Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Peru

Safety Provisions (Building) Convention, 1937 (No. 62) (Ratification: 1962)
Maximum Weight Convention, 1967 (No. 127) (Ratification: 2008)
Occupational Cancer Convention, 1974 (No. 139) (Ratification: 1976)
Safety and Health in Mines Convention, 1995 (No. 176) (Ratification: 2008)

Previous comments: C.62, C.127, C.139 and C.176

In order to provide a comprehensive view of the issues relating to the application of ratified occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine Conventions Nos 62 (safety provisions (building)), 127 (maximum weight), 139 (occupational cancer) and 176 (safety and health in mines) in a single comment.

The Committee notes the decision of the Tripartite Committee set up to examine the representation made in 2020, under article 24 of the ILO constitution, by the National Federation of Mine, Metal and Steel Workers of Peru (FNTMMSP) alleging non-observance by the Government of Peru of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Workers with Family Responsibilities Convention, 1981 (No. 156), and the Safety and Health in Mines Convention, 1995 (No. 176). The Committee notes that the Tripartite Committee did not find any violations of Convention No. 176 relating to the allegations. The Committee also notes that, taking into account the context of the acute health crisis caused by the COVID-19 pandemic in which the representation was made, the Tripartite Committee highlighted the importance of holding broad social dialogue with all representative workers’ and employers’ organizations of affected sectors when adopting measures aimed at finding effective and sustainable solutions to crises (such as the crisis caused by the COVID-19 pandemic), including preventive and protective measures to guarantee safety and health in mines.

National occupational safety and health policy. The Committee notes the Government’s indication that the National Occupational Safety and Health Council adopted the “National occupational safety and health policy until 2030 (PNSST until 2030)” at its ordinary session No. 52 on 24 September 2019, which was approved by Supreme Decree No. 018-2021-TR. The Committee notes the CATP’s indication in its observations that the PNSST needs to be updated since there are economic sectors which have not been considered in relation to OSH. The Committee requests the Government to provide its comments in this respect.

A. Protection against specific risks

Maximum Weight Convention, 1967 (No. 127)

Article 2(2) of the Convention. Scope of application. The Committee notes the Government’s indication that the application to all workers of the “Basic Standard on ergonomics and procedures for the assessment of non-ergonomic risks”, approved by Ministerial Decision No. 375-2008-TR, is mandatory. In this regard, the Government indicates that the purpose of the Standard is to enable enterprises to apply it to their various work areas and jobs and their respective tasks, thereby contributing to the physical, mental and social welfare of the workers, and that, in accordance with section 1 of the Standard, the ergonomic assessment must form part of preventive procedures in enterprises, whatever their activity. The Committee takes note of this information, which addresses its previous request.

Article 5. Measures to ensure adequate training or instruction in working techniques, with a view to safeguarding workers’ health and preventing accidents. The CATP indicates that section 37(d) of the “Basic Standard on ergonomics and procedures for the assessment of non-ergonomic risks” establishes the obligation for employers to provide training relating to professional development but does not stipulate that workers must receive adequate training or instruction in the relevant working techniques prior to engaging in the manual transport of loads. The Committee requests the Government to provide its comments in this respect.

