Loi du 30 Avril 2007 qui définit les travaux pénibles,organise leur constat et arrête les conséquences, y compris sur les droits à retraite.

Ce texte pourrait inspirer les partenaires sociaux et pouvoirs publics français qui bloquent depuis des années sur cet aspect essentiel des droits des salariés.

THE NEW REGULATION PERTAINING TO HARD AND INJURIOUS

WORKS

Official Gazette No.18106 published on April 30, 2007

Decree of the Council of Ministers, No. H36005T/15365 dated April 25, 2007

To:

- Ministry of Welfare & Social Security

- Ministry of Labour & Social Affairs

- Ministry of Health, Medical Treatment and Education

- Social Security Organization

The Council of Ministers, in the course of a Session held on March 16, 2006, pursuant to a draft proposed jointly by the Ministry of Labour and Social Affairs, Ministry of Health, Medical Treatment and Education and the Social Security Organization, under letter No.77197 dated September 19, 2006, approved the new Regulation Pertaining to Hard and Injurious Works by virtue of the law on amendment of Articles 72, and 77 and the Note under Article 76 of the Social Security Act, approved 1389, as follows:

Article 1- Hard and injurious works are the ones that shall be performed in an environment of non-standard, physical, chemical, mechanical and biological condition creating constraint, due to such engagement, much higher than a workers' natural capacity (both physical and mental) and resulting in occupational diseases and their consequential effects. The hard and injurious works mentioned in this present Article 1 shall be divided into two groups as follows:

a) The works that, in view of their nature, are considered to be hard and injurious, but they can change into normal non-injurious works through adopting certain hygienic, safety and technical measures, by employers concerned.

b) The works that, in view of their nature, are considered as hard and injurious and will remain hard and injurious regardless of any hygienic, safety and technical measures that will be taken by employers.

Note- Those falling under the provisions of the Law on the Mode of Retirement of the Cripples of Islamic Revolution and the Imposed War and Ordinary Cripples of Hard and Injurious Works, approved 1988 as Amended, as well as the individuals subject to the Law on Protection Against Radiation, approved 1989, shall remain protected by the provisions of the pertinent laws and regulations.

Article 2- Hard and injurious works under Article (1) above and their classification under groups (a) and (b) shall be determined upon review and examination of records, and inspection and examination of the conditions relevant to such works by the occupational health experts affiliated with the Ministry of Health, Medical Treatment and Education as well as the inspectors of the Ministry of Labour and Social Affairs and after confirmation of the relevant reports by provincial committees that will be set up pursuant to these By-Laws.

Note- As regards the instances described in Sub-clause (a) of Article 1 above, where there shall exist standards for elements causing diseases, final decision by the above provincial committees, shall be made after examination and according to opinions given by the experts concerned at the Ministry of Health, Medical Treatment and Education, or the pertinent centers operating under license given by the said Ministry, regarding hazardous levels.

Article 3- Employers in workshops where the whole or a part of their jobs shall be considered as hard and injurious according to First Instance or Appellate Provincial Committees' opinions, or by the High Council of Technical Protection shall, within 2 years after the date of receiving the final verdict of the provincial committee or that of the High Council of Technical Protection, render the conditions prevailing in the work environment safe and secure, in conformity with the authorized levels and standards specified in the Labour Law and in the relevant directives and regulations (approved by the High Council of Technical Protection) as well as in other applicable regulations and shall eliminate the hard and injurious characteristics and nature of the jobs described in Sub-clause (a) of Article 1 above and shall report the results, in writing, to the First Instance Committee set up under Article 8 of this present Regulation, for the purpose of investigation and confirmation by the said Committee.

Note- The Ministry of Labour and Social Affairs and the Ministry of Health, Medical Treatment and Education shall inspect the conditions at the workshops where their conditions were considered hard and injurious after expiry of the above 2-year period, and shall report their findings, in writing, to the First Instance Provincial Committee.

Article 4- Employers at the above workshops shall be duty-bound to have their work-force engaged in hard and injurious works, medically checked up by health and medical treatment centers, at least once a year, in order to ascertain and assure their physical health, to timely diagnose the potential ailments and sicknesses, and to prevent their physical and mental deterioration, and to keep the results of medical examinations in the relevant files. A copy of such records shall be submitted to the Social Security Organization.

Note 1- In cases where an insured worker shall be exposed to physical and mental deterioration due to being engaged in hard and injurious works, his occupation and position shall be changed in conformity with the provisions of the Labour Law.

Note 2- Medical examinations prior to employment shall be carried out in conformity with Article 90 of the Social Security Act, approved 1975 (1354).

