New health and_safety_regulations_2012

Boss Governance New Labor Health and Safety

Law No.6331 General

Public | © 2012 Boss Governance All rights reserved. 2

Protecting the health, and maintaining the safety of the employees is a basic constitutional right. The most important instrument to put the basic principle of the labor law, namely protecting the worker, into effect is without doubt the regulations on the labor health and safety. By way of adopting the Law No.6331 on Labor Health and Safety, upon its issuance on the Official Gazette on June 30th, 2012, a new period has commenced with the intent of eliminating the disarray in the regulations, expanding the scope thereof, and molding it into a structure, which displays a holistic approach towards the issue.Purpose of the law is to arrange the duties, powers, responsibilities, rights, and obligations of the employers and employees with the intent of maintaining labor health and safety at the workplaces, and improving the current health and safety conditions.The law is applicable, disregarding the subjects of their activities, to all businesses and workplaces within the scope of both public, and private sectors, to the employers and deputy employers of the aforesaid workplaces, and to all the employees thereof, including the apprentices and interns as well.

Exemptions


The provisions of this Law are not applicable to the below-mentioned activities and persons:a) Apart from those in such workplaces, including factories, care centers, tailoring workshops, etc., the activities of Turkish Armed Forces, general police forces, Undersecretariat of MİT (National Intelligence Organization);b) Disaster and emergency condition units’ intervention activities;c) Home services;d) Those producing goods and service production in their own names, and behalves, without employing any employee;e) Prison workshops, trainings, safety, and vocational courses, being conducted during the enforcement services, and within the scope of rehabilitation.

Obligation of the employer


While being obliged to maintain the health and safety of the employees with regard to their works, the Employer;a) Conducts works with regard to avoiding occupational risks, taking any sort of measure necessary, such as rendering training and information, making the organization, provision of any tool and instrument necessary, adaptation of health and safety measures in conformance to the changing conditions, and with regard to improving the current situation;b) Monitors and controls whether the labor health and safety measures being taken in the workplace are being followed, and maintains the elimination of nonconformities;c) Conducts risk assessment, or have it conducted;d) While assigning duty to an employee, considers the employee’s suitability to the duty in question in terms of health and safety;e) Apart from those, having been provided with adequate information and instructions, takes any measure necessary for keeping the other employees away from places posing lethal and specific dangers.(2) Procuring services from experts and corporations outside the workplace does not release the employer from his/her responsibilities.(3) Employees’ obligations in terms of labor health and safety by no means affect employer’s respective responsibilities.(4) Employer may by no means reflect the costs of the labor health and security measures to the employees.

Principles for the avoidance of risks


The following principles are taken into consideration for the fulfillment of the employer’s obligations:a) Avoiding risks;b) Analyzing unavoidable risks;c) Combating with the risks in their source;d) Taking pains in the design of the workplaces, and in the choice of work equipments, manner of work, and production methods, avoiding the effects of monotonous working and production pace particularly on health and safety, if not, minimizing it, in order to optimize the works to the persons;e) Adapting to technical advances;f) Replacing what is hazardous with the nonhazardous, or with the less hazardous;g) Developing a consistent and general avoidance policy, which comprises the effects of such factors, including technology, business organization, working conditions, social relations, working environment, etc.;h) Giving more priority to the collective protection measures than to the individual protection measures;i) Giving proper instructions to the employees.

Labor health and safety services


In order to render such labor health and safety services, which are to comprise the avoidance of occupational risks, and the things to do to get protected from these risks, the employer;a) assigns a labor safety specialist, a workplace doctor, and other health personnel among his/her employees. In case there is no personnel with the determined qualifications among his/her employees, employer may fulfill the whole, or part of this service from common health and security units. However, in case he/she possesses the determined qualifications, and required certifications, the employer him/herself may assume the fulfillment of this service by taking the hazard class, and number of employees into consideration.b) provides any and all of the needs (including vehicles, instruments, locations, and time) of the persons he/she has respectively assigned, or those of the organizations/corporations, from which respective service is procured, so as to enable them fulfill their duties;c) maintains cooperation and coordination among those, who perform the health and safety services in the workplace;d) carries out the instructions regarding labor health and safety, which are in compliance with the respective regulations, and which are declared in writing by those he/she has respectively assigned, or by the organizations/corporations, from which respective service is procured;e) provides information on the issues, which are either known to be affecting, or likely to affect the health and safety of the employees, to those he/she has respectively assigned, or the organizations/corporations, from which respective service is procured, or to the employees, who have come to work from other workplaces, and to their employers as well.(2) Public organizations/corporations within the scope of the Public Tender Law No.4734, dated 4/1/2002, may procure labor health and security services not only directly from the corporations with working capital, which belong to the Ministry of Health, but also within the frame of the Law No.4734.(3) In the workplaces, where workplace doctors are employed for full-time, it is not necessary to further employ other health personnel.

