Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 136) sur le benzène, 1971 - Brésil (Ratification: 1993)

Rio Grande Do Sul Petrochemical Sector. Article 5 of the Convention. Effective protection of workers exposed to benzene. Article 6. Measures to prevent the escape of benzene vapour into the air of places of employment. Article 8. Adequate means of personal protection against the risk of absorbing benzene through the skin and of inhaling benzene vapour. Article 9. Periodical medical examinations and exceptions. Article 14(c). Labour inspection. In its previous comments, the Committee took note of a communication from the Union of Workers in the Road Transport of Liquids and Gases, Oil Derivatives and Chemical Products of the State of Rio Grande Do Sul (SINDILIQUIDA/RS) and of the Government’s report. It noted that the communication alleged breach of the abovementioned provisions in the petrochemical sector, particularly by Petrobras Distribuidora SA, Shell Brazil and Distribuidora de Produtos de Petróleo Ipiranga SA, with special reference to “driver-operators”. The trade union said that some products handled by workers in the sector contain more than 3 per cent of benzene and that the workers are exposed to serious risks, particularly “driver-operators” in view of the absence of prevention and protection measures. The driver-operators are not as a rule employees of the enterprises concerned since their legal status as employees varies and they perform the tasks of loading and unloading without protection and without any supervision by the appointed employees in the enterprises. The union also asserted that since 2003 these enterprises have not adopted the necessary technical measures to give effect to this Article of the Convention despite instructions from the labour inspectorate and convictions in the courts. Lastly, the organization asserts that the fact that inspection exists but produces no improvement amounts to a “legal fiction” and an instance of failure to apply Article 14(c) of the Convention.

Government’s report. Labour inspection. The Committee notes that, at the Government’s request, in September 2011 the Office again sent the Government the documents appended to the SINDILIQUIDA/RS communication, including reports by the Regional Labour Delegation of Rio Grande Do Sul, that the union had sent as an attachment to the communication and which the Office forwarded to the Government on 8 November 2007. The Committee also notes that the Government emphatically refutes the union’s assertion that there is supervision by the labour inspectorate but that it is a “legal fiction”, and denies that matters may be at a standstill. The Government states that the labour inspectorate of Brazil is respected worldwide and that when an enterprise breaks the law, the democratic system can resort to instruments such as administrative and judicial sanctions, to be applied in observance of due process, and if the system proves inadequate, the solution is to get parliament to pass stricter laws. The Committee invites the Government to send its comments on the reports of the Regional Labour Delegation attached to the SINDILIQUIDA/RS communication.

Labour inspectorate’s work relating to the issues raised in the communication. The Committee notes with interest the information sent by the Government on the labour inspectorate’s work relating to the enterprises and issues referred to in the communication. The Government indicates that Petrobras, Shell Brazil and Ipiranga were inspected regularly in 2009 in connection with the regulatory standards on occupational safety and health (OSH), as well as on general issues, individual protective equipment, and programmes on environmental risk prevention and health conditions and amenities at the workplace. The Government reports on infringements that were remedied and others that were reported after it was found that the enterprise failed to apply adequate risk-prevention measures; failed to develop adequate planning measures; failed to specify strategies and methodologies and overlooked the views of the workers; disregarded the need for joint measures where two or more employers carry on activities simultaneously in the same workplace; and failed to ascertain the absence of any risks and to carry out proper supervision. The Committee also notes that, according to the Government, two Petrobras units were inspected: Petrobras Transporte SA – TRANSPETRO and Petrobras Distribuidora in Canoas, Rio Grande do Sul. TRANSPETRO was inspected in connection with regulatory standards on general aspects of OSH, individual protective equipment, medical occupational health supervision programmes, environmental risk prevention programmes, unhealthy activities, and operations. These inspections also involved the State Benzene Committee (CNBz). The Government also indicates that in March 2009, Petrobras Distribuidora was inspected and deficiencies that had been found were put to right. The Committee requests the Government to continue to provide information on the impact of the work done by the labour inspectorate on the issues raised in the communication, including on other enterprises mentioned in the communication, such as Shell.

Court cases. The Committee notes the information sent by the Government on judicial proceedings under way as a result of reports of infringements submitted by the labour inspectorate. As regards compliance with Decision No. 00075-2003-024-04-00-0 of the District Labour Court No. 24 of Puerto Alegre, referred to by the union in its communication, the Committee notes that a hearing of 22 August 2008 dealt with the execution of the decision, and that SINDILIQUIDA/RS concedes that the enterprise (Petrobras Distribuidora) is complying as regards the issues mentioned. An extract of the hearing record, provided by the Government, states that the drivers of the service providers are no longer carrying on activities outside the scope of their occupation as lorry drivers, having concluded a contract the latter capacity with the company Servale. The enterprise also submitted programmes for risk-prevention in the workplace which recommend the use of respirators for workers responsible for unloading lorries. The Government also reports a court case against Shell Brazil in Esteio, Rio Grande do Sul where a prohibition was sought on safety grounds; a case against Ipiranga in which the Public Prosecutor for Labour, assisted by SINDILIQUIDA/RS, applied to have the lorry drivers barred from the tasks of loading and unloading regardless of whether they were employees of the enterprise, or of subcontractors or self-employed. The case is still pending. Referring to the latter case, the Government indicates that the judges deemed the issue of driver-operators to be a “highly controversial” one. The Committee asks the Government to continue to provide information on developments in these cases and to indicate why the courts deem the driver operator issue to be “highly controversial”, insofar as the matter relates to the application of the Convention or any other ratified Convention on occupational safety and health.

Part IV of the report form. Application in practice. The Committee requests the Government to send its comments on the effect given to the Convention by enterprises in the petrochemical sector, including in the Rio Grande Do Sul region. Please provide information on the manner in which the Articles of the Convention cited at the beginning of this comment apply to persons engaged in the loading and unloading of fuels, whether they are employed directly by enterprises in the sector or by subcontractors, as in the case of the enterprise Servale referred to by the Government in its report on the Occupational Cancer Convention, 1974 (No. 139). The Committee also asks the Government to state whether it envisages the possibility of examining, together with the social partners and in the course of the reviews provided for in Article 7 of the Occupational Safety and Health Convention, 1981 (No. 155), how application of the Convention is faring in the petrochemical sector.

Programmes for the prevention of occupational exposure to benzene (PPEOB). In its previous comments, the Committee asked the Government to provide copies of a few PPEOB together with information on the manner in which they are applied in practice, including in the enterprises mentioned in the communication. The Committee notes that in its report, the Government indicates that the labour inspectorate is responsible for supervising implementation of such programmes and that information on such programmes may not be forwarded for examination by third parties because copies may not be provided to any institutions, except in the case of court rulings. The Committee requests the Government to provide information allowing it to ascertain whether the programmes are effectively applied in the petrochemical industry, including in the enterprises mentioned in the communication.

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