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

Occupational Safety and Health Convention, 1981 (No. 155) - Brazil (Ratification: 1992)

The Committee notes the Government’s report of 31 October 2008, the observations of the Single Confederation of Workers (CUT) of 28 August 2008, the observations of the Union of Forensic Experts of the State of São Paolo (SINPCRESP) of 19 September 2008 and the Government’s reply to these observations. The Committee also notes that the elements provided by the Government in relation to the observations made by the Workers’ Union of the Road Transport of Liquids and Gases, Oil Derivatives and Chemicals of the State of Rio Grande do Sul (SINDILIQUIDA/RS), which were forwarded to the Government on 8 November 2007, do not address the specific concerns raised in the observations. The latter comments were accompanied by the following attachments: a report of the regional labour delegation of Rio Grande do Sul, dated 31 July 2007, on the implementation of the orders issued in Ruling No. 00075‑2003‑024‑04‑00‑0 of the 24th labour jurisdiction of Porto Alegre; two reports on similar issues relating to the enterprise Shell Brazil from 2004 and 2005; and newspaper articles on the increase in accidents affecting the road transporters of liquids and gases. In addition, the Committee notes that observations by the Federal District Teachers’ Union (SINPRO-DF) on the application of some of the articles of the Convention were received by the Office on 1 December 2009. The Committee invites the Government to submit any comments it deems relevant in response to these observations with its next regular report, due in 2010.

Articles 1 and 2 of the Convention. Application of the Convention to all branches of economic activity and to all the workers in the branches concerned. The CUT indicates that informal work is a persistent problem, that a large number of workers are not declared and that, accordingly, policies are not adapted to the real number of workers who should normally be covered by them. According to the CUT, in the metropolitan areas of Recife/PE, Salvador/BA, Belo Horizonte/MG, Rio de Janeiro/RJ, São Paolo/SP and Porto Alegre/RS, the active population amounts to 23,576,000 persons, of whom 21,668,000 are considered to be in work, of whom only 9,494,000 possess a card giving entitlement to employment injury insurance (SAT). The CUT indicates that undeclared work prevents the formulation of policies for the prevention of accidents which take into the account the real number of workers concerned. The Committee notes that in its report the Government does respond fully to the Committee’s request for information made in 2007 concerning the progress achieved by the Government to increase occupational safety and health protection for all Brazilian workers. The Government indicates, however, that the labour inspectorate plays an important role in the fight against undeclared work. For example in 2008, 668,857 employment relationships were regularized after intervention by the labour inspectorate. The Committee requests the Government to continue to provide information on the measures adopted, in consultation with the social partners, to extend protection in relation to occupational safety and health to all Brazilian workers, taking due account of the CUT’s observations.

Articles 4 and 8. Formulation of a coherent national policy and consultation with the representative organizations of employers and workers for the formulation, implementation and periodical review of the national policy on occupational safety and health. The Committee notes that, according to the conclusions of the report of the regional labour delegation of Rio Grande do Sul, dated 31 July 2007, concerning Petrobras, none of the six following requirements established by the court have been given effect by the enterprise: (1) the obligation to ensure that drivers of service-providing enterprises do not undertake loading and unloading; (2) the obligation to prepare and implement audio prevention and protection programmes; (3) the obligation to prepare and implement a prevention and supervision programme for occupational exposure to chemicals, including respiratory protection programmes; (4) the obligation to implement numerous measures for the prevention of employment accidents, including vocational training; (5) the obligation to prepare and apply a system of integrated occupational risk management based on the programmes envisaged in the Safety and Health Regulatory Standards of the Ministry of Labour, including in service-providing enterprises; and (6) the obligation to carry out biological tests of drivers, particularly where there is a risk of developing work-related diseases. An opinion issued by the labour delegation referring to the Shell enterprise reaches similar conclusions. The Committee notes that the Government confines itself to recalling the existing Regulatory Standards, but it recalls that Article 4 establishes, among other requirements, the obligation to implement the policy. Furthermore, under the terms of Article 8, governments are under the obligation to take such steps as may be necessary to give effect to Article 4 of the Convention. The Committee further notes that the new information provided by the Government in its latest report is confined to indicating that the proposed national policy has been submitted for public consultation and should be re-examined by the Tripartite Inter-Ministerial Occupational Safety and Health Commission (CTSST), established by Inter-Ministerial Order No. 152 of 13 May 2008. In its 2008 observations, the CUT emphasizes that, following the public consultation on the paper “National Occupational Safety and Health Policy (PNSST)” little progress has been made in the adoption of the policy. In this context, the Committee draws the Government’s attention to the 2009 General Survey on occupational safety and health (the General Survey), with particular reference to its paragraphs 53–89. The Committee invites the Government to take measures as rapidly as possible to finalize the process of the adoption, implementation and review of a coherent national policy on occupational safety and health, as required by Article 4 of the Convention, and to provide detailed information in its next report on the progress achieved. It also requests it to take the necessary measures for the implementation of the national policy, in accordance with Articles 4 and 8 of the Convention, and to provide detailed information on this subject, including on the petrochemicals sector in Rio Grande do Sul.

