Safety and Health in Construction Convention, 1988 (No. 167) - Germany (RATIFICATION: 1993)

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The Committee notes the joint observations made by the International Organisation of Employers (IOE) and the Confederation of German Employers’ Associations (BDA), received on 30 August 2013; the joint observations of the IOE and the BDA, supporting the joint observations of the German Construction Federation (ZDB) and the Federation of the German Construction Industry (HDB), received on 31 August 2015; and the joint observations made by the German Confederation of Trade Unions (DGB) and the Union of Construction, Agriculture and Environment Works (IG BAU), received on 4 September 2015. It also notes the Government’s reply to the joint observations made in 2012 by the DGB and the IG BAU.

Article 3 of the Convention. Consultation of the most representative organizations of employers and workers. Article 4. Adoption of laws or regulations on the basis of a risk assessment. Article 13. Measures to ensure that all workplaces are safe and without risk of injury to safety and health. The Committee notes that in their joint observations, the DGB and the IG BAU reiterate their concerns raised previously, namely that construction workers tend to take early retirement, that the proportion of older workers to the total workforce in many building trades is still significantly lower than the average for all occupations, and that many workers claim limited incapacity benefits because their health no longer enables them to meet the requirements of their job. The DGB and the IG BAU also reiterate that there is substantial room for improvement in the regulatory sphere, including limiting the maximum permissible weight for all construction materials supplied in sacks to 25 kilograms, imposing stricter limits on the emission of soot and particles from construction machines, and imposing more significant consequences upon enterprises for breaches of occupational safety and health (OSH) requirements. For their part, the IOE and the BDA maintain that the average age of retirement has continuously increased since 2008. The IOE, the BDA, the ZDB and the HDB indicate that the existing legal framework provides a comprehensive set of rules and that further laws and regulations are not necessary. They consider that the joint efforts of the IG BAU and the Occupational Insurance Association of the Building Sector (BG BAU) have led to a considerable reduction of workers’ exposure to soot and particle emissions and that the replacement of machinery, in accordance with European emission standards, will lead to further reductions in such emissions. The Committee notes the Government’s indication that claims for invalidity pensions prior to the statutory age of retirement are primarily the result of the effects of work on health, but can also be attributed to the lack of available jobs, and that it is supporting pilot projects and sectoral activities to increase the number of workers who reach the statutory retirement age. The Government adds that regulations are closely linked to European Union law and are constantly developed. In this regard, it states that the Ordinance on Health and Safety Requirements for the Manual Handling of Loads at Work does not specify a maximum permissible weight for loads, as various parameters have to be taken into account, while European Union directives and current research make it difficult for countries to establish their own national values for limits on soot and particle emissions. The Committee encourages the Government to pursue consultations with the social partners on measures to give effect to the Convention, in accordance with Article 3.

Article 30(1). Provision of personal protective equipment. With reference to its previous comments, the Committee notes the Government’s indication that personal protective equipment (PPE) is inferior to technical and organizational measures as a means of prevention. It indicates that in Europe, PPE is governed by Directives 89/686/EEC and 89/656/EEC. The restricted scope for additional PPE requirements at the national level has prompted those involved in prevention to provide a range of advisory services concerning PPE in enterprises and as part of construction site inspections. A large number of information and training sessions have been held in recent years and information materials, examinations and certifications have been developed. The Committee takes note of this information.

Article 35(b). Provision of appropriate labour inspection services. The Committee previously noted the indication of the DGB and the IG BAU that the number of labour inspectors was insufficient and that there was a widespread failure in the enforcement of OSH standards. They emphasized that an important feature of the construction industry is the large number of small enterprises which are rarely inspected. The Committee notes that in their latest observations, they reiterate their concerns. In this respect, the Government indicates that the implementation of OSH measures is complex and is not related only to the number of labour inspectors. Significant factors include the level of education and training of workers, union density in enterprises and construction sites and the use of the available remedies. The number of OSH inspectors is higher than one inspector per 10,000 workers. In addition to the number of inspectors in the labour inspectorate, the number of inspectors working for statutory accident insurance providers has to be taken into account The Committee requests the Government to provide further information on the measures taken or envisaged to ensure the appropriate inspection of workplaces in the construction industry, and particularly small enterprises.

