Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Guarding of Machinery Convention, 1963 (No. 119) - Algeria (Ratification: 1969)

1. The Committee notes the brief information contained in the Government’s report in reply to its comments. It notes in particular the information that a draft executive decree has been initiated and submitted for interministerial consultation. The Government states that this draft is the preliminary stage in accordance with the established procedures and that it reflects all the relevant provisions of the Convention and the Recommendation. The Committee hopes that the draft executive decree mentioned above will be adopted in the near future and that it enters into force without delay to give effect to the provisions of the Convention. In the absence of more detailed information, the Committee is bound to recall the following points:

1. Article 2, paragraphs 3 and 4, of the Convention. The Committee recalls that section 8 of Act 88-07 of 26 January 1988 which prohibits the manufacture, exhibition, putting up for sale, sale, import, hire or transfer in any other manner of machinery or parts of machinery that do not correspond to current national and international health and safety standards does not determine the machinery that is considered to be dangerous, nor the parts thereof which are likely to present danger, in accordance with the requirements of paragraphs 3 and 4 of Article 2 of the Convention. It recalls that it had noted that the provisions of Executive Decree No. 90-245 of 18 August 1990 applicable to gas pressure machinery and of Executive Decree No. 90-246 of 18 August 1990 applicable to steam pressure machinery, met the requirements of Article 2 of the Convention, but that similar measures of general application to machinery covered by the Convention as a whole were needed. In this regard the Committee wishes to reiterate its previous comments that the objective of Article 2 of the Convention is to guarantee that machines are safe before they reach the user, whereas the provisions of Executive Decree No. 91-05 of 19 January 1991 respecting general safety provisions concern the guarding of machinery once it is in use.

The Committee again draws the attention of the Government to paragraphs 73 et seq. of its 1987 General Survey on safety and the working environment where it indicates that it is essential for the effective application of Part II of the Convention that national legislation designate those parts of machinery that present danger and require appropriate guarding (paragraph 82) and that, until there has been a determination of the machinery and parts thereof that present danger, the prohibition of the sale, hire, transfer in any other manner and exhibition of machinery contained in Article 2 of the Convention remains ineffective. The Committee recalls its previous reference to paragraph 85 of the 1987 General Survey to indicate that the definition of dangerous machinery and parts thereof should as a minimum cover all those parts enumerated in Article 2 of the Convention.

2. Article 4. Further to its previous comments, the Committee notes the Government’s reply that the responsibility referred to in paragraph 2 of the Committee’s previous comments was provided for in section 37 of Act No. 88-07 of 26 January 1988 which prescribed sanctions in cases of violations of sections 8, 10 and 34 of the same Act. The Committee recalls once again that, while section 8 of Act No. 88-07 prohibits the manufacture, exhibition, putting up for sale, sale, import, hire or transfer in any other manner of machinery that is dangerous, with a view to its use, section 10 of the same Act explicitly lays down the responsibilities of only those who are involved in the manufacture, importation, the cession, and use of the machinery and not of the vendor, the person letting out on hire or transferring the machinery in any other manner, or the exhibitor, and their respective agents. The Committee once again refers to paragraphs 164-175 of its 1987 General Survey on safety and the working environment, in which it observes that the general prohibition from manufacturing, selling, hiring or transferring in any other manner machinery which is dangerous is inadequate if it is not accompanied by a provision explicitly requiring these provisions to be applied to the manufacturer, vendor, the person letting out on hire or transferring the machinery in any manner or their respective agents, in order to comply with Article 4 of the Convention which expressly establishes the responsibility of these persons, and to avoid any ambiguity. The Committee urges the Government to take the necessary measures to ensure that the responsibility of the categories of persons mentioned in Article 4 are explicitly established in national legislation as well as the sanctions applicable in case of violation of such explicitly established responsibility.

3. Articles 6 and 7. Further to its previous comments concerning the responsibility of the employer, the Committee notes the Government’s reply that section 38 of Act No. 88-07 provides for this. The Committee notes that the provisions of Act No. 88-07, including section 38, do not fully reply to its previous comments that the use of machinery, any parts of which, including the point of operation, is without appropriate guards, is not prohibited. It reiterates its previous indications that sections 40-43 of Executive Decree No. 91-05, while requiring the dangerous parts of machines to be guarded, do not expressly prohibit the use of machines, the dangerous parts of which are not guarded. The Committee refers again to paragraph 180 of its 1987 General Survey on safety and the working environment, where it is stated that Article 6, paragraph 1, of the Convention is formulated as a general prohibition to be included in the national legislation and that, in order to observe this provision, it is not enough to require the guarding of machines which are used, without at the same time requiring that the use of machines without appropriate guards is forbidden. The Committee wishes to reiterate the need for the legislation to be clear that the obligation to ensure compliance with this prohibition rests on the employer, in accordance with Article 7 of the Convention.

2. The Committee hopes that the Government will do its utmost to take the necessary measures in the very near future.