Radiation Protection Convention, 1960 (No. 115) - Germany (Ratification: 1973)

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

General observation of 2015. The Committee would like to draw the Government’s attention to its general observation of 2015 under this Convention, and in particular to the request for information contained in paragraph 30 thereof.

Article 3(1) of the Convention. All appropriate steps to ensure the effective protection of workers, in the light of available knowledge. The Committee notes the Government’s statement in its report that, to implement the new Council Directive 2013/59/EURATOM, it is developing a new Radiation Protection Act that will fundamentally restructure regulation of this field. The Committee encourages the Government, in the process of developing a new Radiation Protection Act, to take into consideration the indications contained in the general observation of 2015. It requests the Government to provide a copy of the new Act, once adopted.

Article 14. Discontinuation of assignment to work involving exposure to ionizing radiation pursuant to medical advice and alternative employment. The Committee previously noted the Government’s indication that section 241(2) of the German Civil Code (a general provision referring to duties arising out of an obligation, including respect for rights and legal interests) may oblige an employer to propose alternative employment in the enterprise to an employee who, because of exposure to radiation, can no longer perform a particular type of duty. In this regard, the Committee notes the Government’s statement that section 241(2) covers situations before an illness has been declared, but after it has been determined that it is medically inadvisable for workers to remain in the workplace. The Government indicates that if a worker discontinues work because there is a risk, due to radiation exposure, that by continuing their work they would suffer a radiation-induced disease, the worker may be entitled to transitional financial benefits from the statutory accident insurance fund. The Committee requests the Government to provide information on the application in practice of section 241(2) of the Civil Code to workers for whom it is medically inadvisable to continue work involving occupational exposure to ionizing radiations.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 14 of the Convention. Alternative employment or other measures offered for maintaining income where continued assignment to work involving exposure is medically inadvisable. The Committee notes the references made to section 241, paragraph 2, of the German Civil Code, providing that the employer has to respect the rights and legally protected interests of the employee, and may therefore be obliged to propose alternative employment in the enterprise to an employee who, because of exposure to radiation, can no longer perform a particular type of duty. The Committee also notes that a right to continued employment is not included in the Radiation Protection and X-ray Ordinance. If there is not a suitable position available to which the worker can be reassiged, the employer may dismiss a worker subjected to exposure, taking due account of the legal notice periods. Entitlements to social insurance benefits will be determined according to the social insurance scheme as set out under the Social Code Book. The Committee notes that these entitlements seem predicated, inter alia, on the determination of a reduction of the earning capacity. The Committee also notes the information that if the incapacity is due to a work-related accident or an occupational illness, statutory accident insurance benefits also apply as a matter of principle. The Committee further notes that the Maternity Protection Act imposes general employment restrictions applicable to all pregnant and breastfeeding women regardless of their personal health status or physical condition and that women who, on the basis of the Maternity Protection Act must stop working, either partially or completely, are entitled to continued payment of their usual average wages. With reference to the foregoing and its previous comments, the Committee would, however, again like to draw the Government’s attention to the fact that as noted in paragraph 32 of the 1992 general observation under the Convention also relates to situations before any occupational disease has been declared, but after a determination that continued assignment to work involving exposure to ionizing radiations has been found to be medically inadvisable. In these cases, as paragraph 32 indicates every effort must be made to provide the workers concerned with suitable alternative employment, or to maintain their income through social security measures or otherwise. The Committee requests the Government to clarify whether the referenced statutory provisions regarding alternative employment and the right to social insurance benefits also cover situations before an illness has been declared, but after it has been determined that it is medically inadvisable for workers to continue their work due to exposure to ionizing radiation.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 14 of the Convention. Alternative employment or other measures offered for maintaining income where continued assignment to work involving exposure is medically inadvisable. Further to its observation on this Convention, the Committee notes the information contained in the Government’s report regarding Article 14 of the Convention. The Committee notes that, in reply to its previous comments on the application of this Article, the Government has indicated that, following an examination of the collective agreements register, no collective agreements were found, including provisions requiring the employer to provide alternative employment for workers who cannot continue to be employed in radiation work on medical grounds, but that the right to such alternative employment may be provided for in an individual work contract. It also notes the Government’s statement that, while neither the Radiation Protection Ordinance nor the X-Ray Ordinance at present require the employer to provide alternative employment for workers who cannot continue to be employed in radiation work on medical grounds, there are no obstacles under general labour law to regulate this issue therein. The Committee further notes that the Government emphasizes that the principle of prevention is given prime importance in the Occupational Safety and Health Act of 7 August 1996 and that, based on the principle of proportionality, the employer has the duty first to take all relevant occupational safety and health measures on a technical and organizational level and that only subsidiary thereto can an individual employment ban be justified. With regard to the effect of such an employment ban, the Committee wishes to recall its general observation of 1992 under the Convention in which it was pointed out, in paragraph 32, that every effort must be made to provide the workers concerned with suitable alternative employment or maintain their income through social security measures or otherwise, where continued assignment to work involving exposure is found to be medically inadvisable. In the light of the above indications, the Committee requests the Government to provide additional information on the application of this Article in practice including on efforts made to provide workers subject to an employment ban pursuant to this Article with suitable alternative employment or to offer them other means to maintain their income as indicated in the general observation of 1992 under this Convention.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s most recent report and notes with satisfaction that, according to the information submitted in reply to its previous comments regarding Article 13, Occupational exposure during an emergency, the Government has applied effectively, in law and in practice, this Article of the Convention.

