CMNT_TITLE

Work in Fishing Convention, 2007 (No. 188) - Congo (RATIFICATION: 2014)

Other comments on C188

Observation

Direct Request

2023
2022
2021

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The Committee notes that the Congo did not ratify any Convention on work in fishing before the Work in Fishing Convention, 2007 (No. 188). Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Articles 1–4 and 6–7 of the Convention. Definitions, scope, implementation and coordination. Noting the absence of available information in this regard, the Committee requests the Government to provide detailed information on the application of these provisions of the Convention, on the basis of the questions set out in the report form. It also requests the Government to provide statistics on the number of fishers and fishing vessels flying the Congolese flag, as well as on the size of the latter.

Article 5. Basis for measurement of fishing vessels. The Committee notes that the available legislation retains gross tonnage as the basis for measurement. The Committee recalls that Article 5 of the Convention calls on Members to use length (L) in the context of its implementation. As an exception, the competent authority, after consultation, may decide to use length overall (LOA) rather than length (L) as the basis for measurement, in accordance with the equivalence set out in Annex I. With specific regard to the implementation of Annex III on fishing vessel accommodation, the competent authority may, after consultation, decide to use gross tonnage in place of length (L) or length overall (LAO) as the basis for measurement in accordance with the equivalence set out in this Annex. The Committee requests the Government to indicate the measures adopted or envisaged to give full effect to Article 5.

Article 8. Responsibilities of fishing vessel owners, skippers and fishers. The Committee notes sections 54, 94, 106, 121, 140 and 188 of Act No. 30-63 of 4 July 1963, as amended by Act No. 63–65 of 30 December 1965, establishing the Merchant Shipping Code, on the status and duties of the captain. The Committee notes that, while these provisions indicate the obligations borne by the captain with regard to the safe navigation of the ship and operations related to the transport of goods, they do not reflect the detailed requirements of Article 8 of the Convention concerning the responsibilities of fishing vessel owners, skippers and fishers. The Committee requests the Government to indicate the measures giving full effect to this provision of the Convention.

Article 9(1) and (2). Minimum age. The Committee notes that, while the Constitution of the Republic of the Congo of 6 November 2015 (section 40), Act No. 4–2010 of 14 June 2010 on child protection (section 68) and the Labour Code (sections 11 and 116), prohibit the employment of children under 16 years of age, including as apprentices, section 98 of the Merchant Shipping Code and section 3(2) of Decree No. 67–196 of 31 July 1967, establishing the requirements for the practice of the occupation of seafaring and the procedures for awarding vocational qualifications, provide for a minimum age of 15 years for work on board seagoing vessels registered in the Republic of the Congo and authorize the engagement of children on board at 14 years of age on an exceptional basis when that is in the interests of the child. The Committee draws the Government’s attention to the need to avoid any inconsistency in the legislation in order to ensure that it is in conformity with the Convention. It recalls that the minimum age for work on board a fishing vessel shall be 16 years and that the competent authority may authorize a minimum age of 15 for persons who are no longer subject to compulsory schooling as provided by national legislation and who are engaged in vocational training in fishing or are performing light work during school holidays (Article 9, paragraphs 1 and 2). The Committee, therefore, requests the Government to take the necessary measures to bring its legislation into full conformity with Article 9, paragraphs 1 and 2. Additionally, it requests the Government to specify the minimum age at which fishers are permitted to work on board fishing vessels.

Article 9(3)–(5). Minimum age. Hazardous work. The Committee notes that section 68 of Act No. 4–2010 of 14 June 2010 on child protection prohibits work which, by its nature or the circumstances in which it is carried out, is liable to harm the health, safety or morals of the child. According to this section, a decree adopted following the issuance of an opinion by the National Advisory Committee on Labour will establish the list and nature of work and categories of enterprises in which children may not be employed and the age limit to which this prohibition applies. Noting that this decree has still not been adopted, the Committee requests the Government to adopt, after consultation, measures giving full effect to Article 9, paragraphs 3 to 5 of the Convention and to provide detailed information on the manner in which account has been taken of the specific working conditions on fishing vessels in the determination of the list of hazardous types of work prohibited for children.

