ILO Convention 155 Occupational Safety and Health Convention, 1981 (No. 155) : Article-by-Article Commentary

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ILO Convention 155 Occupational Safety and Health Convention, 1981 (No.
155): Article-by-Article Commentary
Chapter · January 2018

DOI: 10.5771/9783845266190-1408
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C 155 Part 6 Health and Safety Law
ILO Convention 155

Occupational Safety and Health Convention, 1981 (No. 155)
Literature: Edoardo Ales, ‘Occupational Health and safety: A Comparative Perspective’, in E Ales (ed),
Health and Safety at Work. European and Comparative perspective (Wolters Kluwer International, Alphen
an den Rijn 2013), pp. 411-449; Edoardo Ales, ‘The ‘Risk Approach’ in Occupational Health and Safety
(with an Eye to Italy): Alternative or Complement to the ‘Core/Contingent Approach’?’, in E Ales, O Dein-
ert and J Kenner (eds), Core and Contingent Work in the European Union: A Comparative Analysis (Hart,
Oxford 2017) pp 255-277; Benjamin O Alli, Fundamental principles of occupational health and safety, In-
ternational Labour Office (2nd ed, ILO, Geneva 2008); Philip Alston, ‘‘Core Labour Standards’ and the
Transformation of the International Labour Rights Regime’, EJIL, 2004, Vol. 15, no. 3, pp 457–521; Mark
Bell, ‘Occupational Health and Safety in the UK: At a Crossroads?’, in E Ales (ed), Health and Safety at
Work. European and Comparative perspective (Wolters Kluwer International, Alphen an den Rijn 2013) pp
375-410; Janice Bellace, ‘The ILO Declaration of Fundamental Principles and Rights at Work’, IJCLLIR
2001, Vol. 17, No. 3, pp 269-287; Tee L Guidotti (ed), Global Occupational Health (OUP, Oxford 2011);
ILO, General Survey concerning the Occupational Safety and Health Convention, 1981 (No. 155), the Occu-
pational Safety and Health Recommendation, 1981 (No. 164), and the Protocol of 2002 to the Occupational
Safety and Health Convention, 1981 (ILO, Geneva 2009); Brian A Langille, ‘Core Labour Rights – The True
Story (Reply to Alston)’, EJIL, 2005, Vol. 16, No. 3, pp 409-437.
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Article 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Article 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
a) Temporary agency workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
b) Domestic workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
c) Pregnant or breastfeeding workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
d) Minimum Age Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
e) Handicapped workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
f) Workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
g) Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4. Article 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5. Article 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6. Article 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7. Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8. Article 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9. Article 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10. Article 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11. Article 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
12. Article 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13. Article 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
14. Article 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
15. Article 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
16. Article 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
17. Article 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
18. Article 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
19. Article 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
20. Article 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
21. Article 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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Chapter II Non EU Work C 155
I. Introduction
Although referred to in the ILO Constitution1 and in the Declaration of Philadel- 1

