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Fishermen's Articles of Agreement Convention, 1959 (No. 114) - Costa Rica (RATIFICATION: 1964)

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The Committee notes the reports provided by the Government on the application of Conventions Nos 113 and 114 on the fishing sector. The Committee notes that the Government has requested the technical assistance of the Office in this regard and trusts that this assistance will contribute to the full implementation of these Conventions. With regard to the Work in Fishing Convention, 2007 (No. 188), the Government indicates that it was submitted to the Legislative Assembly on 21 May 2009, but was not approved. In order to provide an overview of matters arising in relation to the application of the maritime Conventions, the Committee considers it appropriate to examine them in a single comment, as follows.

Medical Examination (Fishermen) Convention, 1959 (No. 113)

Article 3 of the Convention. Medical examination and medical certificate. Tripartite consultations. The Committee previously requested the Government to adopt without delay the necessary measures to prescribe, after consultation with the organizations concerned, the nature of the medical examination to be made and the particulars to be included in the medical certificate. The Committee notes the Government’s indication that, after consulting institutions working in this area, it was agreed that the College of Physicians and Surgeons of Costa Rica has the authority to specify the content of medical examinations. In this regard, the Government indicates that this professional association has initiated the necessary coordination with the Ministry of Labour and Social Security. The Government also indicates that the Minister of Labour and Social Security convened a meeting with the various institutions involved in the area of fishing and that, as a result, it was agreed that it is necessary to request the technical assistance of the ILO. The Committee understands that the Government has already contacted the Office in this regard and trusts that the technical assistance requested will be provided in the near future.

Fishermen’s Articles of Agreement Convention, 1959 (No. 114)

Article 3 of the Convention. Written articles of agreement. The Committee previously requested the Government to indicate the measures adopted to guarantee in practice that fishers’ articles of agreement are drawn up in writing. The Committee notes the Government’s indication that the Ministry of Labour and Social Security has undertaken to: (1) strengthen the necessary measures to disseminate Directive No. 17 of October 2002, which concerns the articles of agreement and medical examinations of fishers, among the employers’ and workers’ organizations in the fishing sector; and (2) reaffirm the provision that fishers’ articles of agreement shall be made available at the National Employment Directorate and the administrative branches of the National Labour Inspection Directorate. While it notes this information, the Committee requests the Government to indicate the follow-up measures adopted by the Ministry.

Article 5. Record of employment. The Committee previously requested the Government to adopt the necessary measures to ensure that a record of employment is maintained for every fisher. The Committee notes the Government’s indication that it has requested the technical assistance of the Office in this regard. The Committee trusts that the technical assistance requested will be provided in the near future and hopes that the necessary measures to give effect to this Article of the Convention will be adopted in the near future.

Article 8. Information on board on conditions of employment. The Committee previously requested the Government to indicate the manner in which it is guaranteed that fishers can obtain clear information on board as to the conditions of employment applicable to them. The Committee notes that the Government refers, inter alia, to sections 282 and 284 of the Labour Code on the obligations of employers. However, the Committee considers that the legislation referred to by the Government does not comply with the requirements of this provision of the Convention, as it does not specifically guarantee that the necessary measures shall be laid down to enable clear information to be obtained on board as to the conditions of employment so that fishers can satisfy themselves as to the nature and extent of their rights and obligations. The Committee once again requests the Government to indicate the measures adopted or envisaged to give effect to this Article of the Convention.

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The Committee notes the reports submitted on the application of the Conventions relating to fishing: the Medical Examination (Fishermen) Convention, 1959 (No. 113), and Fishermen’s Articles of Agreement Convention, 1959 (No. 114). The Committee also notes the observations made by the Confederation of Workers Rerum Novarum (CTRN), received on 5 September 2016, and the comments made by the Government in reply to these observations. In order to provide an overview of matters arising in relation to the application of the maritime Conventions, the Committee considers it appropriate to examine them in a single comment, which is set out below.

The Committee notes the Government’s indication that the Legislative Assembly did not vote in favour of ratifying the Work in Fishing Convention, 2007 (No. 188). The Committee requests the Government to report any developments in this regard.