Application in practice. The Committee notes that, according to the DGB and the IG BAU, accident rates in the construction sector remain higher than average. It also notes that the IOE and the BDA state that employers have made considerable efforts to train and qualify their workers with regard to safety at work and that these efforts have been reflected in the continuous decrease in the number of occupational accidents. The Government indicates that the number of fatal accidents in the construction industry in the country is below the European average and that the accident rate in general has been declining since 2005. In this regard, the Committee notes the detailed statistical information provided by the Government according to which the number of occupational accidents subject to mandatory reporting decreased from 116,689 in 2011 to 105,248 in 2013. It also notes the Government’s indication that numerous activities exist to further improve OSH, including a joint OSH programme for construction and assembly, and that workers’ and employers’ organizations are consulted on the various measures implemented. With reference to its previous request concerning OSH in work involving the demolition of buildings containing asbestos, the Committee notes the Government’s indication that statutory accident insurance providers conducted a campaign dedicated to demolition work and working with hazardous substances, such as asbestos, and that activities are ongoing within the working group on hazardous substances of the Committee of the Länder for Occupational Health to further develop the regulations on activities involving asbestos. The Committee takes note of this information.

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Observations by the German Confederation of Trade Unions (DGB). With reference to its previous observation the Committee notes that the Government has not commented on the observations by the DGB.

Article 3 of the Convention. Consultations with the social partners. Article 4. Risk assessment. Article 13. Measures to ensure that all workplaces are safe and without risk of injury to safety and health. The Committee notes that the DGB and its affiliate Union of Construction, Agriculture and Environment Works (IG BAU) state that work in the construction industry is marred by high accident rates. Although there was an overall increase in the total number of occupational accidents and diseases from 2009 to 2010 in both relative and absolute terms, the DGB maintains that the occupational accident risk for workers in the construction industry is far above the average for workers in Germany. Construction workers also tend to take early retirement and the proportion of older workers to the total workforce in many building trades (such as carpenters, roofers and scaffolders) is significantly lower (13.9 per cent) than the average for all occupations (26.5 per cent). In addition, the number of workers in the building trades applying for disability benefits is also higher than the average for all workers; and out of every 100 roofers and scaffolders who retire, 56 are on disability benefits, compared to 23 persons out of 100 for all occupations. The DGB considers that the cause for this is the widespread failure to enforce existing standards for occupational safety and health protection. On average, there is just one labour inspector for every 10,000 industrial workers. Furthermore, an important feature of the construction industry is the large number of small enterprises whose occupational safety and health standards are rarely inspected. Finally, the IG BAU considers there to be a great need for improvement in the regulatory sphere by, inter alia, by lowering to 25 kg the maximum permissible weight for all construction materials packed in sacks, and by introducing more stringent limits for soot and particle emission from construction machines. The Committee notes with concern that the statistical information provided by the DGB and the IG BAU appears to reflect a significant and disturbing situation regarding construction workers which calls for action on the part of the Government in the form of further analysis of the cause for the above average accident risk for construction workers and for the above average number of construction workers on disability benefits. The Committee urges the Government to take all relevant measures as soon as possible to address the issues raised by the DGB and the IG BAU, in consultation with the most representative organizations of employers and workers, and to provide detailed information on the measures taken and their impact.

The Committee also requests the Government to respond to the remaining issues in its 2011 observation which reads as follows:

