Underground Work (Women) Convention, 1935 (No. 45) - Viet Nam (RATIFICATION: 1994)

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine Conventions Nos 45 (underground work (women)), 120 (hygiene (commerce and offices)), 155 (OSH), and 187 (promotional framework for OSH) together.

Legislative developments. In response to its previous comments on legislative developments, the Committee notes the information provided by the Government in its report concerning the adoption, during the reporting period, of several pieces of legislation relevant to OSH, including the Labour Code of 2019, which enters into force on 1 January 2021.

Application in practice of Conventions Nos 120, 155 and 187. The Committee previously requested for information on measures to address the high rate of occupational accidents and diseases in particular sectors. In this regard, the Committee notes the information provided by the Government, including the statistics on occupational accidents available on the website of the Department of Work Safety of the Ministry of Labour, War Invalids and Social Affairs (MOLISA). The Committee notes that in 2019, there were 8,150 occupational accidents causing 8,327 people to be injured and 979 deaths, and that serious occupational accidents in which two or more persons are killed two or many people injured, typically occurred in the fields of construction, mineral exploitation, fishing and electricity. The Committee also notes that, according to the Government, there are difficulties with regard to the diagnosis and examination of occupational diseases, caused by the inadequacy of facilities, equipment and human resources. The Committee requests the Government to provide further information on the measures taken to increase the level of compliance with OSH rules, to improve the situation with respect to the diagnosis and examination of occupational diseases, and to reduce the rate of occupational accidents and diseases, particularly in high-risk sectors, as well as on the impact of the measures taken. The Committee also requests the Government to continue to provide information on the application in practice of the ratified Conventions on OSH, including the number of violations detected and penalties imposed, and the occupational accidents and diseases registered.

A. General Provisions

OSH and its promotional framework (Conventions Nos 155 and 187)

The Committee notes the Government’s first report on the application of Convention No. 187.

The Committee also takes note of the information provided by the Government in reply to its previous requests concerning Article 11(a) (progressive determination of design, construction, layout and operations of undertakings and safety of technical equipment) and Article 17 (collaboration between two or more undertakings) of Convention No. 155.

I. Action at the national level

Article 2(3) of Convention No. 187. Periodic consideration of measures to ratify OSH Conventions. The Committee notes the Government’s indication in its report that the MOLISA adopts plans annually concerning proposals to the competent authority on the ratification of ILO Conventions. The Committee requests the Government to indicate whether the most representative organizations of employers and workers are consulted in the context of the adoption of those plans.

National policy

Article 4 of Convention No. 155 and Article 3(1) of Convention No. 187. Formulation, implementation and periodic review of a national policy on OSH in consultation with social partners. The Committee notes the Government’s indication, in response to its previous request on national policy, that its national policy on OSH takes the form of the Law on Occupational Safety and Health (OSH Act) of 2015, and is further developed through Party documents, the Constitution and legislation. The Committee also notes the Government’s reference, with respect to consultation, to section 88 of the OSH Act and section 41 of Decree No. 39/2016/NĐ-CP establishing the National OSH Council, a tripartite advisory body. The Government indicates that, pursuant to section 41(4) of Decree No. 39/2016/NĐ-CP, this Council organizes dialogues annually to share information and strengthen the understanding between the social partners and state agencies on the development, amendment and revision of policies and laws on OSH. With respect to the review of the national OSH policy in consultation with social partners, the Committee notes the Government’s indication concerning section 170 of the Law on Promulgation of Legal Documents, which entered into force on 1 July 2016, and requires state management agencies to regularly review, supplement and amend national policies. The Committee also notes that, pursuant to section 6 of the same Law, the drafting agencies and relevant organizations must enable other organizations, individuals and those directly affected by the law to provide opinions during the formulation of legislative documents. The Committee requests the Government to provide further specific information on the periodic review of the national OSH policy in practice, including any review of the OSH Act of 2015. It requests the Government to provide information on the consultations held with the social partners in this respect, including in the National OSH Council.

