Chapter I. Guarding of machinery

A. Scope of the instruments

15. Convention No. 119 and Recommendation No. 118 were designed to ensure the broadest possible scope of application, while remaining at the same time sufficiently flexible to accommodate a wide variety of national conditions and circumstances. The scope of the instruments is determined by two major considerations, the types of machinery and the branches of economic activity covered.

I. Types of machinery covered

16. The definition of the machinery covered by the Convention is given in its Article 1, to which Paragraph 1(c) of the Recommendation also refers. According to Article 1, paragraph 1, "all power-driven machinery" shall be considered as machinery for the purpose of the application of the Convention. Certain additional indications can be found in the preparatory work on the instruments. Following the first discussion at the Conference in 1962, the competent Conference Committee included the following paragraph in its report: "The Conclusions proposed by the Office did not specify the classes of machinery to which the proposed instruments should apply. Nevertheless, the Office had considered that the scope of the instruments should encompass all categories of machinery used for industrial purposes, with the exception of some installations the safety of which depends mainly on engineering design, such as passenger and goods lifts (excluding the machinery rooms of these installations), boilers and other pressure vessels". (Endnote 1)

17. Convention No. 119 was thus aimed only at machinery used for industrial purposes and does not apply, for example, to machinery intended exclusively for domestic purposes.

18. The Convention covers all categories of machinery used for industrial purposes whatever its function. This is further illustrated by the fact that an amendment to provide for the exemption by national law and regulations of any class of machinery, where it was impracticable or unreasonable to guard all dangerous parts before use, was rejected by the competent Conference Committee. (Endnote 2)

19. The Convention may also be extended to machinery operated by manual power, in the conditions laid down by Article 1, paragraph 2. The initial Office paper put before the Conference with a view to the adoption of the instruments concerned only power-driven machinery, that is, machinery the motive power of which was other than human or animal. During the discussion in the competent Conference Committee it was suggested that the expression "power-driven" was too limited because of the risk which some manually powered machinery could present. As a result of the Committee's deliberations it was decided that the Convention should apply also to machinery operated by manual power, although only in so far as the competent national authority would so determine. This decision was adopted with the understanding that the word "power-driven" applied also to machinery driven by animal power. (Endnote 3)

20. Article 1, paragraph 1, of the Convention also states clearly that it applies equally to new and to second-hand machinery. The specific mention of second-hand machinery, although the latter could be considered covered by implication, reflects concern about the considerable turnover in such machinery, which is often in poor condition when acquired second hand. This situation is particularly relevant to developing countries. During the preparatory stage several proposed amendments aiming at making the Convention more flexible with respect to second-hand machinery were not adopted by the Conference.

21. On the other hand, it was judged necessary to allow more flexible application in respect of certain particular types of machinery, such as road and rail vehicles and mobile agricultural machinery, which were therefore specifically addressed in Article 1, paragraph 3. Considering that the primary aim of the Convention was to extend protection to persons employed on such machinery and that it was not practicable in particular to protect the wheels of these vehicles, it was decided that the Convention should apply to road and rail vehicles during locomotion only in relation to the safety of the operator or operators, and to mobile agricultural machinery only in relation to the safety of workers employed in connection with such machinery.

22. The coverage of Recommendation No. 118 as to types of machinery is the same as that of the Convention. Paragraph 1(1) of the Recommendation makes direct reference to "machinery, as defined in Article 1 of the Guarding of Machinery Convention, 1963".

(a) Application to all power-driven machinery (Article 1, paragraph 1 of the Convention)

23. In the majority of countries no distinction is made in the relevant legislation between new and second-hand machinery.

24. Surveying the legislation both from the historical and geographical points of view, it appears that power-driven machinery has always been the principal concern of legislative bodies. It was the addition of power to machinery that started the industrial revolution and gave rise to the appearance of the first safety legislation, and powered machinery is still the major cause of industrial accidents. It is natural therefore for the terms "machinery" and "power" to be closely linked in the legislation, which often uses the term "power-driven machinery" to define its own scope of application. (Endnote 4) Sometimes national legislation becomes more explicit in this respect, indicating that it applies to machinery used for generating, transforming, applying, etc. any mechanical, electric or natural power. (Endnote 5) It is less so in cases when indications found as to the coverage of machinery refer simply to "mechanically driven machinery" and to "mechanical energy". (Endnote 6)

25. The definition of machinery in national legislation varies considerably from country to country, sometimes making it difficult to clarify the precise scope of their texts. The pattern followed in the earlier legislation of some countries was to split the machinery covered into two categories: prime mover and transmission machinery, that is those parts that generate, receive or transmit power; and other machinery. Guarding is prescribed most often in respect of prime mover and transmission machinery. As concerns "other machinery" coverage is unequal. It may be that the law prescribes, in line with the Convention, guarding of "every dangerous part of any other machinery" (Endnote 7) without indicating, by contrast to prime mover and transmission machinery, whether or not it is driven by mechanical power. (Endnote 8) It may be on the other hand that the law refers to other machinery in respect of certain guarding requirements only or defines this other machinery in some manner. Other machinery may include in the latter case machinery "recognised as dangerous" such as machines used for mixing, crushing, cutting, sawing, slicing, etc. (Endnote 9)

26. In the majority of countries, especially in those where the relevant provisions were adopted fairly recently, it is uncommon for any special definition of machinery to be included in the national legislation, which usually simply refers to "machinery" or to "technical installations or equipment". Being more comprehensive in scope this legislation covers all power-driven machinery. (Endnote 10) In some countries where general legislation is supplemented by special regulations or technical standards on the guarding of machinery this invariably includes such a broad definition of machinery as to cover all types of equipment used. (Endnote 11) New standards elaborated in other countries also follow this approach. (Endnote 12)

(b) Discretionary application to machinery operated by manual power (Article 1, paragraph 2 of the Convention)

27. Article 1, paragraph 2 of the Convention leaves it to the competent authority in each country to determine whether and how far to apply the Convention to machinery operated by manual power. However, while giving governments discretionary power in this regard, it requires the competent authority to consider this question and to make such decisions as may be called for, taking into account the risks of injury involved in the use of such machinery. Governments of ratifying countries are further required to consult the representative employers' and workers' organisations concerned, which can also take the initiative for such consultation.

28. In examining the legislation which applies generally to all power-driven machinery, the Committee of Experts has most frequently been confronted with situations in which its applicability to manually driven machinery was not evident and left grounds for doubt as to the precise scope of coverage in this respect. In only a few countries is the legislation drafted in such terms as expressly to include or exclude machinery operated by manual power. In Argentina, for example, Decree No. 351/79 applies to "machines and tools used in undertakings" and contains safety requirements with respect to "hand-tools". (Endnote 13) In Burma, on the other hand, the term "power" in respect of machinery is defined in such a way as to exclude energy "generated by human or animal agency". (Endnote 14) In the majority of cases, though, the terms of the legislation leave scope for different interpretations as to whether manually driven machinery is covered. This may be illustrated by cases in which the law applies to machinery using "mechanical, electric or natural power", which may or may not include human power. (Endnote 15) Further complications may arise when there are several national texts of unequal scope regulating the subject of guarding of machinery. In Kuwait, for example, section 40 of the Labour Code for the Private Sector requires guarding of "mechanically driven machinery", Ministerial Order No. 43 of 1979 concerning protection against occupational hazards at the workplace refers to "machines" without any restricting definitions, and Ministerial Order No. 56 of 1982 respecting the guarding of machinery applies (section 2) to "any machine driven by mechanical power other than human". In its last report on the application of the Convention the Government indicated that, under the national Constitution, a ratified Convention is given executory force and that, moreover, the decree proclaiming its ratification does not distinguish between power driven and manually driven machinery, thus covering both types of machinery. Commenting on the application of other provisions of the Convention, the Committee of Experts pointed out in general the desirability of taking measures "in order to avoid discrepancies between the provisions of the Convention and those of the national legislation, and to avoid uncertainty for those who must comply with the law". (Endnote 16)

29. In examining reports received from countries which have ratified the Convention, the Committee of Experts has also had the occasion to point out that the coverage of the legislation of several countries does not appear to include manually driven machinery and that no decision had been taken to determine whether and to what extent such machinery should be subject to the requirements of the Convention. (Endnote 17) In such cases the Committee of Experts has insisted that, in order to give effect to this provision of the Convention, the competent national authority should take the appropriate decision after consulting employers' and workers' organisations.

30. In cases where the legislation applies to all types of machinery or where legislative texts do not establish clearly whether they apply also to manually driven machinery, the Committee of Experts has found it necessary to ask the governments to confirm whether these texts are applicable both in law and in practice to machinery operated by manual power and to indicate the provisions by which this has been determined. (Endnote 18)

31. In one case, commenting on draft legislation elaborated to give effect to the Convention, the Committee of Experts pointed out that this draft legislation referred to dangerous machinery or parts thereof which are "mechanically driven", and therefore did not appear to leave open the possibility, as does the Convention, of considering as dangerous for the purposes of the Convention certain new or second-hand machines which are operated by manual power. Following these comments the government concerned modified the proposed legislation by enlarging its scope to cover manually driven machinery as well. (Endnote 19) As suggested by this example, the question of coverage of manually driven machinery may be reconsidered on the occasion of the revision of the existing legislation on guarding of machinery, or the adoption of new legislation, in consultation with employers' and workers' organisations. This process, for example, is underway in Algeria. The Committee of Experts would like to draw the attention of the governments concerned, as well as of employers' and workers' organisations, to the possibility of clarifying, when necessary, the extent of application of the relevant national legislation to manually driven machinery when the legislation is being revised.

32. The reports and information supplied by some countries point to certain special measures taken with a view to clarifying the question of application of the legislation to manually driven machinery.

33. In one country a special committee including representatives of trade unions and employers' organisations was entrusted with the task of determining to what extent manually driven machinery presents a danger to the physical safety of the workers and should be considered as dangerous machinery, and helped elaborate decisions in respect of the application of the existing legislation to manually driven machinery. (Endnote 20) Another government indicated that its legislation was applicable to manually driven machinery and was adopted after consultation with the Technical Advisory Committee on Occupational Health and Safety which includes representatives of employers' and workers' organisations. (Endnote 21)

34. Apart from these few cases, the majority of government reports contain no indications as to the question of coverage of manually driven machinery. In many countries no distinction is made between power driven and manually driven machinery, usually when the law refers to machinery in general. In some countries it appears from interpretations given by judicial decisions that this means that the law applies to both kinds of machinery. (Endnote 22) However, in examining the legislation of a number of countries for which information is available it must be concluded that the question of the applicability of national provisions to manually driven machinery has yet to be examined by their legislatures or other competent authorities. In the absence of any specific references in the legislation to manually driven machinery the problem is to determine whether this machinery is implicitly covered by the general reference to machinery and parts thereof or by the definition of machinery, if such is included in the legislation.

35. In some cases the available information seems to indicate that manually driven machinery is covered. (Endnote 23) In other cases, on the contrary, it appears that the legislation does not cover machinery operated by manual power. (Endnote 24) In a number of cases, however, the available information did not permit the Committee to arrive at any conclusion in this respect.

(c) Extent of application to road and rail vehicles and to mobile agricultural machinery (Article 1, paragraph 3 of the Convention)

36. As was pointed out earlier, the application of the instruments to these types of machinery was made more flexible for reasons of an entirely practical nature. In order to allow for the difficulties of guarding mobile machinery it was thought appropriate to apply the Convention to such machines only when they are in motion. It was also impracticable to impose guarding requirements for these machines in relation to persons not carried on the vehicle or machinery. As one government pointed out, field machinery in agriculture can only be required to be guarded in relation to the operator and not, for example, in relation to a person crossing a field where a reaper is at work. An amendment providing that the Convention should not apply to road and rail vehicles during locomotion in respect of persons other than the operator or operators of the vehicles was adopted unanimously by the competent Conference Committee. (Endnote 25)

37. Only a few countries have used the possibility of restricting the application of their legislation as regards road, rail and agricultural machinery, as is allowed by the Convention. In the majority of countries road and rail vehicles and mobile agricultural machinery are treated on the same footing as any other machinery covered by the legislation. In quite a few countries, though, as will be shown below, transport and agriculture are excluded from the scope of the general provisions on guarding of machinery, and the application of the instruments to machinery in these branches can only be ensured by the adoption of special provisions in respect of transport and agricultural machinery.

38. In a number of countries the legislation applicable to machinery in general also covers road and rail vehicles and agricultural machinery, (Endnote 26) or only the former if agriculture is excluded from the legislation. (Endnote 27) In the countries where the legislation applies only to "factories" and does not in principle cover transport machinery (Endnote 28) such machinery may still be covered to the extent that it is used inside the factory. In one country, for example "locomotives" are considered to be "machinery" for the purpose of the application of the law when operated within the curtilage of any factory. (Endnote 29) As concerns agricultural machinery, in one country while agricultural workers are generally excluded from the scope of the Labour Code, this exclusion does not affect "workers permanently employed in operating or repairing mechanical equipment used in agriculture". (Endnote 30)

39. The report from one country has stated that it was not necessary to mention rail vehicles in the legislation as this means of transport does not exist in the country. (Endnote 31)

II. All branches of economic activity covered

40. The question of determining the scope of the Convention in respect of branches of economic activity covered was one that gave rise to the largest number of proposals and amendments during the elaboration of these instruments. The majority view was in favour of a more comprehensive approach, while others preferred restriction to certain specified branches only. It was argued, for example, that in some countries methods for ensuring safety in agriculture and forestry work had not yet reached the same level as in other branches of economic activity, and that it was thus desirable to leave open for those countries the possibility of not applying the provisions of the Convention to machinery used in agriculture and forestry. Other proposals suggested for possible exclusion from the scope of the Convention, such branches as transport by sea or inland waterways, fishing and air transport. One draft amendment proposed to limit the application of the Convention to machines used in undertakings in which persons were employed under a contract of service, thus excluding self-employed persons. None of these proposals was accepted by the Conference, which decided that the instruments should apply to all branches of economic activity. The general application of the instruments is ensured respectively by Article 17, paragraph 1 of the Convention and Paragraph 16 of the Recommendation, subject to a declaration accompanying ratification of the Convention specifying a more limited application (see below).

41. An examination of the legislation of all countries for which information is available, including the ratifying countries, shows that the legislation of many of them covers all branches of economic activity without exception. (Endnote 32)

42. Among the federal countries, in Yugoslavia the Acts respecting the protection of labour adopted during the 1970s in each republic and autonomous province, which replaced the federal Basic Act respecting the Protection of Labour of 1965, retained its general field of application to "all workplaces and occupations where persons are employed". (Endnote 33)

43. It is particularly interesting to note current legal developments in a number of countries, aiming at extending gradually the application of the existing legislation on the guarding of machinery to branches of economic activity which were not previously covered. This process is generally coupled with the revision of the relevant legislation, including the relevant sections of the labour codes, with a view to complying more closely with the Convention.

44. In Cyprus the Factories Act of 1956, which is the principal legal instrument giving effect to the Convention, was amended in 1982 so as to cover agricultural operations previously excluded and further amendments are envisaged by the Government to extend its scope, while awaiting the elaboration of the new general legislation on working conditions, health and safety. (Endnote 34) In Sierra Leone the Factories Act of 1974, which applies only to factories as defined in the Act, and accordingly does not extend to road and rail vehicles, to agricultural machinery, to mines, or to shipping, is being revised and the new draft Factories Act awaiting promulgation will be applicable to those branches of economic activity. In Zaire a draft Order on the guarding of machinery has been drawn up that will cover all sectors of the economy, including agriculture, which is not presently covered by Order No. 0057/71 of 20 December 1971 which regulates the guarding of machinery.

