and workers concerned have been fully consulted; and that exemptions have been granted in situations where some provisions of the Mining Regulations have been considered inapplicable or unduly onerous to a particular mine or mines, for example in mines where new technology was in place and where the Mining Regulations related to archaic organizational structures. It also notes that some exemptions concerned the lifting of the prohibition against female employees to work underground. The Government reports that every time an exemption is granted, it is accompanied with conditions which ensure protection is not inferior as compared to the protection afforded by full application of the Convention. The Committee notes that some of the exemptions granted seem to indicate a need to include a revision of the Mining Regulations which could be taken into account in the context of the ongoing legislative reform. The Committee also notes that Article 2 requires that consultations be held with the most representative organizations of employers and workers, not only with the individual employers or workers concerned. The Committee requests the Government to provide further information on measures taken to ensure that account is taken of all the requirements in Article 2(2) of the Convention when exemptions are granted and to continue to provide information on how Article 2(2) is applied in practice.

Article 5(2)(d) and (f). Compilation and publication of statistics on accidents. The Committee notes the Government’s statement that the Mining Regulations, the Explosives Regulations as well as the Mines and Minerals (Environmental) Regulations, 1997, require the notification to the Mines Safety Department or the Environmental Council of Zambia of accidents and dangerous occurrences, but does not require the compilation and publication of statistics of such accidents. With reference to the abovementioned Conference discussion in the context of the examination of the 2009 General Survey on OSH, the Committee would like to emphasize the importance of collecting data on occupational accidents and diseases in the process of improving national OSH action, as data is an essential tool in understanding and assessing the risks to the health of workers in the workplace. The Committee requests that the Government provide information on all measures taken or envisaged, in law and in practice, to give full effect to this Article of the Convention.

Article 5(5). Plans of workings. The Committee notes the Government’s statement that although mines employing less than 100 workers are not currently required to maintain mine plans according to Mining Regulation 501(2), it is the Government’s intention that the national legislation will be amended so that the above requirement will be applicable to all mines, consistent with Article 5 of the Convention. The Committee requests the Government to provide information on all measures taken or envisaged, in law and in practice, to give full effect to this Article of the Convention.

Article 6. Preventive and protective measures. The Committee notes the Government’s response to its previous comment that before the Environmental Council of Zambia authorizes a project, the developer is required to prepare an emergency response plan. The Committee also notes that under paragraph 34 of the Mines and Minerals Development Act, the holder of a large-scale mining licence may suspend or curtail production for an unsafe working environment. The Committee notes, however, that relevant national laws and regulations do not seem to reflect the specific requirements set forth in Article 6. The Committee requests the Government to indicate the specific provisions on national legislation which ensure that employers in all mines in the country take steps to assess and subsequently address risks consistent with the order of priority prescribed in Article 6 of the Convention.

Article 7(a), (b) and (g). Responsibilities of employers. The Committee notes the Government’s response regarding Article 7(a), (b) and (g), which does not seem to address the issues provided for in these provisions of the Article. The Committee reiterates its request that the Government provide information on all measures taken or envisaged, in law and in practice, to give full effect to Article 7(a), (b) and (g) of the Convention.

Article 8. Emergency response plans. The Committee notes the information provided by the Government that Statutory Instrument No. 28, 1997 (not available to the Committee) and Part XII, sections 1201–1214 of the Mining Regulations would give effect to this provision but that it also intends to revise section 1213 of the Mining Regulation to make specific reference to mine rescue teams. The Committee notes, however, that Part XII of the Mining Regulations is entitled “First aid and firefighting” and that sections 1201–1214 appear to be only applicable to those contexts. The Committee requests the Government to provide information on all measures taken and envisaged, in law and in practice, to ensure that employers are required to establish emergency response plans for emergencies specific to each mine, taking into account the unique situation of each mine and their particularized risks and hazards, in accordance with Article 8. The Committee also requests the Government to submit a copy of Statutory Instrument No. 28, 1997, for review.

Article 9(a) and Article 10(a). Information and training. While the Committee notes the information that there are no laws which specifically require workers to be fully informed of their working conditions, the Committee would like to underscore that Article 9(a) of the Convention relates more specifically to the employers’ obligations to inform the worker, rather than any obligations on the part of the workers. The Committee also notes that the Government’s report is silent with respect to the employers’ obligations to provide workers with adequate training, retraining programmes and comprehensible instructions. The Committee requests the Government to provide information on all measures taken or envisaged, in law and in practice, to give full effect to Articles 9(a) and 10(a) of the Convention.

Article 12. Responsibilities of the employer in charge of the mine when two or more employers undertake activities at the same time. The Committee notes the Government’s statement that according to section 204(1), read together with section 205 of the Mining Regulations, the appointment of assistant managers does not relieve managers of their responsibility and that the managers remain in charge. The Committee notes, however, that these provisions appear to apply to a situation involving a single employer, while Article 12 refers to a situation in which two or more employers are conducting mining activities simultaneously in one mine, and reflect a requirement to allocate responsibilities regarding measures involving the safety and health of workers between them. The Committee invites the Government to include an examination of how the required cooperation between employers and workers at mines in Article 12 can be incorporated into national legislation in the context of the ongoing legislative review, and to report on all measures taken or envisaged, in law and in practice, to give full effect to this Article of the Convention.

Article 13(1–4). Rights of workers and their safety and health representatives. The Committee notes the Government’s statement that although full effect is currently not given to Article 13, the intention is to examine how the rights prescribed by this Article can be incorporated into national legislation. The Committee reiterates its request that the Government indicate all measures taken or envisaged, in law and in practice: (a) to guarantee, under provisions of national legislation, all the rights of workers and their safety and health representatives recognized under Article 13(1) and (2) of the Convention; (b) to ensure that the procedures for the exercise of such rights are specified both by national laws and regulations and through consultations between employers and workers and their representatives; and (c) to ensure that the rights referred to in Article 13(1) and (2) of the Convention can be exercised without discrimination or retaliation.

Article 15. Cooperation between employers and workers. The Committee notes the Government’s statement that a requirement that employers and workers cooperate, as required by this Article of the Convention, will be included in the national Safety, Health, Environmental and Quality Policy, which is currently being drafted. While the Committee welcomes the drafting of this policy, it would like to underscore that Article 15 specifically calls for this requirement to be reflected within national laws and regulations. The Committee invites the Government to include an examination of how the requirement that employers and workers cooperate in mines can be incorporated into national legislation in the context of the ongoing legislative review, and to report on all measures taken or envisaged, in law and in practice to give full effect to Article 15.

Part V of the report form. Application in practice. The Committee notes the information that a number of infringements have been observed against supervisors and managers, without providing further details. The Committee requests that the Government provide more information regarding the application in practice of the Convention, including: statistical data regarding the abovementioned infringements; data on all measures taken in practice to address such issues; information concerning the number of workers covered by the measures giving effect to the Convention; and to supply relevant excerpts from inspection reports. The Committee also requests the Government to clarify which classes of workers the existing legislation favours with respect to infringements.