phia,2 the right to a safe and healthy work environment is not among those one recog-
nized by the ILO Declaration of Fundamental Principles and Rights at Work of 1998.3
Neither, among the eight basic Conventions4 underpinning those principles and rights,
one out of the numerous instruments directly regarding occupational safety and health
(hereinafter OSH) can be found. Nor, the Governing Body of the ILO regards as priority
instrument5 any of the OSH Conventions.
Nevertheless, one has to recognize how huge ILO’s commitment within OSH has 2
been.6 Only taking into account the Annex to Promotional Framework for Occupational
Safety and Health Recommendation, 2006 (No. 197), 18 Conventions7 and 21 Recom-
mendations8 are listed there as relevant to the promotional framework for OSH by the
ILO.
1 According to the Preamble of the ILO Constitution: “an improvement of [labour] conditions is urgent-
ly required; as, for example, by (…) the protection of the worker against sickness, disease and injury aris-
ing out of his employment (…)”.
2 According to para III(g) “The Conference recognizes the solemn obligation of the International
Labour Organization to further among the nations of the world programmes which will achieve: (...)(g)
adequate protection for the life and health of workers in all occupations (...)”.
3 As well known, the four principles are: (a) freedom of association and the effective recognition of the
right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the ef-
fective abolition of child labour; and (d) the elimination of discrimination in respect of employment and
occupation. On the ILO Declaration of Fundamental Principles and Rights at Work of 1998 see, at least,
Bellace 2001, Alston 2004, Langille 2005.
4 They are: Forced Labour, 1930 (No. 29); Freedom of Association and Protection of the Right to Organise,
1948 (No. 87); Right to Organise and Collective Bargaining, 1948 (No. 98); Equal Remuneration, 1951 (No.
100); Abolition of Forced Labour, 1957 (No. 105); Discrimination (Employment and Occupation), 1958 (No.
111); Minimum Age, 1973 (No. 138); Worst Forms of Child Labour, 1999 (No. 182).
5 These are: Labour Inspection Convention, 1947 (No. 81); Employment Policy Convention, 1964 (No.
122); Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).
6 Alli 2008.
7 Labour Inspection Convention, 1947 (No. 81); Radiation Protection Convention, 1960 (No. 115); Hy-
giene (Commerce and Offices) Convention, 1964 (No. 120); Employment Injury Benefits Convention, 1964
(No. 121); Labour Inspection (Agriculture) Convention, 1969 (No. 129); Occupational Cancer Convention,
1974 (No. 139); Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148);
Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152); Occupational Safety and Health
Convention, 1981 (No. 155); Occupational Health Services Convention, 1985 (No. 161); Asbestos Conven-
tion, 1986 (No. 162); Safety and Health in Construction Convention, 1988 (No. 167); Chemicals Convention,
1990 (No. 170); Prevention of Major Industrial Accidents Convention, 1993 (No. 174); Safety and Health in
Mines Convention, 1995 (No. 176); Protocol of 1995 to the Labour Inspection Convention, 1947 (No. 81);
Safety and Health in Agriculture Convention, 2001 (No. 184); Protocol of 2002 to the Occupational Safety
and Health Convention, 1981 (No. 155).
8 Labour Inspection Recommendation, 1947 (No. 81); Labour Inspection (Mining and Transport) Recom-
mendation, 1947 (No. 82); Protection of Workers’ Health Recommendation, 1953 (No. 97); Welfare Facilities
Recommendation, 1956 (No. 102); Radiation Protection Recommendation, 1960 (No. 114); Workers’ Hous-
ing Recommendation, 1961 (No. 115); Hygiene (Commerce and Offices) Recommendation, 1964 (No. 120);
Employment Injury Benefits Recommendation, 1964 (No. 121); Labour Inspection (Agriculture) Recommen-
dation, 1969 (No. 133); Occupational Cancer Recommendation, 1974 (No. 147); Working Environment (Air
Pollution, Noise and Vibration) Recommendation, 1977 (No. 156); Occupational Safety and Health (Dock
Work) Recommendation, 1979 (No. 160); Occupational Safety and Health Recommendation, 1981 (No. 164);
Occupational Health Services Recommendation, 1985 (No. 171); Asbestos Recommendation, 1986 (No. 172);
Safety and Health in Construction Recommendation, 1988 (No. 175); Chemicals Recommendation, 1990
(No. 177); Prevention of Major Industrial Accidents Recommendation, 1993 (No. 181); Safety and Health in
Mines Recommendation, 1995 (No. 183); Safety and Health in Agriculture Recommendation, 2001 (No.
192); List of Occupational Diseases Recommendation, 2002 (No. 194).
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3 The most important of these, for the latitude of its objective and personal scope of
application as well as for the importance of its policy and prescriptive provisions, is the
Occupational Safety and Health Convention, 1981 No. 155 (hereinafter, the Convention).
For these reasons, it requires and deserves the article-by-article commentary that fol-
lows.
4 The Convention, which has been adopted by the 67th International Labour Confer-
ence on 22 June 1981 and which is entered in force on 11 August 1983, has been ratified,
at the time of writing, by 66 Members of the ILO (hereinafter Members), among which
16 belonging to the European Union.9
5 The Convention is divided into four parts. The first refers to the scope and defini-
tions. The second to the principles of national policy that Members have to implement.
The third to the action to be carried on at the level of the undertaking, thus describing
the contents of the safety obligation as well as duties and rights for employers, employees
and their representatives. The fourth part, which contains the final provisions common
to all ILO Conventions, will to be commented.
6 The Occupational Safety and Health Recommendation, 1981 No. 164 (hereinafter the
Recommendation) supplements the Convention and will be referred to and commented,
paragraph-by paragraph, under the comment of each relevant article of the Convention.
II. Commentary
1. Article 1
Article 1
1. This Convention applies to all branches of economic activity.
2. A Member ratifying this Convention may, after consultation at the earliest possible stage with the rep-
resentative organisations of employers and workers concerned, exclude from its application, in part or in
whole, particular branches of economic activity, such as maritime shipping or fishing, in respect of which
special problems of a substantial nature arise.
3. Each Member which ratifies this Convention shall list, in the first report on the application of the Con-
vention submitted under Article 22 of the Constitution of the International Labour Organisation, any
branches which may have been excluded in pursuance of paragraph 2 of this Article, giving the reasons
for such exclusion and describing the measures taken to give adequate protection to workers in excluded
branches, and shall indicate in subsequent reports any progress towards wider application.
7 By defining its objective scope of application, the Convention does not exclude any
branch of economic activity, meaning ‘all branches in which workers are employed, in-
cluding the public service’, as confirmed by the definition of ‘branch of economic activi-
ty’ provided by Article 3(a) Convention. The distinctive feature of the objective scope of
application of the Convention is represented, therefore, by the reference to workers,
whatever the legal status of their employer (public or private) and the purpose (for profit
or not for profit) of the activity performed.
8 However, a Member may exclude, from the objective scope of application of the na-
tional legal instrument adopted in order to ratify the Convention, particular branches of
economic activity, in part or in whole, in respect of which special problems of a substan-
tial nature arise. Exclusions may be provided only after consultation, at the earliest pos-
9 Belgium (ratified in 2011), Croatia (1991), Cyprus (1989), Czech Republic (1993), Denmark (1995),
Finland (1985), Hungary (1994), Ireland (1995), Latvia (1994), Luxembourg (2001), The Netherlands
(1991), Portugal (1985), Slovakia (1993), Slovenia (1992), Spain (1985), Sweden (1982). Interesting to note
the timing of ratifications (before/after the access to the EU; before/after the entry into force of Dir.
89/391/EC so called Framework Directive on OSH) and the absence of some EU Member States with a
well-grounded tradition in OSH, like France, Italy, Germany and the UK.
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sible stage, with the representative organisations of employers and workers concerned
(principle of tripartism). The fact that the usual disclaimer ‘where they exist’ has not been
used, could mean that no exclusion can be provided without previous tripartite consul-
tation.10 On the other hand, a negative result of consultation does not seem to be bind-
ing for the legislature that intends to opt for the partial or total exclusion of one or more