45. In many countries the scope of application of the guarding of machinery provisions is restricted by the scope of the labour codes. Taking into account that some of the exclusions which have been noted concern, for example, civil servants, domestic workers, etc., and do not affect greatly the application of the instruments, the Committee of Experts has concentrated its attention mainly on those exclusions which affect branches of industry or other activities where machinery is extensively used. In some countries, basic legislation applies only to factories leaving out other branches of economic activity covered by the instruments. (Endnote 35) It is common to find that labour codes exclude from their field of application such branches of economic activity as agriculture, (Endnote 36) and shipping. (Endnote 37)

46. Frequently the application of the instruments in the branches excluded from general legislation is ensured by special texts applicable to this particular branch only. Thus, in Norway the application of the instruments to machinery in agriculture is ensured by the Act respecting the conditions of employment of workers in agriculture of 1958. Special legislation in some countries applies the instruments to shipping and machinery used on board ship. (Endnote 38)

47. In Turkey section 5 of the Labour Act excludes from its application sea and air transport and agricultural work among others. (Endnote 39) In its reports on Convention No. 119 under article 22 of the ILO Constitution, the Government has indicated that owing to economic difficulties there is no possibility at present of taking any measures to apply the Convention to machinery used in these branches of economic activity. While noting that this may require time, in particular in agriculture, the Committee of Experts has stated that it is desirable that safeguards should be provided in at least air transport and the more mechanised aspects of transport by sea in the very near future. (Endnote 40)

III. Declarations specifying a more limited application of the Convention

48. Article 17 of the Convention provides for a certain flexibility in allowing declarations specifying a more limited application of the Convention.

49. During the preparatory work on the Convention, 45 of the 75 governments which replied to the Office questionnaire on the point concerning the scope of the instrument, considered that it should extend to all branches of economic activity; the 30 others preferred a more limited application, (Endnote 41) as was pointed out in the preceding chapter. It was argued that in any given country there are branches of economic activity which may not be entirely subject to the legislation on occupational safety and that a certain flexibility is needed in order not to preclude those countries from ratifying the Convention. Despite the clear majority in favour of the more comprehensive approach, it was nevertheless thought advisable to give the governments which desired it an opportunity of restricting the scope of application of the Convention by specifying a more limited application in a declaration appended to ratification. In order, however, to limit the possible extent of such restrictions this provision was subjected to a number of safeguards, requiring in particular that the Convention should be applicable as a minimum to undertakings or branches of economic activity where machinery is extensively used and that the employers' and workers' organisations concerned should be consulted in this connection. Finally, governments which register a declaration of limited application have to indicate in their reports any progress made towards its wider application, and are free at any time to cancel the initial declaration in whole or in part by a subsequent declaration.

50. In 1970, on the request of the Government of Norway for clarification of the meaning of certain provisions of Convention No. 119, in particular its Article 17, the International Labour Office prepared a memorandum with the usual reservation that the Constitution of the ILO contains no provision authorising it to interpret the instruments adopted by the Conference. With respect to the scope of the Convention as defined in Article 17 this memorandum concluded the following: "(a) the Convention is of general application; (b) a Member may specify a more limited application, but may not exclude undertakings and branches of economic activity in which machinery is extensively used; (c) it is for the competent authority of the State wishing to specify a limited application of the Convention to determine, in the manner provided for in Article 17, paragraph 2(a) of the Convention (i.e. after consultation with the labour inspection services and with the most representative organisations of employers and workers concerned) which undertakings and which branches of economic activity do or do not use machinery extensively." (Endnote 42)

51. Following these explanations the Government of Norway ratified the Convention, availing itself of the possibility of limiting its application by a declaration, in which it specified that the Convention would apply, as regards undertakings, only to "all undertakings which employ a worker or workers or use mechanical power of one horse-power or more" and, as regards shipping, only to ships, vessels and barges that are subject to state control under the existing legislation. These limitations were made in order to limit the application of the Convention to the scope of the national legislation at the moment of ratification. Since that time, however, a number of important changes have been made to the national legislation: the 1956 Act respecting the protection of workers was replaced in 1977 by the Act relating to worker protection and working environment, which applies to "all enterprises that engage employees" (section 2(1) of the Act), and further modifications have been made to the Norwegian legislation on shipping. In the light of these developments the initial limitations as to the scope of the Convention specified by the Government in the declaration upon ratification seem to be outdated and the Government may therefore wish to review the situation, indicating in its reports under article 22 of the ILO Constitution any progress made towards wider application of the provisions of the Convention, as is required in its Article 17, paragraph 2(b), with a view to making a new declaration in that respect in conformity with paragraph 3 of the same Article.

52. The situation in Norway was dealt with in some detail in the previous paragraph as it is still the only one of the 35 ratifying countries which has used the above-mentioned flexibility provisions to limit the scope of application of the Convention. It should be noted that while other ratifying countries have not taken advantage of this possibility, the legislation of a number of them still does not ensure the application of the Convention to all branches of economic activity. In one case, in reply to an observation by the Committee of Experts which pointed out that the Convention was not being applied to machinery used in agriculture and in sea and air transport, the government concerned indicated that it considered this machinery to be exempted from the scope of the Convention under the provisions of Article 17, paragraph 3. The Committee of Experts had to point out that, as the government had not made a declaration when it ratified the Convention limiting the scope of application, no subsequent declaration could be made to this effect under the provisions of Article 17, paragraph 3.

53. This case, and the failure of governments generally to use the possibilities of flexibility under Convention No. 119, give a striking illustration of the fact that only limited use has been made of the flexibility clauses contained in a number of Conventions. Addressing this issue in his Report to the 70th Session of the International Labour Conference, the Director-General of the ILO pointed out that these indications "lead one to ask not only whether countries which ratify Conventions examine sufficiently the possibilities of flexibility offered by them but also whether other countries might not find ratification possible through wider use of the flexibility clauses". (Endnote 43)

54. This last consideration appears to be particularly relevant to the Guarding of Machinery Convention, which still has not attained the number of ratifications that might have been expected, taking into account the fundamental role of machinery in economic development. The possibility of limiting the application of the Convention is equally important both for developed and developing countries. The former countries generally have extensive legislation on the safety of machinery, but it is common to find it split into different laws and regulations of unequal scope, which make the provisions of the Convention fully applied in certain branches of economic activity and only partially in respect of the others. The importance of this provision is even more evident for developing countries which, in drafting their safety legislation, would be well advised to start with limited provisions which can be extended gradually as, for example, effective enforcement becomes practicable. In both cases careful consideration of the possibility of excluding certain undertakings or branches of economic activity from the application of the Convention, would undoubtedly facilitate the ratification and subsequent application of the Convention.

B. Measures concerning manufacture, sale, hire, transfer in any other manner and exhibition of machinery

I. General considerations

55. The adoption in 1963 of the ILO instruments on the guarding of machinery marked an important shift in the approach taken by legislative bodies towards the problem of the prevention of industrial accidents due to dangerous machinery. Until that time regulations on guarding of machinery had been mainly directed at safety rules for the use of machinery. However, the causes of the problem lay much deeper, at the stage of the design and manufacture of potentially dangerous machinery. The manufacturer and, in his turn the purchaser, may not worry unduly whether the equipment he produces, sells or buys is fitted with the necessary safety devices. Firms importing such plant and equipment are also, often unwittingly, importing serious hazards. It became evident that placing all the responsibility for accident prevention on the end users of machinery placed too large a burden on them, and that effective protection could be assured only if this responsibility was shared equally by all those engaged in its production, distribution and use. The attention of legislators was therefore increasingly devoted to measures that would prevent inadequately guarded machinery from being made available to users.

56. In accordance with its commitment to the protection of workers, the ILO assumed a pioneering role in that respect. As far back as 1929 the International Labour Conference adopted the Power-driven Machinery Recommendation (No. 32) which called upon each Member to "adopt and apply to as great an extent as possible the principle that it should be prohibited by law to supply or install any machine intended to be driven by mechanical power and to be used within its territory, unless it is furnished with the safety appliances required by law for the operation of machines of that type" (Part I).

57. Drawing on the experience acquired by member States in the application of that Recommendation, the instruments on the guarding of machinery concentrated on establishing measures that would not only preclude unguarded machinery from being supplied to users, but would also ensure that such machinery would not be manufactured or even designed. The core provisions of the instruments prohibit the sale and hire of unguarded machinery; this is reinforced by the prohibition, to the extent the competent authority may determine, of the transfer in any other manner and exhibition of such machinery, with responsibility resting on the persons committing such acts. Convention No. 119 requires that certain defined dangerous parts of machinery shall be so designed, sunk or protected as to prevent danger for workers. The idea of protection at the initial stage of the production chain, that is the design and manufacture of the machinery, was developed further in Recommendation No. 118, which provides that the manufacture of specified types of machinery without appropriate guards should also be prohibited. These measures ensuring appropriate guarding of machinery even before it reaches the user are closely linked with safety standards laid down by the instruments for the use of machinery.

58. The essential provisions of the instruments accordingly are divided into different parts: Part II of the Convention and Part I of the Recommendation dealing with the prohibition of the sale, hire, transfer in any other manner and exhibition of unguarded machinery and, as regards the Recommendation, also its design and manufacture; whereas Part III of the Convention and Part II of the Recommendation concern safety measures in the use of machinery. This division of the provisions of the instruments has often given rise to questions as to the exact intent of the Convention, inasmuch as it attaches the same degree of importance to the prohibition of the use of unguarded machinery as to that of its sale, hire or transfer. Should the prohibition of its sale be regarded as a supplementary safeguard to the prohibition of the use of such machinery? And is this not superfluous if the legislation regarding the use of machinery achieves the objective of the Convention by protecting workers' safety?

59. In reply to these questions, it should first of all be noted that the obligation on the manufacturer or seller to supply machinery with appropriate guards was the principal innovation of the Convention. Highlighting this feature, the law and practice report prepared by the Office showed that a prohibition of the sale, hire, etc. of inadequately guarded machinery would be an effective means of preventing accidents.

First of all, it can be argued that any measure to prevent inadequately guarded machinery from reaching the user would appreciably increase the effectiveness of existing national regulations, which are mostly directed at preventing the use of such machinery. Secondly, such a prohibition would lead the manufacturers themselves, whenever practicable, to provide guarding which would generally be more satisfactory from the technical point of view than guards fitted at a later stage. (Endnote 44)

60. The report also stated that "built-in safety was usually better and cheaper than safety provided after construction; it was particularly useful for small undertakings, the managers of which often had neither the knowledge to enable them to tell whether a piece of equipment was as safe as it should be nor the resources to enable them to make it safer if this was necessary; where built-in safety was compulsory, it protected firms making safe equipment against competition from those making unsafe and therefore cheaper equipment; and lastly it helped to obviate some of the many difficulties now experienced by countries importing or exporting industrial equipment". (Endnote 45)

61. At the same time the prohibition of the sale, hire, etc. of unguarded machinery is never in itself sufficient to provide total protection to the worker who uses it. As was stressed in the Office paper, "even when machinery is properly guarded by the vendor or hirer, it is the user's responsibility to keep the guarding in place and to adjust and maintain it" (Endnote 46) ; therefore "any liabilities imposed on the vendor or hirer should in no circumstances reduce the liability normally assumed by the employer using the machinery; these two quite different liabilities are complementary". (Endnote 47)

62. The Convention attaches equal importance to these two types of action, and does not subordinate one to the other. A mere prohibition of the use of inadequately guarded machinery cannot therefore be considered as obviating the need to apply the requirements of Part II of the Convention concerning its sale, hire and transfer.

63. The experience gained in supervising the application of the Convention demonstrates that the extension of the prohibition of use of unguarded machinery, which generally already existed in the national legislation, to the sale, hire, transfer and exhibition of such machinery, has constituted a major problem in the Convention's full implementation. At times it has required quite radical changes in the existing concepts and approaches of the legislation in ratifying countries. Thus, the Committee of Experts has found itself confronted on some occasions with situations in which governments did not see the necessity of prohibiting the sale, hire, transfer and exhibition of unguarded machinery. These governments have considered that it is sufficient to prohibit only its use, as such legislation indirectly prevents the sale, etc. of the machinery in question, since persons purchasing or hiring these machines may not use them without providing the guards. One government argued recently, for example, that it was not necessary to include the prohibitions imposed by Part II of the Convention in its labour code, as there was no provision which prohibited claims for indemnification for harm caused by unguarded machinery, based upon the general rules of civil law. In these instances the Committee of Experts has stressed that Part II of the Convention constitutes an essential aspect of the dual protection provided for in Parts II and III of the Convention and that it cannot be enforced without the formal measures required; provisions which merely provide for indemnification for harm caused by the lack of such measures do not meet the Convention's requirements. (Endnote 48) While noting that the provisions of Part II of the Convention still are not fully applied in a number of countries, especially in developing countries, the need to prevent unguarded machinery from being put into circulation has become generally acknowledged, and many governments have translated it into practical measures to bring about a higher level of protectin for workers.

II. Complementary character of the requirements of the Convention and Recommendation

64. The apparent complexity of the structure of the instruments on the guarding of machinery stems not only from the fact that they cover different stages of the life of the machine requiring different safety measures, but also from the fact that some of these measures were included in the Convention while others were left to be dealt with in the Recommendation. It is therefore particularly important to highlight here the complementary character of the requirements of these instruments.

65. As concerns the use of machinery, which will be dealt with in detail later, the safety measures provided in the Convention were reproduced in the accompanying Recommendation without modifications. The provisions of the Convention and Recommendation are not however the same in respect of the pre-use stages of the life cycle of machinery, those of the Recommendation going beyond what is prescribed in the Convention.

66. The first and most apparent difference is that, while prescribing the same measures in respect of the sale, hire, transfer in any other manner and exhibition of dangerous machinery, the Recommendation applies them also to the manufacture of machinery (Paragraph 1(1)). Moreover, Paragraph 1(2) of the Recommendation states that these measures should also be considered in the design of such machinery. The Convention, on the other hand, is not as direct in its requirements: it implies that machinery should be safeguarded during manufacture by way of exempting from the prohibition as to the sale, hire, etc., machinery made safe by virtue of its construction (Article 3, paragraph 1(a)). It is particularly important to stress that the guarding of machinery starts in reality in the design department. From the technical point of view the most sensible and effective way of dealing with the problems connected with guarding of machinery is to rely on the design of the machine. Through good design the manufacturer can neutralise certain dangerous parts of the machine; he can design or place them in such a way that people cannot come into contact with them, either accidentally or on purpose. The manufacturer can also include appropriate safety devices in the design, ensuring that they will improve both the output and the efficiency of the machine. The stage of design of machinery is also gaining importance from the legal point of view, as in most producing countries the designer or manufacturer now has to comply with the safety legislation at this stage.

67. There are other instances where the provisions of the Recommendation complement and extend those of the Convention. It covers a much wider range of hazards emanating from machinery which has dangerous working parts that were not specified in the Convention (Paragraphs 1(1) and 2 of the Recommendation), and calls on governments to specify the types of dangerous machinery to which the above-mentioned measures would apply (Paragraph 1(3)). The Recommendation also requires that operating instructions for machinery should be based on safe methods of operation (Paragraph 6). These complementary provisions of the Recommendation will be explained in detail below.