Note 3- In case of failure, on the part of employers, in fulfillment of their obligations set forth in Para 2 of Sub-clause (a) of the Sole Article on Amendment of Articles 76, 72 and Note under Article 76 of the Social Security Act, approved 1975, the Social Security Organization shall carry out its obligations towards the workers concerned and shall collect the costs from the defaulting employer according to the provisions of Article 90 of the Social Security Act.

Article 5- By virtue of Note 1 under Article 96 of the Labour Law, the requirements and criteria applicable to the medical examinations described in Article 4 above, including the ones carried out prior to employment and the specialized ones performed periodically on recurrent basis, as well as any other medical examinations undertaken in this regard, shall comply with the current directives and applicable regulations of the Ministry of Health, Medical Treatment and Education.

Note- The Ministry of Health, Medical Treatment and Education shall notify and communicate, to the organizations concerned, the results of medical examinations mentioned in Article 4 above pertaining to the duties and functions of the said organization.

Article 6- First Instance Provincial Committees, pursuant to reports by the experts mentioned in Article 2 above, shall conduct examinations in order to see that the hard and injurious nature of the jobs mentioned in Sub-clauses(a) and (b) of Article 1 remedied, and may exempt the workshop concerned from the provisions of this Regulation.

If the hard and injurious nature of the jobs under Sub-clause (a) of Article 1 above, shall not be remedied during the prescribed respite, necessary actions will be taken by the Ministry of Labour and Social Affairs and the Ministry of Health, Medical Treatment and Education through competent authorities in charge.

Note- In cases where according to reports by experts mentioned in this Article that have been confirmed by first instance and appellate provincial committees, the injurious, hazardous, and dangerous elements in the work environment shall not be remedied, eliminated or reduced within the respite provided by law, necessary actions will be taken by the Ministry of Labour and Social Affairs and the Ministry of Health, Medical Treatment and Education.

Article 7- Policy making process in respect of hard and injurious works as well as investigation of requests made by first instance and appellate provincial committees mentioned in this Regulation, shall be within the responsibilities of the High Council of Technical Protection.

The executive directive and procedures on the mode of operation of the above committees and supervision of their activity shall be proposed by the Ministry of Health, Medical Treatment and Education, the Ministry of Labour and Social Affairs, and the Social Security Organization and shall be approved by the High Council of Technical Protection.

Note- The Managing Director of the Social Security Organization and the representative of the Minister of Health, Medical Treatment and Education, who shall have voting right in respect of matters pertaining to hard and injurious works, shall be members of the High Council of Technical Protection as of the date of approval of this Regulation.

Article 8- In order to identify and classify hard and injurious jobs on the basis of the policies of the High Council of the Technical Protection, provincial first instance and appeal committees each having five principal and five alternate members who shall be appointed and to who maybe reappointed after the expiry of the said three years shall be set up in every province.

A. The first instance committee shall consist of the following members:

1. Director General of the provincial Labour and Social Affairs Department who shall preside over the committee.

2. Deputy Chairperson (health matters) of the University of Medical Sciences and Health Services.

3. The Director General of the provincial Social Security Administration.

4. One labour inspector who shall be appointed by the provincial Labour and Social Affairs Department General.

5. One expert in charge of occupational health who shall be appointed by the Medial Treatment Director of the provincial SSO.

Note 1- Meetings of provincial first instance and appeal committees shall be held at the Labour and Social Affairs Organization in the province. The meetings of the Committee shall have quorum by presence of four principal or alternate members. The decisions of the Committee shall be adopted by a majority of the votes of those who participate at the meeting.

Note 2- In provinces where there exists an independent faculty of medical sciences and health services dealing with certain matters in connection with hard and injurious works in the region, the expert in charge of occupational health appointed by the Deputy Chairperson (health) of the said faculty shall substitute the expert in charge of occupational health appointed by Health and Treatment Services Department.

Note 3- Upon approval by the provincial committee, it shall be authorized to call knowledgeable individuals and university professors to attend the meetings without having the right of vote.

Note 4- In provinces where workers and employers organizations mentioned in paragraphs 4 and 5 above have not been formed yet, the above mentioned representatives shall be appointed from among the members of other majority formations in the province, at the discretion of the Labour and Social Affairs Department, introduced by the said formations.

Note 5- Appeal may be sought, within 15 days after the date of notification and service of verdicts issued by first instance committees, by both parties (workers and employers) concerned. Appeal shall be lodged, in writing, with the local Labour and Social Affairs Department.

Note 6- No member of first instance committee may, at the same time, serve as a member of the appellate committee. Also, the members of first instance committees who shall be later appointed to act as members of appellate committees, shall not have the right of voting in respect of the cases to which they voted at first instance committees.

