By Prof. Dr. A. Gurhan Fisek
A job is one of the basic necessities of a healthy person. Beside procuring financial resources required for an individual to sustain his or her physical life, a “job” has a functional significance. The existence of an individual and his or her self-development are dependent upon his or her working. Working in a “job” helps physical structure to be revitalised; physical faculty defects to be restored; defect obviating skills to be developed; and hence helps the working faculty and health of an individual to be improved.
However, there are some who consider “job” as a “torment”, or who turn it into a “torment”.
Primarily, what makes a “job” into a “torment” is to be obliged to work. One should not except any favour from such working that is performed because of an obligation or of an avoidance from the disadvantages of not working.
The second factor turning a “job” into a “torment” is the “working conditions”. Working in negative environments that distress people and jeopardise their bodily constitution can be defined as nothing but “torture”. If they endure this, it is due to the fact that they have expectations for today and future; and this torture appears as the blood money paid for this expectation.
Let’s take a look at working children. When they first get into the working life, it is fairly important for them to be a “volunteer”. Our researches demonstrate that in Ankara 21 %, and in Istanbul 5 % of working children start to work involuntarily. A separate “action plan” should be put into practice concerning these reluctant children.
Evaluation of the working environments in which children are employed bears a great significance in terms of ascertaining whether they learn a given “job” or suffer from a “torment”.
It is unacceptable whatsoever that damaging working environments are concealed from notice through the pretexts like economic conditions of a country. We cannot ask anyone to work by avoiding his or her health as well. Hence, the required precautions should be taken in order to reduce this damage at a minimum.
Considering working environments, there are two ways of understanding whether workers (or child labourers) are in danger in regard to their health.
- Execution of medical examinations and model studies (both theoretical and practical);
- Evaluation of working environments.
Both of the two ways has been taken into consideration both in the Labour Law and in the relevant codes and regulations approving children’s involvement in working life.
First of all, it is better to clarify one by one why these two means assist us to understand whether workers (or child labourers) are in danger in regard to their health.
- Health Report:
Before starting to a job, employees should get a health report pertaining to their physical compatibility with a given job. It is in order to understand whether a person’s bodily structure is strong enough against the possible damages that may be caused by that job. For instance, if a person is to be employed in a job requiring load bearing, s/he should not have any spinal or lumbago problems, experience any weakness in his or her arms, and etc. Similarly, if a person is to be employed under heat, s/he should not have a high blood pressure or heart problems; if to be worked with solvents having poisoning effects over kidneys, not to have any renal problems. All these examples can be multiplied.
Lastly, health examinations, as much as they comprise psycho-technical examinations, can include the elements of “job orientation” or “job placement” practices. These examinations bring about the evaluation of individuals in regard to their skills, mental faculties, and etc. in addition to the efforts hampering possible health defects to occur. This is especially significant for the working children who are at the beginning of their occupational life.
In 1930’s (or “modern 1930’s” as expressed by an author), during which preventive medicine approach was greatly respected, the advantages of regular pre-disease health examinations were being taken into consideration to a great extent. The approach was being applied at schools, before going into the army, before starting to a job, at workplaces, before marriage, and etc. Initiated with good will and under the scope of community medicine approach, these enterprises became degenerated in the later periods as the approach was taken over by people who did not believe in the rightness of it. Many of these were carried out just for the sake of form. It is in such a way that sometimes job entrance reports were signed hastily and carelessly without any health examination; and sometimes, the examinations were applied in the same way over both central unit repairers, civil servants and laboratory assistants.
An event related by Prof. Dr. Ismail Topuzluoglu is fairly interesting and exemplary: He relates an event that he witnessed in 1950’s during his visiting a Sumerbank factory that had been constructed by the specialists of the former USSR. When examining the health reports at the sick bay, he noticed that blood smears (peripheral smears) of the employees working at the dye house were regularly tested. Since solvents have negative effects over the blood system, these regular tests are highly normal. Yet, having the suspiciousness of a scientist in addition to the inquisitiveness of a teacher, Topuzluoglu could not stand without asking: “Why are you testing the blood smears of the employees working at the dye house?”. The answer was striking: “We just don’t know. All we know is that the Russian specialists have wanted us to do so during the time of establishment. So, we conform to their wish in every six month.” This examination is destined to futile efforts without an outcome as in the case of any activity made without knowing what to look for. On the other hand, when they are performed consciously, lives of many being would be saved.
It is such a shame that health examinations of employees are not performed carelessly and comprehensively today. This has implementational grounds in addition to the jurisprudential ones.
The concept of “being physically convenient to a given job” is a dynamic conception. Therefore, a person may lose his or her physical convenience at any time. For example, epilepsy is a determinant handicap for people working with machines. Thus, it is important to find out the growing epilepsy of a person starting to that job due to various reasons. Consequently, even if a person is found “physically convenient” to that job through the job entrance tests, it is also important to perform periodic health examinations in order to monitor the health of the employees.
