CMNT_TITLE

Work in Fishing Convention, 2007 (No. 188) - Argentina (RATIFICATION: 2011)

Other comments on C188

Direct Request

2020

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The Committee notes the Government’s first report on the application of the Convention, and also the observations of the General Confederation of Labour of the Argentine Republic (CGT RA) and by the Confederation of Workers of Argentina (CTA Workers), received on 31 August and 11 September 2018, respectively. Following a first review of the information and documents available, the Committee draws the Government’s attention to the issues referred to below. If considered necessary, the Committee may come back to other matters at a later stage.

Impact of the COVID-19 pandemic. The Committee notes with deep concern the impact of the COVID-19 pandemic on the protection of fishers’ rights as laid out in the Convention. In this regard, the Committee refers to the resolution adopted by the Governing Body in its 340th Session (GB.340/Resolution) concerning maritime labour issues and COVID-19 disease, which calls on Member States to take measures to address the adverse impacts of the pandemic on fishers’ rights.

General questions of application. Legislation and collective labour agreements. The Committee notes that the Government provides limited information on the application of the Convention, merely referring to the legislation or collective agreements in relation to most points, without specifying the relevant provisions. It also notes that some of the collective agreements mentioned by the Government, for example agreement 538/10, have been replaced by new collective agreements. In order to have the information needed to examine the application of the Convention, the Committee requests the Government to provide detailed information on the points made below, reproducing where possible the text of the applicable legal provisions or collective agreements. The Committee also requests the Government to clarify which collective agreements applicable to fishers are in force.

Article 5. Basis of measurement. The Committee notes that the Government does not provide any information on the application of Article 5. The Committee requests the Government to indicate: (a) whether, for the purpose of the Convention, length overall (LOA) is used in place of length (L) as the basis for measurement, in accordance with the equivalence set out in Annex I; (b) whether, for the purpose of the paragraphs specified in Annex III, gross tonnage is used in place of length (L) or length overall (LOA) as the basis for measurement, in accordance with the equivalence set out in Annex III; and (c) the reasons for the decisions taken under (a) and (b) above and the consultations held.

Article 8(1) and (3). Responsibility of the fishing vessel owner. The Committee notes that Act 20.094 of 1973 (the Shipping Act), which applies to fishing vessels, provides that the shipowner, namely, the user of a vessel under the direction and governance of a skipper designated by the owner, is responsible for the obligations assumed by the skipper (sections 170 and 174). The Committee requests the Government to indicate the legal provisions that guarantee that: (i) the fishing vessel owner has the overall responsibility to ensure that the skipper is provided with the necessary resources and facilities to comply with the obligations of the Convention (Article 8(1)); and (ii) the skipper is not constrained by the fishing vessel owner from taking any decision which the skipper considers necessary for the safety of the vessel and its safe navigation and safe operation, or the safety of the fishers on board.

Article 9(5) and (6). Minimum age. Hazardous work. Night work. Trainees. The Committee notes the Government’s indication that the minimum age for working on board a fishing vessel is 18 years, referring, inter alia, to Decree 1117/2016 of the Ministry of Labour, Employment and Social Security (Ministry of Labour) determining hazardous types of work for young persons, which establishes that young persons under 18 years of age are prohibited from working at sea or on inland waterways, whatever their activity or task. The Committee also notes that, under section 501.0104 of the Maritime, River and Lake Shipping Regulations adopted by Decree 770/2019, young persons between 16 and 18 years of age can only be recruited as “trainees”, including as trainee fishers. The Committee requests the Government to specify whether trainees aged between 16 and 18 years can be authorized to perform hazardous work on board fishing vessels. If so, it requests the Government to provide information on: (i) the national laws or regulations or decision of the competent authority which provide for it and the consultations held in this regard; and (ii) the manner in which the health, safety and morals of trainees are fully protected and it is ensured that they have received adequate specific instruction or vocational training and have completed basic pre-sea safety training. The Committee also requests the Government to indicate whether trainees between 16 and 18 years of age can work at night, specifying the definition of “night”. If so, the Committee requests the Government to indicate how effect is given to the detailed requirements established by Article 9(6)(a) and (b) (exceptions to the night work restriction).