Article 3. Manual transport of a load likely to jeopardize a worker’s health or safety. Application in practice. The Committee notes the Government’s indication that violations of safety standards relating to the handling and transport of materials constitute serious or very serious offences under sections 27 and 28, respectively, of the Regulations implementing the General Labour Inspection Act, adopted by Supreme Decree No. 019-2006-TR. In particular, the Committee notes the Government’s indication that in 2022 and 2023 the labour inspection system concluded 62 inspection orders, of which 18 derived from the filing of complaints and 44 from operations in the area of safety standards relating to the handling and transport of materials. In this regard, 22 of the inspection orders culminated in infringement reports and 40 in investigation reports. The Government also indicates that the total fines imposed on employers for non-compliance with binding safety standards relating to the handling and transport of materials amounted to 136,913 Peruvian soles (PEN) in 2022 and PEN 12,561 in 2023. The Committee notes the CATP’s claim that: (i) Act No. 29088 on occupational safety and health for land-based dockworkers and manual carriers, Act No. 29873 on occupational safety and health and its Regulations, and the “Basic Standard on ergonomics and procedures for the assessment of non-ergonomic risks” do not cover self-employed workers and informal workers, who account for the majority of workers in the manual transport of loads sector; (ii) delivery staff for digital platforms must transport on their backs voluminous, non-ergonomic boxes whose weights exceed the limits established in the national legislation and they do not receive training in relation to their work; and (iii) as regards supervision of Act No. 29088 and specifically section 23 thereof, competence for supervising and coordinating compliance with the Act is patchy, which means that no institution assumes responsibility for compliance and hence the Act is totally ineffective. The Committee requests the Government to provide its comments with respect to the observations of the CATP. Noting the information provided by the Government, the Committee requests the Government to indicate the sectors in which inspections were conducted and violations of safety standards relating to the handling and transport of materials were detected. The Committee also requests the Government to continue providing information on the total number and type of inspections conducted and violations identified, disaggregated by sector, in the context of the application of the Convention.

Occupational Cancer Convention, 1974 (No. 139)

Article 2(1) of the Convention. Levels of exposure. Replacement of carcinogenic substances and agents by non-carcinogenic substances or agents or by less harmful substances or agents. Further to its previous comments, the Committee notes the Government’s indication that the Regulations implementing Act No. 29662, which prohibits amphibole asbestos and regulates the use of chrysotile asbestos, were adopted by Supreme Decree No. 028-2014-SA, published on 4 October 2014, and are in force. The Government also indicates that section 11 establishes the requirements for authorization of the regulated use of chrysotile asbestos and establishes the Directorate-General for Environmental Health and Food Safety (DIGESA) as the agency responsible for handling authorization requests. The Government points out that DIGESA has not received any requests for authorization of the regulated use of chrysotile asbestos. The Committee observes that the Government does not provide any information on the replacement of other carcinogenic substances and agents by non-carcinogenic or less harmful substances or agents. The Committee notes the CATP’s indication in its observations that it has no evidence of the prohibition on amphibole asbestos or of the effectiveness of the procedure for authorization of the regulated use of chrysotile asbestos by DIGESA. The Committee requests the Government to provide its comments in this respect.The Committee also requests the Government to provide information on the measures taken or envisaged to ensure the replacement of carcinogenic substances and agents to which workers may be exposed in the course of their work by non-carcinogenic or less harmful substances or agents.

Articles 3 and 6. Establishment of an appropriate system of records. The Committee notes the Government’s indication that, by Supreme Decree No. 012-2014-TR, the single register of information on occupational accidents, dangerous incidents and occupational diseases was adopted. The Committee also notes that section 20 of the Regulations on the prevention and control of occupational cancer, adopted by Supreme Decree No. 039-93-PCM, establishes the obligation for employers to preserve the clinical histories of workers for at least 40 years after the end of exposure to carcinogenic agents and indicates that these histories must be available to the National Health Institute. The Committee notes the CATP’s assertion in its observations that although there has been progress in the reporting and recording of dangerous incidents and occupational accidents, including fatal accidents, there is still significant under-recording of occupational diseases, and even more so in relation to exposure to carcinogenic agents. The CATP also refers to the annual report on notifications of occupational accidents, hazardous incidents and occupational diseases, published by the Ministry of Labour and Employment Promotion (Ministry of Labour), and indicates that 362 cases of occupational disease were reported in 2022 and that no cases of occupational cancer were specified. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to continue providing information on the measures taken to ensure the creation and maintenance of an appropriate system of records in relation to exposure to carcinogenic substances or agents, including in the context of the single register of information on occupational accidents, dangerous incidents and occupational diseases.

