The annual statistics published by the Social Security Institution of the Republic of Turkey reveal that 69,227 occupational accidents occurred in 2011 and they resulted in the death of 1,700 employees and permanent disability of 2,093 employees.1 Even these numbers demonstrated once again the necessity for a through legal infrastructure and the long-delayed legislative framework on health and safety issues.
For years, these issues have been regulated briefly under the Labor Code No. 4857, the Social Security and General Health Insurance Law No. 5510 and the Public Health Law No. 1593 along with the secondary legislation. They, however, contained very general provisions and were very limited in scope. Hence, Occupational Health and Safety Law No. 6331 ("OHS Law") was prepared based on the principles of the EU Directive No. 89/391 and was enacted on 30 June 2012.
ii. OHS Law in General
The OHS Law applies to all types of public and private workplaces, save for those excluded under its Article 2 such as workplaces where no employees are employed. All employees that work at these workplaces, including apprentices and interns, fall within the scope of the OHS Law, regardless of their position or seniority. It brings various obligations to employers including taking health and safety precautions and all other precautions to decrease occupational risks, monitoring applicability of precautions and ensuring their proper application, training employees on possible occupational risks, health and safety rules, first-aid, firefighting and other natural disasters and risk assessments.
Currently, all provisions of the OHS Law are enforceable for all private entity workplaces with 50 or more employees. On the other hand, all provisions of the OHS Law except Articles 6, 7 and 8 are currently enforceable ("Excluded Provisions") for hazardous, very hazardous and slightly hazardous private entity workplaces with less than 50 employees and public entities. The Excluded Provisions relate to occupational health and safety staff, occupational health and safety services and financial aid by the Ministry of Labor and Social Security ("the Ministry") for occupational health and security services and they will become enforceable for hazardous and very hazardous private entity workplaces with less than 50 employees as of 30 June 2013 and for slightly hazardous private entity workplaces with less than 50 employees and public entities as of 30 June 2014.
A limited number of secondary legislation complementary to the OHS Law, such as the Regulation on Risk Assessment2 ("Risk Assessment Regulation"), Regulation regarding Training of Employees on Health and Safety Matters3, Regulation on Employment of Occupational Safety Experts4 ("RoESE") and Regulation on Use of Work Equipment5, have been enacted in the last couple of months. Certain other secondary legislation, such as those on vocational education of employees and employment of workplace doctor, are yet to be enacted.
iii. Major Regulations
a. Risk Assessment and Accident Prevention Policy
The OHS Law and the Risk Assessment Regulation underline the importance of taking security measures to eliminate or decrease possible risks at workplaces. A risk assessment has to be made and renewed at least every two years for very hazardous workplaces, every four years for hazardous workplaces and every six years for slightly hazardous workplaces. Risk assessments should be renewed or a new risk assessment should be made under certain circumstances such as, among others, change in production method or occurrence of occupational workplace accident or occupational disease. Risk assessments should address potential dangers, possible risks that may arise therefrom (including risk frequency and details of possible damages), include plans for risk control, monitor application of these plans and resolve issues regarding the same. While assessing risks, the characteristics of employees (e.g. gender, age, disability, maternity) and workplace (e.g. building that a workplace is located, activities conducted at a workplace, process and methods of production, work equipment, etc.) should be taken into consideration.
As per the OHS Law, a major accident prevention policy certificate or a safety report should be prepared for workplaces at which major industrial accidents are likely to occur and approved by the Ministry before these workplaces can become operational. The method of preparation of a major accident prevention policy certificate and a safety report will be dealt with under the secondary legislation, which is yet to be enacted.
b. Employment of Occupational Health and Safety Staff
Prior to the enactment of the OHS Law, depending on the number of employees and workplace's hazard category, the employment of at least one part-time or full time workplace doctor and at least one part-time or full time occupational safety expert was required at industrial workplaces whereby 50 or more employees were employed.
Likewise, the OHS Law requires the employment of sufficient number of occupational safety expert(s), workplace doctor(s) and other healthcare staff6 who meet the criteria set out in the OHS Law and the secondary legislation. These services can be obtained from a common health and security unit established to provide health and security services upon the Ministry's authorization ("COHS Unit") as well.
This requirement is applicable to all workplaces (but not only the industrial ones) depending on the number of their employees and their hazard categories as follows:
- All workplaces with 50 or more employees are currently required to employ sufficient number of occupational safety expert(s), workplace doctor(s) and other healthcare staff7 or to obtain these services from a COHS on part time or full time basis depending on the number of their employees and their hazard categories.
- Private entity hazardous or very hazardous workplaces with less than 50 employees will have to employ sufficient number of occupational safety expert(s), workplace doctor(s) and other healthcare staff8 on part time or full time basis or to obtain these services from a COHS depending on their hazard categories and the number of their employees starting from 30 June 2013. After this date, the Ministry will provide financial aid for occupational health and security services to hazardous or very hazardous workplaces with less than 10 employees.