Article 30(1). Provision of personal protective equipment. The Committee notes the detailed information provided by the Government regarding the implementation of the provision of the Convention based on a consistent application of a risk management approach. The Committee notes in particular that the Government underscores that the objective of the relevant legislation – including the ordinance on the use of personal protective equipment (PPE) – is to arrive at the independent management of safety and health protection by enterprises, the core elements of such management being: risk assessment; the information and training of workers; and the inclusion of workers in decision making processes of the enterprise having regard to safety and health at work. The Government further states that therefore, as a rule, the Occupational Safety Act and the ordinances based on risk management lay down only essential framework conditions so as not to prevent employers and workers from achieving the level of autonomous action that is the aim of legislation; that these general requirements are underpinned by more concrete sub-statutory sets of rules and that employers implementing these rules can assume that they comply with the legal requirements. The Government indicates however, that a deliberate choice was made not to draw up a set of rules of this kind to assist with the implementation of the ordinance on the use of PPE as, according to the general principles set out in article 4 of the Occupational Safety Act, individual protective measures such as the wearing of PPE are subordinate to technical and organizational protective measures. The Government further states that as a result, PPE may be used either only in addition to other protective measures or only if risk assessment has showed that technical or organizational measures cannot be taken at all or merely to an extent that is considered insufficient. The Government goes on to emphasize that it should further be taken into consideration that the use of PPE in itself can impair or damage health, and that it is not advisable for the legislator to prescribe the compulsory use of PPE in certain work situations on construction sites as is impossible for all possible constraints to be covered by legislation; and that therefore only the employers can take all constraints into consideration, based on individual situation-related risk assessments. The Government also refers to the fact that other legislation specifically requires the provision and use of PPE if certain limit values are exceeded (for example the noise and vibration protection ordinance, hazardous substances ordinance and technical rules accompanying the hazardous substances ordinance, notably TRGS 500). Finally the Government indicates that the statutory accident insurance companies have made available a number of practical guides to help employers select appropriate PPE in areas including for example on the use of breathing equipment and on retaining best and coupling mans for retaining belts. The Committee wishes to recall that this approach places high demands on the enforcement of the provisions on risk assessment and their effective application in practice. The Committee requests the Government to provide further detailed information on the application of this approach in practice including examples of the methods used to ensure such an effective implementation of this Article in practice.

Part VI of the report form. Application in practice. The Committee notes the information provided regarding the elaboration of the common occupational safety and health strategy between the competent inspectorates of the Länder and the statutory accident insurance institutions, in which they agreed on core activities and harmonized information, advisory and implementing measures to reduce accidents and occupational diseases in the construction sector, in particular in building and assembly scaffolding and demolition, but that no interim reports are available for the reporting period. The Committee asks the Government to provide further detailed information on the impact of this common approach on the number of occupational accidents and diseases in the referenced sectors. In that context the Committee requests the Government to also provide information on whether and to what extent particular attention is given to occupational safety and health in demolition work involving demolition of buildings containing asbestos and any information on the incidence of asbestos related diseases among construction workers.

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The Committee notes the detailed and comprehensive response provided by the Government including references to legislation and available electronic sources of information. The Committee notes the information provided concerning effect given to the following Articles of the Convention: Articles 2(h), 14(1), 15(1)(e), 17(3) and 12(1).

The Committee notes the observations submitted by the German Confederation of Trade Unions in a communication received on 24 November 2011 and which was transmitted to the Government on 28 November 2011. The Committee will address these comments at its next session in the light of any comments the Government may wish to make in response thereto.

Article 30(1). Provision of personal protective equipment. The Committee notes with interest the detailed information provided by the Government regarding the implementation of the provision of the Convention based on a consistent application of a risk management approach. The Committee notes in particular that the Government underscores that the objective of the relevant legislation – including the ordinance on the use of personal protective equipment (PPE) – is to arrive at the independent management of safety and health protection by enterprises, the core elements of such management being: risk assessment; the information and training of workers; and the inclusion of workers in decision making processes of the enterprise having regard to safety and health at work. The Government further states that therefore, as a rule, the Occupational Safety Act and the ordinances based on risk management lay down only essential framework conditions so as not to prevent employers and workers from achieving the level of autonomous action that is the aim of legislation; that these general requirements are underpinned by more concrete sub-statutory sets of rules and that employers implementing these rules can assume that they comply with the legal requirements. The Government indicates however, that a deliberate choice was made not to draw up a set of rules of this kind to assist with the implementation of the ordinance on the use of PPE as, according to the general principles set out in Article 4 of the Occupational Safety Act, individual protective measures such as the wearing of PPE are subordinate to technical and organizational protective measures. The Government further states that as a result, PPE may be used either only in addition to other protective measures or only if risk assessment has showed that technical or organizational measures cannot be taken at all or merely to an extent that is considered insufficient. The Government goes on to emphasize that it should further be taken into consideration that the use of PPE in itself can impair or damage health, and that it is not advisable for the legislator to prescribe the compulsory use of PPE in certain work situations on construction sites as is impossible for all possible constraints to be covered by legislation; and that therefore only the employers can take all constraints into consideration, based on individual situation-related risk assessments. The Government also refers to the fact that other legislation specifically requires the provision and use of PPE if certain limit values are exceeded (for example the noise and vibration protection ordinance, hazardous substances ordinance and technical rules accompanying the hazardous substances ordinance, notably TRGS 500). Finally the Government indicates that the statutory accident insurance companies have made available a number of practical guides to help employers select appropriate PPE in areas including for example on the use of breathing equipment and on retaining best and coupling mans for retaining belts. The Committee wishes to recall that this approach places high demands on the enforcement of the provisions on risk assessment and their effective application in practice. The Committee requests the Government to provide further detailed information on the application of this approach in practice including examples of the methods used to ensure such an effective implementation of this Article in practice.

