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

Ukraine

Radiation Protection Convention, 1960 (No. 115) (Ratification: 1968)
Occupational Cancer Convention, 1974 (No. 139) (Ratification: 2010)
Occupational Safety and Health Convention, 1981 (No. 155) (Ratification: 2012)
Safety and Health in Mines Convention, 1995 (No. 176) (Ratification: 2011)

Previous comment on Conventions Nos 115, 139, 155 and 176

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 115 (radiation protection), 139 (occupational cancer), 155 (OSH) and 176 (safety and health in mines) together.

The Committee notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU), received on 31 August 2023, concerning the application of Convention No. 155.

Application of Conventions Nos 115 and 155 in practice. Nuclear power plant workers. The Committee notes that the report presented to the Governing Body at its 349th Session, October–November 2023 (GB.349/INS/15) titled “Report on developments in the application of the resolution concerning the Russian Federation’s aggression against Ukraine from the perspective of the mandate of the International Labour Organization” noted persisting concerns about the safety of workers in the occupied Zaporizhzhya Nuclear Power Plant (ZNPP). The Report noted concerns with respect to the deteriorating working conditions and the safety of workers, which is mainly due to potential increased exposure to radiation and the potential risk of a nuclear accident, related to an unstable supply of electricity. The Committee further notes with concern the indications of the Director General of the International Atomic Energy Agency (IAEA), in the “Statement on Situation in Ukraine” (update 191), released on 27 October 2023, that nuclear safety and security remain potentially precarious in Ukraine at the ZNPP and certain other nuclear power plants. Concerning the conditions of the operating staff at the Chornobyl site, the IAEA Director-General further indicated, in update 193 of 13 November 2023, that the site’s conditions were taking a toll on the physical and mental health of the operating staff, and that the situation was not sustainable in the longer term. The Committee also notes the measures aimed at the safe and secure operation of nuclear facilities and activities involving radioactive sources outlined in the IAEA’s report “Nuclear Safety, Security and Safeguards in Ukraine“ of 14 September 2023. The Committee reiterates its concern and once again urges that all necessary measures be taken to protect the safety and health of nuclear power plant workers. In particular, it urges the strengthening of the implementation of Convention No. 115 to ensure the effective protection of workers against ionizing radiations in the course of their work.

A. General provisions

Occupational Safety and Health Convention, 1981 (No. 155)

Application of the Convention in practice and impact of the conflict on the safety and health of workers. The Committee notes with concern the statement of the KVPU that, since the beginning of the armed aggression of the Russian Federation until 26 January 2023, the State Labour Service (SLS) recorded 571 workers that were injured, of which 221 died, from injuries incurred during the performance of work duties that were the result of bombings, missile and artillery attacks, the mining of territories and premises, capture, and other illegal actions. In this respect, the Committee notes the Government’s indication that the cause of death in 46 per cent of the fatal work-related accidents in 2022 was determined to be related to the conflict and illegal actions by third parties. Noting the difficult situation in the country since 24 February 2022, the Committee requests the Government to continue to provide available information on the impact of the conflict on the safety and health of workers in the country.

Articles 4, 7 and 8. National OSH policy and legislative reforms. In response to its previous comments on the implementation of the Framework for the reform of the labour protection management system and Plan of Action approved by Decree No. 989, the Government refers to the development and review of various OSH regulations and indicates that it will be possible to develop drafts of relevant bylaws once the new OSH Draft Law is adopted. In this respect, the Committee notes that the new OSH Draft Law No. 10147 was presented to Parliament on 13 October 2023 and is currently under consideration. The Committee further notes that a new ILO project for the adoption of a new labour code to promote compliance with International Labour Standards (ILS) and other pending pieces of labour legislation on OSH has been undertaken.

