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Work in Fishing Convention, 2007 (No. 188) - Senegal (RATIFICATION: 2018)

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The Committee notes the Government’s first report on the Work in Fishing Convention, 2007 (No. 188). Following a first examination of the information and documents available, the Committee draws the Government’s attention to the following matters and reserves the possibility of returning to other matters subsequently if it considers it necessary to do so.

Impact of the COVID-19 pandemic. The Committee notes with deep concern the impact of the COVID-19 pandemic on the protection of the rights of fishers set out in the Convention. In this regard, the Committee refers to the Resolution concerning maritime labour issues and the COVID-19 pandemic, adopted by the Governing Body at its 340th Session ( GB.340/Resolution), in which Member States are called upon to take measures to address the negative effects of the pandemic on the rights of fishers, 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.

Implementation measures. The Committee notes the Government’s indication that the Convention is principally implemented through the Merchant Shipping Code of 2002 (MSC) and the Maritime Fishing Code of 2015 (MFC), supplemented by their implementing decrees. The Committee also notes the collective agreement of 1976 establishing the terms and conditions of employment of officers and seafarers in the Senegalese merchant navy (fishing section). However, the Committee notes that any revisions that have been made to the collective agreement are not available. The Committee notes that the MSC provides that several supplementary implementing regulations shall be adopted to specify the conditions for the implementation of some of its provisions. The Committee notes the Government’s indication that the MSC is the subject of a draft revision to take into account certain of the requirements of the Convention, although no copy is provided. The Committee notes the Government’s indication that the Constitution of Senegal enshrines the supremacy of ratified international Conventions over domestic laws. However, the Committee recalls that the Conventions includes requirements for which Member States have to take the necessary measures to ensure the conformity of national law and practice. The Committee requests the Government to indicate and provide all the laws, regulations and clauses of agreements adopted or under preparation to give effect to the Convention. The Committee notes that sections 5 and 6 of the MSC encourage dialogue and co-management in the fishing sector, through the mobilization of occupational organizations, maritime fishing communities and all other actors concerned. The Committee notes in this respect that local artisanal fishing councils have been entrusted with various functions in relation to the organization of fishing communities (section 6 of Decree No. 2016-1804 of 22 November 2016). The Committee also notes the report prepared under the authority of Ministry of Fishing and the Maritime Economy on the roles and responsibilities of artisanal fishing organizations (2019). The Committee requests the Government to provide detailed information on the role of these councils and organizations in the context of the adoption and implementation of the relevant measures for the implementation of the Convention. The Committee notes that the Government refers on several occasions in its report to a Title of the MSC on maritime labour (sections 396 to 435), particularly with regard to night work by young seafarers (Article 9, paragraph 6), the minimum duration of rest periods on board and the minimum payment required in the event of the suspension of normal hours of work (Articles 13(b) and 14, paragraphs 1(b), 2 and 4) and protection in the event of work-related sickness, injury or death (Articles 38 and 39). The Committee notes that this Title of the MSC is not however applicable to fishing vessels, under the terms of section 397 of the MSC, which restricts its scope of application to seagoing ships engaged in the transport of goods and passengers. The Committee requests the Government to indicate the measures adopted or under preparation to give effect to Article 9, paragraph 6, Article 13(b), Article 14, paragraphs 1(b), 2 and 4, and Articles 38 and 39.

