Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the adoption of the Regulations of 3 March 2006 on workers’ placement agencies and the Agreement of 27 April 2006 on administrative formalities for the establishment of such agencies. It nonetheless draws the Government’s attention to the points below.

Article 2, paragraph 1, of the Convention. Placement of seafarers to be free of charge. For several years, the Government has been stating in its reports that there are no free placement agencies specifically for seafarers. Upon qualifying, seafarers have several options for finding employment: they may join unions that have concluded collective agreements with maritime companies; apply directly to a vessel; or resort to the National Training and Employment Service or to a free placement agency open to all workers. The recently adopted Regulations on Workers’ Placement Agencies set up a system under which private fee-charging placement agencies and non-profit placement agencies exist side by side. They are open to all workers and hence, to seafarers. Section 10(I) of the Regulations nonetheless specifies that the agencies may not ask for fees from workers who use their services. The placement fees thus appear to be borne by the employers, at least in the case of private fee-charging agencies. Nevertheless, section 10(IV) of the Regulations bars private non-profit agencies from demanding any payment from employers.

In its report, the Government states that the Senate expressed itself against ratification of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), which allows private agencies to place seafarers provided that they demand no fees from them. The Committee reminds the Government that Convention No. 9 does not allow the placement of seafarers for gain. Neither shipowners nor seafarers must be required to pay fees. The incorporation in the national legislation of a provision prohibiting agencies from charging seafarers is not enough to ensure that this provision of the Convention is applied. The Committee further points out that each Member is to set up an efficient and adequate system of free, and normally public, employment offices for finding employment for seafarers (Article 4). It also points out that any exemptions authorized under Article 3 to the rule against placement for pecuniary gain must be temporary, and the Government must take all necessary steps to abolish as soon as possible the placement of seafarers as a commercial enterprise for pecuniary gain. Mexico ratified the Convention 67 years ago, in 1939, yet the existence of private placement agencies for seafarers has been legalized by the new text. The Committee therefore requests the Government to take the necessary steps to bring its legislation and practice into line with the Convention. It asks the Government to ban the placement of seafarers as a commercial enterprise for pecuniary gain and to ensure that only non-fee-charging, and normally public, agencies are authorized to find employment for seafarers.

Article 5. Advisory committees. The Government has for many years been referring to the provisions of section 539A of the Federal Labour Act which provides that the Secretariat of Communications and Transport, the authority competent for the placement of workers, shall be assisted in its work by an advisory council made up of representatives from the public sector, and national organizations of workers and employers. The Convention, however, provides that committees consisting of an equal number of representatives of shipowners and seafarers shall be constituted to advise on matters concerning the operation of free and public agencies for the placement of seafarers. There are, however, no such agencies in the country, since the above body does not fulfil the requirements of the Convention. The Committee therefore asks the Government to take the necessary steps to bring the legislation and practice into line with this Article.

In 2005, the Workers’ Confederation of Mexico indicated in comments on the Government’s report that a Seafarers’ Welfare Committee had been established in which the General Secretary of the Order of Ships’ Captains and Pilots participates in coordination with the maritime authority. The Committee requests the Government to send information on this Committee in its next report.

Articles 6 and 7. Guarantees for the protection of parties. The Government refers to article 133 of the Constitution of the United Mexican States which confers on international treaties signed by the President of the Republic and approved by the Senate the rank of supreme law, and to section 194 of the Federal Labour Act under which seafarers’ working conditions shall be set down in writing and issued in quadruplicate. Each party must obtain a copy of the working conditions, as must the port authority or the nearest Mexican consul and the labour inspection services of the place where the work contract was signed. The Workers’ Confederation alleges, however, that workers, including seafarers, do not receive copies of their contracts and are required by placement agencies or employers to sign a blank document enabling their rights to be waived. The Committee therefore asks the Government to take all necessary steps to bring  the legislation and practice into line with these provisions of the Convention and to provide information on the measures taken in its next report.

Article 8. Placement of foreign seafarers. The Regulations on Workers’ Placement Agencies, 2006, may be interpreted to cover foreign workers as well, including seafarers, since they bar such agencies from making any distinction between workers on grounds of ethnic origin, language or any other grounds the effect of which is to prevent or impair equality of opportunity. The Committee requests the Government to provide information on the placement of foreign seafarers in its next report.

Article 10. Operation of placement and unemployment establishments for seafarers. In its report, the Government states that the lack of placement agencies for seafarers explains the fact that there are no statistics. Neither the National Employment Service nor any of its offices in the federal coastal entities, commercial ports, and tourist ports registered any placements of seafarers between July 2002 and June 2005. The Committee reminds the Government that communication of information, statistical or otherwise, concerning unemployment among seafarers and the work of seafarers’ employment agencies is essential to an evaluation of how the Convention is being applied. It requests the Government to take the necessary measures to give effect to this Article and to inform the Committee of them in its next report.

Part IV of the report form. Court decisions. The Government states that, between 1 January 2002 and 31 December 2004, there were 92,664 inspections in the country, and they were carried out in enterprises under federal jurisdiction. The Committee requests the Government to send in future information focusing specifically on the placement of seafarers and to indicate in its next report whether, as a result of inspections, complaints have been filed with the courts and whether the latter have given decisions involving questions of principle relating to the application of the Convention.