Medical Examination (Fishermen) Convention, 1959 (No. 113)

Article 3 of the Convention. Medical examination and medical certificate. Tripartite consultations. In its previous comments, the Committee noted the Government’s indication that the nature of the medical examination of fishers and the particulars to be included in the relevant medical certificate fell within the competency of the College of Physicians and Surgeons of Costa Rica. The Committee asked the Government to provide information on the consultations held with fishing-boat owners and fishers when prescribing the nature of the medical examination, to send a copy of the text establishing the nature of the medical examination and to provide a sample of the standard medical certificate for fishers. The Committee notes the Government’s indication that the College of Physicians and Surgeons of Costa Rica has developed an assessment to define the terms for the preparation of the medical certificate. Once the text has been approved, the College of Physicians and Surgeons and the Ministry of Labour and Social Security will hold consultations with the organizations concerned. The Government indicates that until this process has been completed and the medical certificate for fishers has been adopted, the medical authorities of the Costa Rican Social Security Fund (CCSS) will conduct a medical assessment of any persons engaged in fishing activities and will issue a general medical certificate.

The Committee notes that the CTRN, referring to an academic study entitled “Work at sea: The situation of fishers in Costa Rica”, alleges that the legal requirement establishing a medical certificate for fishers for the purposes of articles of agreement is not observed in Costa Rica. This situation has negative repercussions, particularly the lack of monitoring in relation to the physical and mental fitness of workers and their increased propensity for accidents. The CTRN also indicates that most of these workers do not have adequate health-care coverage from the CCSS or accident or illness cover. The Committee notes the Government’s indication, in reply to the observations of the CTRN, that according to the statistics of the CCSS, in June 2016, a total of 4,657 persons were recorded as being engaged in fishing and insured, including 1,134 self-employed workers, 467 workers covered by voluntary insurance, and 1,038 covered by special agreements. At that time, 153 employers were registered in fishing activities. The Government indicates that the foregoing shows that fishers are covered by the social security system and have effective access to this benefit and the related rights, including medical examinations. While noting the Government’s reply, the Committee observes that the information provided shows that measures still have not been taken to give full effect to the requirements of Article 3. The Committee draws attention to the particularities of fishing and requests the Government to take, without delay, the necessary measures to prescribe, after consultation with the organizations concerned, the nature of the medical examination to be made and the particulars to be included in the medical certificate. It also requests the Government to provide a sample of the standard medical certificate for fishers once it has been finalized.

Fishermen’s Articles of Agreement Convention, 1959 (No. 114)

Article 3 of the Convention. Written articles of agreement. The Committee observes the indication by the CTRN that the National Employment Directorate of the Ministry of Labour does not provide for seafarers’ articles of agreement, in violation of section 120 of the Labour Code. As a result, work in the fishing sector is not regulated by written articles of agreement, but is left to the discretion of the parties. In general, the CTRN indicates that the aforementioned study reveals the precariousness of fishers’ human and labour rights, the violation of and lack of protection for these rights, and the absence of decent work in the sector. The Committee notes the Government’s indication in its reply that the observations of the CTRN are based on an academic study, which is limited in scope and cannot be used to assess compliance with the provisions of the Conventions relating to fishing. The Committee notes that the Government refers to the existence of six complaints in the sector that were addressed by the labour inspectorate between January 2014 and May 2016. While noting the information provided by the Government, the Committee observes that the Government has not replied to the allegations regarding the non-existence, in practice, of written articles of agreement for fishers. The Committee requests the Government to indicate the measures adopted to ensure the application of this provision of the Convention in practice.

Article 5. Record of employment. The Committee previously recalled that, under Article 5 of the Convention, a record of employment must be established for every fisher. At the end of each voyage or venture a record of service in regard to that voyage or venture must be available to the fisher concerned or entered in his or her service book. The Committee asked the Government to take the necessary measures to give full effect to this requirement of the Convention. The Committee also recalled that this Article does not relate to the establishment of any registration system for fishers, but simply requires the competent authority to prescribe the manner in which a record of the fisher’s employment should be maintained and whether it should be issued separately or entered in the fisher’s service book. A record of service helps fishers to secure other employment and demonstrates their experience at sea. The Committee notes the Government’s reiteration that it requires the technical assistance of the Office to apply this provision of the Convention. The Committee invites the Government to examine the practices followed in other countries with respect to records of service both in fishing and in the maritime sector. The Committee requests the Government to take the necessary measures to give effect to this provision of the Convention, and requests the Office to provide the technical assistance requested.