III. Measures concerning manufacture, sale, hire, transfer and exhibition of machinery

68. The measures laid down for the pre-use stages of the life of machinery can be presented in the following order for the sake of clarity. First, the instruments specify certain dangerous parts of machinery, as defined by the Convention, which require appropriate guards. Next, they impose a prohibition, subject to certain conditions and exceptions, on the manufacture, sale, hire, transfer in any other manner and exhibition of machinery the dangerous parts of which are without guards. Finally, they include some additional safety requirements for such machinery.

69. Before analysing national legislation in respect of the measures prescribed by the instruments, it would be useful to clarify one additional question concerning the scope of their application, on which the Office's opinion has been requested. This question was whether Part II of the Convention prohibiting the sale, hire, transfer in any other manner and exhibition of machinery without appropriate guards covers the export of machinery to other countries for sale. Without going into detail here, it should simply be pointed out that the Office concluded that "Part II of the Convention does not apply to the export of machinery for sale". (Endnote 49)

70. Part II would however become applicable to any sale, hire, transfer or exhibition of the machinery in the importing country, which must set standards applicable to machinery on its territory and must satisfy itself that these standards are met by imported machinery. In fact, as will be shown later, the legislation of a number of countries specifically prohibits or otherwise prevents the importation of unsafe machinery. The Committee of Experts has considered this question on several occasions. In one case, for example, the government concerned argued that there was no need to prohibit the sale, hire, etc. of machines without appropriate guards, as they were normally purchased in developed countries and consequently met the safety requirements of the Convention. Another government also indicated that machinery was imported from industrialised countries, but complained that manufacturers and vendors failed to supply adequate guards. In both cases the Committee of Experts pointed out that by ratifying the Convention the government concerned had undertaken to ensure that no inadequately guarded machinery was sold, hired, transferred in any other manner, exhibited or used in the country, and that the prohibitions laid down in the Convention applied not only to the initial sale but also to subsequent sales by agents and to the hire, transfer and exhibition of unguarded machines, whether new or reconditioned. (Endnote 50)

71. The problem of importing unguarded machinery into developing countries is far from being overcome. In the absence of any supervision, any new importation of unguarded machinery may seriously undermine national efforts to establish safety standards for machinery already in use in the country. For that reason one government indicated that it had issued a special letter containing instructions for various ministries in order to prohibit the importation of any machinery not complying with the prescribed safety standards. (Endnote 51)

72. The ILO has consistently addressed this problem in the framework of its activities concerning the transfer of technology to developing countries. As was pointed out in the report of the Meeting of Experts on Occupational Safety and Health and Working Conditions and Specifications in the Transfer of Technology to Developing Countries (Geneva, October 1986), "the transfer of technology was generally an advantage, but it might also cause adverse effects. These adverse effects included industrial hazards, occupational accidents and diseases ... Important means of assisting ILO member States in coping with these problems were standard-setting activities and the provision of technical guidance". (Endnote 52) Concluding that "safety and health standards should be transferred along with the technologies", (Endnote 53) the Meeting of Experts adopted for that purpose the Code of Practice on Safety, Health and Working Conditions in the Transfer of Technology to Developing Countries. From the practical point of view, the recommendations contained in this Code constitute useful guidance for governments engaged in the international transfer of machinery and for the implementation of the relevant provisions of the instruments on the guarding of machinery.

(a) Definition of dangerous machinery and parts thereof requiring preventive measures

73. Both the Convention (Article 2, paragraphs 3 and 4) and the Recommendation (Paragraphs 1 and 2) deal with this question.

74. In principle, a machine can be fitted with guards when it is being manufactured, when it is being installed, or at an intermediate stage, when it is sold or otherwise made available to the user. In the first and intermediate cases, safety devices can be built into the machine or added to it in order to provide protection against all its dangerous components or only some of them, according to the possibilities and the intended use of machinery. Obviously, the manufacturer cannot always supply a machine fitted with all the necessary safety devices; these may be marketed, for example, by specialised firms. Moreover, in respect of some parts, for example, the cutter of a machine, guarding by the vendor is impracticable, as they are better guarded by the user when the exact conditions under which the machine is to be used are known. It is therefore the responsibility of the user, where necessary, to improve the initial guarding or to provide new or supplementary guards in order to meet actual operation requirements. Whatever guards may be installed at the manufacturing or selling stage, users are clearly required either to ensure that the necessary guards are in place or to install them themselves.

75. This distinction between the guarding requirements that may be imposed when the machine is manufactured and marketed and when it is put to use is clearly reflected in the Convention. As regards the measures concerning sale, hire, transfer in any other manner and exhibition of dangerous machinery which are laid down in Part II of the Convention, guarding requirements are restricted to the guarding of certain specified dangerous parts of machinery. On the other hand, Part III of the Convention, which concerns use of machinery, is not limited in that respect and requires guarding of any dangerous part of machinery including the point of operation. The Recommendation, as will be seen, contains no such distinctions.

76. Another important factor that was considered by the competent Conference Committee while defining what dangerous parts of machinery should be guarded was that it seemed impossible to contemplate a general prohibition at an international level of the sale, hire, etc. of unguarded machinery owing to the many kinds of machinery placed on the market, the divergent standards laid down in various countries and the requirements resulting from the conditions in which machines are used. The prohibition imposed by the Convention should therefore be confined to dangerous parts in respect of which it is comparatively simple to install guards and to secure uniformity on the technical plane in practice throughout the world. The parts of machinery that were identified for this purpose consisted of two groups: (1) any moving parts having projections, and (2) gearing and transmissions, including controls. (Endnote 54)

77. A number of parts of machinery which should be guarded were thus listed by name in Article 2, paragraphs 3 and 4 of the Convention. It was further provided that other dangerous parts of machinery also liable to present danger shall be guarded, to the extent to be determined by the competent authority. Generally, the protection of the parts of machinery mentioned in the instrument is required only when there is a danger to any person from coming into contact with such parts when they are in motion, since contact with certain moving components -- particularly those of low-powered and very slow-moving machines -- normally does not involve any danger. Operating controls (for starting and stopping, etc.) will seldom cause injury themselves, but poorly designed controls (e.g. wrongly placed push-buttons, or levers which have a direction of travel which does not correspond with that of the machine parts they operate) may be a major hazard. It was understood that the provision for the protection of such controls (Article 2(4)) was meant to ensure that machinery would be provided with such controls as would prevent them being put in motion accidentally.

78. It may be noted that these provisions of the Convention do not cover dangerous parts that relate to the point of operation of the machine. Guarding the point of operation is usually the most difficult problem. Squeeze, crush or shear hazards or in-running nips that may injure hands or other parts of the body, the possibility of breakages or flying particles during machining, and potential electrical or chemical hazards should be carefully analysed before any guards are prescribed. The guarding of this group of dangerous parts varies considerably from one machine to another and therefore does not lend itself easily to the establishment of precise international standards of general application; it was therefore dealt with in the accompanying Recommendation.

79. The basic idea inspiring the approach taken by the Recommendation, was that if standards for dangerous parts could not be established for all machines, it was still possible to establish them in respect of particular types of machines which are used, for example, for the same purpose and have common technical characteristics. These types of machinery could therefore be specified by legal or other measures for the purpose of laying down unified guarding requirements in respect of their dangerous working parts, particularly at the point of operation, in addition to those covered by the Convention. The provisions of the Recommendation thus aimed not so much at defining additional working parts that may present danger, as at specifying certain types of machinery entailing a common hazard. This approach enlarged the concept of machine guarding contained in the Convention: whereas the Convention seeks to guard against the machines themselves, the Recommendation pays particular attention to the protection against dangers produced by these machines, reflecting the approach to the protection of the working environment taken by later ILO standards on occupational safety and health.

80. Recommendation No. 118 adds the manufacture of unguarded machinery to the Convention's prohibition of the sale, hire, transfer in any other manner and exhibition of such machinery in respect of specified types of machinery which comprises, in addition to the parts specified in Article 2 of the Convention, dangerous working parts (at the point of operation) which are without appropriate guards (Paragraph 1(1) of the Recommendation). Leaving it open for governments to specify by national laws or regulations or by other equally effective measures what types of machinery will be subject to prohibition, if unguarded, the Recommendation suggests taking into account for that purpose particular dangers presented by some types of machinery and parts thereof, which are enumerated in Paragraph 2 of the Recommendation.

81. This Paragraph was formulated in particularly wide terms so as to avoid giving too long a list of risks to which persons using machinery were exposed. In order to make its intentions clear the competent Conference Committee included in its report an indication that this provision covered in particular the risks due to explosion and the action of toxic substances, dust, flying particles, liquids, heat, ionising radiations and the risks due to noise and harmful vibrations. (Endnote 55) This indication is particularly interesting to note here as it establishes a link between the instruments on the guarding of machinery and the Working Environment (Air Pollution, Noise and Vibration) Convention (No. 148) and Recommendation (No. 156) which deal specifically with the above-mentioned occupational risks, and are covered in another part of the present survey.

82. It is essential for the effective application of Part II of the Convention that the national legislation designate those parts of machinery that present danger and require appropriate guarding. The Committee of Experts has had to deal in certain cases with situations in which the national legislation includes a general prohibition of the sale, hire, etc. of the dangerous machinery, but provides that the definition of the machinery considered to be dangerous would be contained in later legislation. In a number of cases the adoption of such legislation does not happen promptly, and in certain countries this legislation has still not been adopted after a number of years. One government stated in this respect that, since its country neither manufactures nor sells machinery, it would not appear necessary to define dangerous machinery in the legislation. In reply the Committee of Experts recalled that the prohibitions imposed by the Convention apply also to imported machinery and to second-hand machinery. (Endnote 56) In all such cases the Committee of Experts has had to point out that until there has been a determination of the machinery and parts thereof requiring guards, the prohibition of the sale, hire, transfer in any other manner and exhibition of machinery in question contained in Article 2 of the Convention, remains ineffective.

83. Several ratifying countries have indicated that legislation to determine machinery and parts thereof to which the prohibition applies, is being prepared or is about to be adopted. (Endnote 57) In the Central African Republic, for example, a draft Decree for that purpose was drawn up following direct contacts with the ILO in May 1980, and is now before the Committee on Legislation.

84. The determination of dangerous machinery and the parts of machinery requiring appropriate guards, may present difficulties of a practical nature in a given country requiring, for example, a kind of inventory of the machinery used in the country and of the related risks. One of the ratifying countries indeed stated in a report under article 22 of the Constitution that such an inventory of the dangerous machinery would require a great deal of time. (Endnote 58) Attention should be drawn to the fact that, while requiring guarding of certain enumerated parts of machinery, Article 2 of the Convention leaves it open for the competent authority to prescribe the extent to which other dangerous parts should be protected. Thus, governments may proceed gradually in determining the dangerous machinery and parts thereof which should not be sold, hired, transferred or exhibited without appropriate guards, adding new entries to the list of such machinery when the risks caused by them are brought to light by national practice. For this purpose appropriate statistics should be collected and analysed and close co-operation should be ensured between the labour inspectorate, scientific institutions, and employers' and workers' organisations, on the one hand, and authorities defining dangerous machinery on the other.

85. It is important to emphasise, however, that the initial definition of the dangerous machinery and parts thereof should as a minimum cover all those parts enumerated in Article 2 of the Convention. One government suggested in this respect that it would be useful if the ILO would elaborate practical guides listing machines and parts thereof that require guarding by appropriate safety devices with the aim of helping developing countries to reconcile the transfer of technology with the imperatives of safety. (Endnote 59) The Committee of Experts recalls that a number of recommendations to this effect are contained already in different codes of practice established by the ILO, to which reference is made elsewhere in the survey, and that this work constitutes a continuing feature of ILO activities, including those of the International Occupational Safety and Health Information Centre (CIS).

86. The legislation of the majority of countries for which information is available enumerates dangerous parts of machinery requiring protection that correspond closely to those specified in the Convention. (Endnote 60)

87. In some cases, where the Committee of Experts has found the enumeration of the dangerous parts requiring guards given in the national legislation to be incomplete vis-à-vis the provisions of the Convention, it has asked the governments concerned to take the necessary measures to include the missing parts in the legislation. Thus, it is the intention of the Government of Cyprus to amend section 29(1)(b) of the Factories Act, 1956, which covers the dangerous parts enumerated in paragraph 3 of Article 2 of the Convention but not those listed in paragraph 4 of the same Article.

88. Almost the same provisions as in Cyprus exist in other countries which have Factories Acts modelled on the British example (Endnote 61) with the exception of Zambia where guarding is prescribed for all dangerous parts of machinery enumerated in the Convention which is sold and hired. (Endnote 62) The report of the Government of the United Kingdom highlights the fact that some of the dangerous parts specified in the Convention would not be covered by section 17 of the Factories Act. It adds that while the requirement of the Convention relating to the design and protection of controls is absolute in its duty, no such equivalent exists in machinery-guarding legislation in the United Kingdom. At the same time this legislation contains very general provisions aimed at giving effect to the requirements of the instruments on the guarding of machinery in respect of "any article for use at work", extending far beyond the limited number of dangerous parts specified in the Convention. (Endnote 63) In connection with this relatively new broad approach aimed at ensuring safety of all machinery irrespective of the nature of risks that it presents, the Committee of Experts would like to draw particular attention to the possibility provided in the Factories Act to extend by regulations its guarding requirements concerning machinery which is sold or hired, to cover other dangerous parts of this machinery besides those which are already expressly mentioned in the Act. (Endnote 64)

89. This possibility is also found in the Factories Acts of other countries which follow the United Kingdom model. (Endnote 65) Indeed, in the absence of general provisions applicable to all machinery and parts thereof as in the United Kingdom, a noticeable trend in the legislation of these countries consists in adopting (in line with Recommendation No. 118) separate regulations for particular types of dangerous machinery which provide for safeguarding in case of sale and hire of other dangerous parts of these machines. (Endnote 66) Particular mention should be made of the recent Indian legislation concerning manufacture, supply and use of machinery in the agricultural or rural sector drafted so as to cover all dangerous parts of these machines for the purpose of their safeguarding. (Endnote 67) General provisions requiring guarding of every dangerous part of machines being designed, manufactured or supplied exist in Bahrain. (Endnote 68)

90. In many of the reporting countries with comprehensive legislation on the guarding of machinery which is manufactured and supplied, the legislation aims at safeguarding all those parts of machinery that may present danger. (Endnote 69) This approach is taken in the standards on the guarding of machinery established in the socialist countries in the framework of the system of occupational safety standards of the Council for Mutual Economic Assistance. (Endnote 70) The same approach is taken in the legislation of the Nordic countries on the manufacture, sale, hire, etc. of machinery, which is accompanied by technical standards elaborated in the framework of the Nordic Machines Committee. In Switzerland dangerous parts of machinery are not detailed in the legislation, which also aims at ensuring overall safety of machinery offered or put into circulation. (Endnote 71) The situation in these countries will be more closely studied in the next section of the survey.

