Safety and Health in Construction Convention, 1988 (No. 167) - Brazil (Ratification: 2006)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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 136 (benzene), 139 (occupational cancer), 161 (occupational health services), 167 (OSH in construction), and 176 (OSH in mines) together.

The Committee notes the adoption of Act No. 13.467 of 2017 amending the Consolidation of Labour Laws (CLT). The Committee also notes that the Government indicates in detail the outcome of labour inspection activities, including the results of the action taken to correct the irregularities observed, in response to the Committee’s previous comments on Conventions Nos 136, 139, 167 and 176. With regard to the organization and provision of appropriate and adequate inspection services, the Committee refers to its detailed comment under the Labour Inspection Convention, 1947 (No. 81).

A. General provisions

Occupational Health Services Convention, 1985 (No. 161)

The Committee notes the observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI), those of the IOE received on 31 August 2017, and those of the CNI received on 29 August 2017, which emphasize that Act No. 13.467 of 2017 amending the CLT maintains the requirement for employers to take OSH measures.

Article 2 of the Convention. National policy. In its previous comment, the Committee requested the Government to provide information on aspects of the national OSH policy regarding occupational health services and the periodic consultation with employers’ and workers’ representatives on the subject. The Committee notes the Government’s indication in its report that, in the context of the adoption of the National OSH Policy (PNSST – Decree No. 7602 of 2011), the National OSH Plan (PLANSAT) was created, which is managed by the Tripartite OSH Committee (CTSST) (Inter-ministerial Decree No. 152 of 2008). The CTSST oversees the implementation of, and proposes the regular revision of, the PNSST and the PLANSAT. Furthermore, as part of the PLANSAT strategy for the coordination of government action on promotion, protection, prevention, assistance, rehabilitation and compensation with regard to occupational health, Action 3.1.8 on the inspection, supervision and promotion of OSH services in public and private institutions and enterprises was established. The Committee requests the Government to continue providing information on the implementation of a coherent national policy on occupational health services, including with regard to the implementation of Action No. 3.1.8 of the PLANSAT on occupational health services.

Article 3(1) and (2). Progressive development of occupational health services. In its previous comment, the Committee requested the Government to provide additional statistical information on the specialized occupational safety and medicine services, and on the consultations for the progressive development of such services. The Committee notes the Government’s indication that Regulatory Standard No. 4 (on specialized occupational safety and medicine services) establishes the parameters for the size of such services, and particularly the risk assessment of the main activity involved and the number of workers covered. The Government adds that, although the services cover only 1.5 per cent of private enterprises, other workers from the private sector can benefit from the same occupational health services by different means, such as the contracting of specialized enterprises or self-employed professionals. The Government also indicates that it is continuing to work on improving the information system for the compilation of data on this subject.

Articles 5 and 8. Adequate functions of occupational health services and participation of workers in OSH matters. Public sector of the Federal District. In its previous comment, the Committee noted the measures adopted to protect the OSH of teachers in the public sector, and requested the Government to continue providing information on the implementation of the health plan for the public sector in the Federal District. The Committee notes with interest the adoption of the integrated policy on the health of public servants (Decree No. 33.653 of 2012), the OSH manual for public servants in the Federal District (Decree No. 55 of 2012), which requires the State Secretariats of Public Administration Health and Education to establish multidisciplinary OSH teams, with the aim of promoting health and protecting the safety of public servants in the workplace, as well as the strengthening of the Health Care Institute for public servants in the Federal District.

B. Protection against specific risks

1. Benzene (Convention No. 136)

The Committee notes the information provided by the Government in reply to its previous comment on Articles 4 (prohibition of the use of benzene) and 8 (personal protective equipment), and on the application in practice of the Convention (court cases).