Article 9, paragraph 1. An adequate and appropriate system of labour inspection to secure the enforcement of laws and regulations concerning occupational safety and health. Comments made by SINDILIQUIDA/RS. The petrochemical industry. The Committee notes that the Government has not fully replied to the comments made by SINDILIQUIDA/RS. According to SINDILIQUIDA/RS, the labour inspectorate has been unable to enforce, despite the efforts made, the following Articles of the Convention: Article 16(3): The union indicates that driver-loaders have no protective equipment; Article 17: The union indicates that, in practice, simultaneous operations by several employers result in none of them taking responsibility for the application of safety and health standards to driver-loaders; Article 18: Measures to deal with emergencies and first-aid arrangements; Article 19(d): Training of workers and their representatives; and Article 20: Cooperation between management and workers. The Committee notes with particular attention the opinion of the regional labour delegation of Rio Grande do Sul dated 31 July 2007, in which it appears that Petrobras, despite the orders issued by the labour inspectorate, the penalties and even the conviction in a court of law, has not taken the necessary measures to improve the safety and health situation. A similar opinion was issued with regard to the Shell enterprise. The Committee notes that, despite the vigilance of the labour inspection services of Rio Grande do Sul to enforce the relevant legislation, enterprises persist in failing to give effect to the laws and requirements relating to occupational safety and health and that this raises a doubt as to whether the inspection system is appropriate and sufficient. The Committee requests the Government to provide its assessment of the effectiveness of the means that exist to address these issues, invites it to continue making efforts to ensure that the enterprises concerned give effect to safety and health standards and requests it to provide information on the measures adopted or envisaged. It once again requests the Government to provide its comments in reply to the communication from SINDILIQUIDA/RS.

Article 11(c). Occupational accidents and diseases – notification procedures and annual statistics. The CUT indicates that undeclared work not only hampers the formulation of accident prevention policies that take into account the real number of workers, but that this situation also has an impact on employment accident statistics, as undeclared workers do not appear in the records. In this respect, the CUT provides information supplied by, inter alia, the Wood Industry Workers’ Confederation (CONTICOM), which demonstrates that all occupational accidents and diseases are not properly notified. With reference to subcontracting, the Committee notes the information communicated by the CUT from the Union of Oil Workers of Minas Gerais (SINDIPETR/MG), according to which it is common practice for the number of accidents officially recorded to be significantly lower than the number that actually occur, and the Union of Oil Workers of Ceará (SINDIPETRO/CE), according to which workers covered by subcontracting arrangements are the most vulnerable. The CUT indicates that this problem effects the whole petroleum sector, including Petrobras. It also indicates the problem of inadequate criteria for notification and gives the example of the enterprise Arcelor-Mittal, with the indication that the deaths of six metallurgical workers in Espirito Santo were not registered. In Minas Gerais, only deaths occurring at the workplace are declared, while those that occur in ambulances or in hospitals are not taken into account. The CUT concludes that, despite the praiseworthy attempt by the Government to adopt and endeavour to implement a safety and health policy, the measures taken have not proven to be effective and these difficulties should incite the Government to take adequate measures for the effective implementation of the Convention. The CUT considers that technical assistance from the Office is essential for this purpose. In reply, the Government indicates that the labour inspectorate has prepared a plan making the investigation of occupational accidents the priority for 2009 and including, among other action, a review of the procedures for the identification of critical sectors. The Government adds that, among the measures adopted to address this problem, the Ministry of Labour has promoted the use of more effective techniques for the analysis of accidents through the publication of a paper on approaches to the analysis of occupational accidents, which is available on the web site of the Ministry of Labour. In this context, the Committee also draws the Government’s attention to the General Survey referred to above, and particularly its paragraphs 135 to 137 and to 296, as well as paragraph 209(b) and (i) of the conclusions adopted following the discussion of the General Survey at the Conference. The Committee welcomes the Government’s decision to make the analysis of employment accidents a priority for 2009. It invites the Government to take into account the problems indicated by the CUT and to provide detailed information on the measures adopted or envisaged to address the problems in this area, including the construction, petrochemicals and metallurgy sectors. The Committee reminds the Government that it may request the technical assistance from the Office, if it considers it necessary.