Problems and Expectation of Regulation


Despite the enactment of the new law, it has certain deficiencies. A regulation is awaited for fixing up the said deficiencies.There are questions being raised particularly with regard to the obligation laid on the employer to employ specialist personnel. On which ground will the labor safety specialist is to be employed, and whether he/she is to be employed for full-time, are among the uncertain issues.According to a regulation, having not been issued yet, the duration of work of the labor safety specialists has been determined as follows,Having the work shifts rearranged in the draft, accordingly,(a) among the workplaces with 1- 10 employees; (1) those being ranked in less hazardous class will employ at least 1 labor safety specialist for 30 minutes a month, (2) those being ranked in hazardous class will employ at least 1 labor safety specialist for 60 minutes a month, (3) and those being ranked in highly hazardous class will employ at least 1 labor safety specialist for 120 minutes a month, plus 15 minutes to the aforesaid durations a month per each employee, (b) among the workplaces with more than 10 employees; (1) those being ranked in less hazardous class will employ at least 1 labor safety specialist for no less than 10 minutes per each employee a month, (2) those being ranked in hazardous class will employ at least 1 labor safety specialist for no less than 15 minutes per each employee a month, (3) and those being ranked in highly hazardous class will employ at least 1 labor safety specialist for no less than 20 minutes per each employee a month, while the workplaces with 1000 employees and more, being ranked in less hazardous class, will employ at least 1 labor safety specialist for full-time per each 1000 employees, and in case the number of employees amounts to more than the full multiples of 1000, additional labor safety specialist(s) will be employed in compliance with the aforementioned criteria, upon taking the remaining number of employees,

Personnel of 750 and 500


the workplaces with 750 employees and more, being ranked in hazardous class, will employ at least 1 labor safety specialist for full-time per each 750 employees, and in case the number of employees amounts to more than the full multiples of 750, additional labor safety specialist(s) will be employed in compliance with the aforementioned criteria, upon taking the remaining number of employees, the workplaces with 500 employees and more, being ranked in highly-hazardous class, will employ at least 1 labor safety specialist for full-time per each 500 employees, and in case the number of employees amounts to more than the full multiples of 500, additional labor safety specialist(s) will be employed in compliance with the aforementioned criteria, upon taking the remaining number of employees.

Labor Safety Specialists


Those with (C)-class certificate may work in workplaces within less-hazardous class, those with (B)-class certificate may work in workplaces within less-hazardous and hazardous classes, and those with (A)-class certificate may work in workplaces in workplaces within all hazard classes.

Workplace doctor


First of all, workplace doctor is being defined in the Labor Health and Safety Law No.6331 as the doctor being the holder of workplace medicine certificate, who has been authorized by the Ministry of Labor and Health so as to be functioning in the field of labor health and safety. One of the most important improvements being introduced by law in the field of workplace medicine is the aforementioned definition. By means of the definition in question, the dispute on whether Turkish Medicine Association (TTB) is also entitled in the workplace medicine practices has been ceased, and the field of workplace medicine has entirely been left to the authority of the Ministry of Labor and Social Security.

Duty of the workplace doctor


Duties of the workplace doctor

In accordance with the new regulation, workplace doctors’ right to act independently in their services has been put under guarantee. From then on, workplace doctors have gained the right to act freely in their services, independent not only from their employers, trade unions, but also from TTB, and even from the Ministries of Labor and Health. This is an outstanding improvement, and a legal gain, having been introduced in the field of workplace medicine.