Article 2 of the Convention. Harmless or less harmful substitute products. The Committee notes that Annex 13-A (Benzene) of Regulatory Standard No. 15 (Unhealthy activities and operations), was amended by Decrees Nos 203 and 291 of 2011. Following these amendments, Regulatory Standard No. 15 establishes the mandatory registration with the OSH Department of the Ministry of Labour and Employment of all enterprises that use, produce, transport, store or handle benzene and liquid mixtures containing 1 per cent by volume or more of benzene. These enterprises must demonstrate that it is not technically or financially viable to use a benzene substitute in the Programmes for the Prevention of Occupational Exposure to benzene (PPEOBs). With regard to its previous comment on the application in practice of PPEOBs in the petrochemical sector, the Government indicates that Annex 13-A of Regulatory Standard No. 15 does not apply to the sector. However, Programmes for the Medical Supervision of Occupational Health (PCMSOs) and Programmes for the Prevention of Environmental Risks (PPRAs) provided for in Regulatory Standards Nos 7 and 9, respectively, guarantee the implementation of OSH measures in the sector.

Article 6(2). Concentration of benzene in the air of places of employment. In its previous comment, the Committee noted that dialogue was continuing in the National Standing Committee on Benzene (CNPB) to reduce the maximum value for the concentration of benzene in the air of places of employment. The Committee notes the Government’s indication that technical reference values of 2.5 and 1.0 ppm (for enterprises in the steel industry and other enterprises, respectively) are parameters for environmental control and not for occupational exposure. The Committee observes that section 6.2 of Annex 13-A of Regulatory Standard No. 15 provides that technical reference values shall refer to the time-weighted average concentration of benzene in the air, for an eight-hour working day. However, the Government indicates that it still intends to progressively reduce exposure levels through dialogue in the CNPB. The Committee requests the Government to continue its efforts to reduce exposure values to benzene and to continue providing information on the establishment, by the competent authority, of the maximum level of concentration of benzene in the air of places of employment.

Article 7. Enclosed systems. Removal of benzene vapour. With reference to its previous comment on the effect given to this Article of the Convention, the Committee notes the Government’s indication that, in accordance with section 6.1 of Regulatory Standard No. 15, every effort must be made to avoid the exposure of workers to benzene. Under section 5.5.2 of Regulatory Standard No. 9 (on the PPRAs), the examination, development and implementation of collective protection measures shall be in line with the following order of priorities: (a) to eliminate or reduce the use of hazardous substances; (b) to prevent the release or spread of such substances in the air of workplaces; and (c) to reduce the levels of concentration of such substances in the air of workplaces. The Government also indicates that all enterprises that use or produce benzene use enclosed systems, with the exception of analysis work carried out in laboratories and service stations that supply liquid fuel containing benzene. In this regard, the Committee refers to its comments on the application of Article 14 of the Convention.

Article 14(a). Legislative measures or other measures necessary to give effect to the provisions of the Convention. Petrochemical sector. With reference to its previous comment on the effect given to the provisions of the Convention with respect to workers who carry out work tasks involving the loading and unloading of fuel in the petrochemical sector, the Committee notes the Government’s indication that Regulatory Standard No. 20 on health and safety in relation to inflammable products and fuels regulates these activities. Furthermore, the Standing Joint Tripartite Committee (CTPP) is currently negotiating the adoption of an annex to Regulatory Standard No. 9 to establish minimum OSH requirements, including for the introduction of collective measures for the control of vapour at service stations that supply fuel. The Committee requests the Government to continue providing information on the measures adopted or envisaged, through legislation or any another method, in accordance with national practice and conditions, to give effect to the provisions of the Convention.

2. Occupational cancer (Convention No. 139)

The Committee notes the information provided by the Government in reply to its previous comment on Articles 1 (periodic determination of carcinogenic substances and agents), 2 (replacement of carcinogenic substances and agents), 3 (protection against the risks of exposure and system of records), 5 (evaluation of exposure or state of health in relation to occupational hazards), 6(c) (labour inspection in the petrochemical sector) of the Convention, and on the application of the Convention in practice.

Article 3 of the Convention. Protection against risks of exposure and system of records. In its previous comment, the Committee requested the Government to provide information on the maintenance and content of medical records on carcinogenic substances and agents other than benzene. The Committee notes that, in accordance with Regulatory Standards Nos 7 (on the PCMSO) and 9 (on the PPRAs), all employers are required to keep records of administrative and technical data on the implementation of the PPRAs and individual medical records of workers, for a period of 20 years after workers have left their employment (section 4.5.1 of Regulatory Standard No. 7).