Articles 1–4. Definition and scope of application. Fishing vessel. Artisanal fishing. The Committee notes that section 10 of the MFC provides that maritime fishing vessels shall be subject to the legislation respecting seagoing ships, namely the MSC and its implementing measures. The Committee notes that section 17 of the MSC provides that maritime navigation includes fishing navigation giving rise to the catching of fish and, in general, the exploitation of fish resources. However, the Committee notes that maritime navigation does not appear to include inland waterways, lakes and canals. The Committee notes that, during the national tripartite seminar to raise awareness of ILO maritime instruments, held in Dakar from 13 to 18 July 2009, it was explained that the MSC and the collective agreement of 1976 establishing the terms and conditions of employment of officers and seafarers in the Senegalese merchant navy (fishing section) only apply to industrial fishing. The Committee notes that an artisanal fishing vessel is defined in section 2 of the implementing Decree of the MFC as any open vessel that uses means of catching fish that are not mechanically powered and in which the only means of conservation is ice or salt. The Committee notes that the statistics at its disposal indicate that artisanal fishers represent nearly 90 per cent of direct jobs and 65 per cent of indirect jobs in the fishing sector (accounting for around 50,000 direct jobs and 550,000 indirect jobs). In this regard, the Committee notes that the Government does not indicate the measures applicable to vessels and fishers in the artisanal fishing sector. The Committee recalls that the Convention, except as otherwise provided, applies to all fishers and all fishing vessels engaged in commercial fishing operations, which include all fishing operations, including fishing operations on rivers, lakes or canals, with the exception of subsistence fishing and recreational fishing (Articles 1 and 2). The Committee also recalls that Article 1(g) provides that the terms “fishing vessel” or “vessel” mean 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, which includes vessels in the artisanal fishing sector. The Committee requests the Government to indicate the manner in which it ensures that all fishing vessels, within the meaning of the Convention, including those engaged in artisanal fishing, are effectively covered. It also requests the Government to provide recent statistics on the number of fishing vessels and fishers, drawing a distinction between whether: (1) they operate at sea or in rivers, lakes or canals; and (2) they are in the industrial or artisanal fishing sector.

Articles 1–4. Definition and scope of application. Fisher. The Committee notes that Book IV of the MSC, respecting “seafarers”, applies to the maritime articles of agreement of all “mariners”, irrespective of nationality, engaged on board a Senegalese ship. However, the Committee notes that the concepts of “mariners” and “seafarers” are not defined within the context of the MSC. The Committee also notes that Book IV, Chapter III, of the MSC, respecting maritime articles of agreement, contains two sections, of which one contains provisions specifically applicable to masters. The Committee recalls that, within the meaning of the Convention, “fisher” means every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch, but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers (Article 1(e)). The Committee also recalls that this definition includes the skipper, namely the fisher having command of a fishing vessel (Article 1(l)). The Committee requests the Government to indicate whether all fishers, within the meaning of the Convention, including the skipper of a fishing vessel, are in practice considered to be “mariners” or “seafarers” for the purposes of the implementation of the MSC and its implementing regulations.

Article 5. Basis for measurement of fishing vessels. The Committee notes the Government’s indication that section 107 of the MSC retains gross tonnage as the basis for measurement. The Committee notes that it is also the criterion retained by the MFC. 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) in place of length (L) as the basis for measurement, in accordance with the equivalence set out in Annex I. For the specific purpose of the implementation of Annex III respecting fishing vessel accommodation, the competent authority, after consultation, may 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 that Annex. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to Article 5.

Article 9. Minimum age. The Committee notes that sections 287 and 305 of the MSC prohibit work on board fishing vessels by persons under 16 years of age, subject to the exceptions envisaged by the Convention (Article 9, paragraphs 1 and 2). Noting that in the past the Committee observed that the great majority of child workers in Senegal are in the agricultural sector, followed by the stock-rearing and fishing sectors, the Committee requests the Government to provide detailed information on the measures adopted to ensure effective compliance in the fishing sector, including in artisanal fishing, with the minimum age of 16 years, subject to the permitted exceptions. With reference to the prohibition for young persons under 18 years of age to be assigned to activities on board fishing vessels, which by their nature or the circumstances in which they are carried out are likely to jeopardize their health, safety or morals (Article 9, paragraph 3), the Committee notes that the Government refers to the draft revision of the MSC, which is reported to set a minimum age of 18 years for admission to the occupation, a priori without any exceptions. The Committee requests the Government to indicate and provide copies of the measures adopted or under preparation that give full effect to Article 9, paragraph 3. The Committee notes that the Government has not provided any information on the determination of the types of activities referred to in Article 9, paragraph 4, as determined by national laws or regulations, or by the competent authority, after consultation. The Committee notes that Ministerial Order No. 3750 of 6 June 2003 determines the nature of the hazardous types of work that are prohibited for children and young persons and prohibits, among other measures, the employment of children as stokers on board industrial and artisanal fishing vessels and boats. However, noting that this order is of general application, the Committee requests the Government 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.