Article 8. On-board information on conditions of employment. In its previous comments, the Committee asked the Government to indicate how it guarantees that fishers, while on board, have access to clear information as to their conditions of employment, so that they may satisfy themselves as to the nature and extent of their rights. The Committee notes the Government’s indication that the provisions of the Labour Code must be observed in employment contracts in fishing and refers to various provisions that supposedly give effect to Article 8 of the Convention. The Committee nevertheless observes that these provisions do not establish the requirement to specifically inform workers of their conditions of employment. The Committee therefore once again requests the Government to take the necessary measures to give full effect to Article 8 of the Convention.

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Article 5 of the Convention. Employment record. The Committee notes the Government’s reference to a registration system to be established with the technical assistance of the Office for the application of this provision of the Convention. The Committee recalls, however, that this Article of the Convention does not relate to the establishment of any registration system but simply requires the competent authority to prescribe the manner in which an employment record should be maintained whether to be issued separately or to be entered into the fisher’s service book. The Committee therefore requests the Government to take without further delay the necessary measures in order to give full effect to the requirement of this Article of the Convention. The Committee recalls, in this respect, that the same requirement has been incorporated in Article 17(b) of the Work in Fishing Convention, 2007 (No. 188), which revises in an integrated manner most of the existing ILO fishing instruments.

Article 8. Onboard information on conditions of employment. The Committee notes with interest the Fisheries and Aquaculture Act No. 8436 of 1 March 2005, in particular, section 173 which revises section 120 of the Labour Code and adds a new section 120bis on fishers’ employment contracts, medical certification and identity documents. The Committee observes, however, that neither text appears to provide for measures to enable fishers to obtain clear information while on board as to the conditions of employment applicable to them. The Committee accordingly requests the Government to specify how effect is given to this provision of the Convention in law and in practice.

Part V of the report form. Application in practice. The Committee notes that according to the statistical information provided by the Government, in 2010, there were 6,086 registered fishers. The Committee requests the Government to continue to provide general information on the application of the Convention in practice, including, for instance, information concerning the number of fishers signed on each year.

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The Committee notes the information provided in the Government’s report. It would, however, like to receive further information on the following points.

Article 3 of the Convention. Fishermen’s articles of agreement. The Committee notes that, by virtue of section 24 of the Labour Code, the Ministry of Labour and Social Security may draw up model articles of agreement for each occupational category. It also notes the Government’s indication that the National Employment Directorate of the Ministry of Labour, in its Directive No. 17 of 17 October 2002, drew up a model of articles of agreement for fishers, which is available to fishers and employers from the National Labour Directorate and the regional offices of the National Labour Inspectorate. The Committee requests the Government to communicate a copy of the model of articles of agreement for fishers.

Article 4. Stipulation to depart from rules as to jurisdiction. The Committee requests the Government to indicate the manner in which it is ensured that articles of agreement do not contain any stipulation to depart from the ordinary rules as to jurisdiction over the agreement, as is required under Article 4 of the Convention.

Article 5. Keeping of records of employment and making such records available to fishers. The Committee notes the Government’s indication that it does not have any sample records of employment for fishers and that it requested the Office’s technical assistance to develop a registration system allowing for the application of this provision of the Convention. The Committee requests the Government to keep it informed of any developments made in this regard with the technical support of the Office, and to provide copies of any relevant documents as soon as they come into existence.

Article 7. Recording of the agreement in the list of crew. The Committee requests the Government to indicate whether there are any provisions which envisage the recording of fishers’ articles of agreement in the crew list and, if so, to provide copies of any relevant texts.

Article 8. Information on board fishing vessels. The Committee requests the Government to indicate the measures taken to enable the fisher to obtain clear information on board as to the conditions of employment, as required under this Article of the Convention, and, if appropriate, to provide copies of any relevant texts.

Part V of the report form. The Committee notes the Government’s indication that, in 2005, 1,615 workers (0.08 per cent of the active population) were employed in the fishing sector. It also understands that the Government is currently developing an automated labour inspection and management system (SAIL) that will allow better access to statistical information concerning the activities of the labour inspection services. The Committee requests the Government to continue providing general information on the application of the Convention in practice, including, for instance, information concerning the number of fishers signed on each year, and the number and tonnage of the fishing vessels in operation that are covered by the Convention, etc.

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The Committee notes the detailed report of the Government. It would be grateful if the Government could provide with its next report a sample of fishermen’s articles of agreement (Article 3 of the Convention), a sample of fishermen’s record of employment (Article 5), and, if such statistics are available, information concerning the number of fishermen signed on during the year under review, the number and nature of the contraventions reported, etc. (Part V of the report form).