Article 5. Evaluation of exposure or state of health in relation to the occupational hazards. In its previous comment, the Committee requested the Government to adopt the necessary measures to ensure that all workers exposed to carcinogenic substances or agents are provided with the medical or biological examinations, during or after their employment, as are necessary to evaluate their exposure and state of health in relation to occupational hazards. The Committee notes that, in accordance with sections 4.1 to 4.4 of Regulatory Standard No. 7, the PCMSOs provides for the mandatory medical examination of workers, including after employment.

C. Protection in certain branches of activity

1. Safety and health in construction (Convention No. 167)

Article 3 of the Convention. Consultation with the most representative organizations of employers and workers. Informal work. The Committee notes the statistics provided by the Government in response to its previous comment on informal work in the construction sector, and the consultations held in the Standing Regional Committees, the Standing National Committee, the CTPP and the Tripartite OSH Committee. Many consultations resulted in the National Commitment to Improve Working Conditions in the Construction Industry, the implementation of which is scheduled until 31 December 2018 and is accompanied by a standing tripartite roundtable, which is also responsible for the evaluation of the Commitment. The Commitment establishes, inter alia, guidelines for contractual formalization, recruitment and selection, as well as vocational training and qualifications.

Article 35. Appropriate inspection system. Application in practice. With regard to the inspection system, the Committee notes the Government’s indication that it gives priority to the construction sector, in which around 8 per cent of all occupational accidents occur, based on the latest statistics. The Government emphasizes the high risk of construction, in which accidents have a high rate of mortality and permanent disability in comparison with other activities. Consequently, in the construction sector, the labour inspectorate carries out 25 per cent of all activities to examine and investigate occupational accidents. The Committee requests the Government to continue its efforts to analyse the statistics on occupational accidents and diseases to establish the appropriate inspection programmes, and to continue providing statistics on occupational accidents and diseases that occur in the sector, including fatal accidents.

2. Safety and health in mines (Convention No. 176)

The Committee notes the information provided by the Government in response to its previous comment on Articles 3 (national policy), 5(1) (competent authority), 5(2)(c) and (d) (notification and investigation of accidents and dangerous occurrences, and disaster, compilation and publication of statistics on dangerous occurrences), 5(2)(e) (suspension and restriction of mining activities), 10(d) and (e) (investigation of and reports on dangerous occurrences), 9(d) (appropriate transportation and access to appropriate medical facilities in the event of injury or illness), 10(b) (adequate supervision and control on each shift), 11 (regular health surveillance of workers), 12 (two or more employers undertaking activities at the same mine), 13(1)(b) (right of workers to request and obtain inspections and investigations to be conducted by the employer and the competent authority), 13(1)(c) (right of workers to know and be informed of workplace hazards), 13(2)(f) (right of OSH representatives to receive notice of dangerous occurrences) of the Convention, and on the application of the Convention in practice.

Article 3 of the Convention. National policy. In its previous comment, the Committee requested the Government to provide information on the periodic review of the national policy on OSH in mines. The Committee notes the Government’s indication that the principle of the PNSST (Decree No. 7602 of 2011) is the universal promotion of OSH. The CTSST supervises the implementation of and proposes the periodic review of the PNSST and the PLANSAT. Furthermore, the Ministry of Labour and Employment coordinates the tripartite Standing National Committee for the Mining Sector (CPNM), which is of tripartite composition and has the specific objective of supporting the implementation of and proposing amendments to Regulatory Standard No. 22 of 2000.

