KANBrief 4/16

Work on railway tracks: are standards off the rails?

As a working environment, railway tracks are associated with a number of different hazards for the workers concerned. Particular attention must therefore be paid to the safeguarding measures. One European standard covering track works includes fitness examinations in these measures. From the German perspective, this presents problems, since rules governing the fitness of workers are the preserve of statutory legislation.

The draft of EN 16704-3, "Railway applications – Track – Safety protection on the track during work", was presented by the responsible standards committee in November 2014. This part of the standard (Part 3) lays down the competences to be possessed by workers performing work on or near the tracks, and sets out procedures for assessment of these competences. The competences also include medical and psychological requirements (such as visual acuity, motility, receptivity and emotional self-control).

In comments issued in November 2014, KAN requested that the draft not be adopted in this form, since it encroaches upon the safety and health of workers at work, which in Europe is the preserve of national arrangements (Governed in Germany by DGUV Rule 101-024 concerning safety measures during work on railway tracks and DGUV Regulation 77 governing work on railway tracks.). At the comments resolution meeting, it was decided that a national foreword should be added to the European standard at publication and that the content of the standard should refer to the priority given to legally binding national regulations.

Whilst the final draft of the standard, published in May 2016, contains the reference to national regulations, it has retained the basic concept, i.e. the use of medical and psychological examinations as a basis for a personal track safety card (Document confirming that the particular competences, including the examinations referred to, have been demonstrated for a person with reference to the requirements of the standard).

Social partners and state resubmit comments
The social partners and the German Federal Ministry of Labour and Social Affairs (BMAS) all submitted comments, identical in their demands, on the final draft. The comments called upon the German mirror committee to reject the final draft.

In the comments resolution meeting held in June 2016, they emphasized that they are very interested in an arrangement supporting the safety of the affected workers, but that standardization is not a suitable instrument for setting out concrete requirements concerning their mental and physical fitness.

The outcome of the comments resolution meeting was that the resolution to adopt a national foreword, to be formulated with the involvement of KAN, is still valid. In addition, the committee decided to apply for immediate revision and an A deviation for Germany once the standard has been published. An A deviation has the effect of amending, extending or deleting certain passages from a European standard that conflict with national legal provisions. It is intended to replace the national foreword.

The responsible European standards committee approved publication of EN 16704-3 in autumn 2016. The social partners and the BMAS will be actively involved in producing the A Deviation. 

Daniela Tieves-Sander

Comments by the parties concerned:

"Standards cannot set out binding provisions for determining workers' fitness. They do not constitute a suitable legal basis for the conducting of fitness examinations; legally, they serve only as nonbinding recommendations." - German Federal Ministry of Labour and Social Affairs

"Fitness examinations must be distinguished clearly from preventive medical check-ups. They encroach strongly upon the personal rights of employees working on railway tracks, since they have a substantial bearing upon whether a contract of employment is entered into or terminated. They must therefore be proportionate, and should be based upon government regulations and collective agreements rather than upon standards." - Dr Christian Gravert, Deutsche Bahn AG

"Just as the cobbler should stick to his last, standards developers should stick to the areas in which they are competent. No parameters exist that would enable generic conclusions to be drawn regarding fitness. A standard is therefore wholly unsuitable for describing the personal fitness of workers. Requirements concerning fitness should be laid down by the state, if at all. Even then, the principle is that in occupational safety and health, priority must always be given to technical solutions." - Heinz Fritsche, Interessengemeinschaft Metall