B. Appellate provincial committees shall comprise the following members:

1. The Head of Labour and Social Affairs Department of the relevant province, who shall act as the chairman of the committee.

2. The General Manager of the Social Security Department of the relevant province.

3. The health affairs deputy dean of the Medical and Health University/College in the province.

4. The workers' representative designated by the majority (workers) formation of the province, at the discretion of the provincial Labour and Social Affairs Department.

5. The employers' representative introduced by the guilds society of employers in the relevant province.

Note 1- A verdict issued by appellate provincial committee shall be final and binding, as of the date of service.

Note 2- If provincial centers of workers and employers mentioned in Sub-clauses 4 and 5 above have not been formed, the said representatives shall be appointed from among the members of the formations holding majorities, at the discretion of the Labour and Social Affairs Organization of the province who shall be introduced by the said majority holder formations.

Note 3- In case of parity of the votes cast in favor and against a resolution, whether in first instance or in appeal, a further meeting shall be held in presence of all members.

Note 4- Provincial committees, in their verdicts, shall determine the type of hard and injurious nature of the jobs described in Sub-clauses (a) or (b) of Article 1 above.

Note 5- In provinces where there exists an independent faculty of medical sciences and health services, dealing with certain matters in connection with hard and injurious works in the region, the expert in charge of occupational health appointed by the Deputy Chairperson (Health) of the said faculty shall substitute the expert in charge of occupational health appointed by Health and Treatment Services Department.

C. Upon approval by the provincial committee, it shall be authorized to call knowledgeable individuals and university professors to attend the meetings without having the right of vote.

D. Employers shall be bound to cooperate with the experts mentioned in Article 2 as well as those mentioned in Article 8 of above who act on behalf of the pertinent committees and to provide them with their required documents.

Article 9- The duties and functions of first instance and appellate provincial committees shall be as follows:

A. The duties and functions of first instance provincial committees shall be as follows:

1. To investigate, identify and determine hard and injurious jobs in conformity with the provisions of this present Regulation that have been reported to the committee as hard and injurious works and jobs by insured workers, employers, the Ministry of Health, Medical Treatment and Education, the Ministry of Labour and Social Affairs, the Social Security Organization and/or the pertinent formations and to report the results of their investigations and verification to the applicant as well as to the organizations in charge, through the Chairman of the first instance committee.

2. To review and examine the job(s) that have been proved to be safe and non-injurious after adopting the required measures and which have subsequently fallen under ordinary jobs category, and to communicate the facts and circumstances, in this regard, to the authorities concerned in order to revoke and cancel the advantages and benefits applicable to workers in hard and injurious jobs.

3. To enforce and execute the policies and decrees communicated by the Technical Protection High Council.

B. The duties and functions of appellate provincial committee shall consist of the investigation, declaring opinion on and to adopt necessary decisions in respect of objections made and appeals sought from the verdicts issued by first instance provincial committees mentioned in Article 8 of this Regulation by insured workers or employers concerned and to declare the result of investigations made by the Appellate Committee to the applicant of investigations and to the organizations concerned. Communication of investigations shall be made by the chairman of the appeal committee.

Article 10- The Ministry of Health, Medical Treatment and Education shall annually notify to the Technical Protection High Council, the extent and degree of workers' exposure to ailment-triggering agents in the case of each and every job. Accordingly, the said High Council shall communicate the facts and circumstances in this regard, for due implementation, to the hard and injurious works provincial committee.

Article 11- In addition to the hard and injurious jobs specified and described in the decrees of the Technical Protection High Council and the ones confirmed by provincial committees, also the following works shall fall under hard and injurious works categories:

1. Works in prisons in direct contact with prisoners.

2. Works in psychiatry centers performed in direct contact with psychopaths.

3. Reporters works.

Note- Instances of reporters works covered by these regulations shall be determined upon confirmation by first instance committee mentioned in Article 8.

Article 12- The manner of specifying successive and recurrent engagement in hard and injurious jobs:

1. The following periods of time shall be considered as record of being engaged in hard and injurious jobs, if they fall within the intervals of being engaged in such works:

a) Week-ends.

b) Official holidays.

c) Paid leave (annual).

d) The days on which an employee shall be on paid leave for marriage, the death of spouse, father, mother or children for 3 days, in the case of the workers being subject to the Labour Law.

e) The days on which an employee shall be on medical leave, including both the ones that shall be paid by the employer and the ones paid by SSO.