Article 5(e) of Convention No. 155. Protection of workers and their representatives from disciplinary measures. Following its previous comments, the Committee notes the Government’s reference to section 6(1)(dd) of the OSH Act, providing protection for workers with labour contracts who refuse to work or leave the workplace, when they are clearly aware of risks of occupational accidents that seriously threaten their life or health, and immediately notify such risks to the direct manager. In this regard, the Committee recalls that Article 5(e) concerns not only the protection of workers, but also their representatives, from disciplinary measures for actions properly taken by them in conformity with national policy, which includes but is not limited to removal from dangerous situations. The Committee requests the Government to indicate the measures taken to ensure the protection of both workers and their representatives from disciplinary measures as a result of all actions properly taken by them in conformity with the policy, beyond the above-mentioned rights to refuse to work or to leave the workplace.

National system

Article 12 of Convention No. 155. Obligations of persons who design, manufacture, import, provide or transfer machinery, equipment or substances for occupational use. The Committee notes the list of legislation provided by the Government, including Decree No. 113/2017/ND-CP of 9 October 2017 detailing and guiding the implementation of a number of articles of the Law on Chemicals, which prescribes that certain chemicals are subject to conditions of production and trading. The Committee also notes Circular No. 05/2012/TT-BLĐTBXH of 30 March 2012 of the MOLISA, promulgating national technical standards on labour safety for lifting equipment, which provides that organizations and individuals manufacturing, importing, exporting, circulating, installing, repairing, managing and operating lift equipment, are responsible for abiding by the standards set out in the Regulation. The Committee notes that this Regulation includes a requirement that lift equipment come with sufficient original technical documentation. The Committee requests the Government to provide further information on legislative or other provisions setting out the obligations of persons who design, manufacture, import, provide or transfer machinery, equipment or substances for occupational use, in relation to the requirements in paragraphs (a) (ensuring, so far as is reasonably practicable, the safety of machinery, equipment or substances); and (b) (making information available concerning correct installation, use and hazards) of Article 12. The Committee also requests the Government to indicate the measures taken to give effect to Article 12(c), requiring the persons covered by that Article to undertake studies and research or otherwise keep abreast of the necessary scientific and technical knowledge to comply with Article 12(a) and (b).

National programme

Article 5(1) and (2) of Convention No. 187. National OSH Programme. The Committee notes the adoption of Decision No. 05/QD-TTg of 5 January 2016 of the Prime Minister approving the National Programme for Occupational Safety and Health in the period 2016–20 (National OSH Programme 2016–20). It notes the Government’s statement that the MOLISA consulted with employers’ and workers’ organizations when drafting the Programme. The Committee also notes the different objectives and targets set out in the National OSH Programme 2016–20, including the reduction of occupational accidents and diseases, as well as various other programmes listed by the Government, which contain similar or complementary objectives. Considering that the National OSH Programme expires in 2020, the Committee requests the Government to provide information on the measures taken to ensure the evaluation and periodic review of this programme, in consultation with social partners. The Committee also requests the Government to provide information on how this evaluation contributes to the formulation of a new Programme, and to provide information on any subsequent programmes adopted.

II. Action at the level of the undertaking

Article 19(b), (c) and (e) of Convention No. 155. Arrangements at the level of the undertaking. The Committee previously requested information on measures giving effect to Article 19(b), (c) and (e) in undertakings with less than 1,000 workers or without trade unions. In this respect, the Committee notes the information provided by the Government regarding section 75 of the OSH Act, providing for the establishment of OSH committees at the level of the undertaking. The Committee also notes section 74 of the same Act providing for each production group in enterprises to have at least one part-time OSH worker during working hours, to be elected by the workers. Section 38 of Decree No. 39/2016/ND-CP of 15 May 2016 further specifies that an OSH committee (established at the undertaking level pursuant to section 75 of the OSH Act), has to be established in undertakings of more than 300 employees in high-risk fields, and in undertakings of 1,000 or more employees in other fields. The Committee requests the Government to provide information on the implementation of sections 74 and 75 of the OSH Act in practice. In addition, the Committee requests the Government to provide further information on measures taken to enable technical advisers, by mutual agreement, to be brought in from outside the undertaking, as envisaged by Article 19(e).

