Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

Occupational Health Services Convention, 1985 (No. 161) - Germany (Ratification: 1994)

1.  The Committee notes the information provided by the Government in its reports. It requests the Government to provide copies, with its next report, of the Accident Prevention Regulations "Industrial Medical Prevention" (VBG 100) and of some of the federal and Länder directives, mentioned with respect to the application of Article 3, paragraph 1, and Article 6 of the Convention. The Committee further requests the Government to provide additional information on the following points.

2.  Article 3, paragraph 1.  In its report, the Government indicates that the Occupational Health and Safety Act allows no exceptions as regards the obligation of the employer to provide occupational health services. Sections 2 and 5 of the Law on Accident Prevention (ASIG), however, appear to leave it to the employer’s discretion, to a certain extent, as to whether the employer will appoint occupational health and safety personnel or not. Moreover, section 17 of the ASIG allows the non-application of the Occupational Health and Safety Act in several sectors of activity. The Committee requests the Government to indicate the criteria used: (a) to determine the extent of the employer’s discretion to appoint occupational health and safety personnel, and (b) to allow the non-application of the ASIG in several sectors of activity.

3.  Article 3, paragraph 3.  The Government indicates that in some of the relevant accident prevention regulations of the accident insurance funds (Berufsgenassenschaften) the obligation to provide occupational health services is still made dependent on the size of the enterprise (number of workers). The Government further states that the relevant threshold values in the Accident Prevention Regulations "Company Doctors" (VBG 123) are of a merely transitional nature and that an increasing number of accident insurance funds have, up to now, revised VBG 123 in such a way that occupational health care is provided for all enterprises, irrespective of the number of persons employed.

The Committee notes that progress has been made in the extension of the coverage of VBG 123 to most branches of industrial activity and that, where this has so far not been done, its implementation is under further discussion. The Committee requests the Government to continue to report on any progress made in establishing occupational health services for all workers, including at small workplaces.

4.  Article 5(a)-(k).  The Committee notes that all of the obligations listed in Article 5 appear to be met by sections 3 and 6 of the ASIG in a manner related to the specific risks of the individual undertaking. With respect to the extent to which the functions in question are carried out, section 14(2), in conjunction with section 2(1), No. 2 and No. 3, and section 5(1), No. 2 and No. 3, of the ASIG, provides for the Federal Minister of Labour to determine by ordinance that in individual categories of undertakings such functions need not be carried out at all or need only be carried out partly, depending on the size and the composition of the labour force or on the number and the composition of the occupational health service personnel available. The Committee understands that this implies the possibility that, especially at small workplaces, the health care system might fulfil only the basic level of requirements. The Committee would be grateful if the Government would specify the extent to which the functions enumerated in Article 5(a)-(k) are guaranteed by occupational health services, in view of the abovementioned power of the Federal Minister of Labour to allow exceptions in accordance with section 14(2) of the ASIG.

5.  Article 7, paragraph 2(a)-(e).  The Committee notes from the Government’s report that the individual employer is given the choice of meeting his obligation of providing occupational health care by either appointing an independent occupational medical practitioner or employing a company doctor as staff or engaging an industry-wide occupational health service. The report further indicates in a general way that the occupational health services may be organized by private bodies or by public authorities, e.g. the accident insurance authorities, but it is silent with regard to the system and the methods of organizing such services, in accordance with the possibilities listed in Article 7, paragraph 2(a)-(e). The Committee requests the Government to provide more detailed information concerning the system and methods of organizing the occupational health services.

According to section 12 of the ASIG, the competent supervisory authorities may impose specific orders on an employer as to how to organize occupational health services. According to section 14(1) of the ASIG, the Federal Minister of Labour is entitled to define by ordinance the measures to be taken by the employer in order to fulfil his legal duties, especially as regards the nomination of company doctors and safety experts. The Committee requests the Government to provide more information on the extent to which the system and the methods of organizing occupational health services are regulated on the basis of sections 12 and 14(2) of the ASIG.

The Committee requests the Government to indicate the manner in which the accident insurance institutions organize occupational health services, e.g. as set forth in section 2 of VBG 123 in conjunction with the relevant implementing provisions.

Finally, the Committee requests the Government to indicate whether occupational health services are organized by a combination of the methods described under paragraphs 2(a)-(c) of this Article and if so, give examples.

6.  Article 8.  Section 11 of the ASIG provides, in enterprises with 20 employees upwards, for the establishment of an occupational safety and health committee. The Committee requests the Government to indicate the measures taken or envisaged to bring about the cooperation and participation of the parties concerned in companies with less than 20 employees.

The Committee notes the information regarding the participation and co-determination rights of workers, as well as works councils with respect to occupational health and safety matters. The Committee requests the Government to provide further information on the different modes of such participation of the parties concerned in the implementation of the organizational and other measures relating to occupational health services, especially according to sections 80-85, 87 and 89-91 of the Works Constitution Act.

7.  Article 11.  In the information provided in the report relating to Article 7, paragraph 2(a), the Government points out that whatever method of organizing the occupational health service the employer chooses the standards required would remain identical under the terms of national law. Section 18 of the ASIG, however, enables the competent authorities to allow not fully-qualified company doctors and occupational safety experts to execute their functions during a period of further training. Thus, the Committee requests the Government to indicate the measures adopted or envisaged to ensure that the personnel providing occupational health services has adequate and full qualification.

8.  Article 12.  Please indicate also the provisions that ensure that the surveillance of workers’ health takes place, as far as possible, during working time.

9.  Article 14.  The Committee requests the Government to provide information on the manner in which workers are required to inform the occupational health services about any factor or suspected factor in the working environment which may affect the workers’ health.