CMNT_TITLE

Work in Fishing Convention, 2007 (No. 188) - Portugal (RATIFICATION: 2019)

Other comments on C188

Direct Request

2021

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The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188), and the observations of the General Workers’ Union (UGT), communicated with the Government’s report. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. 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. 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, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on fishers’ rights. The Committee notes that, in its observations, UGT expressed its concern about the effectiveness of the inspections conducted by the Authority for Working Conditions (ACT) in the fishing sector in the context of the of COVID-19, particularly regarding compliance with national legislation in cases of alteration of vessels. The Committee requests the Government to provide its comments in this regard.

Implementation measures. The Committee notes that, in its report, the Government refers to Decree-Law No. 166/2019 on the Legal Framework of the Professional Activity of the Seafarer. Noting that section 2(3) of such Decree-Law limits the application of some of its provisions to fishing vessels of 24 metres in length and over, the Committee requests the Government to indicate whether the Decree-Law No. 166/2019 applies to all fishers with respect to the protection provided in the Convention, particularly in relation to medical certificate, manning, crew list, and records concerning the fisher’s work. Likewise, the Committee requests the Government to indicate whether the Labour Code applies to all fishers.

Articles 1–4 of the Convention. Scope of application. The Committee notes that section 4(c) of Law No. 15/97 on the Legal Framework for Individual Employment Contracts on Board Fishing Vessels defines a “fishing ship or vessel” as any vessel registered and licensed for fishing activity, whatever the area of exploitation or the fishing gear used. In this regard, the Committee recalls that, except as otherwise provided, the Convention applies to all fishers and all fishing vessels engaged in commercial fishing operations (Article 2(1)) and that “fishing vessel” or “vessel” means any ship or boat, of any nature whatsoever, irrespective of the form of ownership, used or intended to be used for the purpose of commercial fishing (Article 1(g)). The Committee, therefore, requests the Government to clarify if all fishing vessels engaged in commercial fishing operations, including fishing operations on rivers, lakes or canals, have to be registered or licensed. The Committee also notes that the Government indicates that no cases of doubt have arisen as to whether a vessel is engaged in commercial fishing. Likewise, the Committee notes the Government’s indication that no exclusions (Article 3) or progressive implementation (Article 4) have been made. The Committee observes that section 1(2)(a) of Decree-Law No. 116/97 on Minimum Safety and Health Requirements for Work on Board Fishing Vessels refers to section 3(2) of Law No. 102/2009 on the Legal Framework for the Promotion of Occupational Safety and Health, which states that the framework established for independent workers shall apply to fishing activities in vessels of up to 15 metres in length that do not belong to the fishing fleet of a shipowner or equivalent employer. The Committee, therefore, requests the Government to provide detailed information on the measures taken to give effect to the provisions of the Convention for fishers working on board vessels of up to 15 metres in length that do not belong to the fishing fleet of a shipowner or equivalent employer for whom the framework established for independent workers applies.

Article 8(3). Responsibilities of fishing vessel owners, skippers, and fishers. Constraints on the skipper. Noting the information provided by the Government, the Committee requests the Government to provide further information on how it is ensured in law and practice that skippers are free from constraint on the part of the fishing vessel owner to take any decision that they deem necessary for the safety of the vessel and its safe navigation and safe operation, or the safety of the fishers on board.

Article 9(1) and (2). Minimum age. The Committee notes the Government’s reference to the general provisions on minimum age foreseen in the Labour Code (sections 63 to 83). The Committee observes that sections 68(3) and 69(1) provide for circumstances in which minors under the age of 16 may perform light work and be admitted to work, respectively. The Committee requests the Government to clarify whether the exceptions foreseen in sections 68 and 69 of the Labour Code in relation to “minors under the age of 16” encompass fishers under the age of 15. In doing so, the Committee requests the Government to explain in detail how it ensures that a minimum age of 15 is only authorized for work of (1) persons who are no longer subject to compulsory schooling as provided by national legislation, and who are engaged in vocational training in fishing; and (2) persons performing light work during school holidays. In the latter case, the Committee requests the Government to specify the kinds and the conditions of light work permitted on board fishing vessels.