Part VI of the report form. Application in practice. The Committee notes the information provided regarding the elaboration of the common occupational safety and health strategy between the competent inspectorates of the Länder and the statutory accident insurance institutions, in which they agreed on core activities and harmonized information, advisory and implementing measures to reduce accidents and occupational diseases in the construction sector, in particular in building and assembly scaffolding and demolition, but that no interim reports are available for the reporting period. The Committee asks the Government to provide further detailed information on the impact of this common approach on the number of occupational accidents and diseases in the referenced sectors. In that context the Committee requests the Government to also provide information on whether and to what extent particular attention is given to occupational safety and health in demolition work involving demolition of buildings containing asbestos and any information on the incidence of asbestos related diseases among construction workers.

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Further to its observation, the Committee draws the Government’s attention to the following points:

2. Article 2(h) of the Convention. Definition of lifting appliances. The Committee notes that the term “lifting appliance” provided for in Chapter 2.8 of Trade Associations Rules (BGR 500) encompasses all work equipment, devices and auxiliary means used for lifting loads. Referring to the definition of “lifting appliance” set out in the Ninth Ordinance to the Equipment and Product Safety Act (9 GPSGV) (section 1(5)(14) and BGR 500 (Chapter 2.8)), the Committee notes that 9GSGV excludes permanent lifts (elevators) and BGR excludes lifting appliances which transport persons. Furthermore, the Committee notes that BGR 159 (consolidation 2004), not cited by the Government, appears to cover lifting appliances. The Committee requests the Government to clarify whether and to what extent national legislation, including the cited texts, give effect to this provision of the Convention.

3. Article 12, paragraph 1. Right to removal. The Committee notes that section 9(3) of the Occupational Health Act (ArbSchG) provides that workers can remove themselves in the face of imminent danger. However, exceptions are allowed under the legal obligations of employees for the prevention of dangers, and sections 7 and 11 of the Military Law. The Committee would be grateful if the Government would clarify how compliance with the Convention is ensured in this respect.

4. Article 14, paragraph 1. Safe use of scaffolds. The Committee notes the Government’s reference to sections 5.1.2 and 5.2, Appendix 2, of the Industrial Safety and Health Ordinance dated 27 September 2002 (as amended until 23 December 2004), which state that in elevated working places for temporary jobs that cannot be carried out safely and in appropriate ergonomic conditions from the suitable surface, work equipment shall be selected that is suitable to ensure safe working conditions permanently during its use. In order to dispel any ambiguity, the Committee would be grateful if the Government would indicate the specific provisions which guarantee the maintenance of safe and suitable scaffolds.

5. Article 15, paragraph 1(e). The Committee notes that the employer is, in principle, responsible for the training of workers. It also notes that the said employer is supported in this regard by the professional associations in their capacity as supporters of legal accident insurance within the context of their prevention duties in accordance with section 14 of the seventh volume of the German Social Welfare Code (SGB VII). However, the Committee notes that section 14 of the SGB VII contains no reference to training. Therefore, it appears to be no legal requirement to ensure that appliance operators are properly trained. The Committee would be grateful if the Government would clarify how legal effect is given to this provision of the Convention.