Article 9(6). Minimum age. Work at night. The Committee notes that the current national legislation contains no provisions on the prohibition of night work for persons under the age of 18 years. It notes that section 33 of Act No. 60-25 of 21 May 1960, entitled “Service on fishing grounds”, provides that if a ship’s boy (“mousse”) or novice seafarer engages in night work, this may be extended for more than two consecutive nights provided that they are assured a period of total rest of eight hours out of 24 and further rests to complete the total of 16 hours out of 24. The Committee recalls that the Convention prohibits the engagement of fishers under the age of 18 for work at night, the term “night” being defined as covering a period of at least nine hours starting no later than midnight and ending no earlier than 5 a.m.; an exception to this restriction may be made by the competent authority only under the strict conditions provided for under Article 9, paragraph 6(a) and (b). The Committee requests the Government to indicate the measures taken to ensure full conformity with this provision of the Convention.

Articles 10–12. Medical examination. The Committee notes that section 3 of Decree No. 67–196 of 31 July 1967, establishing the requirements for the practice of the occupation of seafaring and the procedures for awarding vocational qualifications, provides that recognition as a Congolese seafarer shall be subject to being recognized as physically fit by the seafarers’ medical practitioner or, in the absence thereof, by a medical practitioner appointed by the maritime authority, and that the conditions of physical fitness required for each specialization in the deck, engine or general service department, and for each type of navigation, shall be established by a subsequent decree. The Committee notes that Order No. 2247 of 7 June 1969, establishing the conditions of physical fitness for seafarers, specifies in its annexes the requirements with regard to the nature of the medical examination for each specialization in the deck, engine and general service departments. Noting that the Order does not specify whether it is applicable to fishing navigation, the Committee requests the Government to clarify how it ensures that no “fisher”, within the meaning of the Convention, is allowed to work on board a fishing vessel without a valid medical certificate attesting to fitness to perform their duties, and whether and on what basis exceptions may be granted. It also requests the Government to indicate the laws, regulations or other measures giving effect to the provisions of Articles 11 and 12 of the Convention.

Articles 13–14. Manning and hours of rest. The Committee notes that the Congo is a party to the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, 1995 (STCW-F). It also notes that section 110 of the Merchant Shipping Code provides that the manning level shall be sufficient and efficient from the point of view of navigational safety and that the method of application of this provision shall be established by an order of the maritime authority. Noting that the order is not available, the Committee requests the Government to provide information on the steps taken by the competent authority to ensure that owners of fishing vessels flying the Congolese flag ensure that: (a) their vessel is under the control of a competent skipper; and (b) fishers are given regular periods of rest of sufficient length to ensure safety and health. It also requests the Government to indicate the minimum level of manning, in other words, the number and the qualification of the fishers, required to ensure the safe navigation of vessels of 24 metres in length and over.

The Committee notes that sections 125 and 126 of the Merchant Shipping Code and Title IV of Act No. 60-25 of 21 May 1960 (sections 31–36), which contains specific provisions relating to industrial fishing, include different provisions relating to the minimum rest period. The Committee requests the Government to indicate the minimum hours of rest to be provided to fishers working on vessels regardless of size remaining at sea for more than three days, as well as any temporary exceptions. Furthermore, the Committee requests the Government to indicate whether, in accordance with the laws and regulations in force, the skipper of a fishing vessel is authorized to suspendthe schedule of hours of rest and require a fisher to perform any hours of work necessary for the immediate safety of the ship, persons on board or the catch or for the purpose of giving assistance to other ships or persons in distress at sea.