Article 15. Coordination between the various authorities. Communication of the SINPCRESP. The Committee notes that the observations by the SINPCRESP refer to the occupational safety and health conditions of criminology experts of the State of São Paolo. The latter are auxiliaries in the criminal justice system, with highly specialized technical knowledge. The SINPCRESP describes in detail their conditions of work and alleges that they work in premises that are not suitable, without protective equipment, even though they use hazardous products and work on average 13 hours a day. It adds that the safety and health conditions are deplorable and that preventative action is not taken. As employees of the State of São Paolo, they are covered by general legislation and that of the State of São Paolo, but are not covered by the relevant regulations of the Ministry of Labour. According to an information note of the Ministry of Labour entitled “Information/SRT No. 96/2008” of 30 June 2008, the federal Government cannot intervene in the above case due to the autonomy of the federal states by virtue of which they formulate their own policies with respect to their relations with their public officials. Nevertheless, according to the same note, the Ministry of Labour can propose measures to reinforce the social partners and request a technical opinion from the Office of the Regional Superintendent of Labour of São Paolo on the safety and health conditions of criminology experts. This technical opinion would provide a basis for the Ministry of Labour to request the competent authorities in São Paolo to improve the working conditions of the experts. The Committee also notes that, under the terms of section 5 of Decree No. 5.961 of 2006, agreements may be concluded with, among other parties, the States of the Union for the implementation of the activities entrusted to the Integrated Occupational Health System for Federal Employees (SISOSP). The Committee considers that, in addition to the specific safety and health situation of criminology experts in the State of Sao Paulo, this communication raises an issue of a general nature relating to the application of the Convention in the various States and public administrations. The Committee recalls that it examined a similar issue in its 2007 observation following a communication from the Federal Union of Public Service Workers of the State of Goiàs (SINDSEP-GO), according to which initiatives to improve occupational safety and health in the public sector have only had a limited impact due, among other factors, to the division of responsibilities between the Federal Government and local government. These cases appear to bear witness to a problem in the application of the Convention in the public sector in the various states of Brazil. Although aware of the difficulties that the application of the Convention can raise in federal states, the Committee emphasizes that the Government is under the obligation to adopt appropriate measures to ensure the application of ratified Conventions throughout its territory. It recalls in particular that, under the terms of Article 15 of the Convention, with a view to ensuring the coherence of the national policy referred to in Article 4 and of measures for its application, each Member shall make arrangements to ensure the necessary coordination between various authorities and bodies called upon to give effect to Parts II and III of the Convention. The Committee notes that the measures envisaged in Information Note SRT No. 96/2008 and the agreements envisaged in section 5 of Decree No. 5.961 of 2006 could contribute to this. The Committee requests the Government to: (i) make appropriate arrangements to ensure the necessary coordination, as provided for in Article 15, to secure the application of the Convention, including to employees in the various public administrations; (ii) give effect to the measures set out in Article 7 of the Convention in relation to the criminology experts of the State of San Paulo; and (iii) provide detailed information on the measures adopted and their impact in its next report.

Articles 4, 8 and 15. Coordination and coherence of the national policy. The Committee notes the information on the efforts made by the various ministries, specialized institutions such as FUNDACENTRO, and the operation of: (a) several tripartite commissions specializing in various aspects of safety and health, the reports of which can be consulted on the web site of the Ministry of Labour (http://www.mte.gov.br/seg_sau/comissoes.asp); and (b) tripartite groups formulating technical standards in the field of occupational safety and health. In this respect, the Committee recognizes the efforts made by the Government to achieve progress in the formulation and implementation of occupational safety and health standards. However, noting the communications reporting numerous problems of application in practice, the Committee considers that these efforts should be accompanied by an appropriate methodology with a view to ensuring the coherence of the national policy required by the Convention, and the necessary coordination between the various authorities and institutions responsible for giving effect to Parts II and III of the Convention, with a view to its effective application. The Committee therefore invites the Government to take these fundamental aspects into account and to provide its comments on this subject.

Article 17. Collaboration between enterprises engaged in activities simultaneously at one workplace. With reference to its comments under Article 9 of the present Convention and Article 6 of the Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148), the Committee requests the Government to take measures to secure the effective application of this Article in practice, and to provide detailed information on the measures adopted and their impact in its next report.

Part V of the report form. Application in practice. The Committee notes the difficulties in the application of the Convention raised in the observations examined above. These problems appear largely to relate to insufficient coordination between federal and local bodies in relation to OSH in the public sector and to problems related to enforcement encountered by the labour inspectorate, for example in the petrochemical sector. These problems appear to be compounded by the extent of subcontracting in the sector and the difficulties involved in ensuring the application of the Convention as regards these vulnerable workers. Another problematic area relates to shortcomings in the recording and notification of occupational accidents and diseases which implies that the possibilities are hampered for the authorities to have a proper appreciation of the actual situation in the country as regards occupational safety and health and the impact of the actions taken. Against this background, the Committee notes with interest that Inter-Ministerial Order No. 152, of 13 May 2008, establishes the Tripartite Committee on Occupational Safety and Health (CTSST), with the objective, inter alia, of evaluating and proposing measures for the implementation of the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187). The Committee considers that an effective implementation of the systematic methodology reflected in Convention No. 187 –which constitutes a more express regulation of the strategy underlying Convention No. 155 – could contribute to addressing the problems referred to above. The Committee also invites the Government to consider whether a ratification of the Protocol of 2002 to Convention No. 155 would be helpful as a means to ensure that the Government would dispose of the tools to be able to assess its progress in this area as reflected in statistics. With reference to the task entrusted by Order No. 152 to the CTSST in relation to the national policy, the Committee requests the Government to adopt every measure necessary to address the issues raised above in this context, and to ensure that all public employees at the federal, State and local levels participate in the development and are covered by the national policy, as required by the present Convention. The Committee requests the Government to keep it informed of all relevant progress in this respect.