6. Article 17, paragraph 3. Pressure plants and equipment. The Committee refers to its previous comments in which it asked the Government to indicate the requirements to ensure that plants are examined and tested by competent persons. It notes that pressure plants and equipment are facilities requiring particular supervision in accordance with section 3 of the Industrial Safety and Health Ordinance “Special regulations for facilities requiring supervision” which have to be examined by a competent person or licence authorities. It also notes that, exceptionally, regulations on the examination of plants for work in compressed air are included in the Compressed Air Ordinance. The Committee notices that neither text cited by the Government appears to mention the competence required of the persons carrying out the examinations. The Committee would be grateful if the Government would take measures to ensure that the persons carrying out supervisions have the competence required for that task.

7. Article 30, paragraph 1. Provision of personal protective equipment. The Committee notes the Occupational Health and Safety Act (AsiG), in particular its section 3 according to which the employer shall take appropriate measures for the protection of the workers. The Committee notes that use of protective equipment is governed by the Use of Personal Protective Equipment Ordinance (PSA-Benutzungsverordnung), but that this text does not mention in what situations such gear must be provided for workers. The Committee requests the Government to provide more specific information on existing rules concerning the provision of suitable personal protective equipment and protective clothing, having regard to the type of work and risk.

8. Part VI of the report form. Application in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in the country and to attach extracts from the reports of the inspection services, information on the number of workers covered by the legislation, disaggregated by gender, if possible, the number and nature of the contraventions reported and the resulting action taken, and the number of occupational accidents and diseases reported.

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1. The Committee notes with appreciation the detailed information provided by the Government in its report, in particular, the significant changes in the Occupational Health Act (Arbeitssicherheitsgezetz) and the Occupational Safety Act (Arbeitsschutzgesetz). The Committee notes with satisfaction that in accordance with the information provided compliance is ensured with the following provisions of the Convention: Articles 2(g) (definition of scaffold); 5, paragraphs 1 and  2 (technical standards and standardized rules); 9 (taking into account safety and health concerns when designing and planning a construction project); 12, paragraph 2 (stopping operations); 13, paragraph 3 (protective measures); 16, paragraphs 1 and 2(a) (safe handling of vehicles and earth moving equipment); 18, paragraph 1 (work at heights); 20, paragraphs 1 to 3 (cofferdams and caissons); 24(a) and (b) (demolition work); 26, paragraphs 1 and 2 (handling of electricity); 27(a) and (b) (explosives); 31 (first aid) and 32, paragraph 3 (provision of sanitary facilities).

2. The Committee is raising certain other points in a request addressed directly to the Government.

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The Committee notes the information provided by the Government in its reports. It requests the Government to supply additional information on the following points.

1.  Article 2(g) and (h).  The Committee requests the Government to supply copies of the relevant provisions of DIN-standards 4420 (Parts 1-4), 4421 and 4422 (Parts 1 and 2) which concern the definition of "scaffold". The Committee observes that section 1 of VBG 9a does not define the term "lifting appliance". It would be grateful if the Government would indicate how this term is defined in national law in conformity with the Convention.

2.  Article 5, paragraphs 1 and 2.  The Committee requests the Government to supply a copy of the relevant texts of DIN-standards, accident prevention regulations and other rules of accident insurance funds (for example data sheets), which have been cited in the Government’s report and which are relevant to the application of the Convention. The Committee further requests the Government to indicate the relevant standards adopted by recognized international organizations in the field of standardization it has considered in giving effect to Article 4 of the Convention.

3.  Article 9.  The Committee notes the Government’s reference to the Länder construction ordinances and the indication that in 1995 a draft ordinance to implement EC Directive 92/57/EEC on construction sites was being prepared. The Committee requests the Government to send, as examples, copies of the Länder construction ordinances, as well as the Ordinance to implement EC Directive 92/57/EEC, if it has been adopted, in order to assess whether persons concerned with the design and planning of a construction project are bound to take into account the safety and health of construction workers. The Committee also requests the Government for clarification on whether VOB Part B is relevant in this context.