The Committee takes note of the observations of KVPU that the OSH Draft Law, No. 10147 is not in conformity with Convention No. 155, and in particular, Articles 4, 5(e), 8, 10, 13 (protection for a worker that has removed themself from a dangerous work situation) and Article 19 (arrangements at the level of the undertaking relating to rights and duties of workers and their representatives, and cooperation). The KVPU indicates that the OSH Draft Law, No. 10147 will significantly narrow the content and scope of existing guarantees and rights of employees related to safe and healthy working conditions. The KVPU also states that trade unions did not approve the OSH Draft Law, No. 10147 which will remove the right to benefits and compensation for work in difficult and harmful working conditions, established under the current legislation, and that the Draft does not stipulate minimum funding for preventive measures. In addition, KVPU reiterates that the Draft Law on Labour is not in conformity with Convention No. 155, with respect to Articles 4 (consultation with the most representative organizations of employers and workers in the development, implementation and review of the national OSH policy), 5(e) (the protection of workers and their representatives from disciplinary measures), 8 (implementation of the national policy in consultation with the representative organizations of employers and workers concerned) and 10 (measures to provide guidance to employers and workers). The Committee, once again, requests the Government to provide its comments with respect to the observations of the KVPU. It also requests the Government to take all necessary measures to ensure that the new legislation on safety and health complies with the requirements of OSH Conventions. Recalling, once more, the importance of consultations with the representative organizations of employers and workers in the implementation of Convention No. 155, the Government is requested to provide information on the manner in which the views of organizations of employers and workers have been taken into consideration in the development of the Draft Law on Labour and the OSH Draft Law, No. 10147.

Article 5(e). Protection of workers and their representatives from disciplinary measures. Following the Committee’s previous comments on protection against disciplinary measures, the KVPU indicates that OSH Draft Law No. 10147 does not include the requirement of Article 5(e) on the protection of workers and their representatives from disciplinary measures as a result of actions properly taken by them. In this respect, the Committee notes that section 26(11) of the OSH Draft Law No. 10147 provides for protection from harassment or disciplinary measures, but only to employees and solely for reporting an accident, occupational disease or dangerous event. Noting the ongoing review of OSH Draft Law No. 10147, the Committee requests the Government to take the necessary measures to ensure that the new OSH legislation protects both workers and their representatives against disciplinary measures as a result of actions properly taken by them to secure their safety in conformity with the national OSH policy and in compliance with Article 5(e).

Article 11(c) of the Convention. Notification of occupational accidents and diseases. Following its previous comments with respect to the application of Decision No. 337 of the Cabinet of Ministers of Ukraine of 17 April 2019, the Committee notes changes introduced through several amendments, including, Resolution No. 1 of 5 January 2021, which provides for notification and investigation of occupational accidents and death of medical workers related to COVID-19 infection (section 141). Regarding the obligation of employers on recording and notification of accidents and occupational diseases, the Committee notes section 141(18) and (19) of the Resolution on Amendments to the Procedure for Investigation and Registration of Accidents, Occupational Diseases and Accidents at Work, dated 20 January 2023, No. 59, and measures envisaged under sections 6(2), (8) and 25(22) of the OSH Draft Law, No. 10147. The Committee requests the Government to take all necessary measures to ensure that full effect is given to the requirements of Article 11 (c) and to provide updated information on the progress made with respect to the review of the OSH Draft Law No. 10147 and on any other measures taken to ensure the notification of occupational accidents and diseases by employers.

B. Specific risks

Occupational Cancer Convention, 1974 (No. 139)

Articles 2, 3 and 4 of the Convention. Replacement of carcinogenic substances and agents, measures to be taken to protect workers, record keeping, and provision of information. The Committee welcomes the information provided by the Government in response to its previous request, including the adoption of regulations for the permissible content of chemical and biological substances in the air of the working environment approved by the Order of the Ministry of Health of Ukraine No. 1596, of 14 July 2020 and to the Order of the Ministry of Health of Ukraine, No. 1054, approving the Regulation “List of Substances, Products, Production Processes, Domestic and Natural Factors Carcinogenic to Humans” of June 2022. In this respect, the Committee notes that Order No. 1054 provides for the replacement and/or elimination of carcinogenic substances and agents (Part II, sections 1 and 2), measures to protect workers and monitoring (Part II, sections 3 to 5) and the right of workers to receive information on the dangers involved and the measures to be taken (Part II, sections 6 and 7). The Committee requests the Government to take all the necessary measures to ensure the application in practice of Order No. 1054 and to provide information on any progress made in this regard.