Article 5(2)(e). Suspension and restriction of mining activities. In its previous comment, the Committee noted that, in accordance with Regulatory Standard No. 3, the competent authority could suspend or restrict activities on the grounds of safety and health. However, the Committee noted that the decision to suspend or restrict activities had to be based on a technical report prepared by labour inspectors and transmitted to the Regional Superintendent. In this regard, the Committee requested the Government to provide information on the possible obstruction of prompt action by procedural requirements in safety and health cases. The Committee notes with interest the court decision of January 2014, in accordance with which all labour inspectors have the authority to order immediately applicable measures in cases of serious and imminent risk. The Government indicates that the decision was the result of a public civil action (Case No. 0010450 12.2013.5.14.0008) initiated by the Labour Prosecution Office, which alleged the inconsistency of section 161 of the CLT with Article 13 of Convention No. 81. Moreover, Ministry of Labour and Employment Decree No. 1.719 of 2014 authorizes all labour inspectors to order immediate measures in cases of risk to the life, health or safety of workers. The Committee requests the Government to provide information on practical cases in which labour inspectors have requested immediate measures to be taken.

Article 10(c). Probable location and names of all persons who are underground. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention. The Committee notes that the Government has not provided information in this regard. The Committee once again requests the Government to provide information on the measures adopted or envisaged to ensure that employers establish a system which makes it possible to know, with precision and at any time, the names of all persons who are underground, and their probable location, in accordance with Article 10(c) of the Convention.

Article 13(1)(a). Right of workers to report accidents, dangerous occurrences and hazards to the employer and to the competent authority. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention. The Committee notes the Government’s indication that, in accordance with section 4.1 of Regulatory Standard No. 22, workers have a duty to inform their supervisors of situations that may present a risk to their health or the health of others, while the Convention provides that national laws and regulations shall confer or provide workers the right to report accidents, dangerous occurrences and hazards to the employer and to the competent authority. In this regard, in its General Survey of 2017, paragraph 282, the Committee emphasized that workers’ participation in matters relating to safety and health at the workplace is fundamental and integral to the achievement of a safe and secure working environment. In order to give effect to Convention No. 176, the participation of workers must be guaranteed as a right, and procedures should be established to facilitate the exercise of this right. The Committee requests the Government to provide information on the measures adopted or envisaged to establish procedures to facilitate the exercise of the right of workers to report accidents, dangerous occurrences and hazards to the employer and the competent authority, in accordance with Article 13(1)(a) of the Convention.

Article 13(2)(c). Right of workers’ representatives to have recourse to advisers and independent experts. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention. The Committee notes the Government’s indication that there are no provisions that give effect to this Article of the Convention, and that it would therefore be necessary to amend Regulatory Standard No. 22. The Committee requests the Government to take the necessary measures to ensure that OSH representatives have the right to have recourse to advisers and independent experts, in accordance with Article 13(2)(c) of the Convention.

Article 13(2)(f). Right of safety and health representatives to receive notice of dangerous occurrences. In its previous comment, the Committee requested the Government to provide information on the effect given to this provision of the Convention with regard to dangerous occurrences. The Committee notes the Government’s indication that, in accordance with sections 36.7 of Regulatory Standard No. 22 and 1.2.1.20.1 of the Mining Regulatory Standard, the Internal Commission for the Prevention of Accidents in Mining (CIPAMIN) must be informed of any significant changes in work processes and the working environment, including dangerous occurrences.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1 of the Convention. Scope of application. Article 3. Consultation of the most representative organizations of employers and workers concerned regarding the measures to be taken to give effect to the provisions of the Convention. In its previous comments the Committee referred to communications from the Union of Workers in the Lumber, Civil Construction and Furniture Industries of Altamira and the surrounding Region (SINTICMA) and the Single Confederation of Workers (CUT). Both communications referred to the growth in the construction industry and, within the industry, to non-registered workers and the serious problems that this situation presented with regard to the application of the Convention. The main points of the communication from the CUT were as follows: (a) occupational safety and health (OSH) policies and measures for the construction industry do not take account of the informal sector and are therefore not realistic; (b) the method for recording occupational accidents does not take account of non-registered workers and so the accident figures contained in official records do not reflect reality; and (c) very few occupational accidents are investigated. SINTICMA stated that the enterprises operating in the Altamira region do not observe labour legislation relating to documentation of workers, that the conditions of work in construction are subhuman, that the workers do not enjoy any of the rights established by the legislation, including with regard to OSH, and that labour inspection is inadequate. The Committee asked for information on the manner in which account is taken of these workers with a view to: (a) formulating OSH policies for the construction industry; (b) recording occupational accidents; and (c) training in OSH. The Committee notes the statement in the Government’s report that work in the informal sector is extensive but follows the growth trends in the formal sector. In the first six months of 2010, a total of 1.47 million jobs were created, which corresponds to the highest figure recorded in the General Register of Employment and Unemployment (CAGED). Between January and May 2011, the number of new jobs created was 1,171,796 (up 3.26 per cent), which was only slightly less than the increase indicated for 2010. The Government states that although the construction industry shows problems with regard to informal work, there has also been a high rate of growth in the formal sector in recent years. In order to gain a more precise estimate of informal employment in the country, the Ministry of Labour and Employment announced the creation of an indicator for the end of 2011, based on CAGED data and the Annual Report on Labour Issues (RAIS). The new indicator, called the “real unemployment rate”, will focus on the employment market in the informal economy. According to the Labour Minister, the current unemployment indicators do not reflect the reality in the informal sector, in self-employment or in the liberal professions. The Committee notes with interest the development of the real unemployment indicator since this can contribute to a more accurate identification of the number of informal workers in the sector covered by the Convention and contribute towards the application of the Convention to all construction workers. The Committee requests the Government to supply information on the statistics obtained in the construction industry on the basis of this indicator, stating the number of registered workers and the estimated number of non-registered workers.