91. Some countries have adopted special legislation defining dangerous machinery and parts thereof for the purpose of applying the general prohibition of the sale, hire, transfer and exhibition of such machinery. (Endnote 72) This legislation not only enumerates dangerous machine parts that should be guarded in accordance with the Convention, but includes also a detailed list of specified types of machinery which comprise other dangerous working parts and present other risks, as is provided for in the Recommendation. With respect to these or other types of machinery the legislation establishes the procedure of official certification of the effectiveness of their protection according to which the manufacturers, vendors and persons letting out machinery on hire are required to address their requests for certification to the competent authority and to supply all the technical documents and the results of tests that it may demand. (Endnote 73)

92. Official certification of the effectiveness of guards is required in a number of countries. (Endnote 74)

93. Some countries have simply incorporated the provisions of Article 2, paragraphs 3 and 4, of the Convention into the national legislation with minor changes. (Endnote 75)

94. Generally, it may be observed that in the majority of countries where the legislation on the guarding of machinery does not yet deal with questions of the sale, hire, etc. of dangerous machinery but covers only its use, the dangerous machinery and parts thereof requiring appropriate guarding defined in the legislation correspond closely to those specified in the Convention. (Endnote 76) Here also there is a tendency to establish general national standards or regulations providing for guarding of all dangerous parts of any machinery, as well as protecting workers against other risks caused by this machinery. An example of such legislation is the Basic Standard on the Guarding of Machinery recently adopted in Colombia. (Endnote 77)

95. In many countries the body of the machinery-guarding legislation includes an impressive number of special regulations or standards for particular types of machines which give effect to a varying extent to the provisions of the Convention and the Recommendation in respect of these types of machines. (Endnote 78)

96. In the legislation of some other countries which apparently do not have special technical standards for machinery or particular types thereof, it is common to find in the general legislation provisions which specify some particular types of machinery and impose special requirements on the guarding of their dangerous parts including the point of operation of the tool. The machinery referred to as a rule includes wood-saws and wood-working machinery, high velocity cutting machines, mechanical presses, grindstones, hoisting machines, electrical installations, etc. (Endnote 79)

97. Many countries have provided in their legislation for special safety measures in the design, installation, and use of controls of the machinery, particularly for the installation of immediate stopping devices for machines, within easy reach of workers. (Endnote 80)

98. In most countries guarding of the working parts of machinery is accompanied by provision for safeguards against other risks caused by machinery, e.g., flying particles, electrical pressure, spilling of hot liquids, etc. (Endnote 81) In Bahrain, for example, measures for the protection of the eyes of workers employed on machinery are laid down in a special Ministerial Order. (Endnote 82)

99. The fact that the legislation of the majority of countries pays particular attention to the dangerous parts of machinery enumerated in the Convention shows that these provisions of the Convention retain their value as a guide to determining the guarding requirements for machinery which is put into circulation. While it was not possible for the Committee of Experts to check whether the legislation of all the reporting countries prescribes the guarding of all those parts specified in the Convention, it will be for the governments concerned to study this question when the opportunity arises, particularly when the prohibition of the sale, hire, etc. of unguarded machinery is being introduced into the national legislation for the first time.

(b) Prohibitions imposed by national laws or regulations

100. Article 2, paragraphs 1 and 2, of the Convention requires prohibition by national laws or regulations or prevention by other equally effective measures of the sale and hire and, to such extent as the competent authority may determine, the transfer in any other manner and exhibition of machinery of which the dangerous parts specified in paragraphs 3 and 4 of this Article are without appropriate guards. With respect to the exhibition of machinery it is stipulated that the temporary removal of the guards in order to demonstrate the machinery shall not be deemed to be an infringement of this provision as long as appropriate precautions are taken to prevent danger to persons. In addition, Paragraph 1 of the Recommendation provides for the same measures to be taken in connection with manufacture, sale, hire, transfer in any other manner and exhibition, as well as for consideration of these measures in the design of specified types of machinery, to be determined by national laws or regulations or other equally effective measures. These provisions of the Convention and Recommendation are subject to some exceptions that will be explained below.

101. Though these provisions appear to be rather straightforward, a few points may call for additional clarifications on the basis of the preparatory work on the instruments and their subsequent supervision by the competent ILO bodies. The first point concerns the notion of "transfer in any other manner", which was considered by some members of the competent Conference Committee to be too vague. During the discussion of this point, it was stressed that "the transfer such as by gift, or other manners of transfer free of charge, could be extensive and this should therefore be taken into account in the Convention". (Endnote 83) Further explanations by the Committee of Experts have indicated, for example, that transfer of dangerous machinery in any manner other than sale or hire, may take the form of a loan. (Endnote 84)

102. The prohibitions found in the national legislation covering "transfer in any other manner" sometimes expressly mention specific acts of transfer, such as renting or lending. (Endnote 85)

103. In respect of the transfer in any other manner and exhibition of machinery without appropriate guards it should be pointed out that these acts are prohibited only "to such extent as the competent authority may determine", thus leaving it open for governments to decide what acts should be prohibited, and in what circumstances, in each country.

104. In some countries exhibition of machinery appears to be covered in terms of the prohibition of the "offer for sale" of machinery without guards. (Endnote 86) In other cases the law prohibits "displaying (machinery) for purposes of sale or advertisement" without safety devices. (Endnote 87) Prohibition of both "offer for sale" and "exhibition" of unguarded machinery may also be included in the legislation. (Endnote 88)

105. The legislation of some countries makes use of the permissive provision of the Convention in respect of the exhibition of the dangerous machinery allowing the removal of guards during the demonstration of machinery under the appropriate precautions. (Endnote 89)

106. One other point that merits attention concerns methods of application of the prohibition imposed by Article 2 of the Convention and Paragraph 1 of the Recommendation. Both instruments provide two possibilities in this respect: prohibition by national laws or regulations or prevention by other equally effective measures, the latter possibility providing additional flexibility in application.

107. Comprehensive legislation on machine guarding covering pre-use stages in the life of a machine exists in many countries, primarily in those which manufacture machinery. (Endnote 90) This legislation most often regulates the sale and hire of machinery. Less common are provisions referring to other acts of transfer of machinery and to its exhibition. Only a small number of countries have provisions regulating the design and manufacture of machinery in respect of its safety.

108. In imposing safety requirements at the pre-use stages of the life of a machine, two main approaches may be generally perceived in surveying national legislation on the guarding of machinery. The first is that of prescribing measures of direct prohibition of the sale, hire, etc. of machinery which does not comply with the statutory safety requirements. (Endnote 91)

109. In some countries the prohibition imposed by the legislation are drafted in virtually the same terms as Articles 2 and 4 of Convention No. 119. (Endnote 92)

110. The second approach consists in laying down measures which, while not expressly prohibiting the manufacture and supply of unsafe machinery, provide equally effective guarantees that such machinery will not be manufactured or supplied. The latter measures are generally based on imposing express duties on all persons concerned to ensure the safety of machinery before delivery, making the breach of this duty a punishable offence. (Endnote 93)

111. Both of these approaches are in fact recognised by the instruments on the guarding of machinery as acceptable methods of implementation. Moreover, it is not uncommon to see in a given country the legislation expressly prohibiting some practices in respect of machinery, while providing for various measures of prevention for others.

112. In the socialist countries with centrally planned economies, the production and marketing of industrial machinery is controlled by the State through socialist undertakings. It is these undertakings which import, produce, supply and use machinery. In the planned economies, safety and health considerations form an integral part of the production plans of the undertakings and other units of economic activity, and constitute a system of binding measures applied at each stage of the process of production and distribution of manufactured products. The legal requirements as to the safety of machinery are thus supported by social and economic development plans of undertakings, which may be regarded as "other equally effective measures" ensuring the application of the Convention. Being directed essentially at making safety inherent in the design and manufacture of machinery, the prohibition in the legislation of the design and manufacture of unsafe machinery covers all hazards presented by machinery and not only those connected with some of its dangerous parts, as does the Convention. Moreover, safety measures in respect of machinery form part of the more general prohibition of constructing any plant or workplace or creating any working environment which would not ensure overall safety of workers to the best of current knowledge. This prohibition is enforced by subjecting the introduction, modification, etc. of any plant, project, etc. to previous approval and inspection by the competent state authorities, trade union committees and safety services of the undertaking concerned. (Endnote 94)

113. Particular importance is attached to the design of machinery and equipment which should in principle be such as to guarantee safe working conditions without the need for additional protective measures. Manufacturers, deliverers and users are in their turn required to ensure a "quality of protection" which is achieved when all the relevant technical and technological standards are complied with. (Endnote 95)

114. In Hungary the legislation stipulates that "the planning, commissioning and operation of a plant or other undertaking, and the manufacture, distribution, operation and use of tools, shall be conditional upon compliance with the requirements for safe and healthy working conditions, as specified in the relevant regulations, standards or other technical specifications". (Endnote 96) In Cuba as regards new equipment for which no safety standards have yet been established, such standards should be established in consultation with the trade union bodies concerned before putting this equipment to use. (Endnote 97)

115. In the USSR questions pertaining to the prohibitions imposed by the instruments on the guarding of machinery are regulated both by the All-Union legislation and the legislation of the Republics. The Fundamental Principles governing the labour legislation of the USSR and the Union Republics ensure that rules and standards on occupational safety will be observed in the design, construction and operation of factories down to the workplace level, and prohibit construction or operation of any production unit unless safety is ensured and authorisation to go into operation is received from the competent state authority, the trade union technical inspection authority, and the trade union committee of the unit in question. (Endnote 98) The labour codes of the Union Republics develop these basic principles into detailed provisions requiring the same protections in respect of the design and manufacture of any machinery and equipment, and prohibit its mass production unless it conforms to safety requirements. (Endnote 99) In some Republics, as for example in the Ukrainian SSR, this prohibition applies even to the manufacture of a prototype of new machinery. (Endnote 100) The effectiveness of these provisions is based on the existence of a large body of normative instruments and legally binding standards incorporated into the national System of Occupational Safety Standards, forming part of the general State System of Standards. As the Government of the USSR stated in its report, this system covers virtually all known hazardous or unhealthy effects emerging in the working environment and comprises about 400 state safety standards (GOST), a corresponding number of republican standards, 600 branch-of-industry standards and over 75,000 technical standards and specifications on manufactured products, all of which include special chapters on safeguards. (Endnote 101)

116. State safety standards adopted in the USSR correspond to those adopted by the Council for Mutual Economic Assistance (CMEA) and are in force for States Members of CMEA. (Endnote 102) The CMEA system of labour protection standards is becoming increasingly important in the context of expanding socialist economic integration, and counts at present 74 safety standards and 129 standards on equipment.

117. Recent legislation in some market economy countries also takes a global approach to ensuring workers' safety by making the State generally responsible for ensuring safety of the working environment and for establishing and implementing national plans or programmes on occupational safety and health. In Venezuela, for example, the Basic Act on Prevention, Conditions of Work and the Working Environment of 12 July 1986 stipulates that "the State guarantees prevention of risks by supervision of the working environment in workplaces and of the conditions related thereto .... (Endnote 103) As concerns the prevention of risks caused by machinery, the Act institutes a system of state control over the manufacture and importation of any machinery or equipment. In general, it provides that any "project, manufacture, operation, maintenance and repair of means, processes and places of work shall be conceived, designed and executed in strict compliance with Norms on Occupational Hygiene and Safety". (Endnote 104)

118. In Colombia, 1979 legislation provides that "all machines, equipment and tools shall be designed, manufactured, installed, maintained and operated in such a manner as to eliminate possible causes of accidents and illnesses". (Endnote 105) This legislation places particular emphasis on making safety an inherent requirement of the design and manufacture of machinery and specifying the corresponding obligations of the manufacturers or importers of machinery. In addition to providing for effective measures to prevent any new unsafe machinery from being manufactured and put into circulation, it is essential when this is not inherent in the economic system that these obligations be expressly extended to persons who sell, hire, transfer or exhibit machinery, including second-hand machinery, thus covering the whole supply chain. In this respect, it is interesting to note that Colombian legislation further provides that the Ministry of Health shall determine the conditions for and may prohibit the sale, use and handling of machines and equipment which present serious risks for workers, (Endnote 106) though no provisions have been adopted to prohibit any transfer of machinery.

119. In some cases other measures exist that may be no less effective in preventing the circulation of unsafe machinery, such as establishing at all levels of the economy, and particularly at each workplace, permanent programmes for the promotion of occupational health under the direct responsibility of employers within the framework of national legislation on occupational health. (Endnote 107) To a certain extent, these developments may be compared to the state systems of organisation and planning of matters pertaining to occupational safety and health which exist in the socialist countries.

120. In France the Labour Code contains a general prohibition on the exhibition, offer for sale, sale, import, hire, transfer in any other manner or use of (a) machinery and parts thereof which are not so constructed, placed, protected or controlled as to ensure workers' safety, and (b) guards and other safety devices for machinery which do not ensure protection against existing dangers. (Endnote 108) The precise scope of this prohibition as to the types of machinery and safety conditions to be satisfied is determined by regulations, the first of which was issued as far back as 1946. For the purpose of the application of the law, all machinery is split into three categories, each covered by separate regulations: dangerous machinery which falls under the above-mentioned prohibition, particularly dangerous machinery for which special procedures of official certification of their conformity with the established safety standards is prescribed; and all other machinery, which should comply with general safety standards. The regulations also lay down a procedure for preventing the exhibition, sale, etc. of machinery which is not subject to this prohibition but which does not comply with the safety conditions prescribed. By contrast to the situation in centrally planned economy countries, where the prohibition is applied equally in respect of any type or category of machinery, the French system prescribes stricter safety measures in respect of more dangerous machinery. Thus, general safety rules requiring guarding of certain dangerous parts of machinery in line with the Convention are prescribed for all machinery, (Endnote 109) and non-observance of these rules in respect of specified types of dangerous machinery (Endnote 110) would result in the prohibition of its exhibition, sale, etc. From the formal point of view, the prohibitions in the French law are less wide than those of the Convention, which applies to all power-driven machinery and not only to specified types of it, however large may be the list of specified machinery. The French legislation here follows more closely the model set forth in the Recommendation which extends the prohibition to "specified types of machinery", but is not as wide as the Recommendation in coverage of those dangerous parts of machinery that should be guarded. Full effect is, however, given in the legislation to the requirements of the instruments on the guarding of machinery as regards particularly dangerous types of machinery. Safety rules for these types of machinery, some of which may also figure in the list of machinery subject to prohibition, are laid down in special regulations which provide for guarding of virtually all dangerous parts of the machines in question. (Endnote 111) Their observance is ensured through special procedures of certification and technical examination of any new machinery. As was already mentioned, machinery and its guards are subjected to procedures of obtaining official certification or a visa of technical examination from the competent state authority as to compliance with safety standards when it is being imported or constructed; the refusal to deliver the certificate or visa in question is equivalent, subject to certain exceptions, to a prohibition of putting the machinery into circulation. (Endnote 112) Moreover, in any further transfers the machinery should be accompanied by the certificates thus obtained, and any subsequent modifications made to the machinery should be subject to new certification. As the Government indicated in its report, the basic concept behind these provisions, which do not prohibit expressly the design and manufacture of unsafe machinery, is promotion of the incorporation of safety requirements already at the stage of the manufacture of the machine. The procedures established to prevent the design, manufacture, import, exhibition, sale, etc. of particularly dangerous types of machinery not duly protected may also be considered as "equally effectivemeasures" in the sense of the Convention and Recommendation.

121. The French model of supplementing prohibition with procedures for official certification of some types of dangerous machinery, is closely followed in the legislation of a number of countries. In many of them the law prohibits "sale to a user, as well as exhibition, offer for sale and hire of dangerous devices, machines and elements of machines which are not installed, placed or protected in conditions ensuring the safety of workers", this machinery to be determined in special legislation. It also prohibits exhibition, offer for sale and sale of any safety device, the efficacy of which has not been officially recognised. (Endnote 113)

122. The prohibition laid down in the legislation of some of these countries does not cover exhibition of machinery and applies only to unguarded dangerous machines for which there exist guards of recognised efficacy. (Endnote 114) In Guinea employers are also prohibited from installing without guards machinery for which guards of recognised efficacy exist. (Endnote 115)

123. In all these countries, for the prohibitions imposed to become effective, it is essential that the legislation determine the dangerous machinery and that it lay down the procedure for official certification of the efficacy of guards or of the protection of certain types of machinery, as is the case in France. As was pointed out in the preceding section of the survey, while the procedure for official certification of guards is prescribed in nearly all of these countries, (Endnote 116) most of them still have not adopted provisions defining the dangerous machinery to which the prohibition applies. Common to the legislation of these countries is also the fact that it does not prohibit or otherwise prevent transfer in any other manner of unguarded machinery.

