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Employer Obligations under the Recently Ratified ILO Conventions No. 167 and No. 176 in Turkey

Feb 12 2015

Introduction

Turkey is a member of the International Labour Organization (ILO) since 1932 and has ratified 57 conventions so far. After the massive increase in construction and mining activities, both Safety and Health in Construction Convention No.167 and Safety and Health in Mines Convention No.176 have recently been included in ratified ILO Conventions. Fundamentally, ILO Conventions are considered as international labour standards by creating a legal obligation for ratifying nations to apply its provisions and governments are required to submit reports including details about their compliance with the obligations of the conventions that they have ratified. On the other hand according to Turkish Constitution article 90/5; “International agreements, which duly put into effect, have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements on the grounds that they are in breach of the Constitution. In case of a conflict between international agreements, which duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail”. Therefore, ILO Conventions take precedence over Turkish law and they must be taken into consideration in both legislation and practice.

ILO Convention No.167 and Turkish Law

ILO Safety and Health in Construction Convention No.167 dated 1988 entered into force on 11.01.1991 and have been ratified by 25 Member States1 except Turkey so far. Turkey ratified the Convention with Code No.6571, which was published in the Official Gazette dated 29.11.2014, thus all construction activities in Turkey must be carried out in compliance with Convention No.167.

In this respect, pursuant to Convention article 1; “…all construction activities, namely building, civil engineering, and erection and dismantling work, including any process, operation or transport on a construction site, from the preparation of the site to the completion of the project” are under the scope as well as self-employed persons who may be specified by national laws or regulations. Within this context, according to article 4; “Each Member which ratifies this Convention undertakes that it will, on the basis of an assessment of the safety and health hazards involved, adopt and maintain in force laws or regulations which ensure the application of the provisions of the Convention”.

Also, according to articles 10 and 12; national laws or regulations shall provide that while employees must have the right and duty at any workplace to participate in ensuring safe working conditions and expressing views on working procedures which may affect health and safety, they also must have the right to remove themselves from an imminent and serious danger to their health and safety immediately after they inform their supervisors.

In case there is an imminent danger to the safety of employees, the employer shall take immediate steps to stop the operation and evacuate them as appropriate. Moreover, under articles 13-34; employer shall take all preventive and protective measures such as safety of workplaces, scaffolds and ladders, lifting appliances and gear, transport, earth-moving and materials-handling equipment, plant, machinery, equipment and hand tools, demolition, lighting, electricity, explosives and health hazards.

In terms of Turkish law; Health and Safety in Construction Regulation, which was published in the Official Gazette on 05.10.2013, is in effect based on article 30 of Health and Safety at Work Code No.63312 and Directive 92/57/EEC on Health and Safety on Temporary or Mobile Sites. According to article 5 of aforesaid Regulation, in addition to their general obligation to provide employees’ health and safety at work, employers must;

  1. keep the construction site in order and sufficiently tidy,
  2. designate the form of transportation and roads or areas for equipment, movement and passages in selecting the work places at construction site,
  3. arrange the use of material and conditions of carriage,
  4. carry out technical maintenance and control both periodically and before the use of plant and equipment,
  5. provide the reservation of adequate storage areas for various materials and especially hazardous materials and substances as well as designation of these areas’ borders,
  6. regulate the use of hazardous materials and revulsion conditions,
  7. provide the storage, elimination and revulsion of wastes and residuals,
  8. re-designate the anticipated durations for various works or stages of work depending on the status of work at construction site,
  9. ensure the cooperation between subcontractors and self-employed persons,
  10. provide the recognition of interaction with industrial activities near or at the construction site,
  11. keep the personal protective equipment, which are in accordance with national standards, and ensure their usage by employees.

In addition, under article 6; while employer may perform his obligations under this Regulation, he can appoint one or more project officers, who have the necessary qualification, in order to act on his behalf. Nevertheless, in case one or more health and safety coordinators are in charge concerning health and safety in construction, responsibility of employer and project officer still continue.

