Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Occupational Safety and Health Convention, 1981 (No. 155) - Türkiye (Ratification: 2005)

The Committee notes the joint observations of the International Organisation of Employers (IOE) and the Turkish Confederation of Employers’ Associations (TISK), received on 27 August 2015, as well as the Government’s reply thereto.

The Committee further notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2015, and of the observations made by TISK, the Confederation of Turkish Trade Unions (TÜRK İŞ), the Confederation of Turkish Real Trade Unions (HAK-İŞ) and the Confederation of Public Employees’ Trade Unions (KESK) communicated by the Government. Noting that the Government’s report contains no reply to these observations, the Committee requests the Government to provide its comments in this respect.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards, in June 2015 concerning the application of the Convention by Turkey. It takes note in particular of the conclusions of the Conference Committee in which it urged the Government to report to the Committee of Experts on the following points:

• -ensuring that the Occupational Safety and Health Act is in compliance with the Convention, in particular with respect to its coverage and in ensuring the right of workers to withdraw themselves from serious and imminent danger;
• -assessing the effectiveness of the measures undertaken in the context of the National Action Plan aimed at increasing workplace safety;
• -improving record-keeping and monitoring systems concerning health and safety, including occupational diseases;
• -increasing the number of labour inspections and ensuring that dissuasive sanctions are imposed for infractions of laws and regulations, in particular with respect to subcontractors;
• -refraining from interfering violently in lawful, peaceful and legitimate trade union activities addressing health and safety concerns;
• -engaging in genuine dialogue with all social partners.

Articles 1 and 2 of the Convention. Scope of application. Exclusions. In its previous comment, the Committee noted that pursuant to section 2 of the Occupational Safety and Health Act (OSH Act) No. 6331, the following categories of workers are excluded from its scope: armed and police forces; disaster and emergency units; domestic workers; self-employed workers; inmates. The Committee also noted that Regulation No. 28710 on safety and health measures to be taken at the workplace excludes from its scope the following branches of economic activity: transport used outside of the undertaking and means of transport used at the workplace for temporary or mobile construction; mining; oil and gas industries; fishing boats; and agricultural and forestry zones. It notes that, in their observations, the ITUC and KESK reiterate their concerns as regards the extent of exclusions provided by the OSH Act. Nevertheless, the Committee notes from the Government’s report, which is corroborated by the joint observations of the IOE and TISK, that following the entry into force of the OSH Act, 40 regulatory texts regarding OSH were issued, including Regulation No. 28770 on OSH in the mining sector; Regulation No. 28786 on OSH in construction work; and Regulation No. 28741 on work on board fishing vessels. Further to its previous comment, the Committee recalls again that the Convention applies to all branches of economic activity and to all categories of workers and that pursuant to Articles 1(3) and 2(3), member States are authorized to exclude particular branches of activity or limited categories of workers only in their first report. Recalling that in its conclusions, the Conference Committee requested the Government to ensure that the OSH Act is in compliance with the Convention, in particular with respect to its coverage, the Committee requests the Government to communicate copies of all the regulations concerning OSH applying to workers excluded totally or partially from the scope of the OSH Act but which are covered by the Convention and to indicate the manner in which the Government ensures that such workers benefit from the application of the provisions of the Convention.

Article 4. Formulation, implementation and periodical review of the national policy on OSH, in consultation with the most representative organizations of employers and workers. Article 7. Periodical review of the situation regarding OSH overall and in respect of particular areas. Article 8. Measures to be adopted, including legislation, in consultation with the representative organizations of employers and workers, to give effect to the national policy.

(a) Functioning of the National OSH Council. The Committee notes that, in their observations, all the employers’ and workers’ organizations point to serious shortcomings in the consultation process established for the formulation of the national OSH policy. They indicate that their viewpoints and proposals are largely ignored by the Government and that time frames allotted are too short to allow for a thorough review of issues and the elaboration of sound proposals. TÜRK-İŞ and HAK-İŞ also call for the strengthening of the Council’s functions and competencies to enhance its efficiency. In its report, the Government provides a brief overview of attendance records of the National OSH Council’s meetings in 2013 and 2014, pointing to the fact that a number of workers’ organizations did not attend one or several meetings, did not participate in the votes and did not submit proposals as requested by the Government. Furthermore, in its reply to the joint observations of the IOE and TISK, the Government indicates that with the implementation of the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), ratified on 16 January 2014, it is expected that social dialogue will improve. Noting that both the Government and the social partners concur in deploring the shortcomings of social dialogue within the National OSH Council and referring to the conclusions of the Conference Committee in which it requested the Government to engage in genuine dialogue with all social partners, the Committee urges the Government to take all the necessary steps to enhance and strengthen tripartite social dialogue on OSH at the national level, especially within the National OSH Council, and to report on progress achieved in this regard.