In general, Turkish jurisprudence defines the term “job entrance examination” with the concept of “regular health examination”. Only exceptional case is found in the “Apprenticeship and Vocational Law (Law No. 3308)”. Accordingly, article 10 of the law under consideration states in the following way:
“Inorder to be an apprentice, the following qualifications are required:
- Completing the age of 13; and not having passed the age of 19;
- Graduating from a primary school at least;
- Having such a bodily structure and health condition that is convenient with the related job requisites…“
The fist two requirements are the immutable conditions. However, the third onecan be subject to change at any time; and then, the “requiredcondition to be an apprentice” can be lost. For this reason, the job entrance examinations should be complemented with regular health examinations, even it is not clearly defined by the law. Therefore, in order to get rid of all kinds of misunderstandings, the remaining provision of the above mentioned article should be amended in the following way:
c)Having such a bodily structure and health condition that isconvenient with the related job requisites; and affirming this convenience by means of periodic health examinations in every six moths, which are performed by a physician having an at least one certificate from the field of occupational medicine.
Until the required amendment is proposed, either through the issuance of a by-law or in the “apprenticeship contract”, its should be stated that “apprentices must undergo periodic health examinations in every six months”.
The relevant jurisprudence pertaining to the regular health examination of workers in general, and of child workers in particular can be enumerated as follows:
- The Law on the Protection of General Health;
- The Law on Civic Rights (Code of Obligations);
- The Labour Law and related regulations (i.e. Heavy and Hazardous Works Regulation)
- The circular of the Turkish Medical Association (dated November 20, 1989; and No. 4294-4334/89)
- Apprenticeship and Vocational Training Law (Law No. 3308)
- International Convention on the Medical Examination of Young Persons (No. 77) ratified in August 15, 1984.
- The Law on the Approval of the European Social Provision’s Ratification (July 4, 1989).
Heavyand Hazardous Works Regulation and the Medical Examination of YoungPersons Convention (No. 77) prescribe that working children below theage of 18 should be medically examined periodically in every sixmoths. Why such a sentence includes people below the age of 18, and not the ones older? It is not known. How come Heavy and Hazardous Works Regulation has been abolished quietly, although it has preconditioned periodic medical examinations for adult workers as well? It is just not known.
Scrutinising the most dated above mentioned resource allows us to understand that these legal provisions are subject to various amendments that denote a kind of regression. Before 1974, the last paragraph of Article 2 of the Heavy and Hazardous Works Regulation was like this:
“Inthe case the ties of an employee with the workplace are severed, inaddition to a worker certificate, a copy of this registry or identity card is handed over back to an employee, if s/he pleases; and the situation is indicated over the certificate.”
Today, this article does not exist anymore; and it appears as a great hindrance with respect to the right of insisting on one’s own rights. Furthermore, it is also not known under what conditions this article was abolished.
Letus turn to another article. It is Article 62 of the Labour Law dated 1936 (Law No. 3008; yet, invalidated) or Article 82 of the Labour Law dated 1971 (Law No.1475). For the sake of clarity, it is better to quote the “a”, “b” and “c” clauses of the article from the latter dated one:
“Article 82 – As required by either the Ministry of Labour and Social Security or the Ministry of Education and as prepared by the collective works of these two ministries, any valid regulation could be promulgated, which requires:
- the examination of workers by physicians in regard to the works other than the ones stated as heavy and hazardous works.
- workers’, employed in some works, undergoing general health examinations in the determined periods of time;
- the dismissal of workers employed in various or some works, if their health conditions hamper the works done, if they have an harmful effect over the products of their labour and general health or over other workers they are working with.”
Whythese clauses are not necessitated for 60 years !? It is not known.
Also it isn’t known on which grounds the “ç” clause of the law (No. 3008) became invalidated:
“ç)Otherwise that the compulsions required by the Article 180of the Law on the Protection of General Health, and in the condition that the validity of these compulsions are protected, any valid regulation could be promulgated, which determines the states or conditions of workplaces in which collective examination or first treatment rooms and sick bays are to be established; or establishment of hospitals; or determines the making of necessary supplements and alterations that are to meet such necessities at such workplaces or at public hospitals; and in this event, determines the rate and conditions of fees collected from the related workplaces for the purpose of allotting them to the pursuing expenses required for such alterations and installations.”
Accordingto the Article 180 of the Law on the Protection of General Health,”all employers employing at least 50 workers unceasingly” are required to maintain one or more occupational physicians at their workplaces for the performance of preventive medicine facilities. However, above mentioned article is the reflection of performance of preventive medicine facilities – an indispensable necessity of both today and of the past- at that workplaces not meeting this requirement. This matter has been insistently underlined by the Five Year Development Plan-Specific Specialisation Commissions and at Health Congresses, in addition to the searches for alternatives. Nevertheless, the legal sentence allowing to meet this necessity has been invalidated quietly. Why? It is not known.