Article 9(3)–(5). Minimum age. Hazardous work. The Committee notes the Government’s reference to section 72 of Law No. 102/2009, which establishes the minimum age of 16 years for activities such as manual handling of loads weighing more than 15 kg and excessive physical effort, particularly when kneeling or in positions and movements that cause compression of nerves and nerve plexuses. Such activities can be performed as long as the employer assesses the nature, degree, and duration of the minor’s exposure to conditioned activities or work and takes the necessary measures to avoid such risk (section 68(2)). Furthermore, section 20(1) states that workers shall receive adequate training in occupational safety and health, taking into account the workplace and the performance of high-risk activities. Likewise, the Committee also notes the Government’s reference to section 7(1) of the Decree-Law No. 116/97, which states that the shipowner shall provide workers with appropriate training and necessary updates on safety and health on board the ship or craft Noting that the types of activities mentioned in section 72 of Law No. 102/2009 are of a general nature and do not seem to take into account the specificities of the fishing sector, the Committee requests the Government to indicate any measures adopted or envisaged in order to give full effect to Article 9(2) and (3).

Article 10. Medical examination. Exemptions. The Committee observes that, according to Decree-Law No. 166/2019, seafarers are only allowed to board if they are accompanied by a medical certificate (section 67(1)(c)). However, seafarers who intend to serve on board vessels registered as local vessels are not required to submit medical certificates (section 8(3)). Noting that vessels registered as local vessels have been exempted from the medical certificate requirement, the Committee requests the Government to: (1) clarify the meaning of a “local vessel” under Decree-Law No. 166/2019; and (2) supply updated statistics on the number of such vessels and the number of fishers concerned by this exemption.

Articles 11 and 12. Medical examination. The Committee notes the Government’s reference to the relevant provisions of the Decree-Law No. 166/2019, including sections 10 and 11, which state that the mandatory elements and the model of the medical certificate are approved by ordinance of the members of the Government responsible for the areas of health and sea (sections 9(7) and 10(7)). The Committee, therefore, requests the Government to provide a copy of such Ordinance and any laws, regulations or other measures providing for the frequency of medical examinations and the form and content of medical certificates. With respect to the medical examination of fishers working on vessels of 24 metres in length and over, or vessels which normally remain at sea for more than three days, the Committee further requests the Government to confirm that when such a medical certificate expires in the course of a voyage, it remains in force until the end of that voyage.

Article 15. Crew list. The Committee notes the Government’s reference to section 70 of Decree-Law No. 166/2019 on crew list. Noting that such provision does not reflect the detailed requirements of Article 15 of the Convention, the Committee requests the Government to specify to whom, when, and for what purpose such information is to be provided. In addition, the Committee requests the Government to provide a specimen copy of any standard crew list form that may be in use.

Articles 16 and 20. Fisher’s work agreement. Annex II. Responsibility of the fishing vessel owner. The Committee notes the Government’s indication of section 6 and the annex of Law No. 15/97 on the fishers’ work agreements. In this regard, the Committee requests the Government to indicate the laws, regulations or other measures requiring that (1) all fishers working on vessels flying the Portuguese flag have the protection of a fisher’s work agreement, as foreseen in Law No. 15/97; and (2) the fisher’s work agreement contains a reference to the protection that will cover the fisher in the event of sickness, injury or death in connection with service, as provided for in Annex II of the Convention. With respect to the responsibility of the fishing vessel owner to ensure that each fisher has a written fisher’s work agreement signed by both the fisher and the fishing vessel owner or by an authorized representative of the fishing vessel owner, the Committee requests the Government to confirm that, where fishers are not employed or engaged by the fishing vessel owner, the fishing vessel owner is required to have evidence of contractual or similar arrangements.

Article 22(4) and (5). Recruitment and placement. Private employment agencies. The Committee notes that Portugal has ratified the Private Employment Agencies Convention, 1997 (No. 181) in 2002 and that there are private employment agencies which employ workers with a view to making them available to a third party, as provided for in the Decree-Law No. 260/2009. The Committee requests the Government to explain the respective responsibilities of the so-called temporary work enterprises and of the fishing vessel owners in relation to: (1) collective bargaining; (2) access to training; and (3) maternity and parental benefits.

Articles 23 and 24. Payment of fishers. The Committee notes the Government’s indication of section 278(1) of the Labour Code, which states that the remuneration is due for certain and equal periods, which, except in the case of a contrary provision or practice, are the week, the fortnight and the calendar month. Recalling that Article 23 requires that each Member, after consultation, adopt laws, regulations or other measures providing that fishers who are paid a wage are ensured a monthly or other regular payment, the Committee requests the Government to provide detailed information on any measure or practice contrary to such requirement. The Committee also notes that section 27(3) of Law No. 15/97 provides that, at the request of the crew member, the payment of wages may be made, in whole or in part, to a person designated by him/her. The Committee requests the Government to indicate how it ensures that such a payment is made to a person designated by the fishers at no cost for them, as provided for in Article 24.