Article 5. Medical examinations during and after employment. The Committee notes that section 19 of the Regulations on the prevention and control of occupational cancer provide for the implementation of periodic medical controls to monitor the exposure of workers to carcinogenic and co-carcinogenic agents but does not provide for the implementation of medical examinations after employment. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that workers are provided with such medical examinations or biological or other tests or investigations after the period of employment as are necessary to evaluate their exposure or their state of health in relation to the occupational hazards.

Article 6(c). Work of the inspection services. The Committee notes that the CATP emphasizes the limited priority given by the Ministry of Labour to the prevention of risks in the workplace, particularly in relation to exposure to carcinogenic substances. The CATP also points out that there is no evidence of inspection activity in this area and that the Ministry of Labour and the inspection system should attend to complaints related to the prevention of occupational diseases and should not just focus on occupational accidents. The Committee requests the Government to provide its comments in this respect. Noting the lack of information in this regard in the Government’s report, the Committee also requests the Government to provide information on labour inspection activities relating to the control and prevention of occupational cancer.

B. Protection in specific branches of activity

Safety Provisions (Building) Convention, 1937 (No. 62)

The Committee recalls that the ILO Governing Body, at its 334th Session (October–November 2018), on the recommendation of the Standards Review Mechanism Tripartite Working Group (SRM TWG), confirmed the classification of Convention No. 62 in the category of outdated instruments, and placed an item concerning its abrogation or withdrawal on the agenda of the 112th Session (2024) of the International Labour Conference. The Governing Body also requested the Office to take follow-up action to actively encourage ratification of the up-to-date instruments on safety and health in construction work. 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 TWG, and to consider ratifying the Safety and Health in Construction Convention, 1988 (No. 167), as the most up-to-date instrument in this subject area.

Legislation. The Committee notes the Government’s indication that since 2019 the following standards on OSH in the construction industry have been adopted: (i) the Regulations on occupational safety and health in the construction industry, adopted by Supreme Decree 011-2019-TR; (ii) the guide to the election of workers’ representatives to the Subcommittee on Occupational Safety and Health in Construction Work, adopted by Ministerial Decision No. 256-2020-TR; (iii) Ministerial Decision No. 251-2021-TR, adopting the list of activities in the construction industry to which the Regulations on occupational safety and health in the construction industry are applicable; and (iv) Supreme Decree No. 018-2022-TR, adopting specific protocols for monitoring the health of workers in the construction industry.

Articles 2 and 4 of the Convention. Effective system of inspection. The Committee notes the CATP’s assertion in its observations that in practice the National Labour Inspection Supervisory Authority (SUNAFIL) does not have competence to inspect civil construction works in the public sector, even though the legislation does not provide for any exclusions in its mandate. The CATP also indicates that SUNAFIL takes action following a complaint from an individual or from the trade union, but there are no checks on compliance through routine inspections or inspection campaigns in the construction industry. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to provide information on the measures taken or envisaged to guarantee that there is an inspection system in practice which ensures the application of the legislation relating to OSH in the construction industry, in both the public and private sectors.

Article 6. Requirement to provide the latest statistical information relating to the number and classification of accidents. The Committee notes that, according to the information contained in the sectoral compendiums of statistics, the total number of non-fatal accidents in the construction industry was 2,206 in 2018, 4,031 in 2019, 2,474 in 2020 and 3,297 in 2021, while the number of fatal accidents was 26, 35, 19 and 29, respectively. The Committee also notes the Government’s indication that, according to the information provided by SUNAFIL, in 2022 and 2023 there were 18 finalized orders relating to the reporting or notification of fatal occupational accidents or hazardous incidents in the construction industry. With regard to complaints of occupational accidents made against enterprises in the construction industry, the Government indicates that in the same period there were 128 relating to the investigation of occupational accidents or hazardous incidents and 46 relating to the recording of occupational accidents. In this regard, it also indicates that in SUNAFIL’s virtual complaint system there is no record of any complaint filed by trade unions. The Committee notes that, according to the CATP, there are serious shortcomings in OSH conditions in the industry, with extremely hazardous work taking place, and that even though the number of occupational accidents reported is low, this is because over 85 per cent of workers in the construction industry are in informal employment, according to data from the National Institute for Statistics and Information Technology. However, the CATP points out that the “PNSST until 2030” does not make any reference to the problem of informality in the construction industry. The CATP also asserts that in many cases the workers themselves are unaware that they must inform their doctor that their accident was of an occupational nature or they omit to do so for fear of losing their jobs. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to continue providing statistical data on the number and classification of occupational accidents in the construction industry.