Other measures. The Government also previously indicated that the most effective means of tackling informal employment in Brazil is the action taken by the labour inspectorate, whose objectives in civil construction include prevention (avoiding occupational accidents and diseases) and enforcement, including taking action against informal employment. The Committee notes the Government’s detailed information on the action of the labour inspectorate, indicating that in 2010 labour inspectors registered 57,883 workers in civil construction and 18,918 workers in heavy construction and that from January to May 2011 a total of 22,771 workers were registered in civil construction and 8,619 workers in heavy construction. The Committee also notes the Government’s statement that, under Government policy, civil construction is one of the priority sectors for the labour inspectorate and that in 2010 a total of 20.4 per cent of inspections in the sector concerned safety and health. As preventive measures, 2,781 seizure orders were issued in cases involving a serious and imminent danger to the workers, 17,244 reports of infringements were issued and 387 investigations into serious and fatal accidents were undertaken. The Government also provides information on action undertaken in heavy construction. The Committee also refers to the information provided by the Government concerning the measures to reduce under-notification and those which it noted in its comments relating to the Occupational Cancer Convention, 1974 (No. 139), and the Occupational Safety and Health Convention, 1981 (No. 155). Noting the efforts of the labour inspectorate to ensure the application of the Convention to all workers in the sector, the Committee recalls that a fundamental mechanism for giving effect to the Convention is Article 3, under the terms of which the most representative organizations of employers and workers concerned must be consulted on the measures to be taken to give effect to the provisions of the Convention. The Committee requests the Government to undertake such consultations, including on the measures to be adopted to give effect to the provisions of the Convention with respect to registered and non-registered workers, and to supply information in this regard. The Government is also requested to supply practical information on the registration of occupational accidents in the construction sector and on training in OSH.

Part VI of the report form. Application in practice and Article 35. Labour inspection. In its previous comments the Committee noted that, according to SINTICMA, working and OSH conditions in civil construction in the trans-Amazonian region are subhuman and the labour inspectorate does not have the means to address this situation. The union indicated that there is one Ministry of Labour and Employment assistant’s post for 40,000 workers seeking help from ten towns in the trans-Amazonian region and that the labour inspectorate is unable to monitor these enterprises because the work is temporary and it only visits the region every two or three years. It notes that the Government only refers in its report to Article 10 of the Labour Inspection Convention, 1947 (No. 81). The Committee indicates that, according to Article 35 of the present Convention, each Member shall provide appropriate inspection services to supervise the application of the measures to be taken in pursuance of the Convention and provide these services with the resources necessary for the accomplishment of their task. The Committee requests the Government to provide information on the action of the labour inspection services with regard to the OSH issues raised by SINTICMA in the trans-Amazonian region and to clarify whether these services are equipped with the necessary means to enforce the application of the Convention in that region.