124. In Switzerland the federal law on the safety of installations and technical equipment is applicable to the offer and putting into circulation of machinery and safety devices to the extent that their safety is not ensured by other legal provisions. This law does not in itself prohibit the offer or putting into circulation of machinery which does not satisfy the safety requirements prescribed, but lays down the procedure of previous control of the machinery (similar to the French system) and empowers the competent authority to impose a prohibition and, in case of grave danger, to order confiscation or sequestration of the machinery in question. (Endnote 117) This legislation, as stated by the Government in its report, is more limited in scope than the prohibitions imposed by the Convention and only partially meets its requirements.

125. In Turkey it is not permitted to construct, to sell, to exhibit, to hire or to transfer locally made machines without guards, the same restrictions being applicable also to the importation of machinery. (Endnote 118) Guarding requirements in general and for particular types of machines are being established by the Turkish Institute for Standards (Endnote 119) on the basis of the "list of machines causing substantial industrial accidents" which are not at present provided with the necessary guards. The law prescribes that where no standards on guards for any particular machinery have yet been developed, the manufacturer should ask the Turkish Institute for Standards to establish such standards, and in the meantime should follow the general safety standards on the guarding of machinery. (Endnote 120) While noting these developments as laying down a foundation for a comprehensive approach to guarding of machinery, the Committee of Experts has pointed out in comments on the application of the Convention in Turkey the need to develop further the system of safety standards for machinery, and to supplement the present legislation by measures which impose an obligation of compliance with these standards on persons selling, letting out on hire, etc. of machinery. (Endnote 121)

126. In the United Kingdom and in countries with British-inspired legislation there is no general prohibition in law of the manufacture, sale, hire, etc. of unguarded machinery. The law seeks to prevent these acts by "other equally effective measures", as permitted by the instruments. The question of the sale and hire of machinery with defined parts being left unguarded was first regulated in the Factories Act by making "any person who sells or lets on hire, or as an agent of the seller or hirer causes or procures to be sold or let on hire, for use in a factory in the United Kingdom any machine intended to be driven by mechanical power which does not comply with the requirements of this section" guilty of an offence punishable by a fine. (Endnote 122) This regulation was reproduced in the Factories Acts of many other countries. (Endnote 123)

127. This regulation applies in these countries only to machinery to be used in a "factory", as defined in their respective Factories Acts, and in respect of a limited number of specified dangerous parts of such machinery. Moreover, these provisions do not cover transfer in any other manner or exhibition of machinery, and they do not apply to machinery manufactured before the entry into force of the Act or before a specified date. These provisions may, however, be extended by regulations to cover sale and hire of machinery which does not comply with such other statutory requirements apart from the guarding of specified dangerous parts, as may be prescribed by regulations; these regulations also being applicable only to new machinery. (Endnote 124)

128. Analogous provisions are sometimes included in the regulations made under the Factories Acts in these countries for particular types of machinery, most commonly for woodworking machinery or machinery used in building and engineering works. (Endnote 125) As regards the machinery used in other premises than factories, as defined in the legislation, the corresponding regulations appear to be rarer. In the United Kingdom, for example, the Agricultural (Field Machinery) Regulations, 1962, impose a duty on suppliers of new machines to supply them in compliance with the safety requirements laid down in the regulations. No such provisions exist for second-hand or stationary agricultural machinery, or in respect of equipment used in mines and quarries. Nor do regulations appear to exist prohibiting the sale and hire of unsafe machinery under the Offices, Shops and Railway Premises Act, 1963.

129. With the adoption of the Health and Safety at Work, etc. Act, 1974, these aspects of the British legislation underwent a substantial development. The Act introduced a general "duty of any person who designs, manufactures, imports or supplies any article for use at work ... to ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safe and without risks to health when properly used". (Endnote 126) It should be noted, first of all, that this basic duty goes beyond the requirements of the Convention in covering all articles for use at work, which includes all machinery, and applies to the design and manufacture of machinery in line with the Recommendation. The term "supply" of machinery may be taken to include transfer of machinery otherwise than through sale and hire. Still, as the Government stated in its report, "this is not a prohibition as envisaged by Article 2" (of the Convention), but a duty qualified by the phrase "so far as is reasonably practicable". This phrase has been the subject of interpretation by UK courts and is taken to mean that for any risk generated, precautions should be taken in so far as "the cost in terms of money, time, effort, etc. balances the risk it generated". As regards this general duty, provisions of other Acts laying down particular safety requirements for construction and supply of machinery in factories, agriculture, mines, etc. remain in force as "relevant statutory provisions" under the Health and Safety at Work, etc. Act. In some instances these provisions apply to the requirements of the Convention, while in many others they still do not give full effect to it, thus, according to the Government, preventing its ratification. As concerns the provisions of the Recommendation, the Government considers that the general duty supplemented by specific legislation applying to particular premises and coupled with the inspector's powers to issue prohibition notices where there is an imminent risk of personal injury, may be taken to meet theobjectives set out in the instrument, as an equally effective measure associated with supply, etc. and use of machinery. It should be pointed out, however, that as the statutory provisions on the guarding of machinery in relation to its sale, hire, etc. are still rather fragmentary, the overall effectiveness of the system of measures outlined above would largely depend on the action taken in practice by the courts in deciding on what is to be considered as the practicable level in guarding of machinery and protecting the workers against the dangers presented by it.

130. As concerns countries whose legislation was modelled on the British example, the situation in the majority of them resembles that in the United Kingdom before the adoption of the Health and Safety at Work, etc. Act, the only relevant provisions being those concerning the sale and hire of machinery included in the Factories Act. (Endnote 127)

131. One government stated in its report that "as the scope of the Factories Act covers only factory operation, it would not be possible to introduce provisions to cover all Articles of the Convention, particularly those dealing with exhibition, sale and hire of machinery not used in factories". (Endnote 128)

132. Another government indicated that the enforcement of the Factories Act is at present confined to the use of machinery, but that steps are being taken to extend it also to the manufacture, sale and hire of such machinery. (Endnote 129)

133. The development of the legislation in other countries has followed the comprehensive approach of the Health and Safety at Work, etc. Act of the United Kingdom, laying down a general duty on any person who designs, manufactures, imports, supplies, erects or installs any article for use at work to ensure its safety, so far as is reasonably practicable. (Endnote 130)

134. In Bahrain this general duty is incorporated in the specific national legislation on the guarding of machinery and applies directly to persons who design, manufacture, etc. machinery. (Endnote 131) In Mauritius and in the Solomon Island, while retaining the broad reference to "articles for use at work" the legislation establishing this general duty makes it more specific in respect of machine guarding by providing for guarding of "every dangerous part of machinery" (Endnote 132) or "of any moving part of machinery which is a potential source of danger" (Endnote 133) and by laying down other safety requirements in respect of machinery.

135. A notable development in the legislation on machinery in India, in comparison with the approach taken in the Factories Act, is the Dangerous Machines (Regulation) Act, No. 35 of 1983. (Endnote 134) The new approach may be characterised as combining the system of general duties imposed on the manufacturers, dealers and users of dangerous machinery in ensuring its safety, with the establishment of special procedures for supervising compliance with safety measures prescribed by an administrative authority created for that purpose, which resembles the French system of certification explained above. Under these procedures manufacturers of and dealers in dangerous machinery are required to hold a licence issued by the said authority subject to specified conditions, and users have to register dangerous machines before putting them into operation. Furthermore, before transferring the possession of any such machine, whether by sale, lease, hire or otherwise, the manufacturers and dealers shall deliver to the person acquiring the machine a declaration to the effect that it conforms to all relevant safety standards. Inspectors are given additional power of seizure in respect of any dangerous machine which does not comply with these standards. This Act, which at present covers only power threshers, is in principle applicable to any other machine "intended to be used in the agricultural or rural sector" which may be specified by the Government. (Endnote 135)

136. In Ireland the Factories Act, 1955 was amended by the Safety in Industry Act, 1980 which introduced the general duty of "any person who manufactures, imports or supplies any plant for use at work in a factory" to ensure, so far as is reasonably practicable, that safeguards have been provided in relation to the plant in question. (Endnote 136)

137. Of particular interest is the development of the legislation on the guarding of machinery in Malaysia and New Zealand which satisfies most requirements of the instruments. While retaining many of the features common to the Factories Acts referred to above, the legislation of these countries shows a more complex approach to the problem of guarding machinery. Their legislation covers all machinery and not only that used in factories, with the exception of certain specific types of machines covered mostly by separate legislation. (Endnote 137) It also applies the same uniform concept of guarding every dangerous part of any machinery, to the use of such machinery, as well as to its manufacture, sale and hire. The New Zealand legislation requires secure fencing of all dangerous accessible parts of machinery, and requires the same parts to be fenced when the machine is being "manufactured for the purposes of sale, assembled for the purposes of sale, sold, let on hire, offered for sale, or offered for hire". (Endnote 138) It also makes persons who commit such acts, as well as agents of the seller or hirer, responsible for compliance with this requirement.

138. In Malaysia it is prohibited to manufacture, repair or install any unfenced machinery and to import, sell or let on hire any unfenced machinery other than transmission machinery, the latter being covered by the prohibition of use. (Endnote 139) While imposing wider guarding requirements for machinery being sold or hired than the Convention, these Acts (like the Factories Acts) do not cover transfer in any other manner and exhibition of machinery. In respect of transfer and exhibition, which are covered by the Convention only in so far as the competent authority determines, the Government of New Zealand indicated that it does not presently consider it appropriate to enact such legislation. It also stated that there is no specific requirement in the Machinery Act for guarding to be incorporated at the design stage, as is suggested in the Recommendation, but that the Act exempts from guarding, machinery which is in such a position or is of such construction as to be as safe as it would be if securely fenced, the effect of this provision being that "the protective aspect may and probably will in many cases be introduced at the design state". (Endnote 140)

139. In Australia there is no federal legislation on the guarding of machinery (Endnote 141) and the application of the Convention and Recommendation is ensured through the legislation of the states, which show patterns of development similar to that of the British legislation. In New South Wales and in Victoria provisions have been adopted establishing general duties on those who design, manufacture, import or supply a plant for use at a workplace, (Endnote 142) these duties being supplemented by other statutory provisions directly concerning guarding of machinery. (Endnote 143) In Western Australia it is an offence to sell, to lease, to hire or to deal otherwise in machinery covered by the Act, as well as to manufacture, install or repair it in a manner that does not comply with the provisions of this Act, including those requiring secure fencing of such machinery. (Endnote 144) In New South Wales, South Australia and Tasmania there are provisions prohibiting the sale and hire of machinery with specified parts left unguarded. (Endnote 145) No corresponding provisions were found in the relevant legislation of the Northern Territory and the Australian Capital Territory.

140. Comprehensive legislation on machine guarding exists in the Nordic countries. While not expressly prohibiting the manufacture, sale, hire, etc. of unguarded machinery, their legislation lays down general principles for ensuring the overall safety of machinery in design, construction, installation and use, and makes it the duty of every person manufacturing, supplying or installing machinery to safeguard it before delivering it for use or displaying it for sale or advertisement. (Endnote 146)

141. In Norway this duty extends to persons "manufacturing, selling, renting or lending any technical installation or equipment". (Endnote 147) In respect of agricultural machinery the same duty applies to any person who sells, lends or otherwise makes machinery available for use. (Endnote 148) In Sweden this duty applies to persons "manufacturing, importing, conveying or granting another person the use of any machinery, implement, safety equipment or other technical device". (Endnote 149) In Finland it applies to makers, importers, vendors and all persons supplying machinery, tools and other technical equipment for use by third parties. (Endnote 150) "Third parties" would in that case include activities excluded from the scope of the legislation, such as family undertakings, homework, household work and work in connection with ships, extending to them the protection in respect of machinery provided by the legislation. In its report on Recommendation No. 118, the Government of Finland indicated that an amendment to the Labour Protection Act is currently under parliamentary consideration with a view to extending the duty to safeguard machinery also to the designers of machinery in accordance with Paragraph 1(2) of the Recommendation. Once this amendment is adopted, the Finnish labour protection legislation, according to the Government, will give effect to the whole of the Recommendation.

142. This basic legislation is supplemented by a vast body of technical standards and regulations instituting general safety requirements and standards for particular types of machinery and safeguards which are largely co-ordinated on the basis of the recommendations of the Nordic Machines Committee. Detailed provisions to that end usually take the form of general regulations relating to machinery which lay down safety rules concerning its design, construction, transport, assembly, maintenance and repair, operating instructions, testing and inspection. In Norway, for example, section 3 of the General Regulations concerning Technical Appliances provides that "a technical appliance shall be made in such a way that it can be transported, mounted, used and maintained without risk to life or health and without exposing workers to harmful strain. Where necessary a technical appliance shall be equipped with a special protective device". (Endnote 151) This lower-level legislation institutes also procedures for prior approval, control and testing of machines and safety devices before they are manufactured, imported or used. (Endnote 152) Under these procedures the competent authority may also prohibit the use of a work process, working method or device. (Endnote 153)

143. Competent authorities in the Nordic countries also issue protection rules, notices and guides on the guarding of machinery which may not have a mandatory character, but contribute to the promotion of safe working practices.

(c) Countries where no prohibition exists

144. In a large number of countries neither legislation nor other specific measures exist which would prohibit, or prevent by other equally effective measures, the sale, hire, transfer in any other manner and exhibition of unguarded machinery. (Endnote 154)

145. In a few reporting countries the legislation on the guarding of machinery is in a nascent stage with only the basic principles of protection being embodied in law. (Endnote 155)

146. Some governments stated in their reports that legislation concerning the sale, hire, etc., of dangerous machinery is being prepared with a view in particular to giving effect to Convention No. 119 and Recommendation No. 118. (Endnote 156)

147. Other governments indicated in their reports that they do not intend at present to introduce any legislation preventing the sale, hire, etc. of unsafe machinery, either because the level of national development and the prevailing conditions do not permit or call for such measures; or because they consider that the national legislation, even in the absence of such provisions, establishes sufficient guarantees for the protection of workers' health and safety in connection with machinery. In the latter case the governments concerned referred in the first place to measures aimed at preventing the use of unguarded machinery, which contributes in an indirect way to the prevention of this machinery being put in circulation. While recognising the importance of measures prohibiting or preventing the use of unsafe machinery (see also below), the Committee of Experts would like to stress once again here that they cannot be substituted for measures regulating the sale, hire, etc. of such machinery which are provided for by the instruments on the guarding of machinery.

148. In federal countries, different approaches to regulation may exist in the legislation of the constituent States. In Canada, for example, there is no federal legislation on the subject, and the legislation of the provinces varies greatly. In Alberta, British Columbia, Manitoba and Saskatchewan, there are no provisions on the sale, hire, transfer or exhibition of machinery. Moreover, as the Government of Canada indicated in its report, "several jurisdictions are of the view that it would be superfluous/impractical to address the manufacture, sale, hire or transfer of unguarded machinery inasmuch as the use is effectively regulated". (Endnote 157) In other provinces, however, the legislation establishes certain duties for suppliers of machinery. In New Brunswick they are required to take every reasonable precaution to ensure that machines supplied by them comply with statutory safety provisions, (Endnote 158) and in Newfoundland, Ontario and Prince Edward Island the same applies to persons who supply machines under any rental, leasing or similar arrangement. (Endnote 159) In Quebec, on the other hand, section 63 of the Occupational Health and Safety Act generally prohibits the manufacture, supply, sale, hire, distribution or installation of unsafe equipment or products which do not comply with the prescribed regulations, a provision which corresponds closely to the provisions of Convention No. 119.