According to the new legal implementation, workplace doctor is deemed as obliged to notify at first his/her employer with the measures, which should necessarily be taken in the workplace in terms of labor health and safety. In this context, the employer has to take all the required measures. Among the issues to have been notified by the workplace doctor to the employer, in case those being life-threatening have not been fulfilled, workplace doctor will then be entitled to notify this issue to the Ministry of Labor. Under such a circumstance, Ministry of Health will forcefully maintain the taking of the respective measures.

Conditions for Service Procurement


The condition for the employment of labor safety specialists and workplace doctors or for the procurement of equivalent services externally will become effective in

two years as from the date of publication of the respective law, among the workplaces with less than 10 employees, in those being ranked within highly-hazardous class;

three years as from the date of publication of the respective law, among the workplaces with less than 10 employees, in those being ranked within hazardous and highly-hazardous classes;

one year as from the date of publication of the respective law, among the workplaces with no less than 10 employees, in those being ranked within all hazard classes.

Throughout this transition period, the labor safety specialists, and workplace doctors to be required for any and all of the workplaces will be documented. Employers concern that the number of labor safety specialists and workplace doctors is not adequate for all workplaces.

Example calculation


EXAMPLEWorking hours of the labor safety specialists and workplace doctors in a Hazardous-class company with 100 personnel are calculated as follows.

Workplace doctor:

Standard: 15 hours/month

Per employee: 25 minutes/year

25*110*/12*60*: 4 hours/month

Service hour: Service contract thereof is to be made in 15 + 4:19 hours/month.

Labor Health & Safety Specialist:

Standard: 24 hours/month

Per employee: 5 minutes/year

5*110/60*: 9 hours/month

Service hour: Service contract thereof is to be made in 24 + 9:33 hours/month.

Effect


The condition for the employment of labor safety specialists and workplace doctors or for the procurement of equivalent services externally will become effective in

two years as from the date of publication of the respective law, among the workplaces with less than 10 employees, in those being ranked within highly-hazardous class;

three years as from the date of publication of the respective law, among the workplaces with less than 10 employees, in those being ranked within hazardous and highly-hazardous classes;

one year as from the date of publication of the respective law, among the workplaces with no less than 10 employees, in those being ranked within all hazard classes.

Current limit of 50 persons


According to the current regulation, the employers being ranked in the field of industry, and employing more than 50 employees are obliged to employ labor safety specialists and workplace doctors. Such employers may optionally procure the aforementioned services externally. However, in accordance with the new Law on Labor Health and Safety, the limit of 50 employees is cancelled, and it becomes obligatory for all workplaces to employ labor safety specialists and workplace doctors. In other words, a workplace, in which only three workers are being employed, is also to obtain service from labor safety specialists and workplace doctors.

Sanctions


In the ministerial audits;

· Administrative fines may be imposed, and such fines may rise up to TL 80 thousand.· The progress of work in the workplace may be halted in part, or as a whole. Employer may resume his/her activities upon recovering the deficiencies.

Policy and Document delivery


Workplaces, in which major industrial accidents may likely to occur, are to prepare either Major Accident Avoidance Policy Certificate, or Security Report. Activities will commence upon the Ministerial examination thereof. The employers, who have not prepared Major Accident Avoidance Policy Certificate, are to be imposed with a fine of TL 80 thousand, and those who have not prepared Security Report, are to be imposed with a fine of TL 50 thousand.

Criticisms


Criticisms against the law arise mostly from the employers’ circles. It should also be noted that, similar criticisms arise also from the academic circles. To list such criticisms briefly;

· The law does not reflect the past experiences.

· In case the law is to be applicable to all workplaces, how will the need for adequate number of labor safety specialists and workplace doctors?

· While the violations are punished, vigilant employers are not awarded.

· Arrangement of critical issues is left to regulations.

Our recommendation


We hereby advise our esteemed customers to receive training and consultancy from a labor safety company after the publication of the respective regulations due to not only the penal sanctions of the new law, but also due to the likelihood of being imposed to respective proceedings due to potential labor safety risks.


Thanks…Boss Yönetişim Hizmetleri A.Ş.www.boss.com.tr0090 212 244 92 22

Date post:	01-Dec-2014
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