Articles 13 and 14. Hours of rest. The Committee notes, with regard to hours of rest, that the Government cites several collective agreements and refers in particular to the terms of collective agreement 580/10. The Committee notes that the aforementioned agreement and most collective agreements in force for maritime fishing vessels provide for minimum uninterrupted hours of rest of eight hours per day, which is less than the limit of ten hours in any 24-hour period established by Article 14 of the Convention. The Committee recalls that Article 13 of the Convention provides that fishers must be given regular periods of rest of sufficient length to ensure safety and health. In addition, Article 14 of the Convention provides that, for fishing vessels remaining at sea for more than three days, Members shall, after consultation, establish the minimum hours of rest to be provided to fishers, which shall not be less than: (i) ten hours in any 24-hour period; and (ii) 77 hours in any seven-day period. Temporary exceptions may only be permitted for limited and specified reasons, with fishers receiving compensatory periods of rest. The competent authority, after consultation, may establish alternative requirements which must be substantially equivalent and not jeopardize the safety and health of the fishers. The Committee requests the Government to indicate the measures taken to give full effect to Articles 13 and 14 of the Convention. It also requests the Government to indicate, reproducing the text of the provisions in force, whether the skipper of a fishing vessel has the right to suspend the schedule of hours of rest and require a fisher to perform any hours of work necessary for the immediate safety of the vessel, the persons on board or the catch, or for the purpose of giving assistance to other boats or ships or persons in distress at sea, and whether fishers are granted a compensatory period of rest (Article 14(4)).

Article 16(b) and Annex II. Fisher’s work agreement. Minimum particulars. The Committee notes that section 636 of the Shipping Act constitutes the general legislative framework which establishes the requirement to conclude an individual agreement – “adjustment contract” – between the crew member, on the one hand, and the shipowner, on the other. The Committee also notes that various examples of collective agreements for the fishing sector establish the terms of the respective adjustment contracts. The Committee observes that the elements of adjustment contracts established by collective agreements do not include minimum particulars that must appear in the fisher’s work agreement, in accordance with Annex II of the Convention; missing particulars include: provisions (food) supplied, conditions of termination of the agreement, paid annual leave, entitlement to repatriation, reference to the relevant collective agreement, and minimum periods of rest. The Committee requests the Government to indicate the measures taken to ensure that all fishers’ work agreements include, as a minimum, the detailed requirements contained in Annex II.

Article 17(a). Fisher’s work agreement. Prior review and advice. The Committee requests the Government to provide detailed information on procedures for ensuring that a fisher has an opportunity to review and seek advice on the terms of the fisher’s work agreement before it is concluded.

Article 21. Repatriation. Observing that the Government’s report does not contain any information on this matter, the Committee requests the Government to provide detailed information on the application of Article 21, particularly with respect to: (i) the laws, regulations or other measures which prescribe the precise circumstances entitling a fisher to repatriation, the maximum duration of service periods on board following which a fisher is entitled to repatriation, and the destinations to which fishers may be repatriated (Article 21(1) and (3); (ii) the person responsible for bearing the cost of repatriation (Article 21(2)); and (iii) the agreements in force for the repatriation of a fisher when the vessel owner fails to provide for repatriation, as well as for recovering the corresponding costs from the vessel owner (Article 21(4)).

Article 22. Recruitment and placement. The Committee notes that several of the applicable collective agreements (for example, agreements 701/14 and 586/10) provide that, in order to complete crew numbers, enterprises can ask the trade unions for the necessary personnel or hire personnel directly with the obligation to notify the union for their inclusion in the union’s labour pool. The Committee also notes the Government’s indication that, taking up the concept already envisaged in other collective agreements, collective agreement 729/2015 provides for the setting up of the Single Recruitment Centre (CUCGEMARA), a tripartite body comprising employers’ associations, the trade union and the labour administrative authority, with the aim of organizing the recruitment of seafarers. The Government indicates that this mechanism has yet to become operational and will form a fundamental part of seafarers’ access to fishing vessels. The Committee requests the Government to describe how it is ensured that the recruitment and placement service which operates according to a collective agreement functions in a proper manner and has adopted measures for the protection and promotion of fishers’ employment rights in accordance with Article 22(3)(a) and (b), namely, a prohibition on using means intended to prevent or deter fishers from engaging for work, and a prohibition on fees or other charges for recruitment or placement being borne directly or indirectly, in whole or in part, by fishers. The Committee also requests the Government to provide information on the setting up and operation of CUCGEMARA.

Article 24. Payment of fishers. Transfers to families. The Committee notes that the Government refers, inter alia, to various collective agreements without mentioning the relevant provisions. The Committee notes that section 673 of the Shipping Act refers to “transfers made to third parties” by order of crew members. The Committee also notes that although some collective agreements establish the possibility for crew members to ask for advances on their wages, the agreements do not regulate transfers of wages to their families. The Committee requests the Government to provide detailed information on the manner in which it is ensured that all fishers working on board fishing vessels are given a means to transmit all or part of their payments received, including advances, to their families at no cost.