The Committee is addressing a request directly to the Government on another point.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report. Further to its observation, the Committee would draw the Government’s attention to the following points.

1. Article 13. Occupational exposure during an emergency. The Committee notes that the provisions of the Radiation Protection Ordinance 2001, as well as the X Ray Ordinance 2001, prescribe various measures to be taken and procedures to be followed in emergency situations. However, none of the Ordinances contains a provision establishing criteria for defining the circumstances in which a relaxation of the normal exposure limits established may be tolerated. The Committee therefore would request the Government to specify the circumstances in which exceptional exposure of workers may be authorized. In this regard, it would draw the Government’s attention to the matters raised in item 35(c)(iii) of the conclusions to the Committee’s 1992 general observation under the Convention according to which a strict definition of circumstances in which exceptional exposure of workers, exceeding the normally tolerated dose limit, is to be allowed for immediate and urgent remedial work; that work must be strictly limited in scope and duration to what is required to meet an acute danger to life and health; exceptional exposure of workers is neither justified for the purpose of rescuing items of high material value, nor, more generally, because alternative techniques of intervention, which do not involve such exposure of workers, would involve excessive expense.

2. Article 14. Alternative employment. The Committee notes that pursuant to section 63, subsection 3, of the Radiation Protection Ordinance, as amended on 20 July 2001, and section 40, subsection 2, of the X-Ray Ordinance, as amended on 1 August 2001, no worker may be employed or may continue to be employed in radiation work contrary to medical advice. In this case, the competent authority orders that radiation work is to be discontinued or may only be performed under certain conditions to be determined. The Committee, however, observes that none of the above Ordinances provides for alternative employment to be offered to workers which are forced to give up their established occupation on legitimate health grounds. In this regard, the Committee recalls that the Government had indicated in its previous report covering the period from 1990 to 1994 that employment contracts or collective agreements may contain provisions relating to the continuity of employment or to the training opportunities designed to enable workers to be reclassified. Moreover, the Government had indicated that the issue of alternative employment would be dealt with as a part of the review of the Framework Act on Labour Protection. The Committee accordingly requests the Government to indicate, in its next report, any collective agreements including provisions for work with ionizing radiations under which the employer is required to provide alternative employment which does not involve exposure to ionizing radiations for workers who have accumulated an effective dose beyond which detriment considered unacceptable may occur, and to transmit copies of such collective agreements. It further requests the Government to provide information on the progress made in the review of the Framework Act on Labour Protection. The Committee would finally draw the Government’s attention to paragraph 32 of its 1992 general observation under the Convention where it is indicated that every effort must be made to provide workers concerned with suitable alternative employment, or to maintain their income through social security measures or otherwise where continued assignment to work involving exposure to ionizing radiations is found to be medically inadvisable. The Committee requests the Government to provide information in this regard.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