4.  Article 12, paragraph 2.  The Committee requests the Government to provide more specific information on the exceptional conditions which allow the employer to require workers to take up work again in case the danger persists, as foreseen in section 9(3) of the Occupational and Safety Act.

5.  Article 13, paragraph 3.  The Committee would be grateful if the Government would provide a copy of the specific provisions of the Länder construction ordinances or other regulations ensuring appropriate measures against possible dangers arising from construction sites to protect persons present at or near such sites.

6.  Article 14, paragraphs 1, 2 and 4.  The Committee would be grateful if the Government would indicate the specific provisions of the Länder construction ordinances and to provide copies of the relevant texts in addition to copies of DIN-standards 4420 (Parts 1, 2 and 3) and 4421. The Committee requests the Government to indicate the specific provisions stipulating that suitable and sound ladders are provided in the absence of alternative safe means of access to elevated working places. The Committee further asks the Government to provide copies of the texts of these provisions, including a copy of DIN EN131, Parts 1 and 2. The Committee requests the Government to indicate and provide copies of the provisions prescribing the cases in which, and the times at which, scaffolds must be inspected.

7.  Article 15, paragraphs 1(e) and 2.  The Committee would be grateful if the Government would indicate the measures adopted to provide for appropriate training for workers who operate lifting appliances and gear. Please also indicate the measures taken or envisaged to prohibit the use of lifting appliances for raising, lowering and carrying of persons unless the appliances are constructed for that specific purpose.

8.  Article 16, paragraphs 1, 2(a) and (b).  The Committee would be grateful if the Government would provide copies of the relevant provisions of VBG 40. The Committee requests the Government to indicate how safe and suitable access ways and appropriate organization and control of traffic on construction sites are guaranteed in line with the requirements of the Convention.

9.  Article 17, paragraphs 1(a) and (d), and 3.  The Committee requests the Government to provide copies of the texts of the provisions which ensure compliance with the requirements of the Convention concerning design, construction, maintenance and use of plant, machinery, equipment and hand tools as well as concerning the appropriate training of workers operating plant, machinery, equipment and hand tools. Please supply copies of the texts of the specific provisions on the Compressed Air Ordinance and the Pressurized Container Ordinance which ensure that pressure plant and equipment shall be examined and tested by a competent person according to the requirements of the Convention.

10.  Article 18, paragraph 1.  Please provide a copy of the provisions prescribing an order of priority in which prevention measures must be taken. Please provide information on how prevention in line with the Convention is ensured for workplaces which are excluded from the scope of section 12(1) of VBG37. In this context, the Committee would be grateful if the Government would provide a copy of the provisions governing prevention measures against falling in workplaces and traffic ways on roofs in case of a fall height of above three metres.

11.  Article 20, paragraphs 1(a) and (b), and 3.  The Committee requests the Government to provide a copy of the provisions in force that ensure the quality of the construction of cofferdams and caissons and that workers reach safety in the event of an inrush of water or material. Please also provide a copy of the provisions regulating the inspection of cofferdams and caissons in line with the Convention.

12.  Article 24(a) and (b).  The Committee would be grateful if the Government would supply a copy of the relevant provisions of the Model Construction Ordinance and DIN-standards 1045.

13.  Article 26, paragraphs 1 and 2.  The Committee requests the Government to provide more specific information on the provisions guarding against danger from electrical equipment, as required by the Convention, and to supply copies of the relevant technical rules and supplementary standards, such as DIN VDE 0 100 Part 704.

14.  Article 27(a) and (b).  The Committee would be grateful if the Government would provide a copy of VBG 46.

15.  Article 30, paragraph 3.  The Committee requests the Government to provide more specific information on the measures established by the competent authority for personal protective equipment and protective clothing and to supply copies of the relevant regulations of the eighth GSGV.

16.  Article 31.  The Committee would be grateful if the Government would supply copies of the relevant provisions of VBG 109.

17.  Article 32, paragraph 3.  The Government is requested to indicate how separate sanitary and washing facilities for men and women workers are ensured.