149. In the United States, neither the Occupational Safety and Health Act, 1970 (OSHA) nor any other federal law or regulation prohibits or expressly restricts the manufacture, sale, hire, transfer or exhibition of unguarded or unsafe machinery. The States have jurisdiction over the sale, hire, transfer in any manner and exhibition of machinery that may cause hazards in the workplace. Several States have enacted legislation concerning the sale and hire of particular types of machinery. For example, Wisconsin and Michigan have legislation making the sale of unguarded corn huskers unlawful. However, the primary way in which individual states exercise control over the sale, transfer, etc., of hazardous machinery is by the judicial system through the application of common law rules concerning products liability, developed over time in individual decisions on tort actions brought by injured persons against the manufacturers and sellers of defective products, including machinery. OSHA regulations are often used in the courts to show the unsafe or defective condition of a machine. The Government's report states that in order to prevent injuries and avoid potential liability, manufacturers generally try, among other things, to design the product for safety. This includes using materials adequate for the intended purpose of the equipment, equipping the product with appropriate guards and other safety devices, and eliminating concealed dangers. Employers also seek to ensure that the machinery they purchase for use in the workplace meets the requirements of all health and safety laws when it is installed or delivered, as they are liable for injuries caused if it does not meet such standards. In this way the federal legislation encourages employers to make certain that vendors of potentially dangerous machinery comply with the applicable regulations and standards. Dealings by US employers with foreign enterprises are governed by the same principles.

150. Common law rules establishing civil liability, or more particularly products liability, exist in many countries where they may be used in addition to the specific liability of the manufacturer, vendor, hirer, etc. of machinery established by legislation. As has already been mentioned, the Committee of Experts has pointed out that taken by themselves such common law provisions are not sufficient to meet the requirements of Convention No. 119.

151. Among other measures that contribute in an indirect way to the prevention of the manufacture and distribution of unsafe machinery, particular mention may be made of the various measures of supervision by the competent authorities, including labour inspection, by requiring registration of factories, submission of information on the types of machinery used, (Endnote 160) and notification of the intention to install any machinery. (Endnote 161)

152. Mention should also be made of the provisions requiring official certification of guards and other protective devices to be used on machinery. In some cases certificates issued for guards in other countries are recognised as valid and no additional formality is required for the sale and use of these guards in the country concerned. (Endnote 162)

153. In concluding this overview of the situation in countries where the legislation does not regulate expressly matters concerning the sale, hire, transfer in any other manner and exhibition of unguarded machinery, the Committee of Experts draws attention to the need to develop their legislation further in order to give effect to the provisions of Convention No. 119 and of Recommendation No. 118. Obviously, the labour inspection services have the most important role in this regard, in ensuring safe working conditions and providing guidance to industry in the absence of legal provisions guaranteeing the safety of machinery before it reaches the end user.

(d) Provision for operating instructions

154. Paragraph 6 of the Recommendation stipulates that "any operating instructions for machinery should be based on safe methods of operation".

155. As was pointed out in the report of one government, "the safe use of machinery is not entirely dependent upon the provision of physical safeguards, although they are, by far, the major preventative agent. The provision of information relating to the intended use of the machine is an important element in securing protection for employees who have to operate it". (Endnote 163)

156. Indeed, in one country the obligatory inclusion of safety requirements in the technical instructions on the installation, use, maintenance, etc. of machinery is considered as efficient a means of ensuring the safety of machinery, as such measures as provision of appropriate guards, ergonomical design, remote control of operations, etc. (Endnote 164)

157. Provisions for safe operating instructions for machinery are found mainly where they are included in the basic Acts on occupational safety and health of manufacturing countries. Some of these countries have adopted very comprehensive provisions to this end.

158. In a number of countries the law does not go into great detail but makes it the duty of those who design, manufacture, import or supply machines to provide them with adequate information and instruction concerning safety in operation and to carry out such tests and examinations as may be necessary for this. (Endnote 165)

159. The obligation to provide operating instructions may be placed on different persons. In India it is the manufacturer of a dangerous machine who has to provide it with an instruction manual. (Endnote 166) In Cuba this duty rests with the purveyor of the equipment in general. (Endnote 167) In the Dominican Republic this obligation is placed equally on the manufacturer, the vendor, or the person letting out on hire or transferring machinery. (Endnote 168)

160. In some countries the provision of operating instructions for machinery is coupled in the legislation with the requirement that all such machinery be used and maintained in accordance with the rules and instructions provided. (Endnote 169) The duty of the designer, manufacturer, importer or supplier of a product to make it safe, sometimes extends only to situations when this product is "properly used". It is not regarded as properly used when it is used without regard to any relevant information or advice relating to its use which has been made available by the designer, manufacturer, importer or supplier of the product in question. (Endnote 170)

161. While the experience of the developed countries suggests that as the complexity of machinery increases, its safe operation will depend even more on the provision by the manufacturer or the supplier of the necessary information and instructions, the Committee of Experts has to observe that in the majority of the reporting countries the legislation on the guarding of machinery still does not contain any provisions to this effect and therefore is not consistent with Paragraph 6 of Recommendation No. 118.

162. In a number of countries the law requires that machinery or equipment which is imported, manufactured, sold, hired, transferred in any other manner, exhibited and in general is to be used shall be accompanied by any necessary instructions for their transport, installation, operation and maintenance without danger to life or health. (Endnote 171) There may be a requirement that such instructions shall be prepared in writing in the national language and be easily comprehensible. (Endnote 172) In some of these countries the law further requires that any technical installations or equipment, before they are delivered or displayed, be marked with the name and address of the manufacturer or of the importer or such other particulars as to enable the manufacturer or importer to be easily identified. (Endnote 173)

163. It may also be required that appropriate labels be affixed to the machines concerning methods of prevention of ill health and accidents. (Endnote 174) In one country the operating instructions for portable equipment used by hand have to indicate, for safety purposes, any possible accessory gear that may be used together with this equipment. (Endnote 175)

IV. Responsibility as to compliance

164. The Convention (Article 4) and Recommendation (Paragraph 4) provide that the responsibility for providing the dangerous machinery with appropriate guards and for complying with the prohibitions imposed in respect of the unguarded machinery, shall be shared equally by all those engaged in the production and delivery of machinery to the user, without diminishing the responsibility of the employer who uses this machinery. Providing in the legislation for either set of responsibilities without expressly mentioning the other would mean breaching one of the fundamental requirements of the Convention. The position of the ILO supervisory bodies has been aimed at achieving maximum clarity in that respect. In one case, for example, a government argued that the fact that its legislation makes employers responsible for protecting machinery but does not refer to persons selling, hiring, transferring in any other manner or exhibiting machinery, does not mean that these categories of persons are excluded from the application of the relevant legislation or of the Convention. The Committee of Experts observed in this case that "even though the other categories of persons referred to in the Convention are not expressly excluded, the application of the legislation and of the Convention to them is not evident" and that "in order to avoid any misunderstanding as to the applicability of the legislation (measures should be taken) to ensure that these categories of persons are explicitly covered and that penalties for violations are provided for". (Endnote 176)

165. In supervising the application of Article 4 of the Convention, the Committee of Experts has also pointed out that a general prohibition in the legislation on the sale, etc., of dangerous machinery is not sufficient if it is not accompanied by a provision placing the obligation to ensure compliance with these measures on the vendor and other persons carrying out such acts. It has also observed that "the obligations imposed by virtue of Articles 2 and 4 of the Convention can only be effectively enforced if appropriate penalties for non-compliance are prescribed by national laws or regulations in accordance with Article 15, paragraph 1, and if appropriate inspection services for ensuring their application exist in accordance with Article 15, paragraph 2". (Endnote 177)

166. In certain countries the law, while prohibiting the sale, hire, etc., of all unguarded machinery or of specified types of such machinery, does not include express provisions making the persons concerned responsible for carrying out such acts. (Endnote 178) In some cases it may be argued that their responsibility is implicit, but as Convention No. 119 expressly attributes the responsibility to these persons, the Committee of Experts has always considered that the national legislation should also do so in order to avoid any ambiguity.

167. The legislation of some countries closely follows the wording of these provisions of the instruments. (Endnote 179) In some ratifying countries these provisions of the Convention are directly incorporated into the national law. (Endnote 180)

168. In many countries, as was shown in the preceding section of the survey, the legislation on the guarding of machinery does not cover all stages of the life of the machine before it is supplied to the end user but only some of them, most often to the sale and hire of machinery. In these cases the legal obligations and liabilities of the persons concerned are prescribed only in respect of the acts covered in the legislation, which gives only partial effect to the corresponding requirements of the instruments on the guarding of machinery. At the same time the legislation in some countries goes beyond the requirements of the Convention and places equal responsibility for safeguarding machinery on certain other persons engaged in its supply to the end user but not mentioned in the Convention. Persons thus made responsible for compliance with the guarding requirements most often include importers of machinery. (Endnote 181)

169. The above-mentioned examples illustrate a tendency in the legislation of many countries to broaden the circle of persons made directly responsible for ensuring safety of machinery and equipment passing through their hands on its way to the end user. In this respect, an important feature of the provisions of the Convention and Recommendation to which the supervisory bodies always pay close attention is that they place responsibility equally, where appropriate under national laws or regulations, on an agent of the vendor or the person letting out on hire, transferring in any other manner or exhibiting machinery. The Recommendation adds to this list also the agent of the manufacturer of machinery in question. As the market for machinery becomes more diversified, and transactions through agents or intermediaries more common, it is important to stress the need for national legislation to address this subject.

170. In countries where national legislation on the guarding of machinery applies to every person manufacturing, selling, etc., machinery, it is taken to cover as well agents acting on behalf of such persons. This is the case, for example, in Norway where legislation establishes liability for every manufacturer, supplier, etc., of machinery. (Endnote 182)

171. The legislation of other countries expressly mentions agents among persons on whom responsibility for compliance rests, or defines these persons in such a way as to include agents and intermediaries. In countries having Factories Acts the provisions concerning sale and hire of unfenced machinery make the agent of a seller or hirer of such machinery bear equal responsibility. (Endnote 183)

172. The legislation of some countries contains special provisions strengthening the liability of the persons concerned by, inter alia, defining more clearly reciprocal responsibilities of "suppliers" and "customers". In the United Kingdom, for example, such provisions concern hire-purchase, conditional sale or credit-sale agreements. (Endnote 184) In India the manufacturer of machinery is liable to reimburse any compensation paid to a worker in case of bodily injury caused by a manufacturing defect or failure to comply with safety standards. (Endnote 185) In Zambia provisions exist making liable for offences committed in connection with a machine, the owner or hirer of the machinery instead of the factory where it is installed. (Endnote 186)

173. In France when any machinery and safety device covered by the legislation are to be exhibited, sold, hired or transferred, the manufacturer, person letting out on hire or the importer of machinery has to supply to the person who receives this machinery a certificate of its conformity with the said legislation. The same certificate has to be presented when the machinery is being imported. (Endnote 187) Special certificates are required for machinery which is subject to official certification procedures. (Endnote 188)

174. In Morocco the law also obliges the vendor or the person letting out machinery on hire to supply to the buyer or user of this machinery a certificate of its conformity with the approved model according to the prescribed form. Protecting the buyer of the machinery if it was sold to him without guards, the law in some countries empowers him to cancel the contract of sale and to return the machinery to the vendor during a period of one year from the date of delivery, as well as to claim compensation through the courts. (Endnote 189) This provision would seem to establish the general responsibility of the vendor.

175. It may be observed that the legislation of many reporting countries is very often fragmentary and unclear as to where responsibility lies, and the Committee of Experts urges governments to clarify this in their legislation where they have not already done so.

C. Safety in the use of machinery

176. The question of the prohibition of the use of inadequately guarded machinery is even more complex and difficult than that of the prohibition of its sale, hire, transfer or exhibition. Certain aspects of the problem of guarding of machinery at the stage of its use, as compared to measures taken before the machinery is supplied to the user, were discussed in the previous section. Summarising the issue, reference can be made to the following explanations found in the initial Office paper submitted to the Conference:

First of all, a prohibition of use must necessarily be more extensive than a prohibition of sale and hire, since it cannot be limited to machines having only some of their dangerous parts unguarded; in fact, it must cover the largest possible number of dangerous parts. Moreover, it is not until a machine has actually been installed that all the problems connected with guarding it can be dealt with. It is of course important to be in a position to direct or influence the user, since in the last resort he carries the main responsibility for the safety of the machinery he has bought. (Endnote 190)

177. A whole series of steps have to be taken to prevent accidents due to the use of dangerous machinery. Occupational safety legislation was first adopted at the start of the industrial era because of the spreading use of machines, and national legislation in the industrialised countries dealing with risks caused by machines became one of the most specialised and complex branches of labour law. It was the machine and its protection that was at the centre of the legislator's attention. Gradually the emphasis shifted towards the worker as the central figure of the production process, and more thought was given to the adaptation of machines to workers' capacities and abilities. The guarding of the machinery itself became only one element in the general system of measures aimed at creating a safe and healthy working environment. Such measures as training and information of workers, and establishing for them other favourable conditions of work, play no less important a role in contributing to the prevention of accidents and control of occupational hazards. These various steps and measures are of course mutually complementary.

178. Safety measures concerning the use of machinery are prescribed in Part III of the Convention and in Part II of the Recommendation, and consist of the following: (1) prohibiting the use of dangerous machinery without appropriate guards; (2) establishing the employer's obligation to guard the machinery in question and to maintain other safe environmental conditions; (3) providing for the information and instruction of workers in the safe use of machinery; and (4) prescribing workers' obligations and additional guarantees for their protection in respect of machine guarding. The same measures are provided for in both the Convention and in the Recommendation.

I. Prohibiting the use of unguarded machinery

179. The principal requirement of the instruments concerning the use of machinery is contained in Article 6, paragraph 1, of the Convention and Paragraph 7(1) of the Recommendation, which stipulate the following:

The use of machinery any dangerous part of which, including the point of operation, is without appropriate guards shall be prohibited by national laws or regulations or prevented by other equally effective measures: Provided that where this prohibition cannot fully apply without preventing the use of the machinery it shall apply to the extent that the use of the machinery permits.

Paragraph 2 of the above-mentioned Article of the Convention and Paragraph 7(2) of the Recommendation provide that "machinery shall be so guarded as to ensure that national regulations and standards of occupational safety and hygiene are not infringed", the aim of this provision being to state that machinery as a whole should be guarded in accordance with the regulations and standards on the subject adopted by a country. (Endnote 191)

180. These provisions call for certain observations. First of all, it must be stressed that Article 6, paragraph 1, of the Convention is formulated as a general prohibition to be introduced into the national legislation; to comply with this provision it may not be sufficient therefore to require guarding of the machinery in use without at the same time prohibiting the use of unguarded machinery. Highlighting this difference, the Committee of Experts, while noting that the legislation in some ratifying countries provides for various measures concerning the guarding of machinery, has pointed out that it did not prohibit the use of machinery without appropriate guards, as is required by the Convention. (Endnote 192)

181. Secondly, it is important to note that appropriate guards should be provided for "any dangerous part" of machinery, "including the point of operation". The instruments thus aim at providing total guarding of dangerous machinery. The reference to the point of operation was specifically included in the text because of the particular dangers presented by it. It is in view of this global approach, that a proposal was made not to require the complete protection of the working parts when such protection would prevent the use of machinery. Indeed, in many cases the working part (e.g. blade of a circular saw, abrasive wheel) of a machine cannot be guarded without preventing the use of the machine. A certain element of latitude in this respect was included in the instruments by making the prohibition applicable "to the extent that the use of the machinery permits". Another element of flexibility which should not be disregarded in this respect is the concept of "appropriate guard", the adjective "appropriate" offering a desirable measure of latitude.

