Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

With reference to its previous comments the Committee notes, with concern, that in its most recent report, the Government makes no reference to the process to revise Act No. 88-07 of 26 January 1988 and to adopt implementing regulations to ensure compliance with the Convention – a process that the Government has reported on for the past 20 years. It recalls that the Government in its previous report specifically referred to a draft executive decree that would reflect all the relevant provisions of the Convention, as well as those of the Recommendation. Recalling the constitutional obligations of the Government to implement the provisions of Conventions it has ratified, the Committee urges the Government to adopt the draft executive decree referred to above without delay so as to give effect to the various provisions of the Convention and to report to the Committee on any progress in this respect.

In the meantime, the Committee is bound to recall the following points:

Article 2(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 Article 2(3) and (4) 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 concerning 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 General Survey of 1987 on safety and the working environment, where it indicates that it is essential for the effective application of Part [I] 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, op. cit., 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.

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 only of those who are involved in the manufacture, import, cession and use of the machinery (manufacturer and importer) 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, op. cit., 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 other 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 is explicitly established in national legislation and that sanctions are applicable in the event of the violation of these provisions.

Articles 6 and 7. Further to its previous comments concerning the responsibility of the employer, the Committee notes the Government’s indication that this responsibility is established in section 38 of Act No. 88-07. The Committee notes that the provisions of Act No. 88-07, including section 38, do not fully respond to its previous comments that the use of machinery, any parts of which, including the point of operation, is without appropriate guards, is not explicitly prohibited in law. 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 explicitly prohibit the use of machinery, the dangerous parts of which are not guarded. The Committee refers once again to paragraph 180 of its 1987 General Survey, op. cit., in which it indicates that Article 6(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 while in use, 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 establish clearly that the obligation to ensure compliance with this prohibition rests on the employer, in accordance with Article 7 of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.