C. Specific branches of activity

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

Articles 5(1), (2)(e) and 16 of the Convention. Supervision of safety and health in mines, suspension of mining activities, corrective measures and enforcement. In response to Committee’s previous comments on the power of the competent authorities, the Government indicates that under section 39 of the Labour Protection Law No. 2694-12, 1992 (OSH Law), officials of the SLS are invested with the power to, among others, prohibit, suspend, terminate, restrict the operation of enterprises. However, the Committee notes with concern the Government’s indication that pursuant to section 5 of the Act No. 877-V of 2007 on Fundamental Principles of State Supervision and Monitoring of Economic Activity, scheduled state inspection is carried out, including in coal enterprises that are classified as high risk, only once every two years. In this respect, the Committee notes that pursuant to paragraph 1 of Resolution of the Cabinet of Ministers of Ukraine of 13 March 2022 No. 303 “On Termination of Measures of State Supervision (Control) and State Market Supervision in the Conditions of Martial Law”, scheduled and unscheduled state supervision (control) and state market supervision have been suspended for the period of martial law imposed by Decree of the President of Ukraine No. 64 dated 24.02.2022 “On the Introduction of Martial Law in Ukraine”, which has been extended until February 2024. The Committee further notes the statistics provided in the Government’s report regarding inspections conducted in two coal mining companies in October 2021, during which 1370 violations of regulations were identified, 56 officials were found administratively liable for fines, and a petition was filed with the administrative court to stop work due to violations. Referring to its comments adopted in 2023 under the Labour Inspection Convention, 1947 (No. 81), and the Inspection (Agriculture) Convention, 1969 (No. 129), the Committee requests the Government to take all the necessary measures to ensure the effective implementation of these provisions of the Convention and the provision of appropriate inspection services to supervise safety and health in mines. The Committee requests the Government to continue to provide updated statistics on violations detected during inspections, and the measures taken by inspectors in such cases, including the penalties imposed, the petitions filed for the suspension of work and the outcome of these petitions.

Articles 5(2)(c) and (d), 7 and 10(d). Measures to eliminate or minimize the risks to safety and health in mines. Procedures for investigating fatal and serious accidents and the compilation and publication of statistics. Appropriate remedial measures and measures taken to prevent future accidents by employers as a result of investigations. Further to its previous comments on the high rate of occupational accidents and diseases in the mining sector, as well as their underestimation, the Committee notes an absence of updated statistical information on the mining sector. The Committee once again requests the Government to provide information on measures taken or envisaged to ensure that full effect is given to Article 5(2)(c) on reporting and investigating fatal and serious accidents, dangerous occurrences and mine disasters, Article 5(2)(d) on the compilation and publication of statistics on accidents, occupational diseases and dangerous occurrences, Article 7 on measures taken to eliminate or minimize the risks to safety and health in mines and Article 10 on obligation of employers, in particular as regards investigation of accidents and remedial actions (Article 10(d)).

Article 5(2)(f). Rights of workers and their representatives to be consulted on and participate in OSH measures. Further to its previous comments on procedures to implement the rights of workers and their representatives to be consulted on and participate in OSH measures (Article 5(2)(f)), the Committee notes that section 25 (11 and 12) of the OSH Draft Law No. 10147 provides for consultation and involvement of employees and/or their representatives at the level of the undertaking, in particular with regard to decision-making related to safety and health at work. The Committee urges the Government to take the necessary measures to ensure the implementation of the rights of mine workers and their representatives to be consulted on OSH matters, and to participate in measures, relating to their safety and health at the workplace in accordance with the provisions of the Article 5(2)(f).

The Committee is raising other matters in a request addressed directly to the Government.