Articles 13 and 14. Manning and hours of rest. The Committee notes that section 58 of the MSC provides that a ship may not be used for maritime navigation unless it meets the required safety standards in respect of, among other matters: the manning and vocational qualifications of the members of the crew. The Committee notes that the Government refers to section 299 of the MSC, which provides that all ships shall have on board a qualified crew in sufficient numbers to ensure (…) the statutory hours of work on board. The Committee requests the Government to indicate the requirements respecting the qualifications that fishers must have for vessels of 24 metres in length and over (Article 14, paragraph 1).

Article 15. Crew list. The Committee notes the Government’s indication that it is through the drawing up of the list of crew members that effect is given to this provision of the Convention. However, the Committee notes that sections 43 and 45 of the Decree determining the conditions for the implementation of Act No. 2002-22 of 16 August 2002 issuing the Merchant Shipping Code provides that pirogues and some categories of open vessels are exempt from the requirement to issue a list of crew members. The Committee requests the Government to indicate the manner in which it ensures that every fishing vessel, including vessels in the artisanal fishing sector, shall carry on board a crew list, a copy of which shall be provided to authorized personnel ashore prior to departure of the vessel, or communicated ashore immediately after departure of the vessel (Article 15).

Article 16. Fisher’s work agreement. The Committee notes that section 302 of the MSC provides that any seafarer working on board a ship shall be required to have concluded seafarers’ articles of agreement with the shipowner or her or his representative in accordance with the provisions in force. The Committee notes the Government’s indication that the content of agreements is in accordance with Annex II, without however specifying the respective national provisions. The Committee notes that section 306 of the MSC provides that the seafarers’ articles of agreement shall be drawn up in clear terms and be such as to leave the parties in no doubt as to their respective rights and duties. All the clauses and stipulations of the articles of agreement, to be valid, must be recorded or enumerated in the crew list. The Committee notes that sections 109 of the Decree determining the conditions for the implementation of Act No. 2002-22 of 16 August 2002 issuing the Merchant Shipping Code provides that the crew list shall record, for each crew member: (a) family name and given name(s); (b) date and place of birth; (c) parents; (d) nationality; (e) identification number and place; (f) conditions of engagement; and (g) duties to be performed on board and qualifications. Noting that these particulars do not correspond to all the particulars that must be included in the fisher’s work agreement, in accordance with Annex II, the Committee requests the Government to indicate the measures adopted or under preparation to give full effect to these requirements of the Convention.

Article 21. Repatriation. The Committee notes that section 391 of the MSC sets out the conditions under which a crew member of Senegalese nationality, domiciled in Senegal, who is set ashore abroad during or upon the expiry of the work agreement has the right to be repatriated to the Senegalese port of embarkation. The Committee notes that section 394 of the MSC provides that a member of the crew of foreign nationality, who is set ashore or left in a port in Senegal during or upon the expiry of the work agreement, has the right to be repatriated to the country in which she or he is domiciled, to the port of embarkation or to the port of departure of the ship, at her or his choice, unless otherwise agreed in the work agreement or a subsequent agreement. However, the Committee recalls that Article 21, paragraph 1, provides that fishers on a fishing vessel that flies the flag of a Member State and that enters a foreign port are entitled to repatriation in the event that the fisher’s work agreement has expired or has been terminated for justified reasons by the fisher or by the fishing vessel owner, or the fisher is no longer able to carry out the duties required under the work agreement and cannot be expected to carry them out in the specific circumstances. This also applies to fishers from that vessel who are transferred for the same reasons from the vessel to a foreign port. The Committee requests the Government to indicate the measures adopted or under preparation to ensure that fishers are entitled to repatriation in the circumstances set out in Article 21, paragraph 1. Noting that the MSC does not specify 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 under preparation in that regard. The Committee notes that sections 391, 393 and 394 of the MSC set out various circumstances in which the cost of repatriation may be recovered from the seafarer, for example where the seafarer has been found to be in default. The Committee recalls that Article 21, paragraph 2, provides that, when the fisher is entitled to repatriation, the cost of repatriation shall be borne by the fishing vessel owner, except where the fisher has been found, in accordance with national laws, regulations or other measures, to be in serious default of his or her work agreement obligations. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to Article 21, paragraph 3. It further requests the Government to indicate how it ensures that, if a fishing vessel owner fails to provide for the repatriation, the Senegalese 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). The Committee notes that section 391 of the MSC provides that repatriation shall be considered to have been ensured when the seafarer is found suitable employment on board a ship sailing to the Senegalese port of embarkation. Where the seafarer is repatriated as a member of the crew, she or he shall be entitled to remuneration for the services discharged during the voyage. The Committee recalls that, in relation to the entitlement of the fisher to repatriation without cost in the cases and under the conditions set out in the Convention and national laws and regulations, the fishing vessel owner cannot be considered to have met the obligation by proposing employment to the fisher, even if it is suitable and remunerated, on board a vessel sailing to the repatriation destination. The Committee requests the Government to bring the national laws and regulations into conformity with the Convention on this point.