Safety and Health in Mines Convention, 1995 (No. 176)

Article 3 of the Convention. National policy on safety and health in mines, after consultations with the most representative employers’ and workers’ organizations concerned. The Committee notes that the new Regulations on occupational safety and health in mining were adopted by Supreme Decree No. 024-2016-EM, as amended by Supreme Decree No. 023-2017-EM, repealing the previous regulations, which were adopted by Supreme Decree No. 055-2010-EM. The Committee notes the CATP’s indication in its observations that, as at August 2023, there is no national tripartite dialogue in the mining sector, which is reflected by the absence of a national policy on OSH in mining, after consultations with the social partners. The Committee requests the Government to provide its comments in this respect. The Committee also requests the Government to provide information on the mechanisms established for the periodic review of occupational safety and health standards in the mining sector in consultation with the social partners.

Article 5(4)(c). Legislation which specifies protective measures to secure abandoned mine workings so as to eliminate or minimize risks to safety and health. The Committee notes that section 30 of the new Regulations on occupational safety and health in mining provides for measures to identify and evaluate risks in workings or environments which have been temporarily or permanently abandoned. It also notes that section 254 establishes safety measures only in abandoned workings where gas is present. In addition, the Committee notes that Act No. 28090 regulating the closure of mines establishes the obligation for the mining operator to submit a mine closure plan, including, inter alia, measures to ensure the long-term physical and chemical stability and rehabilitation of affected areas. However, the Committee notes that these measures refer to the closure of mines in general but no specific protection measures are established with regard to abandoned mine workings. The Committee also notes the Government’s indication that Protocol No. 004-2017-SUNAFIL/INII was adopted in 2017 relating to OSH inspection in the mining subsector, having been approved by Supervisory Authority Decision No. 265-2017. The Government also indicates that in 2022 and 2023 SUNAFIL carried out 643 inspections in mining and quarrying operations to check compliance with OSH regulations. In this regard, the Committee notes that the Government has not provided any specific information on inspections relating to abandoned mine workings. The Committee requests the Government to indicate any other legislative provisions that establish protection measures aimed at ensuring safety in any abandoned mine working. The Committee also requests the Government to provide information on labour inspections carried out in relation to abandoned mine workings.

Article 5(4)(e). Legislation which specifies an obligation to supply sufficient sanitary conveniences and facilities to wash, change and eat, and to maintain them in hygienic condition. The Committee notes sections 205–212 of the new Regulations on occupational safety and health in mining, which regulate sanitary facilities and cleaning; section 82, which provides for facilities for changing clothes; and section 188, which regulates canteens. The Committee also notes the Government’s indication that in 2022 and 2023 SUNAFIL issued 23 orders (20 in 2022) relating to canteens, changing rooms and sanitary facilities in the mining and quarrying sector. The Committee takes note of this information, which addresses its previous request.