Articles 26 and 28, Annex III. Accommodation and food. Accommodation. Derogations. The Committee notes that, in relation to accommodation and food, the Government refers to the provisions of the annex of the Decree-Law No. 116/97 which apply to new decked fishing vessels and cover the various aspects of crew accommodation on board fishing vessels. The Committee observes, however, that section 2(c) of such Decree-Law defines ‘new fishing vessel or craft’ as those of 15 metres in length and over. Furthermore, section 1 of its annex states that the Directorate-General of Natural Resources, Safety and Maritime Services (DGRM) may authorize derogations from the provisions of such annex for ships or fishing vessels that normally do not remain at sea for more than 24 hours, if the workers do not reside on board the ship or fishing vessel when it is in port. In light of the above, the Committee requests the Government to indicate how it ensures that the requirements of Annex III of the Convention apply to all new decked fishing vessels, as defined by the Convention and that, in the case of derogations foreseen in section 1 of the annex of the Decree-Law No. 116/97, the fishers concerned have adequate facilities for resting, eating and sanitation purposes. The Committee requests the Government to provide detailed information on any such derogations made.

Article 27. Accommodation and food. Food and water at no cost. The Committee notes the Government’s reference to section 69 of the annex of the Decree-Law No. 116/97, which states that food and drinking water shall be sufficient, taking into account the number of workers and the duration and nature of the journey, as well as adequate from the point of view of nutritional value, quality, quantity, and variety, also taking into account the religious and cultural practices of workers in food matters. The Committee requests the Government to indicate whether the food and water are provided by the fishing vessel owner at no cost to the fisher unless an applicable collective agreement or the fisher’s work agreement provides otherwise.

Articles 29 and 30. Medical care. The Committee notes that the Government refers to the Orientation Centre for Urgent Illnesses - Sea (CODU-Mar), which provides medical advice in case of emergency situations, triggers evacuation, and refers emergency situations on board vessels to a hospital. The Committee also notes the Government’s reference to the provisions on medical care of Administrative Act No. 6/97 on the “List of Medical Supplies that Must be Included in On-board Pharmacies and the Models of the Registration Forms”, Law No. 146/2015 on the “Activity of Seafarers on Board Vessels Flying the Portuguese Flag and the Responsibilities of the Portuguese State as a Flag or Port State”, and Decree-Law No. 274/95 on the “Minimum Safety and Health Requirements to Promote Better Medical Assistance on Board Ships”. The Committee also takes note of the Government’s indication that the Decree-Law No. 274/95, which applies to local fishing, is in the process of being amended. Noting that the referred provisions do not reflect the detailed requirements of Articles 29 and 30, the Committee requests the Government to indicate the laws, regulations or other measures adopted giving full effect to each of the particulars of both Articles, particularly the requirement that the vessels carry on board a list of radio or satellite stations through which medical advice can be obtained (Article 30(e)). The Committee also requests the Government to provide a copy of the revised Decree-Law No. 274/95 once it has been adopted, indicating whether it applies to all fishers and all fishing vessels engaged in commercial fishing operations as defined in Article 1 of the Convention.

Articles 31 and 32. Occupational safety and health and accident prevention. The Committee notes the Government’s reference to the provisions on occupational safety and health and accident prevention foreseen in Law No. 102/2009 and Decree-Law No. 116/97. Noting that the referred provisions do not reflect the detailed requirements of Articles 31 and 32, the Committee requests the Government to indicate the laws, regulations, or other measures adopted giving full effect to each of the particulars of these Articles for all fishing vessels, particularly the requirement that the fishing vessel owner establishes on-board procedures for the prevention of occupational accidents, injuries and diseases, taking into account the specific hazards and risks on the fishing vessel concerned (Article 32(2)(a)).