Concerning the health reports, these are the deformations at the level of jurisprudence. There are also ones experienced through implications. Article 126 of the Law on the Protection of General Health states as such:
“Theseare required to undergo examinations and take a health report inevery three months: people selling or offering edibles and beverages; or people performing artisanship related to cleanliness and purity. Of these, the ones who get sick by the infection of syphilis, infectious tuberculosis or leprosy and the ones who are subject to a skin disease entailing the revulsion and loathing of common people are prohibited to perform their artisanry.”
Concerning today’s implementations, this examination, required for employees working in the food sector, is just reduced to a “carrier report + tuberculosis report + municipal (doctor’s) approval”. It is disputatious to what extent such an ineffective examination program would be efficacious in dealing with infectious diseases. On the other hand, it is incomprehensible that the Ministry of Health has raised the period of taking a medical examination report in every three months to a year.
All these unknowable issues should become known. Because, unless their grounds are clarified, their elimination could not be achieved. In our opinion, this question has two answers: Insensitivity and Negligence.
The matter in regard to employees’ undergoing regular health examinations, even if they are not diseased, should be arranged in a sensitive and careful way that it deserves. This matter has more than two aspects:
This is the right of human beings. It guarantees people rights on protecting their health and on working in healthy-safe environments. It makes the required time possible to be allotted for the examination of people whether healthy or not.
It is a significant step that causes health expenses of health-safety organisations to be reduced; and that makes the services possible to be provided in a more qualified way.
It is also meaningful for the employers. Because, it brings about various advantages not by means of reducing the productive power losses, but also in regard to occupational discipline and employer-employee relations.
- Evaluation of Working Environments
Working environments and working conditions should be evaluated in regard to human health. This evaluation should embrace both physical conditions and working hours, and social issues like human relations, income level, and etc. Our jurisprudence has brought for various arrangements in detail.
For example, the Labour Law contains detailed articles regarding the arrangements on the social rights of employees. Regulations promulgated in accordance with the Article 74 of the Labour Law, on the other hand, include hundreds of provisions with respect to the evaluation of physical conditions of workplaces. For example, Article 15 of the Par. Regulation states as such:
“Existingin a working atmosphere, the amount of various flaming, explosive,hazardous and dangerous chemical substances shall be measured in definite and required time intervals; and these amounts shall be determined on the basis of a maximum limit that does not jeopardise the health of employees working at that place, and on the basis of an existence rate of these substances that is allowed; and the ventilation system shall be checked by authorised officials in regard to its adequacy. During these inspections, compliance with the subjects indicated in the tables (Table No. I, II, III) appended to this regulations shall be taken into consideration.
Jurisprudentially, the convenience of a working environment is defined, in general, by detailed articles and environmental measurement provisions. However, apprentices and civil servants present an exceptional case. Article 12 of the Apprenticeship and Vocational Training Law (Law No. 3308) preconditions that apprentices are worked at such workplaces that are “approved by the Ministry as educationally convenient (practical education)”. The conception of “educationally convenient” covers more than the adequacy of educators and educational equipents; it also covers the convenience of a working environment as well. For this reason, practical education institutions, by all means, should be evaluated in detail in regard to “health and safety rules”.
However, in order to restrain the implementational misunderstandings, this should be clarified through a “legal amendment” or a “regulation”. Likewise, that must be due to its being regarded as important in the law, it has been made a reference to Article 96 of the Labour Law regulating the “non-working of children at nights”.
As you see, apprentices treated under the scope of the law (Law No. 3308) are subject to many disadvantages in addition to the ones they acquire. In order to restrain some of these disadvantages, detailed arrangements should be reckoned necessary in regard to health and safety of apprentices at workplaces. We propose that an additional provision may be appended to Article 11 of the law (Law No. 3308) that defines apprentices and candidate apprentices as a “student”.
“…Apprenticesand candidate apprentices are in the status of a “student”;and in regard to the practical education they take at workplaces,they apply to the rights indicated in the regulations which have promulgated on the basis of Article 74 of the Labour Law.”
As mentioned above, Article 15 of the Par. Regulation necessitates the evaluation of the clauses, enumerated at the table appended to the regulation, with reference to the boundary values. However, this list has not been subject to any change since 1974, both in regard to the content of the clauses, and to the relevancy of the boundary values. If we are to compare this list with the ones taken from other countries, the latter ones have been already changed and developed. However, in our country, these air measurements have not even been put into practice; so it is understandable that this list is outdated to a great extent.
If the key for all these unknowable and outdated issues is sensitivity and care, it means that each and every person has a great responsibility. Concrete and effectual action plans should be put forth for consideration as soon as possible; and they should be put into practice in solidarity. Human rights should be no longer exist as theoretical objectives; rather they should be transformed into concrete and daily expectations. Model studies should be realised; and these studies should be transformed into social state implementations.
There are ones who suffer from each and every delay; and also there is the responsibility of each and every delay…