182. As in the case of the prohibition of the sale, hire, transfer in any other manner and exhibition of machinery without appropriate guards, both legislative action and other measures of equal efficacy are allowed by the instruments with the aim of providing more flexibility in their application.

183. Prohibition of the use of dangerous machinery without appropriate guards is expressly imposed by the legislation of a number of countries. (Endnote 193)

184. In the USSR and some other socialist countries with centrally planned economies the prohibition of the use of unsafe machinery forms part of a more general prohibition of the construction and operation of any undertaking, workplace or other production unit if they do not ensure safe working conditions. (Endnote 194) In the USSR the prohibition extends also to the installation of any machinery without guards. (Endnote 195)

185. In Costa Rica the prohibition is addressed directly to employers, prohibiting them in absolute terms from putting unprotected machines into operation. (Endnote 196)

186. The prohibitions thus imposed are sometimes reinforced by additional requirements of a general character providing that any machine which is damaged, or the functioning of which may present risks, should be reported and its operation should be prohibited except for workers entrusted with its repair. (Endnote 197)

187. In France and in some countries which follow the French model, the prohibition of the use of unguarded machinery extends only to such dangerous machinery as is defined in the legislation. (Endnote 198) In Tunisia the prohibition of use applies only to machinery for which guards of recognised efficacy exist, if it is used without such guards, but this machinery has yet to be specified by a special order. (Endnote 199) The prohibition in Togo applies not to the use but to the installation of any machinery for which guards of recognised efficacy exist, without further precisions. (Endnote 200) In Congo the machinery and parts thereof to which the prohibition of the use, as well as of the sale and hire, applies are also yet to be determined by an order, but the legislation does prescribe guarding of every machine or part thereof recognised as dangerous, which are broadly defined in the legislation. (Endnote 201) The same provision as to the guarding of machinery recognised as dangerous exists in many other countries whose legislation was modelled on the French Overseas Labour Code. (Endnote 202)

188. The legislation of these countries, after establishing the principle of guarding of machinery recognised as dangerous, normally contains a number of specific provisions aimed at ensuring safety in the use of particular types of machines, such as cutting machines, woodworking machines, abrasive wheels and presses. Thus, in these countries, prohibition of the use of unguarded machinery coexists in the legislation with general provisions requiring guarding of the machinery in use.

189. The analysis of country reports and legislation shows that in the majority of cases safety in the use of machinery is ensured not through the prohibition of the use of unguarded machinery, but through the imposition of the positive requirement that machinery should be appropriately guarded. As in the case of the prohibition of use, such a requirement gives full effect to the instruments only if it applies to all dangerous machinery as defined by the Convention. Enumerations in this context of machinery and parts thereof which should be guarded, may not be exhaustive and may therefore unduly limit the scope of the national legislation in comparison with that of the Convention.

190. Provisions of a general nature requiring that all machines, installations and equipment in use shall be so constructed and fitted with safety devices as to protect workers' lives and health are found in the legislation of a number of countries. (Endnote 203) This basic principle may be established in the legislation in a variety of ways. In Algeria, for example, the general provision for the protection of workers using dangerous machinery simply stipulates that workers should be placed out of reach of dangerous premises, machines, installations or equipment by distancing, isolation, separation or interposing obstacles of recognised efficacy between workers and sources of danger. (Endnote 204) In some countries the legislation requires in a general manner that every machine and piece of equipment to be used should satisfy all those safety prescriptions laid down by the regulations and safety standards in force, thus ensuring that machinery is so guarded as not to infringe national regulations and standards of occupational safety and health, as is stipulated in the Convention. (Endnote 205)

191. In Poland it is provided that machines and other technical equipment shall be so designed and constructed as to ensure the safety of workers and, if safety cannot be achieved by these means, that they shall be fitted with appropriate guards. (Endnote 206)

192. The pattern followed in the above-mentioned countries is to lay down general provisions on the guarding of machinery in basic laws on safety, health and the working environment, while including detailed requirements as to guarding in supplementary regulations, technical standards and other lower-level legislation, which ensure the application of the instruments at least in principle in respect of virtually all types of machinery used. This is particularly the case in countries where national systems of compulsory safety and health standards are established parallel to safety and health regulations adopted at each workplace, enterprise and higher levels of the economy. (Endnote 207)

193. As a rule, technical standards are more concerned with establishing engineering requirements for the guards to be used on machinery in question, whereas safety regulations pay more attention to laying down rules for safe methods of operation. (Endnote 208)

194. In other countries the basic texts themselves include detailed provisions laying down guarding requirements in respect of certain particular types of machinery or its dangerous parts. While in some countries these provisions constitute the entire national legislation on machine guarding, the general tendency is to ensure the application of the instruments through detailed and extensive regulations requiring provision of appropriate guards and other safety devices for machinery and parts thereof that may present danger. It is common therefore to find legislation laying down additional safety requirements for other types of dangerous machinery or other parts of the same machinery, extending the overall scope of coverage. (Endnote 209)

195. As provided in the Convention, these requirements usually attach particular importance to methods of ensuring safety at the point of operation of a machine. (Endnote 210) In Mozambique, for example, a whole series of measures is prescribed for efficient guarding of the operating zone of the machine, the general concept being to limit to a minimum the dangerous zone if total protection cannot be ensured for technical reasons. (Endnote 211) In Colombia corresponding requirements stipulate in addition that every older machine which is not protected at the point of operation should be studied with a view to providing it with the necessary guards. (Endnote 212)

196. In the United States, numerous regulations on the guarding of specific machinery are incorporated in the voluminous Regulations under the Occupational Safety and Health Act, in addition to the general requirements for all machines set out in section 1910.212, which provides that "one or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks". (Endnote 213) Detailed technical standards are established under this provision, giving examples of guarding methods to be used for a long list of specific machines used in various industries.

197. In countries where the legislation concerning machine guarding is mainly related to premises (factory, railway, dock, mine or quarry, etc.), it also invariably contains provisions requiring secure fencing of any dangerous machinery and part thereof in use on the premises. The strictest guarding requirements exist in respect of machinery used in "factories" under the respective Factories Acts modelled on that of the United Kingdom. These Acts contain provisions of a general character which require fencing of prime movers, transmission machinery and every dangerous part of any other machinery. (Endnote 214) They also lay down certain specific safety requirements in respect of self-acting machines, hoists, lifts, cranes and steam boilers.

198. As concerns premises other than factories, coverage varies from country to country. Some countries have not cited in their reports any legislation concerning other premises, (Endnote 215) while in others only some premises, mostly mines, are covered in separate Acts. (Endnote 216) These Acts, as a rule, reproduce in a somewhat modified form provisions concerning machine guarding included in the Factories Acts. The general concept of machine guarding followed in this legislation is that of requiring that machinery be "securely fenced", and not "guarded" as is provided in Convention No. 119. (Endnote 217)

199. As the United Kingdom has indicated in its report, the definition of a "factory" as well as of the term "securely fenced" has been the subject of considerable interpretation by the courts. The courts have ruled in principle that in respect of factories it is an absolute duty of the employer or occupier of the factory to fence machinery to the effect that if secure fencing negates the function of the machine then the effect is that of a prohibition of its use. At the same time it should be pointed out that, according to the case law of some of the countries concerned, the legislation requiring fencing will not be violated, for example, if the material upon which a machine is working is ejected or if a machine itself breaks and injures a worker. The duty to fence may extend also only to machinery which is part of the manufacturing process of the factory and not to machinery which is a product of the factory. (Endnote 218) The examples given illustrate the complexity of the legal approach in the countries concerned even in respect of premises where machinery is covered. Further development of the legislation in the United Kingdom has been aimed at filling in the existing gaps through adoption of "umbrella" legislation applicable to all premises where people are employed at work and laying a general duty on employers to ensure the health and safety of their employees, in particular by providing and maintaining plant and systems of work that are, so far as reasonably practicable, safe and without risk to health. (Endnote 219) Thus, this requirement may apply now in addition to the various requirements under the relevant statutory provisions referred to above, or may apply on its own, in premises where the relevant statutory provisions themselves do not apply. The situation as it appears now may be described as follows: in most premises the duties in respect of machinery guarding are set mostly at a reasonably practicable level, while in some premises (factories) the level of duty may be stricter under the relevant statutory prvisions. In the light of the flexibility permitted by Convention No. 119, the Government of the United Kingdom stated in its report that the duty to guard machinery "so far as is reasonably practicable", as it is qualified in the British legislation, can be equated to the requirements of Article 6 of the Convention. It may be pointed out that in determining what is reasonably practicable, the employers, as well as in the final instance the courts, can take into account the guarding requirements detailed in various codes of practice concerning safety in the use of machinery. These codes of practice, together with guidance documents for particular classes and types of machinery and British Standards, are of a recommendatory character and supplement the system of statutory provisions. (Endnote 220)

200. The legislation of most countries provides in the basic texts for the possibility of further precautions to be prescribed in respect of any particular machinery or part thereof. (Endnote 221)

201. In Colombia it is specifically provided that the legislation will be "complemented by other provisions taking into account industrial, commercial and agro-industrial development and new hazards appearing as a result of the technological progress of the country". (Endnote 222)

202. In some countries the basic legislation on the guarding of machinery also empowers the competent authority or, in particular, labour inspectors to prohibit the use of any machinery or device in the interests of safety. (Endnote 223)

203. In Sweden whoever uses or intends to use a machine which may cause accidents may be required to notify the competent authority of this fact, specifying the manner in which the machine in question is used. (Endnote 224) Previous approval, examination and testing of dangerous machines may also be required. (Endnote 225) In that connection the Government of Norway indicated in its report that there is little prior examination and approval of machines and appliances in Norway. Instead, the regime is one of inspections of enterprises and a system of voluntary scrutiny of appliances, the outcome of which is inspection reports. (Endnote 226) The Government of Finland indicated that 22 different categories of machines and installations have been made subject to inspection before they may be put into use. (Endnote 227)

204. Another feature common to the legislation of many countries consists of empowering the competent authority to issue orders directing that a certain approved type of safety devices shall be provided for use with a specified class of machinery. (Endnote 228) In some countries guards and other safety devices are subjected to the procedures for previous control and official certification. (Endnote 229)

II. Obligations of the employer

205. A number of provisions of the instruments refer to the employer's obligations to ensure safe use of machinery. These provisions stem from the principle that whatever responsibility has been placed on manufacturers, vendors, etc. of machinery, none should be taken away from users. (Endnote 230) The obligations in question cover the following subjects: (1) appropriate guarding of machinery in use; (2) information and instruction of workers in the safe use of machinery; and (3) providing overall safe environmental conditions for workers employed on machinery. All of these obligations apply as well, where appropriate under national laws or regulations, to a prescribed agent of the employer. Employers' obligations to inform and instruct workers on the safe use of machinery will be examined later in the survey together with similar provisions on the training of workers in respect of other hazards in the working environment contained in Convention No. 148 and Recommendation No. 156.

206. Article 7 of the Convention stipulates that "the obligation to ensure compliance with the provisions of Article 6 shall rest on the employer". The same provision is included in Paragraph 8 of the Recommendation. It is therefore the employer's responsibility to provide appropriate guards for any dangerous part of machinery in use and to see that no machinery without such guards is used in his undertaking. It is interesting to note that this provision did not give rise to any discussion in the competent Conference Committee, a situation which reflected a wide acceptance of this principle in the legislation and practice of member States already at that time.

207. The employer's obligation to ensure safety in the use of machinery, including the provision of suitable guards, is recognised in the legislation of all of the reporting countries for which information is available. (Endnote 231)

208. The obligation to ensure safety in the use of machinery and to provide it with the necessary guards is placed either on the employer himself (Endnote 232) or on the undertaking. (Endnote 233) It may also be defined in an impersonal manner, with penalties applied to "authors of offences". (Endnote 234) In countries where the occupational safety legislation applies to premises it is the owner or the occupier of the premises (a factory, for example) who is made primarily responsible. (Endnote 235) In Spain the new Machines Safety Regulations of 1986 put the obligation on the users in general of machinery or parts thereof. (Endnote 236) Under the acts of the republics and provinces on the protection of labour in Yugoslavia, it is the organisations of associated labour who carry all the responsibilities laid down by the instruments on the guarding of machinery, with the same responsibilities in the field of safety being prescribed for any other physical or moral person employing workers. (Endnote 237)

(a) Agents of the employer made equally responsible

209. The responsibility of the employer concerning the use of machinery may also be attributed to his agent. Article 14 of the Convention specifies that for the purpose of Part III of this Convention concerning use of machinery the term "employer" includes, where appropriate under national laws or regulations, a prescribed agent of the employer. A provision to the same effect was included in Paragraph 15 of the Recommendation. Observing that the scope of Article 14 covers the whole of Part III of the Convention, the Committee of Experts has pointed out that all the obligations of the employer specified in this part fall also, where appropriate, on his agent and that this agent should also be made liable for the penalties provided for in Article 15 of the Convention. (Endnote 238)

210. Provisions to this effect have been adopted in quite a number of countries. (Endnote 239)

211. The extent to which these provisions cover different persons acting as agents of employers varies considerably from country to country. In some countries it is clear that agents share employers' responsibilities. (Endnote 240)

212. In some countries the question of the responsibility of agents of the employer in the field of occupational safety has yet to be regulated. (Endnote 241)

(b) Contents of employers' responsibility

213. The employer's responsibility to safeguard machinery may be defined in very wide terms, such as an obligation to ensure safety of the workplace, equipment, etc.; or in very concrete terms, for instance requiring him to install all the necessary guards on machinery in use. (Endnote 242) For some particular kinds of dangerous machinery, such as hoisting appliances, the obligation of the employer or director of an undertaking to ensure its safety may go so far as to require him to examine the condition of the safety devices provided on a weekly (Endnote 243) or even daily basis. (Endnote 244)

214. There are countries where the legislation is particularly extensive in respect of the employers' obligations in the guarding of machinery. In Cuba, for example, the responsible officials of the central and local administrations or directors of enterprises, co-operatives and other organisations are required to manufacture safety devices for machines and to adapt these devices to facilitate the work of handicapped workers. Close consultation of trade unions in all manufacturing and testing procedures is required by law. (Endnote 245)

215. An integral part of employers' obligations is the establishment of safe environmental conditions at the workplace. It is generally recognised that if work is performed in unsatisfactory environmental conditions, such as poor lighting, ventilation, reduced visibility or perception of oral commands, etc., this may considerably increase the probability of industrial accidents caused by other hazards, especially machinery. That is why an additional obligation on the employer to "establish and maintain such environmental conditions as not to endanger workers employed on machinery" covered by the instruments is included in Article 10, paragraph 2, of the Convention and Paragraph 11(2) of the Recommendation. These requirements are usually covered by the general safety and health measures laid down by the national legislation, but it is not uncommon to find special provisions to this effect in the legislation. Mention may be made of provisions obliging the employer to see that machinery should be so installed as to leave sufficient space for workers to circulate, to perform maintenance operations and to escape in case of emergency, (Endnote 246) or to ensure a clear field of visibility in the operating area, which must be organised in such a way as not to require inconvenient movements of workers. (Endnote 247) No less important are provisions ensuring that the floor of the working premises be kept clean and flat and that it be prevented from becoming slippery. (Endnote 248) Detailed provisions are found in the legislation on the lighting of places where machines are used, for example prohibiting direct rays of light on the eyes of the operator. (Endnote 249) The list of these provisions could be continued indefinitely, especially as safety legislation has recently paid particular attention to ergonomical principles in the organisation of workplaces and equipment and to the inter-relation of different aspects and factors of the working environment from the safety point of view. To illustrate this approach the following provision of the Swedish Work Environment Act may be cited: "Working conditions must be adapted to human physical and mental aptitudes. The aim must be for work to be arranged in such a way that the employee himself can influence his work situation." (Endnote 250)

216. Generally speaking, modern legislation on occupational safety and health which proceeds from the concept of a safe working environment, substantially broadens employers' responsibilities for establishing and maintaining safe environmental conditions. This question will be addressed in more detail in the chapter of the survey dealing with the ILO instruments on the working environment.