(b) Laws or regulations or any other method to give effect to Article 4. Consultations. In addition, the Committee notes that the IOE, TISK, the ITUC and KESK also allege that they are not sufficiently consulted and involved in the elaboration of laws and regulations giving effect to the national OSH policy. Referring again to the conclusions of the Conference Committee on this point, the Committee requests the Government to ensure the effective and genuine consultation of the representative organizations of employers and workers concerned on all amendments and modifications to OSH laws and regulations and to provide information in this respect.

(c) Measures in the National OSH Policy Document. Prevention of work-related accidents and injury to health. Review relating to specific areas: mining; metal and construction sectors; and subcontracting. The Committee notes from the Government’s report that the National OSH Policy Document 2014–18 and its Plan of Action have been adopted. In this regard, it takes note of the observations of the ITUC and KESK regarding the ineffectiveness of measures adopted within this framework; the failure to reach targets fixed; and the absence of follow-up of the previous plans, which allegedly were not fully implemented. Both organizations add that the new document and plan are merely a repetition of previous plans, setting out goals that are disconnected from the realities of the country. By way of example, the ITUC and KESK indicate that the new plan fixes again the same targets of reducing workplace accidents by 20 per cent and improving the identification of occupational diseases by 500 per cent by 2018.

The Committee recalls its previous comment in which it took note of the observations made by several workers’ organizations with regard to unhealthy and insecure working conditions in the mining, construction and metal sectors and it underlined the crucial importance of re-examining the national OSH policy in light of the review of the situation regarding OSH, especially in respect of these particular areas. In this regard, the Committee notes that Act No. 6645 on Amendments to the Occupational Safety and Health Act and other Acts and Decrees contains some provisions aimed at improving working conditions in the mining sector (for example, working hours reduced to 7.5 hours per day and 37.5 hours per week). It also notes that according to TISK, the National OSH Policy Document takes on board the statistics provided by the Social Security Institution (SGK) which show that: (i) the number of workplace accidents remains at a high level while the number of cases of occupational diseases identified is much lower than expected; and (ii) rates of work-related accidents and the incidence of occupational diseases are still highest in the mining, construction and metal sectors. The Committee further notes from the Government’s report that the 2014–18 National OSH Policy Document foresees the implementation of several activities designed to reduce workplace accidents in these sectors caused by fall (construction), tunnel collapse (mines) or other injuries (metal sector) and to assess the compliance of personal protective equipment.

With regard to the mining sector, the Committee notes that in its observations, KESK refers to the reports allegedly established by the State Supervisory Council and the Labour Inspection Board which would identify several technical causes of the Soma mine accident. According to KESK, no action has been taken to address these causes. The Committee also notes that HAK-İŞ, TÜRK-İŞ and KESK claim that no progress has been made towards improving the working conditions of mine, construction and metal workers, workers employed in subcontracting companies and workers in the informal economy. KESK therefore reiterates its call for the periodic review of the situation regarding OSH.

The Committee notes with regret that the Government’s report contains no further information on the content of the National OSH Policy Document or on measures taken to review the situation regarding OSH in the country, especially in high-risk sectors. The Committee recalls that information on accidents in mines, construction sites and metal industries and the analysis of their causes contribute to determining the real impact of the measures adopted and understanding whether everything was done that could reasonably have been expected to avoid or reduce as far as possible the causes of the hazards inherent in the working environment, in accordance with Article 4(2) of the Convention. It also refers to the conclusions of the Conference Committee in which it requested the Government to assess the effectiveness of the measures undertaken in the context of the National Action Plan aimed at increasing workplace safety. Against this background, the Committee again requests the Government to provide detailed information on steps taken, in consultation with the social partners, to assess the situation regarding OSH in the country, especially in high-risk sectors, with a view to identifying major problems, developing effective methods to address them, defining priorities of action and evaluating results. It also requests the Government to provide a copy of the reports drafted by the State Supervisory Council and the Labour Inspection Board to which KESK refers in its observations.