Articles 16 and 20 and Annex II. Fisher’s work agreement. The Committee notes that section 117 of the Merchant Shipping Code provides that the employment contract must mention the department in which the seafarer is engaged and the function that he is to fulfil, the amount of wages and supplements or the basis on which the shares or profits are calculated and that section 388 of the Community Merchant Shipping Code stipulates further matters that the seafarer’s employment contract must include. Noting that these particulars do not correspond to all the particulars that must be included in the fisher’s work agreement, in accordance with Article 16(b) and Annex II, the Committee request the Government to indicate the measures adopted or envisaged to give full effect to these requirements of the Convention. It also requests the Government to clarify whether it is 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 and that, where fishers are not employed or engaged by the fishing vessel owner, the fishing vessel owner has evidence of contractual or similar arrangements (Article 20).

Article 21. Repatriation. The Committee notes that sections 140–144 of the Merchant Shipping Code provide for situations in which seafarers are disembarked abroad during or upon the expiry of the work agreement, and that the costs of repatriation are borne by the seafarer when disembarked on disciplinary grounds or in consequence of injury or sickness incurred due to a wilful act. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that fishers are entitled to repatriation in all of the circumstances set out in Article 21, paragraph 1. Noting that the Merchant Shipping Code does not provide for the maximum duration of service periods on board following which a fisher is entitled to repatriation (Article 21, paragraph 3), the Committee requests the Government to indicate the measures adopted or envisaged for this purpose. As regards the possibility under the Convention of recovering the costs of repatriation from the fisher, the Committee underscores that this possibility only applies where the fisher has been found, in accordance with national laws or other applicable provisions, to be in serious default of his or her work agreement obligations. The Committee requests the Government to provide information on the provisions of national laws or other applicable measures or collective agreements that specify the procedure to be followed and the applicable standard of proof for a seafarer to be “found to be in serious default of his or her work agreement obligations”. The Committee also requests the Government to indicate how it ensures that, when a fishing vessel owner fails to fulfil their obligations, the Congolese authorities arrange for the repatriation of the fisher concerned and are entitled to recover the cost from the fishing vessel owner (Article 21, paragraph 4).

Article 22. Recruitment and placement. The Committee notes that the Congo has not ratified the Private Employment Agencies Convention, 1997 (No. 181), and therefore the provisions contained in Article 22, paragraphs 4 and 5 of Convention No. 188 do not apply to the country. The Committee requests the Government to indicate whether a public service providing recruitment and placement for fishers has been established in the Congo and, if so, to specify how it is ensured that the service in question forms part of, or is coordinated with, a public employment service for all workers and employers. It also requests the Government to indicate whether private recruitment and placement services for fishers operate in the Congo. If so, the Committee requests the Government to provide information on the system of licensing, certification or other form of regulation applicable to the operation of private recruitment and placement services for fishers

Articles 23 and 24. Payment of fishers. The Committee notes that section 129 of the Merchant Shipping Code provides for different methods of remuneration, whether a set wage, share of eventual profits or a combination of these two methods. Any share or profit contract must determine the common expenses and charges to be deducted from the profit in order to establish the net proceeds, as well as the number of shares to be distributed to each person. The Committee notes that this section provides that an order of the maritime authority shall establish the places and times for settlement and payment of wages based on the different types of contract and navigation concerned. Noting that the order is not available, the Committee requests the Government to indicate the measures adopted providing that fishers who are paid a wage are ensured a monthly or other regular payment (Article 23). The Committee further notes the absence of available information on the requirement that all fishers working on board fishing vessels shall be given a means to transmit all or part of their payments received, including advances, to their families at no cost. The Committee requests the Government to indicate the measures adopted to give full effect to Article 24 of the Convention.

Articles 25–28. Accommodation and food. Notingthe absence of specific information in the national legislation on accommodation and food on board fishing vessels flying the Congolese flag, the Committee requests the Government to provide information on all measures adopted or envisaged to give full effect to the detailed requirements of Articles 25 to 28, as well as to Annex III.