With reference to its previous comments, the Committee notes with satisfaction the revision of the Atomic Law, the Ordinance on Radiation Protection and the X-Ray Ordinance, which incorporate into national law the dose limits recommended in 1990 by the International Commission on Radiological Protection (ICRP) and thus applying Article 3, paragraph 1, and Article 6, paragraph 1, of the Convention.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided by the Government in its last report covering the period from 1990 to 1994.

1. In its previous direct request, the Committee drew the Government's attention to the new dose limits for exposure adopted, in 1990, by the International Commission on Radiological Protection (ICRP), on the basis of new physiological findings. The Committee notes that in its last report the Government indicates that in the light of the recommendations made by the ICRP in 1990, a review of the whole of the Radiation Protection Ordinance is envisaged. In addition, the Government specifies that the dose limits recommended by the ICRP will be incorporated into national law once the European directive designed to harmonize the measures relating to radiation protection has been adopted. Recalling once again that Article 3, paragraph 1, and Article 6, paragraph 2, of the Convention refer to "knowledge available at the time" and "current knowledge", the Committee hopes that the Government will soon be able to provide details of the adoption of new dose limits, in accordance with the recommendations adopted in 1990 by the ICRP and reiterated in 1994 in the International Basic Safety Standards jointly sponsored by the IAEA, WHO, ILO and three other international organizations. The Committee requests the Government to specify the new dose limits applicable, on the one hand to workers directly engaged in radiation work, on the other hand to pregnant women workers, and finally to the workers covered in Article 8 who, without being directly engaged in radiation work, are likely to be exposed to radiation. The Government is also requested to provide a copy of the text of the revised Radiation Protection Ordinance as soon as it has been adopted.

2. The Committee notes the information provided by the Government on the measures relating to emergency situations. It asks the Government to provide additional information on the circumstances in which the exceptional exposure of workers may be authorized and on the measures designed to make protection against accidents and during emergency operations as effective as possible, in particular with regard to the design and protective features of the workplace and equipment, and the development of techniques whose use, during emergency interventions, would enable the exposure of persons to ionizing radiation to be avoided.

3. The Committee notes that in reply to its previous direct request, the Government indicates that neither the X-Ray Protection Ordinance of 1988 nor the Radiation Protection Ordinance of 1989 provides for the possibility of offering alternative employment to workers who have absorbed an effective dose of over 400 mSv or who, for medical reasons, have been advised not to continue to engage in employment likely to involve exposure to radiation. Employment contracts or collective agreements may contain provisions relating to the continuity of employment or to the training opportunities designed to enable workers to be reclassified. In addition, the Government specifies that the issue of the continuity of workers' employment, the pursuit of the activities of which would lead to a violation of the provisions relating to labour protection, does not concern only the area of radiation protection but constitutes a general problem of labour law, the solution to which largely depends on the circumstances specific to each enterprise and which, consequently, cannot be resolved by legislative means in a general uniform manner. In this regard, the Committee notes the information provided by the Government to the effect that the issue of alternative employment will be dealt with as part of the review of the Framework Act on Labour Protection. The Committee requests the Government to furnish information on the progress made in the review and to provide copies of any texts adopted in this regard.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

I. The Committee notes the information provided in the Government's latest report and the directives provided in reply to its previous direct request. It further notes the adoption of the Ordinance concerning protection from injury by X-rays of 8 January 1988 and the Ordinance on the Protection against Damages and Injuries Caused by Ionizing Radiation (Radiation Protection Ordinance) promulgated on 30 June 1989 and corrected on 16 October 1989.