Moreover, the Committee requests the Government to provide a copy of the National OSH Policy Document 2014–18 and its Plan of Action, specifying the preventive and control measures taken or envisaged to: (i) address the causes of workplace accidents and occupational diseases, especially in the mining, construction and metal sectors; and (ii) extend protection to workers in subcontracting companies and workers in the informal economy, and to indicate the results obtained.

Articles 5(a) and (b), and 16. Workplace safety and health. The Committee recalls its previous comment in which it noted that under section 6 of the OSH Act, employers are required to recruit occupational physicians (OPs) and occupational safety experts (OSEs) in all undertakings to assist them in relation to OSH matters and that pursuant to section 8 of the Act, OSEs and OPs have a duty to inform the employer in writing of any shortcomings relating to OSH, failing which their certification may be suspended. In this context, the Committee emphasized that the appointment of OSEs and OPs cannot replace or limit the responsibility resting with employers to ensure that workplaces and the working environment are safe and without risk to health.

The Committee notes the Government’s indication that Act No. 6645 introduces new provisions into the OSH Act which specify the role and responsibilities of OSEs and OPs. According to the Government’s report, under these new provisions, OSEs and OPs are required to inform the employer of any deficiencies relating to OSH in the undertaking while the employer is responsible for taking measures, included closure where necessary, to address these deficiencies. Where the employer fails to do so, OSEs and OPs are required to notify the relevant unit of the Ministry, authorized union representatives and worker representatives. The Government also indicates that employers cannot terminate the employment contract of OSEs and OPs and cannot deprive them of any rights arising from the contract, on grounds of the notification they made. However, OSEs and OPs may face a three-month suspension of their certificate, where they fail in their duty to notify.

The Committee notes that while the IOE, TISK and HAK-İŞ consider these new provisions as positive developments, KESK alleges that these amendments introduce lower standards in that they provide for more flexibility in employee thresholds required to recruit OPs and OSEs and in the certification system established. KESK also criticizes the imposition of sanctions on OSEs and OPs for failure to notify and the low level of sanctions imposed on employers who would wrongfully terminate an OSE’s or an OP’s employment contract.

With reference to its previous comments under this Convention and the Occupational Health Services Convention, 1985 (No. 161), the Committee notes that the provisions introduced by Act No. 6645 leave unchanged the allocation of responsibilities between employers and OSEs and OPs in that liability for the assessment of working conditions and the working environment and the identification of potential risks is shifted onto OSEs and OPs and employers do not seem to be held liable for their inaction, as no penalties are provided. The Committee recalls once again that the designation of OSEs and OPs, or any other technical or professional bodies to assist the employer in relation to OSH matters, cannot replace or limit the responsibility resting with employers to ensure that workplaces and the working environment are safe and without risk to health, in accordance with Article 16 of the Convention. Therefore, the Committee again requests the Government to re-evaluate and redefine, in consultation with the social partners, the role and responsibilities of employers and the OSEs and OPs in ensuring safety in workplaces and the working environment, with a view to affirming the primary responsibility of employers in this respect. Referring to the observations made by KESK, the Committee also requests the Government to provide information on employee thresholds set for the recruitment of OSEs and OPs and on the certification system established.

Article 5(e). Protection of workers and their representatives. The Committee refers to the conclusions of the Conference Committee in which it requested the Government to refrain from interfering violently in lawful, peaceful and legitimate trade union activities addressing health and safety concerns. In this regard, the Committee wishes to draw the Government’s attention to paragraph 26 of its 2009 General Survey on occupational safety and health which indicates that “the basic principle that workers and their representatives should be protected from victimization pursuant to Article 5(e) is one of the main elements to be included in the national policy, and is indicative of the central importance attributed to this principle”. The Committee requests the Government to provide information on the measures taken to address the Conference Committee’s conclusions.