Articles 25 and 26. Accommodation. The Committee notes that the Government refers to several collective agreements without mentioning the relevant provisions. The Committee notes that section 678 of the Shipping Act provides that when crew members are obliged to sleep on board, the shipowner must provide them with adequate accommodation, whether individual or collective, in accordance with the available amenities and review category. The Committee also notes that the collective agreements referred to by the Government do not regulate the accommodation aspects mentioned in Article 26 of the Convention or give effect to the detailed requirements on crew accommodation contained in Annex III of the Convention. The Committee requests the Government to indicate the measures taken or contemplated to give effect to Article 26 and Annex III of the Convention, specifying any other requirement that may have been adopted in accordance with paragraphs 15 (minimum headroom), 39 (floor areas), 47 (dimensions of berths) and 62 (sanitary facilities) of Annex III, and providing information on related consultations.

Article 27. Food. The Committee notes that the Government does not provide any information on the application of Article 27. The Committee also notes that section 640 of the Shipping Act provides that the shipowner is obliged to provide adequate food for crew members while they are on board. The Committee observes that some of the applicable collective agreements provide that: (i) the vessel owner shall bear sustenance and food costs for crew members on fishing vessels, quantifying such costs; and (ii) shipping companies shall be obliged to conduct an analysis of the potability of water on maritime fishing vessels at least once every six months. The Committee also notes that, among the collective agreements analysed, only collective agreement 768/19 provides that “the vessel owner shall provide high-quality food in sufficient quantity” (section 11). The Committee therefore notes that the measures taken by the Government do not give full effect to Article 27 of the Convention, which provides that each Member shall adopt laws, regulations or other measures requiring that: (a) the food carried and served on board be of a sufficient nutritional value, quality and quantity; and (b) potable water be of sufficient quality and quantity. The Committee requests the Government to take the necessary steps to give full effect to the provisions of Article 27(a) and (b) and paragraphs 78 and 79 of Annex III to the Convention with respect to all fishing vessels covered by it.

Articles 29 and 30. Medical care. The Committee notes that the Government provides general information on the application of Article 29 and does not provide any information on the application of Article 30 (fishing vessels of 24 metres in length or over). It also notes that sections 659 et seq. of the Shipping Act give effect to the requirement to provide medical care on land provided for by Articles 29(e) and 30(f) of the Convention and that some collective agreements, for example collective agreements 727/15 and 768/19, provide that any staff who fall ill or suffer an accident on board, either at sea or in port, shall be assisted by the vessel owner while they are under contract. With regard to the requirements relating to medical equipment (Articles 29(a) and (c) and 30(a)), the Committee observes that some of the applicable collective agreements contain the obligation to have a first-aid kit on board, in accordance with the requirements of the Argentine Naval Authority (PNA). The Committee requests the Government to provide detailed information on whether and how account is taken of the number of fishers on board, the area of operation and the length of the voyage, and the measures adopted to comply with the following requirements of Article 29 with respect to all fishing vessels covered by the Convention: (i) to have at least one fisher on board who is qualified or trained in first aid and other forms of medical care and who has the necessary knowledge to use the medical equipment and supplies; and (ii) to be equipped for radio or satellite communication with persons or services ashore that can provide medical advice. The Committee also requests the Government to specify the provisions established by the PNA for fishing vessels covered by the Convention relating to medical equipment and supplies, indicating whether they are accompanied by comprehensible instructions for the medical personnel on board. Lastly, the Committee requests the Government to provide information on national laws and regulations or other measures adopted to give effect to the additional requirements on medical care established by Article 30 with respect to fishing vessels of 24 metres in length or over.