2. The following periods of time shall not affect the recurrent engagement of a worker in a hard and injurious job, even if they fall within the intervals of engagement in such jobs.

a) The period of compulsory military service, provided that, after completion of the service, the insured worker either returns to and resumes the earlier occupation not later than two months after the date of completion of his military service, or shall become engaged in another hard and injurious job.

b) The period of time during which an insured worker shall be detained or shall be under custody, provided that the said period shall not terminate in his conviction, or if the employer shall be legally obligated to pay to the insured worker, the wage or the salary applicable to the said period.

c) The period of suspension of work which may arise out of force major (such as flood, earthquake, war, conflagration or fire and/or social turmoil) being out of reasonable control of the employer and the insured worker, as a result of which the workshop may temporarily close down.

d) The period of time during which the insured worker may utilize and take advantage of the unemployment insurance pension, provided that prior to or immediately after termination of the said period, the insured worker shall become engaged in a hard and injurious job, or shall be found eligible for retirement, in conformity with the these by-laws.

e) The period of service in war fronts, upon confirmation and endorsement by competent authorities.

f) The period during which the insured worker shall be considered a political convict or shall be held captive and accordingly shall be considered as a prisoner of war.

g) The period of time during which the insured worker shall be suspended from his job by virtue of a verdict issued by a Board of Settlement of Disputes and/or other legal forums, resulting in payment of the salary/wage applicable to such period.

h) The period of time falling between August 1, 1975 (10.05.1354) and June 22, 1980 (01.04.1359) during which the insured worker may have collected sickness period wage compensation.

i) The one month unpaid leave under Article 67 of the Labour Law.

3. The following periods and instances shall affect the recurrent nature of a hard and injurious job, if they fall within the intervals of engagement in such jobs, with the result being that the engagement of the worker in a hard and injurious job shall be considered to be of a successive kind:

a. The period of leave without pay, for any purpose whatsoever, in addition to the leave taken according to Sub-clause 2-i above.

b. Any discharge, resignation, dismissal and collection of the amount payable to a worker as severance compensation, provided however, that the worker shall not be engaged in hard and injurious works or shall not be able to become retired hereunder within a maximum period of two months after the date of termination, according to the above instances.

c. Engagement in ordinary jobs and occupations for a period of one month.

d. Engagement in free lance occupations for a period of one month.

e. Taking optional insurance for a period of one month, without having an employer.

f. Unemployment without collecting unemployment pension in excess of two months.

g. Other similar instances.

Article 13- Requirements for retirement in hard and injurious occupations shall be as follows:

1. Insured workers having a minimum of 20 recurrent or 25 successive years of record of service and equal record of payment of insurance premium on account of hard and injurious works shall be allowed to apply for retirement irrespective of their age.

2. If the medical committees mentioned in Article 91 of the Social Security Act shall diagnose and confirm the physical and mental deterioration of the insured worker resulting from engagement in hard and injurious jobs, before such workers shall meet service record requirements prescribed in Clause (1) above.

3. However, such workers shall not be authorized to leave or desert their positions. They shall be required to continue with the discharge of their duties until such time when the Social Security Organization shall notify their entitlement to early retirement, due to their hard and injurious jobs records.

4. Notwithstanding the above, if an insured worker shall meet the requirements for early retirement in hard and injurious works, in conformity with the provisions of this Regulation, the SSO shall be bound to pay pension to such worker as of the date the worker leaves and deserts his job and position.

5. The insured workers who are presently employed and who already have a minimum of 20 recurrent or 25 successive years of insurance premium payment record in hard and injurious jobs dating back to a period before the relevant law was approved, or those who will meet similar requirements in future, shall be authorized and entitled to submit an application for retirement to the SSO, in conformity with Clause (1) above.

Article 14- After it shall be established that a worker in a hard and injurious job is entitled to retirement, the employer of the workshop concerned shall be bound to pay to the SSO in a lump-sum amount equal to four percent (4%) of the pension specified by the SSO for the insured worker, in proportion to the years of engagement in hard and injurious jobs in that workshop.

Article 15- The effects of restrictions and benefits stipulated in the Law with respect to the cases resulting in retirement as per the provisions made of these by-laws, shall exclusively apply to a specific job, in a specific workshop, and shall not apply and extend to similar jobs in other workshops.

Article 16- Enforcement of these by-laws in the case of workers falling under the provisions of the Social Security Act engaged in hard and injurious works and jobs by the Ministry of Defense and Logistics of the Armed Forces and the companies and organizations affiliated with the Armed Forces, on contract basis, shall be in accordance with the regulations and criteria governing the Armed Forces. Regulations shall apply in coordination with the Social Security Organization.

Parviz Davoodi - First Vice-President