Article 9. Enforcement of laws and regulations by an adequate and appropriate system of inspection and adequate penalties. The Committee refers to the statement made by the Government representative during the discussion that took place at the Conference Committee according to which in 2014 there had been 5,087 programmed inspections and 5,042 non-programmed inspections. In the construction sector, the Labour Inspection Board had carried out a special inspection in 45 provinces with more than 300 inspectors in October 2014, during which 2,087 construction sites had been inspected and operations had been stopped in four out of five workplaces. With regard to the mining sector, the Government representative indicated that the Ministry’s labour inspectorate had conducted two programmed inspections every year at each of the mines, and non-programmed inspections were also carried out when complaints were received. During the first five months of 2015, 433 mine workplaces had been inspected and, in 82 cases, their operations had been stopped, while in 236 cases administrative fines had been levied. The Committee notes that in its conclusion, the Conference Committee requested the Government to increase the number of labour inspections and ensure that dissuasive sanctions are imposed for infractions of laws and regulations, in particular with respect to subcontractors. The Committee notes that in its report under this Convention, the Government provides no information on measures taken to give effect to these conclusions. However, the Committee welcomes the statistical information provided by the Government in its report under the Labour Inspection Convention, 1947 (No. 81), on inspection activities undertaken in 2014 with regard to subcontractors, including the relationship between main employer and subcontractors, the number of infractions detected and penalties imposed. The Committee requests the Government to give particulars of measures taken to address the conclusions of the Conference Committee, including detailed statistical information on labour inspection activities undertaken, disaggregated by sector (including the mining and construction sectors) that specify corrective measures or sanctions issued as a result of inspection activities, and also monitoring activities undertaken with respect to subcontractors and sanctions imposed.

Furthermore, the Committee notes from the Government’s report that the labour inspection staff comprises 62 mines inspectors, five inspectors specialized in geology and 481 inspectors specialized in other sectors. It also notes that while the IOE and TISK consider that the number of labour inspectors was increased significantly, observations received from workers’ organizations all call for an increase in the number of labour inspectors in the country. The Committee requests the Government to provide its comments in this respect.

Article 11(c). Establishment and application of procedures for the notification of occupational accidents and diseases, and production of annual statistics on occupational accidents and diseases. In its previous comment, the Committee noted that the Government was faced with serious issues concerning: (i) underreporting of workplace accidents, due, among other factors, to subcontracting practices; and (ii) the definition of occupational diseases, their registration and notification. The Committee notes that workers’ organizations reiterate their concerns in this respect, indicating that: (i) the incidence of workplace accidents is still very high, especially in the mining sector; (ii) the system of detection and registration of occupational diseases is still failing; and (iii) no progress has been registered in this regard. The Committee notes that in its observations, the ITUC refers to the statistics provided by the SGK which show that in 2013, 191,389 work-related accidents and 371 cases of occupational diseases were notified and a total of 1,360 fatalities were registered. All workers’ organizations call for measures to improve the collection and consolidation of statistical data on occupational diseases and to strengthen procedures established for the notification of work-related accidents and occupational diseases.

In this regard, the Committee notes that in its report, the Government refers to the 2014–18 National OSH Policy Document which sets out the following objectives: improving statistics and the registration system on workplace accidents and occupational diseases and collecting preliminary diagnosis through the identification of occupational diseases. The document also envisages a series of measures to be implemented, including the production of statistics on work-related accidents and occupational diseases in line with international standards; the identification of the most common occupational diseases in the country; the electronic notification of data related to occupational diseases to hospitals accredited to diagnose occupational diseases and the increase of the number of these hospitals from three to 129; the inclusion of public sector employees in the national statistics; the verification of the rate of workplace accidents and incidence of occupational diseases by comparison with the number of notifications registered by the Ministry.

Referring to the conclusions of the Conference Committee on this point, the Committee requests the Government to provide detailed information on actions taken to implement the abovementioned measures, with a view to improving procedures for the monitoring, notification and registration of occupational accidents and diseases and the production of consolidated annual statistics on occupational accidents, and to provide information on results achieved. Noting that the Government’s report contains no information concerning specific actions taken with regard to subcontracting, the Committee also requests the Government to indicate any measures taken to address underreporting of work-related accidents and occupational diseases in subcontracting situations.