When there are more than one employer or subcontractor at the same construction site, employer or project officer may assign one or more health and safety coordinators, while they prepare or provide to be prepared a health and safety plan at the preparation stage before initiation of construction. Also employees shall be informed and ensured to have their opinions as well as their participation under articles 12 and 13.

ILO Convention No.176 and Turkish Law

ILO Safety and Health in Mines Convention No.176 dated 1995 entered into force on 05.06.1998 and have been ratified by 29 Member States3 except Turkey. Turkey ratified the Convention with Code No.6580, which was published in Official Gazette dated 12.12.2014. As such, all health and safety issues related to mines in Turkey must be performed in accordance with Convention No.176.

Accordingly, the Convention applies to all mines as a rule and under article 3; “In the light of national conditions and practice and after consultations with the most representative organizations of employers and workers concerned, the Member shall formulate, carry out and periodically review a coherent policy on safety and health in mines, particularly with regard to the measures to give effect to the provisions of the Convention”.

In addition under article 4; the measures for ensuring application of the Convention shall be prescribed by national laws and regulations, which must be supplemented by technical standards, guidelines or codes of practice or other means of application consistent with national practice, as identified by the competent authority. Pursuant to article 5; said competent authority must monitor and regulate the various aspects of health and safety in mines.

In terms of Turkish law; Health and Safety in Mines Regulation, which was published in the Official Gazette on 19.09.2013, is in force based on article 30 of Health and Safety at Work Code No.6331 and Directive 92/104/EEC on the Minimum Requirements for Improving the Safety and Health Protection of Workers in Surface and Underground Mineral-Extracting Industries and Directive 92/91/EEC on Mineral- Extracting Industries Through Drilling. According to article 5 of aforesaid Regulation,

  1. on the purpose of providing employees’ health and safety, employer is obliged to provide that;
    1. workplaces are designed, built, furnished, managed and maintained by means not to endanger employees’ health and safety,
    2. any work is performed under the supervision of an authorized person and liability in the workplace,
    3. works with special risk are only performed in compliance with instructions and by competent persons with special training related to these works,
    4. all safety instructions are prepared by means comprehensible by employees.
  2. employer;
    1. provides the preparation and update of health and safety document,
    2. makes the required registrations and notifications,
    3. in case there are employees of different employers in the workplace, each employer is responsible for the work under his control. However, the employer who is liable for the entire work, coordinates the application of measures related to the protection of employees’ health and safety.

Also, according to articles 7-13; employer must take the appropriate measures in order to prevent unfavourable effects of explosion, fire and hazardous environmental air, provide and keep available all escape and protection equipment, locate communication, warning and alarm systems throughout the workplace, inform the employees about health and safety at work, provide health surveillance to employees, abide by all minimum health and safety requirements and ensure to receive opinions of employees and their participation.

Conclusion

Even though health and safety in construction and mines are regulated under Turkish law, these provisions must be applied in accordance with ILO Conventions No.167 and 176 from now on. While aforesaid Conventions must be considered privileged by employers and subcontractors for works in construction and mines sectors, even they should guide the legislature in changing and adapting the provisions of said Regulations.

Measures for the cooperation between employers and employees in order to promote safety and health at construction sites as prescribed in article 6 of Convention No.167 as well as supervision, inspection and establishment of effective procedures to ensure the implementation of employees’ rights under article 5 of Convention No.176 must be applied properly. Most importantly, sanctions and detailed obligations of THE employer must be regulated in order to make these provisions applicable instead of leaving them as merely limited-effective sentences.

1 While the Convention has entered into force in all 24 Member States, in Albania it will enter into force on 24.04.2015.
2 It prescribes that health and safety in construction, mines and other matters are regulated with regulations issued by Ministry of Labour and Social Security.
3 Convention has entered into force in all 28 Member States except for Uruguay, which will enter into force on 05.06.2015.