II. The Committee would refer the Government to its general observation of 1992 under this Convention which sets forth the latest recommendations made by the International Commission on Radiological Protection (ICRP) concerning exposure to ionizing radiations (Publication No. 60 of 1990) and requests the Government to provide further information on the following points.

1. Article 3, paragraph 1 and Article 6, paragraph 2

(a) The Committee notes that section 49 of the Radiation Protection Ordinance sets forth dose limits for occupationally exposed persons equivalent to the recommendations made by the International Commission on Radiological Protection (ICRP) in 1977 (i.e. 50 mSv per year for occupationally exposed persons in category A). Paragraph 11 of the general observation under this Convention for 1992 sets forth the latest ICRP dose limits for occupational exposure to ionizing radiation. The ICRP now recommends a limit on the effective dose of 20 mSv per year, averaged over five years (100 mSv in five years), but not to exceed 50 mSv in any single year. The Government is requested to indicate in its next report the steps taken or envisaged to amend the dose limits for occupational exposure to ionizing radiation in the light of the current knowledge as reflected in the 1990 ICRP Recommendations.

(b) The Committee would refer the Government to paragraph 13 of the general observation concerning dose limits for pregnant women. It notes that section 56(1) of the Radiation Protection Ordinance provides that steps shall be taken to assure that pregnant women do not stay in restricted access areas (i.e. areas where the effective dose received of ionizing radiations may exceed 15 mSv). Furthermore, section 49(3) provides that the body dose accumulated at the uterus over one month for women of childbearing age shall not exceed 5 mSv. In its latest recommendations, the ICRP has concluded that women who may be pregnant should be provided with a standard of protection for any unborn child broadly comparable with that provided for members of the general public (i.e. effective dose not to exceed 1 mSv per year) and that the equivalent dose limit to the surface of the woman's abdomen should not exceed 2 mSv for the remainder of the pregnancy. The Government is requested to indicate the steps taken or envisaged to ensure effective protection of pregnant women in the light of the current knowledge as reflected in the latest ICRP recommendations.

2. Article 8. The Committee would refer the Government to paragraph 14 of the general observation which indicates that the dose limits for non-radiation workers should be equivalent to those set for members of the general public (1 mSv per year averaged over any five consecutive years). The Committee notes that section 51 of the Radiation Protection Ordinance provides that the effective dose for persons who are not occupationally exposed shall not exceed 5 mSv per year. The Goverment is requested to indicate, in its next report, the steps taken or envisaged to revise the effective dose limit for non-radiation workers in the light of current knowledge.

III. The Committee would refer the Government to paragraphs 28 to 34 of its general observation for 1992 concerning the provision of alternative employment. It notes that section 49 of the Radiation Protection Ordinance provides that the sum of the effective doses of occupationally exposed persons determined in all calendar years shall not exceed 400 mSv. Furthermore, section 67(2) provides that an occupationally exposed person may continue to be employed in work involving exposure to ionizing radiations only if an authorised physician has indicated that there are no medical objections to such person's continued employment. The Government is requested to indicate whether there are any provisions in law or practice to ensure the provision of alternative employment opportunities not involving exposure to ionizing radiations for workers who have accumulated an effective dose greater than 400 mSv or for whom it is medically inadvisable, due to previous exposure, to continue in work involving exposure to ionizing radiations.

IV. Finally, the Government is referred to paragraphs 3 to 7 and 16 to 27 of the 1992 general observation and requested to indicate the steps taken or under consideration in relation to the optimization of protection and the protection against accidents and emergencies raised under paragraph 35(a) and paragraph 35(c) of the conclusions.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

The Committee notes the information contained in the Government's last report, particularly the list of directives concerning radiation protection which have recently been published. The Committee requests the Government to supply copies of these directives.

The Committee would also be grateful if the Government would supply a copy of the amendment to the X-ray Order which was mentioned in the report, upon its adoption.