Article 12. Duty of the employer in charge of the mine to coordinate and assume primary responsibility for the safety of the operations. The Committee notes that although section 54(e) of the former Regulations on occupational safety and health in mining, adopted by Supreme Decree No. 055-2010-EM, provided that the senior management of the mining enterprise bore responsibility for OSH, the new regulations provide that the senior management shall determine responsibility at all levels (section 54(e)). The Committee also notes the Government ‘s indication that in 2022 and 2023 SUNAFIL concluded 202 orders with investigations into occupational accidents in the mining and quarrying sector. The Committee notes that the CATP expresses concern at the lack of measures taken by the Government to prevent the death of workers in recent years. It refers to the serious occupational accident which occurred in Yanaquihua in May 2023, in which 27 workers died from carbon monoxide inhalation resulting from a fire caused by a short circuit. With regard to the accident, the CATP indicates that the regional government authorities said that they lacked the resources to fulfil their inspection duties in relation to OSH. The CATP also asserts that subcontracted workers are generally the worst affected by most fatal accidents and accidents causing disability because of the lack of appropriate OSH conditions, equipment and training in safety protocols. In this regard, it refers to the information provided by the Ministry of Labour, according to which 117 fatal accidents occurred in the mining sector between 2018 and August 2022, of which over 85 per cent were linked to companies providing outsourced services. The Committee requests the Government to provide its comments in this respect. In the context of the new Regulations on occupational safety and health in mining, the Committee also requests the Government to provide detailed information on the measures taken or envisaged to ensure that whenever two or more employers undertake activities at the same mine, the employer in charge of the mine shall coordinate the implementation of all occupational safety and health measures and shall be held primarily responsible for the safety of the operations, including in companies providing outsourced services or in other forms of subcontracted work. The Committee further requests the Government to continue providing information on labour inspections conducted in the mining sector with respect to subcontracting.

Article 13(1)(a). Right of workers to report accidents, dangerous occurrences and hazards to the competent authority. The Committee notes that section 44 of the new Regulations on occupational safety and health in mining establishes the obligation for workers to report any dangerous occurrence or occupational accident to their immediate superior or the representative of the mining operator, but that it does not establish any provisions on reporting to the competent authority. The Committee requests the Government to indicate the legislative provisions which establish the right of workers to report accidents, dangerous occurrences and hazards to the competent authority.

Article 13(2)(c) and (e). Right of safety and health representatives to have recourse to advisers and independent experts and to consult with the competent authority.Noting the Government’s lack of reply to its previous request, the Committee requests the Government to provide information on the measures taken or envisaged to ensure that safety and health representatives have the right of recourse to advisers and independent experts and to consult with the competent authority.

Article 16. Application in practice. The Committee notes the Government’s indication that SUNAFIL undertakes inspections and imposes penalties in relation to OSH in the mining, electricity and hydrocarbon subsectors. The Government also indicates that under the Regulations on the structure and functions of SUNAFIL, the Special Operations Sub-directorate (SDIE) of the Inspection Intelligence Directorate has competence to take action before and during inspection activities with regard to OSH in the hydrocarbon, electricity and mining subsectors at the national level. The SDIE also uses a “previous actions” technological tool, which makes it possible to reach 100 per cent of formal enterprises in every region of the country and refers inspection activity files to the competent regional authority for the initiation of administrative penalty proceedings. In reply to the CATP’s 2014 observations on Act No. 30222, amending Act No. 29783 on occupational safety and health, which enables labour inspection to be more flexible with regard to occupational risk prevention, the Committee notes the Government’s indication that the reduction of fines provided for in the transitional supplementary provision of Act No. 30222 was applicable for a period of three years and is therefore no longer in force. In addition, the Committee notes the CATP’s indication in its observations of 2023 that: (i) according to the statistics of the Ministry of Energy and Mining, the total number of occupational accidents was 4,426 in 2018, 4,340 in 2019, 3,171 in 2020, 3,843 in 2021 and 4,365 in 2022; (ii) with regard to occupational diseases, hearing loss (hypoacusis) was the most common disease in the mining sector between 2011 and 2022, and DIGESA and the National Centre for Occupational Health and Environmental Protection for Health have been doing minimal work in this regard, despite the fact that mining is one of the key pillars of the country’s economy. The CATP also indicates that drillers have a significantly higher risk of suffering hearing loss than other mineworkers and that 90 per cent of cases of hearing loss recorded between 2011 and 2020 corresponded to these workers; and (iii) there is a problem of under-recording by mining enterprises, especially artisanal enterprises and those operating in the informal economy, including with regard to the use of hazardous substances such as mercury and sodium cyanide. The Committee requests the Government to provide its comments in this respect.