B. Protection in specific branches of activity

Underground Work (Women) Convention, 1935 (No. 45)

The Committee recalls that the ILO Governing Body (at its 334th Session, October–November 2018), on the recommendation of the Standards Review Mechanism (SRM) Tripartite Working Group, classified Convention No. 45 as an outdated instrument, and has placed an item on the agenda of the 113th Session of the International Labour Conference (2024) concerning its abrogation. The Governing Body also requested the Office to follow-up with member States currently bound by Convention No. 45 to encourage the ratification of up-to-date instruments concerning OSH, including but not limited to the Safety and Health in Mines Convention, 1995 (No. 176), and to undertake a campaign to promote the ratification of Convention No. 176. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 334th Session (October–November 2018) approving the recommendations of the SRM Tripartite Working Group and to consider ratifying the most up-to-date instruments in this subject area.

Hygiene (Commerce and Offices) Convention, 1964 (No. 120)

The Committee takes note of the information provided by the Government in reply to its previous requests concerning Articles 8 (ventilation), 9 (lighting), 10 (temperature) and 18 (noise and vibration) of the Convention.

Article 6(1) of the Convention. Labour inspection. The Committee previously noted the Government’s indication that specific OSH inspections only take place in a few areas, such as mining and work with hazardous chemicals, and requested for information on labour inspections in workplaces covered by the Convention. In the absence of additional information on this issue, and with reference to its comments adopted in 2020 on the Labour Inspection Convention, 1947 (No. 81), the Committee once again requests the Government to provide information on the labour inspections carried out in practice in workplaces covered by this Convention.

Article 14. Sufficient and suitable seats supplied for workers. The Committee previously noted that the information provided by the Government referred only to the public sector. The Committee once again requests the Government to provide information on the measures taken to ensure that, in practice, sufficient and suitable seats are supplied for workers who are not working for state agencies and the civil service.

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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The Committee notes the statistical information provided by the Government in its report according to which no female workers are engaged in underground work in coal mines as evidenced by a recent survey covering 104 enterprises and 39,000 workers (out of a total workforce of 89,000 workers in the coal mining industry), including 10,000 female workers accounting for 25 per cent of the workers surveyed. The Government adds that no woman has ever been employed on underground work in coal mines and that in any event women are not provided training for this kind of work.

The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided to invite the States parties to Convention No. 45 to contemplate ratifying the recent Safety and Health in Mines Convention, 1995 (No. 176), and possibly denouncing Convention No. 45 although this latter instrument has not been formally revised (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its 2001 General Survey on night work of women in industry in relation to Conventions Nos. 4, 41 and 89, "the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial" (paragraph 186).

In the light of the foregoing observations, and also considering that the general trend worldwide is to provide protection for women in a fashion that does not infringe their rights to equality of opportunity and treatment, the Committee invites the Government to consider the possibility of denouncing Convention No. 45 and to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers. In this respect, the Committee recalls that according to established practice the Convention will be next open to denunciation during a one-year period from 30 May 2007 to 30 May 2008. The Committee requests the Government to keep the Office informed of any decision taken in this regard.

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The Committee takes note of the Government's reports as well as the legislative texts attached.

Further to its previous direct request, the Committee notes the Government's statement that, under section 113(2) of the Labour Code of 1994, no woman, whatever her age, may be employed in mines even in casual work.

The Committee notes that Decree No. 23/CP of 18 April 1996, and Circular No. 03/LDTBXH-TT of 13 January 1997, attached to the report, provide for measures to be taken by enterprises in order to transfer female workers engaged in prohibited works, including underground work, to suitable employment, and that such measures contain, among other things, the collection of statistics, and setting up of a project to transfer such workers to other suitable work. Noting also the Government's indication that the application of these provisions of national legislation is step by step, the Committee asks the Government to provide information on the application in practice of the Convention, including the number of female workers actually working underground in mines, and the number of those who have so far been transferred to other work in accordance with the above provisions.

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The Committee notes the information supplied by the Government in its report.

The Committee notes that, under section 113(2) of the 1994 Labour Code, no woman, whatever her age, may be employed in regular work in mines, whereas the circular of 28 January 1994 regulating the working conditions of women excludes women unconditionally from mine work.

It recalls that under Article 2 of the Convention no female, whatever her age, may be employed on underground work in any mine and that Article 3 provides for certain exemptions from that prohibition.

The Committee asks the Government to indicate whether, under section 113 of the Labour Code, women are employed in casual work in mines and, if so, under what conditions.