III. Workers' obligations and guarantees

(a) Obligations and guarantees in respect of guarding machinery

217. Article 11 of the Convention and Paragraph 12 of the Recommendation provide that workers may not use unguarded machinery or make its guards inoperative, while guaranteeing that whatever the circumstances they will not be compelled to use machinery where the guards are not in place or are inoperative.

218. The above-mentioned obligations of and guarantees to workers are reflected in full in the legislation of a number of countries. (Endnote 251) The legislation of one country provides, for example, that "any person who works in any working area, or who frequents this area or who may enter it is responsible ... not to interfere with the functioning of these measures (of protection), nor to remove or displace them, nor to interfere with their use, and to bring to the attention of the employer or of the health service of the working area any deficiency or fault of these measures which this person may have noted and which may constitute a danger or a risk". (Endnote 252)

219. The legislation of some countries includes only provisions on the obligations of workers in this respect but none on workers' rights. (Endnote 253) The legislation sometimes requires that before putting a machine into operation the operator should see to it that all working parts of the machine are safeguarded and that all safety devices are firmly in place. (Endnote 254) In other countries the law simply requires that the guards provided shall be constantly kept in position while a machine is in motion or use. (Endnote 255)

220. The legislation of some countries expressly recognises the right of a worker to refuse to work in a situation which he has reason to believe presents a danger to his life or health, and ensures that the employer cannot require a worker to continue his work before this situation is remedied. (Endnote 256)

221. On the other hand, a worker who refuses to make use of the protective devices provided may be subject to penalties. (Endnote 257)

222. In some countries workers' obligations and guarantees in respect of the guarding of machinery are not specified as precisely as in Convention No. 119 and Recommendation No. 118 and are ensured mostly through the application of the general provisions requiring workers and employers to comply with safety measures prescribed in the existing legislation.

223. While stressing the importance of the provisions of the Convention and Recommendation concerning workers' obligations and guarantees, it should be pointed out that they still have not been included in the legislation of some countries. (Endnote 258) In this connection the Government of France points in its report to the "impossibility of integrating into French legislation obligations on employees" indicating that in French labour law the traditional idea is that within the undertaking the obligations are solely on the director of the undertaking because of his links in law to the wage earners, and these provisions of the Convention and Recommendation do not follow this logic.

(b) Safeguarding workers' rights to social security or social insurance

224. Article 12 of the Convention provides that its ratification "shall not affect the rights of workers under national social security or social insurance legislation". The same provision appears in Paragraph 13 of the Recommendation. The intention of this provision, as explained in the report of the competent Conference Committee, "was to provide that the ratification of the Convention should not affect the acquired rights of workers under national laws or regulations concerning social security and social insurance". A question arose in the Committee as to the effect that this requirement might have in respect of the provisions concerning the notion of "inexcusable fault" which appeared in certain national laws or regulations. The Committee confirmed in its report that "it should be understood that there was no intention of asking for modification of the national laws and regulations in force, as regards this point". (Endnote 259)

225. Many governments have stated in their reports that the application of the Convention and Recommendation does not and would not in any way jeopardise social security and social insurance rights of workers.

226. In the light of these requirements of the Convention it may be interesting to note the recent tendency in the legislation of certain countries for social security and social insurance laws to become more and more concerned with regulating matters relating to the prevention of industrial accidents. Agencies that administer or take part in the administration of national insurance schemes may be the same ones that carry out inspection and enforcement functions in respect of the whole body of safety and health legislation, (Endnote 260) or they may even establish their own inspection services. (Endnote 261)

IV. Obligations of self-employed workers

227. The provisions relating to the obligations of employers and workers contained in Part III of the Convention and in Part II of the Recommendation on the use of machinery apply also to self-employed workers, if and in so far as the competent authority so determines, under Article 13 of the Convention and Paragraph 14 of the Recommendation. These provisions of the instruments, while clearly aimed at including self-employed workers in their coverage, leave a wide margin of flexibility for governments as to their application. The formula "if and in so far" was intended in particular to provide the possibility of ratifying the Convention in countries where self-employed workers are not subject to labour legislation.

228. The scope of the legislation of a number of countries covers self-employed workers without containing any special provisions concerning them. (Endnote 262)

229. In other countries the obligations of self-employed workers are specifically addressed in the legislation on occupational safety. (Endnote 263) In Colombia, for example, it is provided that independent workers are obliged to adopt all preventive measures laid down in the legislation to control hazards to which they or third parties are exposed during their work. (Endnote 264) In Norway every person undertaking on his own account to assemble technical installations or equipment shall ensure that they are made ready and installed in accordance with the statutory requirements. (Endnote 265)

230. One government has indicated in its report that the provisions referring to obligations of employers and workers apply to self-employed workers except for those categories which are excluded from the Labour Code in the private sector. (Endnote 266) Another government indicated in its report that although its relevant legislation does not cover self-employed workers, it is applicable to all machinery irrespective of whether it is used by undertakings or self-employed persons. However, it referred also to difficulties in ensuring the same level of protection to self-employed persons who are not subjected to labour inspection. (Endnote 267)

231. The legislation of some other countries does not seem to cover self-employed workers. (Endnote 268)

232. In some countries self-employed persons are expressly excepted from the legislation dealing with the guarding of machinery. (Endnote 269) In one country though, while family and self-employed workers are excluded from the application of the legislation, provisions concerning obligations of employers and workers in safety and health are extended to them in full. (Endnote 270)

D. Exceptions allowed under the instruments

233. The exceptions provided for in the Convention and in the Recommendation fall into four different categories: (1) those concerning machinery or parts thereof made safe by virtue of their construction or installation; (2) exceptions with respect to operations of maintenance and the like; (3) exceptions concerning storage, scrapping or reconditioning of machinery; and (4) possible temporary exemptions from the provisions of the instruments. Of these, the exceptions concerning storage, scrapping or reconditioning of machinery concern only Part II of the Convention and Part I of the Recommendation dealing with the sale, hire, transfer in any other manner and exhibition of machinery, whereas the other exceptions apply also to those parts of the instruments which deal with the use of machinery.

234. To make the list of the exceptions complete, it may be added that, according to the instruments, the transfer in any other manner and exhibition of unguarded machinery should be prohibited or prevented only "to such extent as the competent authority may determine" (Article 2, paragraph 2, of the Convention, and Paragraph 1(1) of the Recommendation) and that in respect of the exhibition of machinery the Convention further provides for the possibility of the temporary removal of the guards in order to demonstrate the machinery, as long as appropriate precautions to prevent danger to persons are taken. Finally, it may be mentioned that the exceptions included in the Convention and in the Recommendation do not differ in their wording, except that certain exceptions provided for in Part I of the Recommendation extend as well to measures which it prescribes in respect of the manufacture of dangerous machinery. These exceptions allow for flexibility in the application of the instruments, taking account of particular situations in which the enforcement of their provisions would not seem practicable.

235. It appears that the general tendency of recent legislation is toward stricter safety standards with fewer possibilities of exceptions and other forms of flexibility in its application. Nevertheless, in most countries there are a great many exceptions in the safety and health legislation, reflecting the technical as well as the economic difficulties involved in applying it. This is especially true of the legislation on guarding of machinery where the exceptions provided concern a wide variety of situations, types and parts of machinery, adding to the complexity of this branch of labour law.

I. Machinery made safe by virtue of its construction or installation

236. The first exception concerns machinery which is made safe by means other than the provision of appropriate guards. It seems logical to exclude from the scope of the instruments parts that cannot be reached without removing a component of the machine and parts which are so placed as to be normally inaccessible to persons. Article 3, paragraph 1, of the Convention provides that the prohibition of the sale, hire, transfer in any other manner or exhibition of machinery does not apply to machinery or dangerous parts thereof specified in its Article 2 which (a) are, by virtue of their construction, as safe as if they were guarded by appropriate safety devices; or (b) are intended to be so installed or placed that, by virtue of their installation or position, they are as safe as if they were guarded by appropriate safety devices. A similar exception was included in Paragraph 3(1) of the Recommendation. As concerns the use of machinery, Article 8, paragraph 1, of the Convention, and Paragraph 9(1) of the Recommendation also exclude machinery made safe by virtue of its construction, installation or position.

237. The aim of these exceptions is obviously to promote the construction of machinery which is equipped with built-in safety devices, or the safety of which does not depend on additional guards. In many countries the concept of safety by construction, installation or position is contained in the general principles of the machinery legislation on the same footing as the prohibition of the manufacture, supply, installation and use of unsafe machinery. (Endnote 271) In a number of other countries the guarding requirements imposed by the law are drafted in absolute terms and do not provide for any exclusions or exceptions. (Endnote 272) It is also not uncommon to find that the legislation requires machinery to be constructed and placed in such a manner as to prevent workers from entering involuntarily into contact with its dangerous parts, leaving open the possibility of granting exceptions from this provision in case of, for example, "technical impossibility". (Endnote 273)

238. In a number of countries, especially in those having Factories Acts modelled on the United Kingdom's legislation, the legislation on machinery follows more closely the terms of the instruments, and excludes from the guarding requirements concerning sale, hire, etc., and use the dangerous parts of machinery which are made safe by virtue of its construction or position. (Endnote 274)

II. Maintenance operations, etc.

239. The maintenance, lubrication, setting up and adjustment of machinery frequently require removal of guards, exposing some dangerous parts, or allowing persons to come within reach of dangerous parts of equipment which are normally inaccessible. Whereas in modern machinery guards are usually designed in such a way as to facilitate lubrication, adjustment, etc., there is still machinery being so designed and used that the guarding requirements imposed by the instruments may not be fully complied with during such operations. At the same time these operations are normally carried out by experienced maintenance teams and in accordance with special safety precautions prescribed for that purpose. The exception in respect of such machinery was accordingly included in Article 3, paragraph 2, of the Convention, and in Paragraph 3(2) of the Recommendation which concerns also the manufacture of machinery. Furthermore, it was thought necessary to specify that the prohibition of the use of unguarded machinery, as well as the obligation not to remove or to make inoperative the guards provided (Articles 6 and 11 of the Convention), also should not prevent the maintenance, lubrication setting up or adjustment of machinery or parts thereof carried out in conformity with accepted standards of safety. This is provided for in Article 8, paragraph 2, of the Convention, and in Paragraph 9(2) of the Recommendation.

240. In nearly all the reporting countries having legislation on machinery, there are provisions of more or less detailed character concerning safety measures during maintenance, and other similar operations performed on machinery. It is generally required that such operations should be carried out by specially authorised persons and only when the machine is not in motion. (Endnote 275)

241. These provisions concern mostly the use of machinery and do not refer to its sale, hire, etc. For example, in countries having Factories Acts drafted on the British model, it is specifically provided that operations of examination, lubrication or adjustment of machinery in motion are not taken into account for the purpose of determining the guarding requirements. Other maintenance operations and setting up of machinery are not however mentioned for that purpose, and therefore no exceptions from the guarding requirements can be made for these operations. (Endnote 276)

III. Storage, scrapping or reconditioning

242. Article 3, paragraph 3, of the Convention, and Paragraph 3(3) of the Recommendation contain a further exception to the effect that neither instrument prohibits the sale or transfer in any other manner of machinery for storage, scrapping or reconditioning, provided that such machinery shall not be sold, hired, transferred in any other manner or exhibited after storage or reconditioning, unless protected in conformity with the provisions of the instruments. Apart from a very few cases, (Endnote 277) these exceptions have not been reflected in the legislation of any of the reporting countries.

IV. Possibility for temporary exemptions

243. Taking account of the technical difficulties which would be associated with the transformation of machinery already made or being manufactured at the time of the coming into force of the national law or regulations giving effect to the Convention, it was thought appropriate to allow ratifying countries a certain time to adjust their practice by providing for a temporary general exemption from the provisions of Articles 2 and 6 of the Convention. According to Articles 5 and 9 of the Convention, any Member may provide for such a temporary exemption, the duration of which shall in no case exceed three years from the coming into force of the Convention for the Member concerned. The duration of and any other conditions relating to such an exemption shall be prescribed by national laws or regulations or determined by other equally effective measures. In applying these Articles the competent authority is obliged to consult the most representative organisations of employers and workers concerned and, as appropriate, manufacturers' organisations in respect of exceptions from Article 2 of the Convention. The same provision for a temporary exemption was included in Paragraphs 5 and 10 of the Recommendation.

244. The possibility for a ratifying country to avail itself of the temporary general exemption from the prohibition of the sale, hire, transfer in any other manner, exhibition and use of unguarded machinery is another example of the flexibility of the Convention that should be taken into account in considering its ratification. This possibility may be particularly useful in those countries where the measures taken in pursuance of the ratification of the Convention would for the first time introduce the principle of the prohibition of the sale, hire, transfer or exhibition of unguarded machinery in the national setting, and where the need for a transitional period may therefore be felt in order to adapt existing machinery and to make all those concerned accustomed to the new provisions and practices.

245. In some countries (in particular, the socialist countries with centrally planned economies), the legislation permits no temporary or permanent exceptions from the prescribed regulations. In a number of other countries there are different approaches. In one case, for example, the legislation provided for a transitional period of two years during which undertakings had to ensure progressive compliance with the new regulations, and every six months had to show to labour inspectors the progress achieved. (Endnote 278) In another case the entry into force of certain provisions of the regulations concerning guarding of machinery was postponed for eight months to allow compliance. (Endnote 279) In some countries guarding requirements in respect of machinery used, sold or hired do not have retroactive force and do not apply to machinery constructed or imported before the entry into force of the law in question. (Endnote 280)

246. There are also countries where the law permits the exemption of any machine or part thereof from the guarding requirements by a special order, if it is established that such requirements are not necessary for the protection of workers (Endnote 281) or if special conditions for securing the safety of workers are observed. (Endnote 282) Such exceptions may concern particular parts of machines, e.g. transmission machinery. (Endnote 283)

247. In other countries the competent authority is empowered to grant to undertakings permanent or temporary exemptions from, inter alia, provisions requiring guarding of the machinery in use, when it is established by the tripartite technical advisory committee that their application in the undertaking is practically impossible, provided that workers' safety and hygiene is ensured by conditions at least equal to those legally prescribed. (Endnote 284) In its reports on the application of the Convention one of these governments has indicated that the requirement of "at least equal" safety conditions has resulted in no exemptions having been granted in practice under this provision. (Endnote 285) As concerns the practical application of the legislation, another government stated in its report that its competent authorities, recognising that secure fencing of machinery is not always possible, may give informal exemptions in such cases which nevertheless do not affect the legal obligation of the owner to guard the machine in question. (Endnote 286)

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Recommendations:R032 Power-driven Machinery Recommendation, 1929