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

Communication from the Union of Workers in the Lumber, Civil Construction and Furniture Industries of Altamira and the Surrounding Region (SINTICMA). The Committee notes that the Government’s report, received on 2 November 2010, arrived too late to be examined at the current session. The Committee also notes the communication by SINTICMA, sent to the Government on 12 April 2010. The Committee notes that the Government has not sent its comments concerning this communication. The Committee also notes that, according to SINTICMA, enterprises operating in the region do not comply with the labour legislation concerning the documentation of workers, that the working conditions on the sites are subhuman and that the workers enjoy none of the rights guaranteed by the legislation. It maintains that the enterprises enslave workers in conditions of urban slavery, that many of them suffer accidents at work and that no inspections are carried out in these towns. It indicates that there is one Ministry of Labour and Employment assistance post for 40,000 workers seeking help who are from ten towns in the trans-Amazonian region. It indicates that the labour inspectorate is unable to monitor these enterprises because the work is temporary and it only visits the region every two or three years. It maintains that this situation also exists in the lumber industry, which has even more difficulties than the civil construction sector. The Committee requests the Government to provide information on the measures taken or envisaged to ensure the application of the Convention to workers in the informal economy, including the workers in the region mentioned in the communication. Noting that the Government’s report does not reply fully to the questions raised in its previous comments concerning the application of the Convention to the informal sector, the Committee requests the Government to provide detailed information in reply to those comments, in particular on the manner in which those workers are taken into account for the purposes of: (a) developing policies for the construction sector; (b) recording occupational accidents; and (c) training. Furthermore, the Committee requests the Government to provide its comments on the communication submitted by SINTICMA so that the Committee can examine them at its next meeting, together with the Government’s report.

[The Government is asked to reply in detail to the present comments in 2011.]

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

The Committee notes the communication of 28 August 2008 sent by the Single Confederation of Workers (CUT) and the Government’s reply of 3 March 2009. The CUT states that with the growth in the economy, civil construction has expanded significantly but has not been matched by investment in developing the labour force, so the amount of skilled labour has not kept pace with the expansion in the sector, adding to the weaknesses that already existed. The CUT lists the weaknesses as follows: (a) policies and measures for the sector overlook the informal economy and are therefore unrealistic; (b) registration of occupational accidents does not take account of undeclared workers, so accident figures in official registers do not reflect reality; and (c) very few occupational accidents are investigated, for example in 2006, of 31,429 accidents recorded only 330 were investigated. On the matter of suitable policies, the Government states that it has published a series of occupational accident indicators by sector of activity and federal unit allowing measurement of workers’ exposure to the risk levels involved by economic activity and also allowing suitable policies to be drawn up. With regard to the registration of accidents, this is done by the National Social Security Institute (INSS), which collects the relevant data by means of a special form known as an “occupational accident communication” (CAT). As to the investigations of accidents, the Government states that it is not possible to analyse all cases because the Ministry of Labour in charge of occupational safety and medicine has few inspectors. The Government further indicates that labour inspectorate provides an important stimulus for the formalization and improvement of working conditions and that in 2009, thanks to the inspectorate’s work, formal employment relationships were secured for 668,857 workers. On the matter of training, the Government states that training is provided through the Workers’ Protection Fund. The Committee has also studied these comments in examining the application of the Occupational Safety and Health Convention, 1981 (No. 155). With regard to the present Convention, it will deal with the observations at greater length at its next session, when it examines the Government’s first report, which has already been received. The Committee therefore asks the Government to provide information on the total number of workers in the construction sector, indicating to the extent possible the number of workers who have a formal employment relationship and the estimated number of those who do not. With regard to the latter, please indicate how they are taken into account for the purpose of: (a) preparing policies for the sector; (b) registering occupational accidents; and (c) training. Referring to the Government’s decision to treat the investigation of occupational accidents as a priority for 2009, noted by the Committee in its comments on the Occupational Safety and Health Convention, 1981 (No. 155), the Committee asks the Government to provide details of the activities undertaken and the results obtained in the construction sector.