Article 22. Recruitment and placement. The Committee notes the Government’s indication that it has not yet ratified the Private Employment Agencies Convention, 1997 (No. 181). The Committee also notes the Government’s indication that recruitment can either be carried out directly by the fishing vessel owner if the vessel is Senegalese, or through a private employment agency if the vessel is foreign. However, irrespective of the method of recruitment, the Maritime Authority exercises its right of supervision through approval of seafarers’ articles of agreement and the crew list. The Committee notes the Government’s further indication that the establishment of an employment agency is subject to the approval of the Maritime Authority, based on an examination of the application. However, the Committee notes that the Government has not indicated the laws, regulations or other measures which prohibit recruitment and placement services, whether they are public or private, from using means, mechanisms or lists intended to prevent or deter fishers from engaging for work (Article 22, paragraph 3(a)). The Committee also notes that the Government has not indicated the national laws, regulations or other measures that determine the conditions under which such agencies may operate, nor the conditions under which any licence, certificate or similar authorization of a private recruitment or placement service may be suspended or withdrawn in case of violation of the relevant laws or regulations (Article 22, paragraphs 2 and 3(c)). The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to these provisions of the Convention.

Articles 23 and 24. Payment of fishers. The Committee notes that the MSC envisages various payment arrangements, monthly (section 355), for the voyage (section 356) and a share in the profit (section 357) and that, with the exception of mariners paid on a monthly basis, the conditions respecting payment are to be set out in the work agreement and, for mariners paid as a share in the profit, also by custom. The Committee requests the Government to indicate the measures adopted or under preparation requiring that fishers who are paid a wage are ensured a monthly or other regular payment (Article 23). The Committee notes the Government’s indication that fishers working on board fishing vessels may receive payment of their wage directly or delegate persons for that purpose, in accordance with sections 375 to 380 of the MSC. However, the Committee notes that these sections do not provide that this service shall be provided at no cost to the fisher and that such delegation may concern all or part of their payments received, including advances. The Committee requests the Government to indicate the measures adopted or under preparation requiring 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 (Article 24).

Articles 25, 26, 28 and Annex III. Accommodation. The Committee notes the Government’s indication that the requirements of the Convention respecting accommodation are given effect by sections 384 to 389 of the MSC and sections 130 to 137 of the Decree determining the conditions for the implementation of Act No. 2002-22 of 16 August 2002 issuing the Merchant Shipping Code. However, the Committee notes that these provisions do not apply to ships under 30 gross tonnes. The Committee also notes that these provisions envisage and require the adoption of supplementary regulations for the implementation of the detailed requirements of Articles 26 and 28 and Annex III. The Committee requests the Government to indicate all the measures adopted or under preparation to give full effect to Articles 26 and 28, and Annex III.