branches. In any case, as already mentioned in the above, exclusions shall be grounded
on the presence of problems of substantial nature.
As for the reasons of the exclusion(s), they have to be illustrated by the Member while 9
listing the branches of activities excluded from the objective scope of application of the
national legal instrument adopted in order to ratify the Convention (principle of trans-
parency). The list shall be attached to the first report on the application of the Conven-
tion submitted under Article 22 ILO Constitution. The report shall describe the mea-
sures taken to give adequate protection to workers in excluded branches.
However, as confirmed by para 1 Recommendation, the application of the Conven- 10
tion to all the branches of economic activity remains the main objective of ILO. As a
matter of fact, Members have not only to report on ‘the measures taken to give adequate
protection to workers in excluded branches’, but also and above all, indicate in subse-
quent annual reports any progress towards a wider application of the Convention (prin-
ciple of accountability). This means that, at least in this case, the flexibility clause, as it is
named by the ILO itself,11 has to be regarded as transitory in nature, aimed at facilitating
the ratification of the Convention by Members while progressively adapting to the ILO
standards their national legal order, in case of lower protection level in certain branches
of economic activity.
In such a perspective, noteworthy is the fact that both branches of economic activity 11
quoted as example for exclusion belong to the maritime sector, a sector covered by spe-
cific ILO instruments.12 This to confirm that exclusions from the Convention does not
mean exclusion from any kind of protection, either being the exclusions transitory in na-
ture or having an adequate protection to be found elsewhere, in national legislation or in
other Conventions.
Moreover, one has to stress the fact that the ILO has adopted Conventions on OSH in 12
some specific branches of activity such as dock work,13 constructions,14 mines15 and
agriculture,16 as well as related to specific source of danger, such as those deriving from
radiations,17 air pollution, noise and vibration,18 asbestos19 and the use of chemicals.20
Each of those Conventions has been accompanied and supplemented by a Recommen-
dation.
Due to the fact that a Member could have not ratified all the conventions insisting on 13
the same field, no formal coordination among those instruments and between them and
10 For a different view see ILO, General Survey concerning the Occupational Safety and Health Conven-
tion, 1981 (No. 155), the Occupational Safety and Health Recommendation, 1981 (No. 164), and the Protocol
of 2002 to the Occupational Safety and Health Convention, 1981, Geneva: ILO, 2009, 6, according to which
“when flexibility with respect to a Convention is exercised by a government, it usually involves consulta-
tion with workers’ and employers’ organizations concerned.
11 ILO, General Survey (2009), 6.
12 See, as the major one, the Maritime Labour Convention, 2006.
13 Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152).
14 Safety and Health in Construction Convention, 1988 (No. 167).
15 Safety and Health in Mines Convention, 1995 (No. 176).
16 Safety and Health in Agriculture Convention, 2001 (No. 184).
17 Radiation Protection Convention, 1960 (No. 115).
18 Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148).
19 Asbestos Convention, 1986 (No. 162).
20 Chemicals Convention, 1990 (No. 170).
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the Convention is possible. The Convention, therefore, may not be understood to act as
framework instrument, as it happens in EU Law with Dir. 89/391/EC.
2. Article 2
Article 2
1. This Convention applies to all workers in the branches of economic activity covered.
2. A Member ratifying this Convention may, after consultation at the earliest possible stage with the rep-
resentative organisations of employers and workers concerned, exclude from its application, in part or in
whole, limited categories of workers in respect of which there are particular difficulties.
3. Each Member which ratifies this Convention shall list, in the first report on the application of the Con-
vention submitted under Article 22 of the Constitution of the International Labour Organisation, any
limited categories of workers which may have been excluded in pursuance of paragraph 2 of this Article,
giving the reasons for such exclusion, and shall indicate in subsequent reports any progress towards
wider application.
14 By defining its subjective scope of application, the Convention does include all
workers in the branches of economic activity covered. However, a Member may exclude
from the subjective scope of application of the national legal instrument adopted in or-
der to ratify the Convention limited categories of workers, in part or in whole, in respect
of which there are particular difficulties.
15 Exclusions may be provided only after consultation, at the earliest possible stage, with
the representative organisations of employers and workers concerned (principle of tripar-
tism). The fact that the usual disclaimer ‘where they exist’ has not been used, could
mean that no exclusion can be provided without previous tripartite consultation.21 On
the other hand, a negative result of consultation does not seem to be binding for the leg-
islature that wants to opt for the partial or total exclusion of one or more branches. In
any case, as already mentioned in the above, exclusions shall be grounded on the pres-
ence of ‘particular difficulties’, an expression that is complicated to provide with a com-
mon and binding meaning.
16 The specific meaning of that expression has to be illustrated by the Member while
listing the categories of workers excluded from the objective scope of application of the
national legal instrument adopted in order to ratify the Convention (principle of trans-
parency). The list shall be attached to the first report on the application of the Conven-
tion submitted under Article 22 ILO Constitution.
17 However, as confirmed by para 1(1) Recommendation, the application of the Con-
vention to all categories of workers remains the main objective of ILO. In fact, Member
States have to highlight in subsequent reports ‘any progress towards a wider application
of the Convention’. This is also confirmed by the absence, in Article 2, of a reference sim-
ilar to that one contained in Article 1 (‘the measures taken to give adequate protection to
workers in excluded branches’) to alternative measures that categories of workers ex-
cluded from the personal scope of application of the Convention might enjoy, although
transitorily.
18 This means that, also in this case, the flexibility clause has to be regarded as transitory
in nature, aimed at facilitating the ratification of the Convention by Members while pro-
gressively adapting to the ILO standards their national legal order in case of a lower pro-
tection level a far as some specific and limited categories of workers are concerned.
21 For a different view, see ILO, General Survey, 2009, 6, according to which “when flexibility with re-
spect to a Convention is exercised by a government, it usually involves consultation with workers’ and em-
ployers’ organizations concerned.”
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3. Article 3
Article 3
For the purpose of this Convention -
(a) the term branches of economic activity covers all branches in which workers are employed, including
the public service;
(b) the term workers covers all employed persons, including public employees;
(c) the term workplace covers all places where workers need to be or to go by reason of their work and
which are under the direct or indirect control of the employer;
(d) the term regulations covers all provisions given force of law by the competent authority or authori-
ties;
(e) the term health, in relation to work, indicates not merely the absence of disease or infirmity; it also
includes the physical and mental elements affecting health which are directly related to safety and
hygiene at work.
Article 3 defines the meaning of some basic terms used within the Convention, also 19
precising in this way the objective and subjective scope of application of the latter. The
definition of worker confirms that the Convention focuses on subordinate workers (em-
ployees) whatever the juridical nature or their employer, private or public and whatever
the branch of economic activity in which they are employed. Subordination is thus the
condition that determine the application of the Convention, bearing however in mind
that, according to para 1(2) Recommendation ‘Provision should be made for such mea-
sures as may be necessary and practicable to give self-employed persons protection anal-
ogous to that provided for in the Convention and in this Recommendation’.
a) Temporary agency workers