- Slightly hazardous private entity workplaces with less than 50 employees and public entities will be required to employ sufficient number of occupational safety expert(s), orkplace doctor(s) and other healthcare staff9 or to obtain these services from a COHS on part time or full time basis depending on the number of their employees starting from 30 June 2014. After this date, the Council of Ministers will be authorized to resolve on provision of financial aid for occupational health and security services to slightly hazardous workplaces with less than 10 employees.
The method and the terms of employment of occupational safety experts are set out under the RoESE. Occupational safety experts are classified as Group (A), (B) and (C) and should hold a valid license issued by the Ministry to serve in fulfillment of the health and safety requirements brought by the OHS Law and the secondary legislation. Sufficient number of Group (A) and/or Group (B) and/or Group (C) occupational safety expert(s) should be employed depending on the number of employees and the hazard category of the workplace in question.
The requirement to employ sufficient number of workplace doctor(s) is currently regulated under the OHS Law. The method and the terms of their employment are still unclear since the secondary legislation on this issue is yet to be enacted.
c. Occupational Health and Safety Board
The Regulation on Occupational Health and Safety Boards10 requires that employers with 50 or more employees establish an occupational health and safety board ("Board") for their workplaces where continuous operations lasting more than 6 months are carried out. The Board aims to perform health and safety related actions and develop related processes. It should consist of the employer or the employer representative, the occupational safety expert, the workplace doctor, an HR, social affairs or administrative/financial affairs representative, civil defense expert (if applicable), foremen representative (if applicable) and the employee representative or the head employee representative if there are more than one employee representatives11. Employers are obliged to abide by and to apply all resolutions adopted by the Board as long as they are in line with the legislation.
If a subcontractor with more than 50 employees work at a workplace, then it must form its own Board. Subcontractors with less than 50 employees must be represented at the Board formed by the principal employer. If both a principal employer and its subcontractor(s) each have less than 50 employees but they cumulative have more than 50 employees, then they must form a common Board jointly.
d. Reporting and Recording Accidents and Occupational Sicknesses
Prior to the OHS Law, employers were obliged to report occupational accidents and occupational sicknesses to both the Social Security Institution ("SSI") and the related regional/provincial directorate of the Turkish Labor Agency ("TLA"). The OHS Law eliminated the requirement to report to the TLA. Yet, occupational accidents and occupational sicknesses still have to be reported online to the SSI within 3 days from the occupational accident date and the date that the occupational sickness has been diagnosed and reported to the employer, respectively.
Additionally, employees have to keep records of all accidents that occur at their workplaces even those not resulting in injury or death of an employee and should revise their risk assessments accordingly. It is sufficient for an accident to have caused certain damage at a workplace or over workplace equipment or to have the potential to cause damage to employees, a workplace or workplace equipment.
If certain life-threatening circumstances exist at a certain part or the whole of a workplace, then activities at the related part or the whole of such workplace should be ceased until the life-threatening circumstances are cured.
iv. Sanctions and Penalties
Failure to abide by the requirements of the OHS Law may lead to various administrative fines. For instance failure to appoint sufficient number of workplace doctor(s) or occupational safety expert(s) may lead to an administrative fine of TL 5,000 for each doctor or expert not employed for each month of non-employment; failure to make risk assessment may lead to an administrative fine of TL 3,000 for the first month and TL 4,500 for each consecutive month of failure; failure to abide by the decision to cease operations may lead to an administrative fine of TL 10,000 and failure to prepare a major accident prevention policy certificate and initiate operations without having a safety report approved by the Ministry may lead to an administrative fine of TL 50,000 and TL 80,000, respectively.
Considering the importance of health and safety at workplaces and the excessive administrative fines applicable to failure to abide by the OHS Law and the secondary legislation, it is vital to adopt the necessary resolutions and make necessary arrangements to fulfill the newly adopted health and safety requirements. Let's hope that all secondary legislation will be enacted soon so that employers can organize themselves accordingly and take necessary precautions to minimize their risks at their workplaces.
1 The statistics for 2012 are yet to be published.
2 Published in the Official Gazette dated 29 December 2012 and numbered 28512.
3 Published in the Official Gazette dated 15 May 2013 and numbered 28648.
4 Published in the Official Gazette dated 29 December 2012 and numbered 28512 as amended through the regulation published in the Official Gazette dated 31 January 2013 and numbered 28545.
5 Published in the Official Gazette dated 25 April 2013 and numbered 28268.
6 Not required if at least one full time workplace doctor is employed.
7 Not required if at least one full time workplace doctor is employed.
8 Not required if at least one full time workplace doctor is employed.
9 Not required if at least one full time workplace doctor is employed.
10 Published in the Official Gazette dated 18 January 2013 and numbered 28532.
11 Employee representatives are appointed through election by employees or authorization by employers (if election is not possible) to monitor occupational health and safety activities and to request additional health and safety precautions from employers. One to six employee representatives should be appointed depending on number of employees employed at a workplace. Representatives of authorized trade unions can also be considered as employee representatives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.