Articles 13 and 19(f). Serious and imminent danger. The Committee recalls its previous comment in which it noted that section 13(1) and (3) of the OSH Act is not fully in line with the Convention, as: (i) section 13(1) provides that workers exposed to serious and imminent danger are required to file an application with the OSH committee, or in its absence with the employer, to request that the hazard be identified and emergency measures be adopted; and (ii) section 13(3) provides that workers are entitled to leave their work situation or dangerous area without following the notification procedure in the event of serious, imminent and unavoidable danger. With regard to section 13(1) of the OSH Act, the Committee notes that the Government reiterates the procedure to be followed by a worker exposed to serious and imminent danger. As regards section 13(3) of the OSH Act, the Government indicates that the term “unavoidable” must be interpreted in the sense that serious and imminent danger cannot be avoided by the worker despite his/her knowledge and experience.

The Committee notes that while the Government’s explanation appears to better reflect the terminology of the Convention, the wording of section 13 may nevertheless leave room for other interpretations. It emphasizes once again that the conditions set by section 13 of the OSH Act constitute a restriction to the right of workers to withdraw from imminent and serious danger to their life or health, as construed by Articles 13 and 19(f) of the Convention. It recalls that these Articles of the Convention do not envisage the notification to a committee or the employer as a precondition to removal. Moreover, the protection of Article 13 of the Convention is granted wherever the worker has reasonable justification to believe that the work situation presents an imminent and serious danger to his or her life or health, without requiring him or her to assess whether or not the danger is avoidable. Recalling that in its conclusions, the Conference Committee requested the Government to ensure that the OSH Act is in compliance with the Convention, in particular in ensuring the right of workers to withdraw themselves from serious and imminent danger, the Committee urges the Government to take immediate steps to modify its legislation in order to give full effect to Articles 13 and 19(f) of the Convention and to provide information on progress achieved in this respect.

Article 17. Collaboration between two or more undertakings engaged in activities simultaneously at one workplace. In its previous comment, the Committee noted that section 22(2) of the OSH Act provides for the establishment of a joint safety and health committee (OSH committee) to ensure cooperation and collaboration between the main employer and the subcontractor wherever the duration of the outsourcing contract exceeds six months. The Committee requested the Government to take measures to ensure that the collaboration prescribed by Article 17 of the Convention is not subject to any period of time.

The Committee notes that the Government, in its report, and the IOE and TISK, in their joint observations, refer to section 23 of the OSH Act which sets out a duty to cooperate for employers engaged in activities simultaneously at one workplace. The IOE and TISK also refer to section 22(3) of the OSH Act. However, the Committee notes that section 22(2) of the OSH Act precludes the application of sections 22(3) and 23 in the first six months of the subcontracting relationship. Therefore, it reiterates that under Article 17 of the Convention, collaboration prescribed is not subject to any period of time. Moreover, the Committee notes the observations of the ITUC according to which the number of workers employed in subcontracting companies rose from 387,000 in 2002 to 1.48 million in 2015. In light of the foregoing, the Committee again requests the Government to take the necessary measures to ensure that when two or more employers, one of them being a subcontracting company, are engaged simultaneously in activities in one workplace, the prescribed collaboration is not subject to any period of time and to provide information in this regard, including information on the application in practice.

Recent developments and technical assistance. The Committee welcomes the ratification by the Government of Convention No. 187, on 16 January 2014 and of the Safety and Health in Mines Convention, 1995 (No. 176), and the Safety and Health in Construction Convention, 1988 (No. 167) on 23 March 2015.

Furthermore, the Committee recalls its previous comment in which it noted that the Office is currently providing technical assistance to the Government on OSH issues and that in 2014, the Government, Worker and Employer representatives and other relevant stakeholders had agreed on a roadmap on how to improve OSH conditions in the country, special attention being paid to mines and the issue of subcontracting. Measures included carrying out further research on OSH on the context and extent of subcontracting arrangements in certain high-risk sectors in Turkey. In this context, the Committee notes that a report on contractual arrangements in Turkey’s coalmines and their impact on OSH was commissioned from the Economic Policy Research Foundation of Turkey (TEPAV) as part of a technical assistance project of the ILO and that its publication is planned for December 2015.

However, the Committee notes that the Government’s report contains no further information on progress achieved in implementing the 2014 roadmap. Therefore, the Committee requests the Government to provide detailed information on steps taken to implement the elements of the roadmap concerning the improvement of OSH, and on results obtained. The Committee also encourages the Government to pursue its efforts, with the technical assistance of the ILO, to overcome the issues identified in OSH in a comprehensive and sustained way and to give particulars on actions taken in this context.

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

[The Government is asked to reply in detail to the present comments in 2016.]