Any kind of subordinate work is covered by the Convention, fixed-term and part- 20
time22 included. Unlike EU Law,23 however, the ILO does not provide a specific regu-
lation of OSH as far as fixed-term and temporary agency workers are concerned. This
means that being temporarily employed is not regarded as a risk to be taken into account
in itself. Nevertheless, if, as for the first, it is clear that the Convention shall apply, as for
the latter, one has to refer to the Private Employment Agencies Convention, 1997 (No.
181). In fact, according to Article 11 Convention 181, ‘a Member shall, in accordance
with national law and practice, take the necessary measures to ensure adequate protec-
tion for the workers employed by private employment agencies (...), in relation to (...) (g)
occupational safety and health.’ This clearly means that the Convention does not apply
to temporary agency workers, being up to the Member that has ratified the Private Em-
ployment Agencies Convention to ensure an adequate protection in the field of OHS, in
accordance with its national law and practice. Such a conclusion seems to be confirmed
by the statement contained within Article 12 of the same Convention 181, according to
which ‘a Member shall determine and allocate, in accordance with national law and
practice, the respective responsibilities of private employment agencies (...) and of user
enterprises in relation to (...) (f) protection in the field of occupational safety and health.’.
22 According to Article 4(c) Part-time Work Convention, 1994 (No. 175), “Measures shall be taken to
ensure that part-time workers receive the same protection as that accorded to comparable full-time
workers in respect of: (...) (b) occupational safety and health”.
23 Council Directive (EC) 91/383 supplementing the measures to encourage improvements in the safety
and health at work of workers with a fixed-duration employment relationship or a temporary employment
relationship [1991] OJ L206/19.
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b) Domestic workers
21 Domestic workers too are excluded from the subjective scope of application of the
Convention. In fact, according to Article 13 of the Domestic Workers Convention, 2011
(No. 189), even though ‘every domestic worker has the right to a safe and healthy work-
ing environment (...)’, each Member State having ratified Convention 189 ‘shall take, in
accordance with national laws, regulations and practice, effective measures, with due re-
gard for the specific characteristics of domestic work, to ensure the occupational safety
and health of domestic workers (...). Those measures may be applied progressively, in
consultation with the most representative organizations of employers and workers and,
where they exist, with organizations representative of domestic workers and those repre-
sentative of employers of domestic workers.’
c) Pregnant or breastfeeding workers

22 In case of pregnant or breastfeeding workers, the Convention is supplemented by Arti-
cle 3 of the Maternity Protection Convention, 2000 (No. 183), which provides that ‘Each
Member shall, after consulting the representative organizations of employers and
workers, adopt appropriate measures to ensure that pregnant or breastfeeding women
are not obliged to perform work which has been determined by the competent authority
to be prejudicial to the health of the mother or the child, or where an assessment has
established a significant risk to the mother’s health or that of her child.’
d) Minimum Age Convention

23 In the field of OSH, mention shall also be made of the Minimum Age Convention,
1973 (No. 138). In fact, according to Article 3 ‘The minimum age for admission to any
type of employment or work which by its nature or the circumstances in which it is car-
ried out is likely to jeopardise the health, safety or morals of young persons shall not be
less than 18 years’. ‘Those types of employment or work shall be determined by national
laws or regulations or by the competent authority, after consultation with the organisa-
tions of employers and workers concerned, where such exist.’. However, ‘national laws or
regulations or the competent authority may, after consultation with the organisations of
employers and workers concerned, where such exist, authorise employment or work as
from the age of 16 years on condition that the health, safety and morals of the young
persons concerned are fully protected and that the young persons have received ad-
equate specific instruction or vocational training in the relevant branch of activity’. A
reference to OHS is also to be found in Article 7 Convention 138, according to which
‘National laws or regulations may permit the employment or work of persons 13 to 15
years of age on light work which is (...) not likely to be harmful to their health or devel-
opment’.
e) Handicapped workers
24 According to para 4(g) Recommendation, ‘with a view to giving effect to the policy
referred to in Article 4 of the Convention (...) the competent authority or authorities in
each country should (...) provide appropriate measures for handicapped workers.’
f) Workplace
25 The notion of workplace adopted by the Convention is a very broad one as it includes
‘all places where workers need to be or to go by reason of their work and which are un-
der the direct or indirect control of the employer’. Noteworthy is the fact that Protocol of
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2002 to the Occupational Safety and Health Convention (P155) covers also the so called
commuting accident, defining it as ‘an accident resulting in death or personal injury oc-
curring on the direct way between the place of work and: (...) (ii) the place where the
worker usually takes a meal; or (iii) the place where the worker usually receives his or
her remuneration.’. Although this is a definition provided above all for occupation acci-
dents’ reporting and notification purposes, it offers a further specification of the notion
of workplace so having to be considered the direct way between the place of work and
the place where the worker usually takes a meal, and the place where the worker usually
receives his or her remuneration.
g) Regulations
If the term regulations intended as all ‘provisions given force of law by the competent 26
authority or authorities’ does not rise any interpretative question,24 the definition of
health in relation to work, as ‘not merely the absence of disease or infirmity’, but also
including ‘the physical and mental elements affecting health which are directly related to
safety and hygiene at work’ does. Although innovative if compared to a traditional vision
linked to the absence of disease or infirmity, taking also into account the mental and not
only the physical dimension of OSH, the definition provided by the Convention is still
far from the groundbreaking one adopted by the World Health Organisation (WHO) in
its Constitution.25 According to this: ‘Health is a state of complete physical, mental and
social well-being and not merely the absence of disease or infirmity’. What is missed in
the Convention definition, despite the intensive and productive cooperation between the
two Agencies of the United Nations,26 is the reference to workers’ well-being as the goal
indicated by the Convention to Members. A notion, that of well-being, which emphasises
the social dimension of OSH, on purpose specifically recalled within the WHO defini-
tion.
The intermediate solution between tradition and innovation adopted by the Conven- 27
tion is probably due to the heavy burden the reference to well-being would have put on
the shoulders of employers, obliged to take care of the social dimension of OSH, i.e. to
regard at the safety obligation as requiring, for its completion, the fight against behaviors
at workplace, like discrimination or harassment, responsible of the rising of the so called
24 See, however, remarks made under Article 20 Convention.