Articles 31–33. Occupational safety and health and accident prevention. The Committee notes the Government’s indication that the general legislation on occupational safety and health (OSH) applies to the fishing sector (in particular, Decree-Law 19.587/1972 on occupational safety and health and Act 24.557 on occupational risks and its amendments). The Committee also notes that Argentina has ratified the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, 1995 (STCW-F), through Act 26.981 and that its implementing regulations (RETIMMAR draft bill) are in the process of being adopted. The Committee notes that the CGT RA indicates that, according to data from the Administrative Tribunal for Shipping at the Naval Centre and other bodies, there is a high accident rate in the fishing industry in Argentina. It also indicates that between 2000 and 2017, in a fleet of 700 fishing vessels, there have been 41 shipwrecks with 86 fatalities, a figure that includes seven crew members who are still missing. The Committee notes the various initiatives referred to by the Government and the CGT RA adopted to improve protection of the health and lives of workers in the fishing sector, such as (i) the “Technical cooperation and assistance framework agreement”, of 16 February 2017, between the Under-Secretariat for Fishing and Aquiculture at the Ministry of Agri-Industry and the Occupational Risk Supervisory Authority (SRT), aimed at reducing the accident rate in the fishing sector; (ii) the “Technical cooperation and assistance agreement”, of 31 October 2017, between the PNA and the SRT (continuation of the framework agreement); and (iii) the “Draft handbook of good fishing practices” for beam trawlers prepared by the quadripartite working commission for the fishing sector. However, the Committee notes that the general information provided by the Government does not enable an assessment of how effect is given in the fishing sector to general OSH legislation or how the particular features of work on board fishing vessels have been taken into account and how the risks associated with this type of work have been assessed. The Committee requests the Government to provide detailed information on the application in law and in practice of the provisions of Article 31, in particular: (a) the prevention of occupational accidents, occupational diseases and work-related risks on board fishing vessels, including risk evaluation and management, training and on-board instruction of fishers; (b) training for fishers in the handling of types of fishing gear they will use and in the knowledge of the fishing operations in which they will be engaged; (c) the obligations of fishing vessel owners, fishers and others concerned, regarding safety and health on board; (d) the reporting and investigation of accidents on board fishing vessels flying its flag; and (e) the setting up of joint committees on occupational safety and health or, after consultation, of other appropriate bodies. The Committee also requests the Government to provide information on risk evaluation in relation to fishing and on the participation of fishers or their representatives in such evaluation (Article 33). Lastly, the Committee requests the Government to provide information on national laws or regulations or other measures adopted to give effect to the additional requirements of Article 32 which apply to fishing vessels of 24 metres in length or over normally remaining at sea for more than three days and, after consultation, to other vessels.

Articles 34–37. Social security. The Committee notes that the Government does not provide information on the application of Articles 34–37 of the Convention. It also notes that the CGT RA and CTA Autonomous state that the National Executive Authority has annulled the “single social tax for agri-business” which enabled small-scale fishers to have social protection (medical coverage and social security), and that this results in an increase in informal employment in the sector. The Committee requests the Government to provide detailed information on the social security protection enjoyed by fishers ordinarily resident in its territory and their dependants, indicating: (i) the applicable branches of social security and the related benefits; (ii) the applicable laws and regulations; and (iii) how it is guaranteed that conditions of protection for fishers are no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in Argentina. The Committee also requests the Government to send its comments on the observations of the CGT RA and CTA Autonomous.

Article 40. Flag State responsibilities. Supervisory system. The Committee notes the Government’s reference to additional protocol No. 2 to “Agreement No. 22 of 17 March 2015 on cooperation, collaboration and assistance with respect to enforcement of the Maritime Labour Convention, 2006, as amended (MLC, 2006), and the Work in Fishing Convention, 2007 (No. 188), of the International labour Organization (ILO)” between the Ministry of Labour, the Ministry of Security and the SRT (cooperation agreement). The Committee notes that additional protocol No. 2 divides supervisory duties relating to the Convention between the Labour Secretariat at the Ministry of Labour, the SRT and the PNA, according to their respective areas of competence. The Committee also notes the observations of the CGT RA, according to which the Ministry of Labour currently has limitations on access to vessels liable to inspection. The Committee requests the Government to send its comments in this regard.

Article 41. Flag State responsibilities. Fishing certificate. The Committee notes that sections 5 et seq. of the protocol regulate the issuing of the “certificate of work in fishing” (“valid document”) which has a period of validity of three years. The Committee requests the Government to provide an example of a fishing certificate issued under additional protocol No. 2 to the cooperation agreement, together with the inspection reports on the basis of which the certificate was issued.

Articles 43(2)–(4) and 44. Port State responsibilities. Inspections. Prohibition on more favourable treatment. The Committee notes the lack of information on the application of Articles 43(2)–(4) and 44. The Committee requests the Government to provide detailed information on the control measures adopted by the port State in the event of non-compliance with the provisions of the Convention, in accordance with Article 43(2)–(4), indicating the number and nature of cases examined and the type of measures adopted. The Committee also requests the Government to indicate in what manner effect is given to the principle of not giving more favourable treatment to fishing vessels flying the flag of any State that has not ratified the Convention (Article 44).