Articles 29 and 30. Medical care. The Committee notes the various measures that give effect to these requirements of the Convention, including Decree No. 2016-933 of 5 July 2016 respecting the health of seafarers. The Committee notes the Government’s indication that an inter-ministerial order establishing minimum requirements for health on board Senegalese ships is under preparation. Noting that the scope of application of Decree No. 2016-933 of 5 July 2016 respecting the health of seafarers makes reference to the MSC, which in practice only applies to industrial fishing, the Committee requests the Government to provide detailed explanations of the measures applicable in the artisanal fishing sector. The Committee notes that section 432 of the MSC, which provides that a seafarer injured while in the service of the ship, or who suffers sickness while on board, after the ship has left port or the seafarer has been taken ashore, has the right to any necessary medical care at the expense of the shipowner, is not however applicable to fishing vessels. The Committee notes that the Government does not indicate the measures providing that fishers have the right to medical treatment ashore and the right to be taken ashore in a timely manner for treatment in the event of serious injury or illness (Article 29(e)) and, for fishing vessels of 24 metres in length or over, taking into account the number of fishers on board, the area of operation and the duration of the voyage, to the extent consistent with the Member’s national law and practice, that medical care provided while the fisher is on board or landed in a foreign port is provided free of charge to the fisher (Article 30(f)). The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to Articles 29(e) and 30(f).

Articles 31–33. Occupational safety and health and accident prevention. The Committee notes that section 350 of the MSC provides that the shipowner is required to ensure on board ship compliance with the respective occupational health, accommodation and safety requirements. The Committee notes that Decree No. 2016-933 of 5 July 2016 respecting the health of seafarers determines the functions of the Seafarers’ Health Service in respect of the prevention of occupational risks. The Committee notes that the laws and regulations in force only give effect, for ships engaged in maritime navigation, to certain of the requirements of Articles 31–33, such as the reporting of occupational accidents. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to Articles 31–33, including for fishing vessels in the artisanal fishing sector.

Articles 34–37. Social security. The Committee notes the Government’s indication that in Senegal employers are under the obligation to affiliate to and register their workers with the Social Insurance Institute for Old-Age Pensions (IPRES) and the Social Security Fund. The Committee notes that such registration is envisaged in sections 421 to 423 of the MSC, which are not however applicable to fishing vessels. The Committee notes that the Social Security Code, which covers the family benefit and employment injury branches, provides that it is applicable to employees governed by the MSC. However, the Committee recalls that the MSC is only applicable to fishing vessels engaged in maritime navigation and is not in practice applied to vessels in the artisanal fishing sector. Moreover, the Committee notes that the MSC provides for the registration with social security institutions of seafarers working on board Senegalese ships. In the case of seafarers engaged on foreign ships, such registration must be envisaged in the seafarers’ articles of agreement and the contributions must have been paid in practice. The Committee recalls 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 that those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory. The Committee requests the Government to indicate all the measures adopted or under preparation to give effect to Article 34. It requests the Government to provide detailed information on the manner in which the social security coverage envisaged by the MSC and the Social Security Code is afforded in practice to fishers who are ordinarily resident in Senegal and on any obstacles encountered in relation to their registration or access to benefits. The Committee requests the Government to provide detailed statistics on the number of fishers registered in practice with Senegalese social security institutions. It requests the Government to keep it informed of the efforts made to secure suitable social security protection for fishers in the artisanal fishing sector.

Articles 40–44. Compliance and enforcement. The Committee notes that the MSC provides for inspections to be undertaken by the Maritime Authority or under the authority of a central ship safety commission or local commissions. The Committee notes that inspections take into account the international Conventions on the safety of maritime navigation, the safety of life at sea, health, living and working conditions on ships and the prevention of pollution to which Senegal is a party. The Committee also notes that, with regard to the valid document envisaged in Article 41, the Government indicates that the MSC and its implementing Decree provide for a navigation permit to be issued by the Maritime Authority through its maritime safety services, following an overall inspection during which a series of measures are controlled by the responsible team. The validity of this permit is one year. International safety documents are drawn up in accordance with the respective international Conventions. The Committee requests the Government to provide detailed information on the number and findings of inspections undertaken on fishing vessels, and to supply examples of the reports drawn up following these inspections and an example of the navigation permit which certifies the conformity of a fishing vessel with the provisions of the present Convention respecting the living and working conditions on board. The Committee notes the Government’s indication that the mechanisms for complaints and inspections envisaged in Articles 43 and 44 have not yet been implemented. The Committee requests the Government to indicate the measures adopted or under preparation to give effect to Articles 43 and 44.