25 The WHO Constitution, adopted by the International Health Conference held in New York from 19
June to 22 July 1946, signed on 22 July 1946 by the representatives of 61 States (Off. Rec. Wld Hlth Org., 2,
100), and entered into force on 7 April 1948.
26 At its first session in 1950, the Joint ILO/WHO Committee on Occupational Health defined the pur-
pose of occupational health. It revised the definition at its 12th session in 1995 to read as follows: “Occu-
pational health should aim at: the promotion and maintenance of the highest degree of physical, mental
and social well-being of workers in all occupations; the prevention amongst workers of departures from
health caused by their working conditions; the protection of workers in their employment from risks re-
sulting from factors adverse to health; the placing and maintenance of the worker in an occupational envi-
ronment adapted to his physiological and psychological capabilities; and, to summarize: the adaptation of
work to man and of each man to his job.” This is not, however, the definition taken into account by the
Convention.
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psycho-social risks.27 Neither the expression working environment, as a field separate

from OHS, repeatedly evoked by the Convention, may be seen as referring to the social
dimension excluded from the definition of health provided within Article 3: As made
clear by Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No.
148), working environment is the physical place where the work is performed.
28 Worth to be mentioned is the fact that the Convention neither provide any definition
of the “competent authority” nor specify how this has to be identified or established by
the Members. Competencies of the national authority are, on the contrary, specified by
the Convention, in particular at Article 11.
4. Article 4
Article 4
1. Each Member shall, in the light of national conditions and practice, and in consultation with the most
representative organisations of employers and workers, formulate, implement and periodically review a
coherent national policy on occupational safety, occupational health and the working environment.
2. The aim of the policy shall be to prevent accidents and injury to health arising out of, linked with or
occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards
inherent in the working environment.
29 Article 4 illustrates the political goals of the Convention, i.e. the actions Members are
required to taken in order to fulfil their obligations as ratifying parties. Fist, taking into
account their ‘national conditions and practice’ (once again the flexibility clause), ‘in
consultation with28 the most representative organisations of employers and workers’,
they shall ‘formulate, implement and periodically review a coherent national policy on
occupational safety, occupational health and the working environment.’ Elaboration, im-
plementation and periodical review of a coherent national policy on OSH (hereinafter
the National Policy) constitute the procedural aspect of their obligations.29
30 The aim of the National Policy is ‘to prevent accidents and injury to health arising out
of, linked with or occurring in the course of work, by minimising, so far as is reasonably
practicable, the causes of hazards inherent in the working environment.’ The principle of
prevention comes therefore to the centre stage of the political action. It has to be realized
‘by minimising, so far as is reasonably practicable, the causes of hazards inherent in the
working environment’. Minimisation is the way in which prevention has to be achieved,
although the Recommendation refers also to the elimination of hazards (at their source)
27 According to the 1984 Report of the Joint ILO/WHO Committee on Occupational Health (‘Psy-
chosocial factor at work. Recognition and control. Report of the Joint ILO/WHO Committee on Occupa-
tional Health Ninth Session Geneva, 18-24 September 1984’): ‘The concept of psychosocial factors at work
is difficult to grasp, since it represents worker perceptions and experience, and reflects many considera-
tions. Some of these considerations relate to the individual worker, while others relate to the conditions of
work and the work environment. Still others refer to social and economic influences, which are outside the
workplace but which have repercussions within it. (...) Fundamental individual factors include the work-
er’s capacities and limitations relative to job demands, and the fulfilment of needs and expectations.
Working conditions and the work environment include the task itself, physical conditions at the jobsite,
worker/co-worker/supervisor relations, and management practices. Factors external to the workplace but
relevant to psychosocial concerns at work include familial or private-life concerns, cultural elements, nu-
trition, ease of transport, and housing. On psychosocial risks see, E Ales, 2013.
28 According to ILO, General Survey, 2009, 15, ‘It should be underscored that the wording in Article
4(1) (...) refers to action to be taken in consultation with representative organizations of employers and
workers, as opposed to after consultation with, as often provided for in other ILO Conventions. As indicat-
ed in the preparatory work, this “implied an obligation not merely to consult once but to have a continu-
ing dialogue as necessary. It also implied that this obligation did not affect the authority of the Member
State and, as the case may be, its legislature, to take the final decision”.
29 A ‘dynamic, cyclical process’ as defined by the same ILO, ‘Building a Preventative Safety and Health
Culture’, Geneva: ILO, 2013, 2.
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(Article 3 and 4(d)). Minimisation (or elimination) of the (cause of) hazards has to be
put in place ‘so far as is reasonably practicable’ (in this sense both the Convention and
the Recommendation), thus recalling a principle elaborated by the British case law and
legislation, recognized as appropriate limitation to employer’s liability by the same Court
of Justice of the European Union.30
As already stressed in the above, Article 4 has been widely supplemented by the Rec- 31
ommendation, in which measures to be taken in order to make effective the policies pro-
vided thereby are suggested.
First, the Recommendation provides, in para 3, a comprehensive list of technical fields 32
of action in which those measures should be taken.31
Then, in para 4, it enucleates the measures that should be adopted. Worth to be high- 33
lighted in this domain are the following points: (i) the distinction between OSH and the
work environment – the latter to be understood as the social dimension of the work rela-
tionship; (ii) the emphasis put on the links between OSH and working time; (iii) the link
between OSH hazards and the environmental risk, such as catastrophes; (iv) the refer-
ence made to appropriate measures to be provided in favour of disable workers.
Para 6 Recommendation insists on the need to promote measures in the field of 34
working conditions consistent with the policy adopted in the field of OSH.
On the other hand, para 8 Recommendation emphasizes the relevance of a ‘close co- 35
operation between public authorities and representative employers’ and workers’ organi-
sations, as well as other bodies concerned in measures for the formulation and applica-
tion of the policy’.
According to para 19(1) Recommendation, ‘In the development and application of 36
the policy (...) and without prejudice to their obligations under Conventions they have
ratified, Members should refer to the international labour Conventions and Recommen-
dations listed in the Appendix’.32
According to para 19(2), the ‘Appendix may be modified by the International Labour 37
Conference, by a two-thirds majority, in connection with the future adoption or revision
of any Convention or Recommendation in the field of safety and health and the working
environment’.
30 Case C-84/94 United Kingdom v Council [1996] ECR I-5793, point 15. See, on it E Ales, 2015.
31 They are: (a) design, siting, structural features, installation, maintenance, repair and alteration of
workplaces and means of access thereto and egress therefrom; (b) lighting, ventilation, order and cleanli-
ness of workplaces; (c) temperature, humidity and movement of air in the workplace; (d) design, construc-
tion, use, maintenance, testing and inspection of machinery and equipment liable to present hazards and,
as appropriate, their approval and transfer; (e) prevention of harmful physical or mental stress due to con-
ditions of work; (f) handling, stacking and storage of loads and materials, manually or mechanically; (g)
use of electricity; (h) manufacture, packing, labelling, transport, storage and use of dangerous substances
and agents, disposal of their wastes and residues, and, as appropriate, their replacement by other sub-
stances or agents which are not dangerous or which are less dangerous; (i) radiation protection; (j) preven-
tion and control of, and protection against, occupational hazards due to noise and vibration; (k) control of
the atmosphere and other ambient factors of workplaces; (l) prevention and control of hazards due to high
and low barometric pressures; (m) prevention of fires and explosions and measures to be taken in case of
fire or explosion; (n) design, manufacture, supply, use, maintenance and testing of personal protective
equipment and protective clothing; (o) sanitary installations, washing facilities, facilities for changing and
storing clothes, supply of drinking water, and any other welfare facilities connected with occupational
safety and health; (p) first-aid treatment; (q) establishment of emergency plans; (r) supervision of the
health of workers.
32 These are the same mentioned within the Introduction at fn. 5 and 6.
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5. Article 5
Article 5
The policy referred to in Article 4 of this Convention shall take account of the following main spheres of
action in so far as they affect occupational safety and health and the working environment:
(a) design, testing, choice, substitution, installation, arrangement, use and maintenance of the material
elements of work (workplaces, working environment, tools, machinery and equipment, chemical,
physical and biological substances and agents, work processes);
(b) relationships between the material elements of work and the persons who carry out or supervise the
work, and adaptation of machinery, equipment, working time, organisation of work and work pro-
cesses to the physical and mental capacities of the workers;
(c) training, including necessary further training, qualifications and motivations of persons involved,
in one capacity or another, in the achievement of adequate levels of safety and health;
(d) communication and co-operation at the levels of the working group and the undertaking and at all
other appropriate levels up to and including the national level;
(e) the protection of workers and their representatives from disciplinary measures as a result of actions
properly taken by them in conformity with the policy referred to in Article 4 of this Convention.
38 Article 5 enumerates the main spheres of action on which the National Policy shall
focus. Commenting on the list, the following aspects are worth to be highlighted: (i) the
enumeration, within lett. (a), of the material elements of work, to be understood as work-
places, the working environment, tools, machinery and equipment, chemical, physical
and biological substances and agents, work processes; (ii) the emphasis put by lett. (b) on
the relationships between the material elements of work, as just defined, and the persons
who carry out or supervise the work, on the one hand, and the adaptation of machinery,
equipment, working time, organisation of work and work processes to the physical and
mental capacities of the workers, on the other; (iii) the importance, stressed by lett. (c) of
‘training, including necessary further training, qualifications and motivations of persons
involved, in one capacity or another, in the achievement of adequate levels of safety and
health’; (iv) the enumeration, by lett. (d), among the main spheres of action, of the pro-
tection of workers and their representatives from disciplinary measures as a result of ac-
tions properly taken by them in conformity with the National Policy.
39 One may wonder whether the reference to ‘properly taken’ is likely to exclude whistle-
blowing in case this is not regulated by the legal order of the ratifying Members, which
are the ones that have to determine the protective measures. In any case, according to
Article 17 Recommendation, ‘no measures prejudicial to a worker should be taken by
reference to the fact that, in good faith, he complained of what he considered to be a
breach of statutory requirements or a serious inadequacy in the measures taken by the
employer in respect of occupational safety and health and the working environment.’.
Good faith could be the principle under which the actions have to be assessed as proper-
ly taken.
6. Article 6
Article 6
The formulation of the policy referred to in Article 4 of this Convention shall indicate the respective
functions and responsibilities in respect of occupational safety and health and the working environment
of public authorities, employers, workers and others, taking account both of the complementary charac-
ter of such responsibilities and of national conditions and practice.
40 Article 6 affirms two import principles. On the one hand, that the National Policy
shall contain a clear indication of the respective functions and responsibilities of each
actor involved within the elaboration, implementation and periodical review of OSH
and work environment measures (principle of individual responsibility); on the other, the
complementary character of such responsibilities (principle of complementarity). While
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realising both principles, Members may take into account national conditions and prac-
tice. Therefore, once again, the flexibility clause applies.
7. Article 7
Article 7
The situation regarding occupational safety and health and the working environment shall be reviewed at
