Regulatory Norm No. 37 – New Rules for Health and Safety applied to Oil Platforms
On December 20, 2018, the former Ministry of Labor issued the Ordinance No. 1,186 (“Ordinance No. 1,186 / 2018”), which approves the Regulatory Norm No. 37 (“NR-37”) establishing rules regarding Health and Safety applied to Oil Platforms operating on Brazilian jurisdictional waters.
Briefly, NR-37 sets forth the minimum requirements for health, safety and working conditions onboard of oil platforms, in a detailed manner, establishing general obligations (such as the obligation of healthcare with personnel, emergency care measures, proper access to specific areas, living conditions, facilities and sanitary conditions, food supplying and climate control onboard) applicable to the following categories:
(i) “Contract Operator”: entity holding the rights for the exploration and production of oil and natural gas, based on an agreement executed with the National Agency of Oil, Gas and Biofuels (“ANP”), and which contracts the operators of oil platforms for the provision of management services, as well as for the performance of all of the relevant activities onboard of such platforms;
(ii) “Installation Operator”: entity responsible for the management and execution of operations performed onboard of the oil platforms;
(iii) Workers: individuals performing their activities onboard of oil platforms, and;
(iv) Contractors providing several outsourced services onboard of the oil platforms.
Accordingly, we highlight below specific significant aspects dealt by said NR-37:
– Term of effectiveness – As a rule, to comply with the NR-37, Contract and Installation Operators, as well as its relevant contractors, must promote the necessary adjustments on its operations, within a period of 01 (one) year counted from the publication of Ordinance No. 1,186/2018 — i.e. until December 20, 2019. Nevertheless, there are some exceptions to such term, mostly related to the provisions set forth by Article 4 of Ordinance No. 1.186/2018, and which are foreseen to be valid within 02 (two) and up to 03 (three) years counted from its publication. As examples of such extended terms, we can mention:
(i) Effectiveness within 02 (two) years counted from the date of the regulation’s publication: implementation of an program regarding Occupational Health and Safety onboard of oil platforms for trainings to be held before the first embarkation, as well as for basic and advanced trainings; provision of Wi-Fi internet access for recreational use during leisure time in common living and accommodation areas; installation of a lighting project on the platform, among others.
(ii) Effectiveness within 03 (three) years counted the date of the regulation’s publication: issuance of a Technical Term of Responsibility (“ART”) for the dock project, prepared by a legally qualified professional and approved by the Maritime Authority – item 188.8.131.52; and
(iii) Effectiveness within 03 (three) years counted from the date of the regulation’s publication: obligation applied to the Installation Operator to ensure that the company responsible to provide hospitality and food supply onboard meets the food safety management requirements stablished by ABNT – NBR-ISO22000 and its amendments.
– Temporary operations (up to 6 months) – Specifically for foreign flagged platforms which will operate on a temporary basis under Brazilian jurisdictional waters and which activities’ term does not exceed 06 (six) months, in case of non-compliance with the provisions of NR-37, it will be allowed, as an alternative, the observance of the rules stablished by international conventions, provided that such foreign flagged platform was duly certified by a classification company recognized by the Brazilian Maritime Authority.
– Outsourcing – The new regulation indicates the consolidation of the use of outsourcing services by the oil and gas industry, when including obligations to be observed not only by Contractors, but also by its employees onboard of oil platforms. For the purposes of the NR-37, its provisions guarantee equal treatment to outsourced employees and employees directly hired by Contract Operators and Installation Operators.
– SESMT – The NR-37 also includes specific details to the so-called Specialized Services in Occupational Health and Safety (“SESMT”). Accordingly, the presence of Occupational Health and Safety technicians becomes mandatory when the total number of workers onboard is higher or equal to twenty-five (25), based the total number of employees onboard – considering the employees hired by the Installation and Contract Operators and by its Contractors. Moreover, for cases mentioned under the NR-37, it is necessary to maintain a SESMT located onshore, in addition to the one implemented onboard of the platforms.
– CIPLAT – Another new topic addressed by NR-37 regards to the implementation of the so-called Internal Commission for Accidents Prevention onboard of Platforms (“CIPLAT”). The norm stablishes a structure similar to the one used by a regular Commission for Accidents Prevention (“CIPA”), and its members will have an office term of two (2) years, being allowed their reelection.
– Interaction between contractors – When dealing with the obligation to implement the Environmental Risk Prevention Program (“PPRA”) and the Occupational Health Medical Control Program (“PCMSO”) onboard of oil platforms, the NR-37 stablishes a mandatory interaction between the programs used by the Operators and its Contractors.
– Psychosocial risks – The NR-37 has also implemented the so-called psychosocial risks, being such inclusion a representation of a greater concern with the mental health of workers onboard of oil platforms. According to the provisions of NR-37, psychosocial risks are understood as the risks arising out of deficiencies related to the planning, organization and work management, such as work-related stress, exhaustion and depression, arising out of excessive workloads, conflicting demands, lack of clarity in defining tasks, lack of participation in decision-making which affects employees, lack of control concerning the performance of work, management of inappropriate organizational changes, work-related uncertainties, ineffective communication, lack of support from superiors and colleagues, psychological or sexual harassment, violence from third parties, etc. In this sense, Operators and Contractors must implement trainings (prior to the first embarkation), being psychosocial risks a part of the program’s content.
– Decommissioning – It is worth mentioning that NR-37 included decommissioning as one of the necessary phases of the platform’s life cycle, being it defined as “a set of legal actions, techniques and engineering procedures applied in an integrated way to a pipeline or Submarine System, aiming to ensure that its deactivation or termination of operations comply with the conditions of safety, environmental preservation, reliability and traceability of information and documents”. The decommissioning is highlighted by several provisions of NR-37, including the obligation of the Installation Operator to report a platform’s decommissioning within thirty (30) days prior to the termination of its operations.
– Workers’ Rights – It is important to note that workers may interrupt their activities when they find evidence of serious and imminent risks to their health and safety – or risks related to the health and safety of others –, immediately informing its superior of such risky conditions. Workers should also be informed about imminent hazards in the workplace and living areas, as well as any possible consequences that could compromise their health and safety. In addition, workers must advise the employer of any potential hazards that could lead to an increased accident.
We emphasize that the non-compliance with the provisions of NR-37 within its effectiveness terms may lead to administrative penalties, to be applied by labor authorities after relevant inspections. Accordingly, there is a risk of application of fines (note that in cases of recurrence and resistance to inspections may result on fines applied on their maximum amount), judicial proceedings and other possible complications, when it comes to tax and criminal liabilities.
In addition, it is important to consider that the observance to the rules stablished by the NR-37 does not release companies from complying with other legal provisions regarding occupational health and safety, whether arising out of labor agreements itself or of Collective Bargaining Agreements.