Articles 34–37. Social security. The Committee observes that the benefits foreseen in Law No. 110/2009 (Code of the Contributory Regimes of the Social Security Welfare System) are not linked to the residence in Portugal but to the existence of an employment agreement in the country (section 42(1)). The Committee notes the Government’s indication that Portuguese seafarers working on foreign vessels can optionally enrol in the Voluntary Social Security (SSV) scheme if they are not covered by a mandatory social security system. Furthermore, the Government refers to the multilateral Ibero-American Convention on social security and the conclusion of bilateral social security agreements with Andorra, Argentina, Australia, Bolivia, Brazil, Cabo Verde, Canada, Canada-Quebec, Chile, Ecuador, El Salvador, United States of America, Philippines, India, Morocco, Mozambique, Moldova, Paraguay, Tunisia, Ukraine, Uruguay, Venezuela, and the islands of Jersey, Guernsey, Alderney, Herm, Jethou and Man. Recalling that Article 34 provides that each Member shall ensure that fishers ordinarily resident in its territory, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory, the Committee requests the Government to provide detailed statistical information on the number of fishers that are covered under the Social Security Welfare System. The Committee requests the Government to provide information on whether and how the above-mentioned agreements cover fishers who reside in Portugal and work on foreign-flagged vessels or foreign fishers that work on Portuguese-flagged vessels, and ensure the maintenance of social security rights acquired, or in the course of being acquired. In addition, the Committee further requests the Government to provide information on the social security coverage for non-Portuguese fishers who are ordinarily resident in Portugal but work on foreign-flagged fishing vessels outside the country and outside the countries with which bilateral social security agreements were concluded.

Articles 38 and 39. Protection in the case of work-related sickness, injury, or death. The Committee notes that the Government indicates that (1) in case of work-related sickness, fishers are covered by the general social security system, as foreseen in Law No. 110/2009, (2) in case of injury due to occupational accident or disease, fishers are covered by a private insurance system, in which the employer transfers the responsibility to insurance companies, as foreseen in Law No. 98/2009 on Occupational Accident and Disease Compensation Scheme, and (3) in case of death or disappearance at sea or total permanent incapacity, the crew member is covered by insurance to be arranged by the shipowner, as foreseen in Law No. 15/97. The Committee observes that occupational accident and disease compensation is not due in the case of gross negligence and force majeure (Law No. 98/2009, sections 14 and 15). The Committee also observes that section 34 of Law No. 15/97 provides for medical treatment in a foreign country until the fisher has been repatriated. The Committee requests the Government to clarify whether the defraying of expenses of medical care foreseen in the latter provision includes related material assistance and support, as required by Article 39(1). The Committee also requests the Government to indicate the measures adopted in order to ensure that national laws or regulations permit the exclusion of the liability of the fishing vessel owner only if the injury occurred otherwise than in the service of the vessel or the sickness or infirmity was concealed during engagement, or the injury or sickness was due to wilful misconduct of the fisher.

Articles 40–42. Compliance and enforcement. The Committee notes the Government’s indication of the provisions of Law No. 15/97 on enforcement measures such as inspections, reporting, complaint procedures, and corrective measures. The Committee requests the Government to explain in detail the exercise of jurisdiction and control over fishing vessels flying the Portuguese flag by means of monitoring and appropriate penalties. The Committee further requests the Government to provide an example of a valid document issued by the competent authority stating that the vessel has been inspected by the competent authority or on its behalf, for compliance with the provisions of the Convention concerning living and working conditions. In addition, the Committee requests the Government to provide statistical information on the results of the inspections carried out on board fishing vessels.

Article 43. Compliance and enforcement. Complaints. The Committee notes the Government’s reference to Decree-Law No. 61/2012 on Port State Control. However, the Committee observes that, although section 36-E(3) of Law No. 15/97 states that the criteria for port State inspection of foreign-flagged fishing vessels, as well as the procedure for inspection, detention, and contestation are set out in Decree-Law No. 61/2012, section 2(6) of such Decree-Law states that it does not apply to fishing vessels. The Committee, therefore, requests the Government to clarify the scope of application of Decree-Law No. 61/2012, indicating, if applicable, which provisions apply to fishing vessels as defined by the Convention. In addition, the Committee requests the Government to: (1) indicate what arrangements exist for the submission of complaints by a fisher, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the vessel, including an interest in safety or health hazards to the fishers on board, (2) provide information on the number of investigations carried out during the reporting period covered by this report and on measures taken as a result, and (3) describe any port State control measures taken in pursuance of Article 43 and give information on the functioning of these measures (e.g. number and nature of cases considered and nature of any action taken).