Articles 29 and 30. Medical care. The Committee notes that certain provisions of the Merchant Shipping Code and other regulations allow for the provision of medical care on board and ashore in general terms without giving effect to the various requirements regarding medical care mentioned in Article 29 of the Convention.The Committee requests the Government to indicate the laws, regulations or other measures adopted at the national level that give full effect to this provision. It also requests the Government to provide information on the national laws and other measures adopted to give effect to the additional requirements on medical care prescribed by Article 30 for fishing vessels of 24 metres in length and over.

Articles 31–33. Occupational safety and health and accident prevention. The Committee notes the absence of specific information in the national legislation on occupational safety and health and accident prevention in fishing. The Committee requests the Government to provide detailed information on the measures adopted at the national level to give effect to the occupational safety and health and prevention of accidents requirements stipulated under Articles 31 and 32, with an indication of the measures specifically applicable to fishing vessels of 24 metres in length and over normally remaining at sea for more than three days and, after consultation, to other vessels, taking into account the number of fishers on board, the area of operation and the duration of the voyage. The Committee also requests the Government to indicate the measures giving effect to Article 33 concerning risk evaluation on board fishing vessels, with an explanation of how fishers or their representatives are involved in this preventive approach.

Articles 34–37. Social security. The Committee notes that according to sections 136 and 137 of the Merchant Shipping Code, seafarers are entitled to family allowances under the general scheme and are registered with the national social security fund, which provides them with the allowances and benefits that it guarantees under its insurance schemes. The Committee recalls that all fishers who are 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 (Article 34). The Committee requests the Government to describe in detail the social security benefits afforded to fishers, including fishers working on vessels flying a foreign flag, who are ordinarily resident in the Congo and to provide statistical information on the number of fishers currently affiliated with the national social security system. It also requests the Government to specify whether fishers remunerated on a share basis, working on board fishing vessels, are covered by social and medical benefits in accordance with the legislation in force. The Committee further notes that foreign seafarers allowed to sail on Congolese vessels under reciprocal agreements between the Congo and their home country may, to the extent that the regulations governing their status allow, continue to qualify for all of their own social benefits; in this case, fishing vessel owners and seafarers are not required to pay contributions to Congolese social security schemes (section 1 of the Merchant Shipping Code). The Committee requests the Government to provide detailed information on the cooperation agreements implementing the requirements of Article 36 of the Convention to ensure the maintenance of social security rights which have been acquired or are in the course of acquisition by all fishers regardless of residence.

Articles 38 and 39. Protection in the case of work-related sickness, injury or death. The Committee notes that the Merchant Shipping Code provides that the seafarer shall be paid his wages and treated at the ship’s expense if he is injured in the service of the ship or if he falls ill on board. A seafarer taken ashore for treatment at a foreign port shall be entitled to receive care and wages until his return to a Congolese port, if he has by then recovered; otherwise, the seafarer shall enjoy the allowance and benefits guaranteed by the national social welfare fund under its insurance schemes. In order to take account of the particular risks associated with the work of seafarers, the shipowner shall supplement, by means of a special insurance, the allowances and benefits paid by the national social welfare fund, until the seafarer recovers, stabilizes or is declared incurable or in a chronic state, for a maximum period of four months, so as to fully cover the amount of wages and, as appropriate, of food and pharmaceutical costs. The Committee requests the Government to explain in detail whether, and in what manner, these provisions provide fishers, including self-employed fishers, with protection in the event of work-related illness, injury or death, providing details of the measures giving full effect to Articles 38 and 39.

Articles 40–44. Compliance and enforcement. In the absence of specific available information in this regard, the Committee requests the Government to indicate in detail how it ensures full conformity with Articles 40 to 44. It also requests the Government to indicate how effect is given to the principle that the fishing vessels flying the flag of any State that has not ratified the Convention do not receive more favourable treatment than fishing vessels that fly the flag of any Member that has ratified it.

[The Government is asked to reply in full to the present comments in 2023.]