appropriate intervals, either over-all or in respect of particular areas, with a view to identifying major
problems, evolving effective methods for dealing with them and priorities of action, and evaluating re-
sults.
Further to the cyclical review of the Policy, the state of art of OSH and the working 41
environment ‘shall be reviewed at appropriate intervals’. So Article 7, with reference to
the over-all situation or in respect of particular areas, in order to find out the most criti-
cal aspects, the most effective methods to deal with them, taking into account the evolu-
tion of scientific and practical knowledge, and in order to frame accordingly the priori-
ties of action within the National Policy. Para 9 Recommendation adds to this that par-
ticular attention shall be paid to the condition of the most vulnerable workers such, as,
for example, the disable, which, according to para 4(g) Recommendation should have
already been object of appropriate measures within the National Policy.
8. Article 8
Article 8
Each Member shall, by laws or regulations or any other method consistent with national conditions and
practice and in consultation with the representative organisations of employers and workers concerned,
take such steps as may be necessary to give effect to Article 4 of this Convention.
Article 8 opens Part II of the Convention that one addressed to national authorities, 42
responsible for the enactment of the National Policy. In strict connection with Article 4,
it emphasises the obligation of the Members to adopt, by binding instruments and in
continuous cooperation with the social partners, all the steps necessary to implement
the National Policy.
9. Article 9
Article 9
1. The enforcement of laws and regulations concerning occupational safety and health and the working
environment shall be secured by an adequate and appropriate system of inspection.
2. The enforcement system shall provide for adequate penalties for violations of the laws and regulations.
Article 9 states the obligation of the Members to secure the enforcement of the bind- 43
ing instruments adopted within the field of OSH by an adequate an appropriate system
of inspection. According to para 5 Recommendation, for the Members that have not rat-
ified the Labour Inspection Conventions,33 those Conventions should guide, however,
the national system of inspection. The enforcement system shall provide, in any case, for
adequate penalties for violations of the laws and regulations adopted within the field of
OSH.
33 Labour Inspection Convention, 1947 (No. 81); Labour Inspection (Agriculture) Convention, 1969
(No. 129).
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10. Article 10
Article 10
Measures shall be taken to provide guidance to employers and workers so as to help them to comply with
legal obligations.
44 According to Article 10, a further obligation of national authorities under the Con-
vention is that one of providing guidance to employers and workers in order to help
them to comply with their duties in the field of OSH. One can imagine that this can be
done by elaborating codes of practice, funding campaigns and studies, organising public
debates and offering general or targeted training free of charge.
11. Article 11
Article 11
To give effect to the policy referred to in Article 4 of this Convention, the competent authority or authori-
ties shall ensure that the following functions are progressively carried out:
(a) the determination, where the nature and degree of hazards so require, of conditions governing the
design, construction and layout of undertakings, the commencement of their operations, major al-
terations affecting them and changes in their purposes, the safety of technical equipment used at
work, as well as the application of procedures defined by the competent authorities;
(b) the determination of work processes and of substances and agents the exposure to which is to be
prohibited, limited or made subject to authorisation or control by the competent authority or au-
thorities; health hazards due to the simultaneous exposure to several substances or agents shall be
taken into consideration;
(c) the establishment and application of procedures for the notification of occupational accidents and
diseases, by employers and, when appropriate, insurance institutions and others directly concerned,
and the production of annual statistics on occupational accidents and diseases;
(d) the holding of inquiries, where cases of occupational accidents, occupational diseases or any other
injuries to health which arise in the course of or in connection with work appear to reflect situations
which are serious;
(e) the publication, annually, of information on measures taken in pursuance of the policy referred to
in Article 4 of this Convention and on occupational accidents, occupational diseases and other in-
juries to health which arise in the course of or in connection with work;
(f) the introduction or extension of systems, taking into account national conditions and possibilities,
to examine chemical, physical and biological agents in respect of the risk to the health of workers.
45 Article 11 further specifies the obligations deriving from Article 4, sorting out and
addressing six specific and basic functions that shall be carried out by the competent
public authorities – although progressively according to the flexibility principle charac-
terising the Convention, thus taking into consideration the different points of departure
of the Members in the field of OSH (technologically advanced vs. the others).
46 The first function (that we can call the government function) consists of the determi-
nation, where the nature and degree of hazards so require, of conditions governing (i)
the design, construction and layout, the commencement of operations, major alterations
and changes in purposes of the undertaking; (ii) the safety of technical equipment used
at work; (iii) the application of procedures defined by the competent authorities.
47 The second function (that we can call the prevention function) consists of the deter-
mination of work processes and of substances and agents, the exposure to which is to be
prohibited, limited or made subject to authorisation or control by the competent author-
ities. In such a perspective, health hazards due to the simultaneous exposure of workers
to several substances or agents shall be taken into consideration.
48 The third function (that we can call the transparency function) consists of the estab-
lishment and application of procedures for the notification of occupational accidents
and diseases, by employers and, when appropriate, by insurance institutions and others
directly concerned, and the production of annual statistics on occupational accidents
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and diseases. In relation to this function, of the major importance is the reference to be
made to the Protocol of 2002 to the Convention (P155). According to article 2 Protocol,
the competent authority shall, in consultation with the most representative organiza-
tions of employers and workers, establish and periodically review requirements and pro-
cedures for: (i) the recording of occupational accidents, occupational diseases and, as
appropriate, dangerous occurrences, commuting accidents and suspected cases of occu-
pational diseases; and (ii) the notification of occupational accidents, occupational dis-
eases and, as appropriate, dangerous occurrences, commuting accidents and suspected
cases of occupational diseases, as classified according to the Annex to the List of Occu-
pational Diseases Recommendations, 2002 (R194), revised in 2010.
The fourth function (that we can call the knowledge function) consists of the holding 49
of inquiries, where cases of occupational accidents, occupational diseases or any other
injuries to health that arise in the course of or in connection with work, appear to reflect
situations which are serious. According to the Committee of Expert, “This provision re-
quires countries to carry out inquiries into areas beyond established knowledge as to
cause-and-effect relationships between the working environment and occupational acci-
dents and diseases, while limiting this requirement to serious situations”.34
The fifth function (that we can call the disclosure function) consists of the annual 50
publication of information on measures taken in pursuance of the policy referred to in
Article 4 Convention and on occupational accidents, occupational diseases and other in-
juries to health which arise in the course of or in connection with work. Also in this
case, of the major importance is the reference to be made to Protocol of 2002 to the
Convention (P155). According to article 6 and 7 Protocol, each Member shall, based on
the notifications and other available information, publish annually statistics that are
compiled in such a way as to be representative of the country as a whole, concerning
occupational accidents, occupational diseases and, as appropriate, dangerous occur-
rences and commuting accidents, as well as the analyses thereof. The statistics shall be
established following classification schemes that are compatible with the latest relevant
international schemes established under the auspices of the ILO or other competent in-
ternational organizations.
The sixth function (that we can call the examination function) consists of the intro- 51
duction or extension of systems, taking into account national conditions and possibili-
ties, to examine chemical, physical and biological agents in respect of the risk to the
health of workers.
12. Article 12
Article 12
Measures shall be taken, in accordance with national law and practice, with a view to ensuring that those
who design, manufacture, import, provide or transfer machinery, equipment or substances for occupa-
tional use -
(a) satisfy themselves that, so far as is reasonably practicable, the machinery, equipment or substance
does not entail dangers for the safety and health of those using it correctly;
(b) make available information concerning the correct installation and use of machinery and equip-
ment and the correct use of substances, and information on hazards of machinery and equipment
and dangerous properties of chemical substances and physical and biological agents or products, as
well as instructions on how known hazards are to be avoided;
(c) undertake studies and research or otherwise keep abreast of the scientific and technical knowledge
necessary to comply with subparagraphs (a) and (b) of this Article.
34 ILO, General Survey, 2009, 47.
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52 In the light of the principle of prevention, Article 12 further specifies the obligations
deriving from Article 4, requiring Members to take, according with their national law
and practice, measures imposing three specific duties to those who design, manufacture,
import, provide or transfer machinery, equipment or substances for occupational use.
53 The first duty (that we can call the limited warrant duty) consists of ‘satisfying them-
selves’ that, so far as reasonably practicable, the machinery, equipment or substance they
design, manufacture, import, provide or transfer, do not entail dangers for the safety and
health of those using them correctly. The reasonably practicable principle and the cor-
rect use condition serve as warrant limitation in order to exclude the objective responsi-
bility of the above mentioned. However, in the Committee of Experts’ view ‘the obliga-
tion to “satisfy themselves” does not imply total autonomy. This obligation requires that
the necessary procedure to “satisfy themselves” has been carried out and done in good
faith in such a way as to ensure, so far as is reasonably practicable, that the objective is
adequately achieved, i.e. that the machinery, equipment, etc., does not entail danger for
safety and health of those using it’.35
54 The second duty (that we can call the labelling duty) consists of making available, by
the above mentioned, information concerning the correct installation and use of ma-
chinery and equipment and the correct use of substances, and information on hazards of
machinery and equipment and dangerous properties of chemical substances and physi-
cal and biological agents or products, as well as instructions on how known hazards are
to be avoided.
55 The third duty (that we can call the knowledge duty) consists of undertaking studies
and research or otherwise keeping abreast of the scientific and technical knowledge nec-
essary to comply with the limited warrant duty and the labelling duty.
13. Article 13
Article 13
A worker who has removed himself from a work situation which he has reasonable justification to believe
presents an imminent and serious danger to his life or health shall be protected from undue conse-
quences in accordance with national conditions and practice.
56 According to Article 13, Members shall, in accordance with their national conditions
and practice, protect, from undue consequences, workers who have removed themselves
from a work station which they have reasonable justification to believe presents an im-
minent and serious danger to their life or health.
57 As convincingly advocated by the Committee of Experts,36 Article 13 shall be red in
connection with Article 19(f) and 5(e) Convention. The former imposes, among the
others, arrangements at the level of the undertaking under which workers shall report
forthwith to their immediate supervisor any situation that they have reasonable justifica-
tion to believe presents an imminent and serious danger to their life or health. Until the
employer has taken remedial action, if necessary, workers cannot be required to return
to a work situation where there is continuing imminent and serious danger to life or
health. As specified by para 16(d) Recommendation, the same can happen in situations
workers have reason to believe could present just a hazard that they cannot themselves
correct. In connection to this, Article 5(e) recalls, among the main spheres of action of
the National Policy, the protection of workers and their representatives from disciplinary
measures because of actions properly taken by them in conformity with that National
Policy.
35 ILO, General Survey, 2009, 52-53.

