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

Benzene Convention, 1971 (No. 136) - Brazil (Ratification: 1993)

The Committee notes the Government’s report, received on 31 October 2008, with its reply to the comments made by the Workers’ Union of the Road Transport of Liquids and Gases, Oil Derivatives and Chemical Products of the State of Río Grande do Sul (SINDILIQUIDA/RS), with the attachments referred to in the Committee’s comments under the Occupational Safety and Health Convention, 1981 (No. 155).

The Committee notes that SINDILIQUIDA/RS’s allegations concern the application of the Convention more specifically in the petrochemical sector. These allegations relate to the application of the following Articles of the Convention:

–           Article 5 of the Convention. Effective protection of workers exposed to benzene in the petrochemical sector. SINDILIQUIDA/RS indicates that since 2003 and up to the present time, the enterprises Petrobras Distribuidora SA, Shell Brazil and Distribuidora de Produtos de Petróleo IPIRANGA S/A have not adopted appropriate measures to ensure the effective protection of workers exposed to benzene, despite the instructions of the Ministry of Labour and a conviction of Petrobras in the labour courts. It affirms that in the present case there is a deliberate intention not to comply with clear legal provisions and the orders of the labour delegation and the courts. SINDILIQUIDA/RS states that certain products handled by workers in the sector contain over 3 per cent of benzene and that the workers are exposed to serious risks, with particular reference to “driver-operators”, in view of the absence of prevention and protection measures in the sector. In general, these driver-operators are not employees of the enterprises concerned, as their services are engaged under different forms, and they perform the tasks of loading and unloading without protection or supervision of any type by the approved employees of these enterprises.

–           Article 6. Measures taken to prevent the escape of benzene vapour into the air of places of employment. SINDILIQUIDA/RS indicates that multinational enterprises in the sector do not take the technical measures for the implementation of the Article and adopt a confrontational attitude in relation to the labour inspectorate and the courts. According to the report of the labour inspectorate attached to the communication, Petrobras is not taking the measures required under this Article in relation to driver-operators, and Shell has reached the point of denying any responsibility in relation to these workers. The report adds that the Shell enterprise depends almost solely on appropriate human behaviour for the prevention of accidents in inflammable environments, in contradiction with international trends in this respect.

–           Article 8. Adequate means of personal protection against the risk of absorbing benzene through the skin and the risk of inhaling benzene vapour. SINDILIQUIDA/RS indicates that enterprises in the sector do not give effect to this Article and, according to the report of the labour inspectorate, driver-operators do not even use respiratory masks and, in certain enterprises, they do not even know what that means. SINDILIQUIDA/RS states that the administration has not adopted measures for the rapid imposition of penalties in such cases, and that the respective procedures can drag on indefinitely without any solution being found.

–           Article 9. Regular medical examinations and exemptions. According to the communication referred to above, medical examinations are not undertaken of workers exposed to benzene, particularly in the case of driver-operators. The union organization refers to the conclusions of the labour inspection report referred to previously.

–           Article 14(c). Labour inspection. SINDILIQUIDA/RS indicates that despite the existence of an appropriate inspection system to supervise the application of the provisions of the Convention, the notifications and orders that it issues, and the penalties imposed, have not resolved the major problems that arise, certain of which constitute serious and imminent risks to health. The trade union considers that the existence of supervision that is no more than “a legal fiction” amounts to a failure to give effect to Article 14(c).

The Committee notes that the reports of the labour delegation submitted by SINDILIQUIDA/RS confirm that enterprises in the sector do not give effect in practice to the legislation implementing the Convention. With regard to Petrobras, the report of the regional labour delegation indicates that no effect has been given to the requirement to formulate and implement the various prevention and monitoring programmes for occupational exposure to chemicals that are envisaged in the legislation, and that driver-operators do not use protective equipment, even though it is recognized that they are in contact with carcinogenic substances. The report of the labour delegation concludes that no effect has been given to the court ruling of 2003, and that the situation has deteriorated. The Committee considers that the conclusions of the report on Shell are a cause for even greater concern, as they indicate that the enterprise is persevering with their policy of excluding driver-operators from the process of the management and control of risks by transferring these responsibilities to third parties. The Committee further observes that, in its reply, the Government indicates that SINDILIQUIDA/RS represents workers who are engaged in the road transport of liquids or gases that are hazardous and inflammable, including benzene, and participates in the Benzene Commission of Río Grande do Sul. It refers to the various inspections carried out in areas where these workers operate, and principally in terminals of the petrochemical industry and refineries, which have resulted in various reports being drawn up indicating repeated violations. Some of these reports have been sent to the Office of the Public Prosecutor for Labour Matters and have provided the basis for public civil actions in the courts that are still ongoing. However, certain inspection activities carried out by the Ministry of Labour have been interrupted by court injunctions suspending them as a preliminary measure. The Government adds that, despite these circumstances, it has continued its efforts and it should be noted that all the supervisory measures taken have been intended to achieve compliance with the provisions of the Convention. The Government affirms that the labour inspectorate will continue to supervise the application of the Convention in the sector. The Committee observes that the Government does not deny the failure to give effect to the above Articles of the Convention in the present case. It also notes that the labour delegation of Río Grande do Sul appears to have followed the situation carefully. Violations have been reported, civil action taken against the enterprises and reports drawn up on the effect given to the recommendations made by the courts. The follow-up reports conclude however that none of the recommendations have been implemented and that the situation has deteriorated. The Committee therefore requests the Government to:

–           examine the causes of this situation and to undertake an assessment of the reasons why, in this case, its efforts have not resulted in an improvement in the situations described in practice;

–           work with the social partners to seek solutions with a view to drawing up proposals for action to find a way out of this impasse, which has occurred despite the efforts of the labour inspectorate;

–           take this situation into account when formulating the national policy envisaged by Convention No. 155, in consultation with the social partners;

–           make efforts to ensure that effect is given in practice to Articles 5, 6, 8 and 9 of the Convention in the present case and in all sectors engaged in activities resulting in the exposure of workers to benzene; and

–           provide detailed information on the measures adopted and the results obtained in practice. In particular, the Committee requests it to provide detailed information of developments in the situation in practice of driver‑operators in the Río Grande do Sul region.

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