36 ILO, General Survey, 2009, 49 ss.
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Therefore, disciplinary measures, to be looked at as undue consequences of actions 58

taken properly and in good faith (i.e. with a reasonable justification) by the workers,
cannot be adopted in the cases mentioned in the above.
14. Article 14
Article 14
Measures shall be taken with a view to promoting in a manner appropriate to national conditions and
practice, the inclusion of questions of occupational safety and health and the working environment at all
levels of education and training, including higher technical, medical and professional education, in a
manner meeting the training needs of all workers.
According to Article 14, Members shall take measures with a view to promoting the 59
inclusion of OSH and work environment issues at all levels of education and training.
This shall be done in a manner appropriate to national conditions and practice as well as
meeting the training needs of all workers. Although clear in its crucial purpose to rise
and develop awareness since the earliest stage of education and training, not easy to un-
derstand is the reason why, in the wording of Article 14, measures should be limited at
promoting the inclusion of the OSH and work environmental issues, instead of directly
including them within education and training programme.
15. Article 15
Article 15
1. With a view to ensuring the coherence of the policy referred to in Article 4 of this Convention and of
measures for its application, each Member shall, after consultation at the earliest possible stage with the
most representative organisations of employers and workers, and with other bodies as appropriate, make
arrangements appropriate to national conditions and practice to ensure the necessary co-ordination be-
tween various authorities and bodies called upon to give effect to Parts II and III of this Convention.
2. Whenever circumstances so require and national conditions and practice permit, these arrangements
shall include the establishment of a central body.
Article 15 touches upon the crucial issue of arrangements to be made, after consulta- 60
tion at the earliest possible stage with the most representative organisations of employers
and workers, in order to coordinate action in the field of OSH and work environment.
Indeed, the exercise of the complementary functions of administration and enforcement,
consultation, coordination and cooperation, knowledge generation and dissemination,
requires the establishment of a complex machinery, involving public and private entities.
The lack of coordination thereof, is likely to put at risk the efficiencies and the effective-
ness of that machinery, producing, in the best case, overlapping and, in the worst, no
man’s land. This is true for the tasks public authorities are called to carry on as well as
for employers’ and employees’ obligations and rights. For this reason, Article 15 advo-
cates that, whenever national conditions and practice it permit, arrangements made in
order to ensure the necessary co-ordination shall include the establishment of a central
body.
Furthermore, according to para 7 Recommendation, the main purposes of the ar- 61
rangements referred to in Article 15 Convention should be:
(a) to implement the requirements of Articles 4 and 7 Convention, i.e., respectively, 62
formulate, implement and periodically review the National Policy, review at appropriate
intervals the state of art of OSH and the working environment;
(b) to co-ordinate the exercise of the six basic functions assigned to the competent 63
authorities in pursuance of Article 11 Convention (already synthetised as government,
prevention, transparency, knowledge, disclosure, examination), taking into account the
principles laid down by para 4 Recommendation, i.e. (i) the distinction between OSH
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and the work environment – the latter to be understood as the social dimension of the
work relationship; (ii) the emphasis put on the links between OSH and working time;
(iii) the relationship between OSH hazards and the environmental risk, such as catastro-
phes; (iv) the existence of appropriate measures to be provided in favour of disable
workers;
64 (c) to co-ordinate activities in the field of OSH and work environment which are ex-
ercised nationally, regionally or locally, by public authorities, by employers and their or-
ganisations, by workers’ organisations and representatives, and by other persons or bod-
ies concerned;
65 (d) to promote exchanges of views, information and experience at the national level,
at the level of an industry or that of a branch of economic activity.
16. Article 16
Article 16
1. Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machin-
ery, equipment and processes under their control are safe and without risk to health.
2. Employers shall be required to ensure that, so far as is reasonably practicable, the chemical, physical
and biological substances and agents under their control are without risk to health when the appropriate
measures of protection are taken.
3. Employers shall be required to provide, where necessary, adequate protective clothing and protective
equipment to prevent, so far as is reasonably practicable, risk of accidents or of adverse effects on health.
66 Article 16 opens Part IV of the Convention, which refers to actions to be taken at the
level of the undertaking, addressing therefore, in the first place, employer’s duties directly
foreseen by the Convention. In such a perspective, the adoption of the reasonably practi-
cable principle, as common feature of the provision, does exclude the existence of an ob-
jective responsibility as far as the security obligation is concerned.
67 The adoption of the reasonably practicable approach means that, in assessing the
scope of employer’s liability, it is relevant to take into account the likelihood of a particu-
lar risk materializing (the so-called reasonable foreseeability of the harmful event).
Therefore, it has to be determined whether the entrepreneur has taken all reasonably
practicable steps to avoid the risk (the so-called reasonably practicable test of the preven-
tive or protective measure).
68 However, it must be borne in mind that, at least in the British contest in which the
principle has developed,37 the burden of proof when asserting that a certain step was not
reasonably practicable lies on the defendant, i.e., the employer. As a matter of fact, sec-
tion 40 HSWA is an example of a reversed burden of proof in the criminal law: ‘it shall
be for the accused to prove … that it was not practicable or not reasonably practicable to
do more than was in fact done to satisfy the duty or requirement’.
69 Within the limit of the reasonably practicable, employers shall be required to ensure
that: (a) workplaces, machinery, equipment and processes under their control are safe
and without risk to health; (b) the chemical, physical and biological substances and
agents under their control are without risk to health when the appropriate measures of
protection are taken; (c) where necessary, adequate protective clothing and protective
equipment are provided to workers in order to prevent risk of accidents or of adverse
effects on health.
70 Despite the opinion expressed by the Committee of expert, according to which the
part of Article 16 on personal protective equipment ‘is worded in such a way as to con-
vey the OSH principle that this equipment must be used either as a last resort in excep-
37 M Bell, 2013.
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tional situations or to further enhance already existing preventive and protective mea-
sure’,38 the protection principle is likely to play a crucial role within the provision. This
impression seems to be confirmed by the reference made to the absence of the risk to
health ‘when the appropriate measures of protection are taken’ in case of use of chemi-
cal, physical and biological substances and agents.
However, according to para 10(e) Recommendation, which, in the guise of sugges- 71
tion, specifies the possible contents of the obligations contained in Article 16, the provi-
sion of adequate personal protective clothing and equipment, without any cost to the
worker, may be an option only when hazards cannot be otherwise prevented or con-
trolled.
Among the measures that para 10 Recommendation suggests might be adopted, ‘as 72
appropriate for different branches of economic activity and different types of work’, in
order to fulfil the obligations provided by Article 16, once again within the framework of
the reasonably practicable principle, some are worth to be mentioned. They are: (i) in-
structions and training, taking into account the functions and capacities of different cat-
egories of workers; (ii) supervision of work, of work practices and of application and use
of OSH measures; (iii) organisational arrangements regarding OSH and the working en-
vironment adapted to the size of the undertaking and the nature of its activities; (iv)
work organisation not adversely affecting OSH, particularly with respect to hours of
work and rest breaks; (v) the elimination of excessive physical and mental fatigue; (vi)
study and research or otherwise keeping abreast of the scientific and technical knowl-
edge necessary to comply with the foregoing obligations.
On top of that, according to para 14 Recommendation, employers should be required 73
to formalise in writing their policy and arrangements in the field of OSH, highlighting
themselves the various responsibilities deriving from those arrangements, and to inform
workers individually about them, in an understandable language or medium. However,
and it sounds rather obscure, this may happen only ‘where the nature of the operations
in their undertakings warrants it’.
In connection with those obligations, according to para 15(1) Recommendation, em- 74
ployers should be required to verify, regularly, if applicable OSH standards have been
implemented within the undertaking, for instance by environmental monitoring, and to
undertake systematic safety audits from time to time.
Finally yet importantly, according to para 15(2) Recommendation, employers should 75
be required to keep records relevant to OSH and the working environment considered as
necessary by the competent authorities. These might include records of all notifiable oc-
cupational accidents and diseases that arise in the course of or in connection with work,
records of authorisation and exemptions provided by OSH law and regulations as well as
data concerning exposure to specified substances and agents.
17. Article 17
Article 17
Whenever two or more undertakings engage in activities simultaneously at one workplace, they shall col-
laborate in applying the requirements of this Convention.
Article 17 addresses another crucial aspect of employer’s safety obligation, that one 76
deriving from the simultaneous activity of two or more undertakings at one site, from
which the so-called interference risk may derive. As interference risk it is usually under-
stood the additional risk, the worker may be exposed to while and because of working in
38 ILO, General Survey, 2009, 58.
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a site where several activities are carried out under the direction and the responsibility of
different employers. Interference risk is a typical feature of construction sites, as made
clear by Directive 92/57/EEC.39 Article 17 imposes, in this case, a collaboration duty
among undertakings in the view of applying the requirements of the Convention.40
77 Although Article 17 explicitly puts no emphasis on the interference risk, one may in-
terpret the collaboration duty as a tool of making the undertakings aware of the fact that
they are not alone in their activity on site. Therefore, the collaboration duty may entail
the adoption of specific arrangements in the view of coordinating activities to be carried
out in a safe and healthy way. In such a perspective, para 11 Recommendation suggest to
competent authorities, if they consider it appropriate, to prescribe general procedures
for this collaboration.
78 On the other hand, the same para 11 Recommendation highlights another crucial as-
pect that should be taken into account in case of various undertakings operating within
the same site, i.e. the fact that the existence of the collaboration duty does not exclude
the responsibility of each undertaking for the OSH of its employees.
18. Article 18
Article 18
Employers shall be required to provide, where necessary, for measures to deal with emergencies and acci-
dents, including adequate first-aid arrangements.
79 In dealing with emergency measures and first aid arrangements, Article 18 applies the
already mentioned flexibility clause to the employer’s duty to provide them. In fact, those
measures and arrangements shall be put in place only ‘where necessary’, thus recogniz-
ing to the employer a margin of maneuver that could endanger workers’ health. On the
other hand, one may wonder whether the same reasoning applicable to the reasonably
practicable principle should apply also in this case, charging the employer with the bur-
den of prove in case workers’ health would be damaged by the absence of those measures
and arrangements.
19. Article 19
Article 19
There shall be arrangements at the level of the undertaking under which--
(a) workers, in the course of performing their work, co-operate in the fulfilment by their employer of
the obligations placed upon him;
(b) representatives of workers in the undertaking co-operate with the employer in the field of occupa-
tional safety and health;
(c) representatives of workers in an undertaking are given adequate information on measures taken by
the employer to secure occupational safety and health and may consult their representative organi-
sations about such information provided they do not disclose commercial secrets;
(d) workers and their representatives in the undertaking are given appropriate training in occupational
safety and health;
(e) workers or their representatives and, as the case may be, their representative organisations in an un-
dertaking, in accordance with national law and practice, are enabled to enquire into, and are con-
sulted by the employer on, all aspects of occupational safety and health associated with their work;
for this purpose technical advisers may, by mutual agreement, be brought in from outside the un-
dertaking;
39 Council Directive (EC) 92/57 on the implementation of minimum safety and health requirements at
temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of
Directive 89/391/EEC) [1992] OJ L245/6. See on it, E Ales, 2017.
40 The contents of the collaboration duty find further specification, with reference the construction sec-
tor, within the Safety and Health in Construction Convention, 1988 (No. 167).
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(f) a worker reports forthwith to his immediate supervisor any situation which he has reasonable justi-
fication to believe presents an imminent and serious danger to his life or health; until the employer
has taken remedial action, if necessary, the employer cannot require workers to return to a work
situation where there is continuing imminent and serious danger to life or health.
‘There shall be arrangements’, ‘Des dispositions devront être prises’, ‘Deberán adop- 80
tarse disposiciones’: whatever the official language we choose, the opening of Article 19
cannot be regarded as unambiguous. Opposite to other Convention’s provisions, it is not
clear, in this case, upon whom the obligation to provide the arrangements listed within
Article 19 is placed.
This could be either the legislator, called to introduce the necessary employer’s obli- 81
gations into national law within the framework of the Policy; either the employer, direct-
ly obliged by the Convention to adopt the measures aimed at realising the goals of Arti-
cle 19; either the workers, behaving accordingly because of their contractual obligations;
either the workers and their representatives, aware of the crucial role they could play in
guaranteeing (their own) health and safety; or, most convincingly, all of them in combi-
nation.
Such a conclusion seems to be confirmed by the reading of the obligation listed with- 82
in Article 19, according to which:
– workers shall co-operate in the fulfilment of their employer’s obligations (letter a);
– representatives of workers in the undertaking shall co-operate with the employer in
the field of OHS (letter b);
– the employer shall give to workers representatives within the undertaking adequate
information on measures taken to secure OSH and representative workers organisa-
tions may be consulted about such information, provided they do not disclose com-
mercial secrets (letter c);
– workers and their representatives in the undertaking shall be given appropriate
training in OHS (letter d);
– workers or their representatives and, as the case may be, their representative organi-
sations in the undertaking, in accordance with national law and practice, are en-
abled to enquire into, and are consulted by the employer on, all aspects of OSH asso-
ciated with their work; for this purpose technical advisers may, by mutual agreement,
be brought in from outside the undertaking (letter e);
– workers shall report forthwith to their immediate supervisor any situation which
they have reasonable justification to believe presents an imminent and serious dan-
ger to their life or health; until the employer has taken the remedial action needed,
they cannot be required to return to work in that situation (letter d).
Para 16 Recommendation further specifies how workers should act in order to fulfil 83
their cooperation duty towards the employer as far as their OSH is concerned. In particu-
lar, they should:
– take reasonable care for their own safety and that of other persons who may be af-
fected by their acts or omissions at work (letter a);
– comply with instructions given for their own safety and health and those of others
and with safety and health procedures (letter b);
– use safety devices and protective equipment correctly and do not render them inop-
erative (letter c);
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– report forthwith to their immediate supervisor any situation which they have reason
to believe could present a hazard and which they cannot themselves correct (let-
ter d);
– report any accident or injury to health which arises in the course of or in connection
with work (letter e).
84 The Recommendation emphasizes the duty of cooperation placed upon the workers
as far as the fulfilment of the safety obligation as a whole is concerned. Worker shall play
an active role in this respect, without prejudice of employer’s responsibility, being how-
ever aware of the fact that they are liable too as far as the fulfilment of their specific du-
ties is concerned. The employer may adopt disciplinary sanctions in case workers do not
respect their obligations. Social insurance benefits may be denied in case it is proved
that the incapacity to work has been caused by their own misconduct, despite the efforts
made by the employer in order to compel them to respect the safety prescriptions.
20. Article 20
Article 20
Co-operation between management and workers and/or their representatives within the undertaking
shall be an essential element of organisational and other measures taken in pursuance of Articles 16 to 19
of this Convention.
85 Article 20 emphasises the importance of co-operation with labour in OSH manage-

ment by referring to workers and or their representatives within the undertaking as es-
sential element in the view of realising the measures adopted in pursuance of Articles 16
to 19 Convention.
86 The very concept of collaboration is further developed by para 12(1) Recommenda-
tion, which advocates for the appointment, in accordance with national practice, of
workers’ safety delegates or committees and/or joint safety and health committees, in which
workers have at least equal representation with employers’ representatives.
87 According to para 12(2) Recommendation, these representatives or bodies should:
(a) be given adequate information on safety and health matters, enabled to examine
factors affecting safety and health, and encouraged to propose measures on the sub-
ject;
(b) be consulted when major new safety and health measures are envisaged and before
they are carried out, and seek to obtain the support of the workers for such mea-
sures;
(c) be consulted in planning alterations of work processes, work content or organisa-
tion of work, which may have safety or health implications for the workers;
(d) be given protection from dismissal and other measures prejudicial to them while ex-
ercising their functions in the field of occupational safety and health as workers'
representatives or as members of safety and health committees;
(e) be able to contribute to the decision-making process at the level of the undertaking
regarding matters of safety and health;
(f) have access to all parts of the workplace and be able to communicate with the
workers on safety and health matters during working hours at the workplace;
(g) be free to contact labour inspectors;
(h) be able to contribute to negotiations in the undertaking on occupational safety and
health matters;
(i) have reasonable time during paid working hours to exercise their safety and health
functions and to receive training related to these functions;
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(j) have recourse to specialists to advise on particular safety and health problems.
21. Article 21
Article 21
Occupational safety and health measures shall not involve any expenditure for the workers.
While workers may be held responsible for the accomplishment of the duties listed 88
within the Convention and, in case, within the Recommendation, the planning, estab-
lishment, organization and implementation of OSH measures shall not involve any ex-
penditure for them.
ILO Convention 161

Occupational Health Services Convention, 1985 (No. 161)
Literature: J Rantanen, Occupational Health Services (European Series, No. 26, WHO Regional Publica-
tions, Copenhagen 1990); J Rantanen, ‘Basic Occupational Health Services’, in Afr Newslett on Occup
Health and Safety, 2005; vol. 15, 34-37.
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Articles 2, 3, 4 and 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3. Article 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
a) The surveillance of the working environment . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
b) The surveillance of workers’ health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
c) Information, education, training, advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
d) First aid, treatment and health programmes . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
e) Other functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4. Article 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5. Articles 7, 8 and 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6. Article 9 and 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7. Article 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8. Article 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9. Article 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10. Article 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
I. Introduction
The Occupational Health Services Convention, 1985 No. 161 (hereinafter the Conven- 1
tion) has been adopted by the ILO General Conference in its Seventy-first Session on 7
June 1985. It takes stock of the Protection of Workers’ Health Recommendation, 1953 n.
97, the Occupational Health Services Recommendation, 1959 No. 112, the Workers’
Representatives Convention, 1971 No. 135, and the Occupational Safety and Health
Convention and Recommendation, 1981 No. 155 (hereafter Convention 155), which es-
tablish the principles of national policy and action at the national level.
At the present, the Convention has been ratified by 33 Members of the ILO1 (here- 2
inafter Members).
The relationship between the Convention and Convention 155 is highly controversial. 3
In fact, on the one hand, Convention 155, at least as far as the undertaking level is con-
1 EU Member States having ratified the Convention are Belgium, Bulgaria, Croatia, Czech Republic,
Finland, Germany, Hungary, Luxembourg, Poland, Slovakia, Slovenia, and Sweden.
Edoardo Ales
https://doi.org/10.5771/9783845266190-1408 1413
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ILO Convention 155

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Although referred to in the ILO Constitution1 and in the Declaration of Philadel- 1

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a) Temporary agency workers

c) Pregnant or breastfeeding workers

d) Minimum Age Convention

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24 See, however, remarks made under Article 20 Convention.

psycho-social risks.27 Neither the expression working environment, as a field separate

Culture’, Geneva: ILO, 2013, 2.

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34 ILO, General Survey, 2009, 47.

35 ILO, General Survey, 2009, 52-53.

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Therefore, disciplinary measures, to be looked at as undue consequences of actions 58

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38 ILO, General Survey, 2009, 58.

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85 Article 20 emphasises the importance of co-operation with labour in OSH manage-

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ILO Convention 161

Finland, Germany, Hungary, Luxembourg, Poland, Slovakia, Slovenia, and Sweden.

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