Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the information sent by the Government in response to earlier comments by the Trade Union of Fishing Boat Owners of Puerto Supe and Associates. It also notes with interest the adoption of Supreme Decree No. 003-2007-PRODUCE of 2 February 2007 and communication No. 0170-2007-MTPE/2/11.4 of 23 March 2007 asking for inspection of the fishing enterprises of Puerto Supe and those in the SUNAT database. The Committee requests the Government to provide information on the results of the inspections carried out pursuant to the communication of 23 March 2007 and on any penalties applied.

According to Supreme Decree No. 003-2007-PRODUCE of 2 February 2007, in order to leave port, large industrial fishing vessels must now show a certificate attesting to payment of social security contributions (“constancia de no adeudo”), which must be delivered to the authority that issues permits for vessels to depart. The certificate is valid for 30 days and must be issued within three working days by the Social Benefits and Social Security Fund for Fishers to all shipowners requesting it.

The Committee notes that, according to Supreme Decree No. 009-97-SA issuing the enabling regulations of Act No. 26790 to modernize the health aspect of social security, fishing is considered as an activity liable to risk and must therefore be insured under the supplementary insurance for hazardous occupational activities (SCTR). The provisions of the Supreme Decree of 2 February 2007 do not, therefore, suffice on their own. The Committee nonetheless hopes that, in practice, the Decree will be an incentive to all shipowners to fulfil their obligations under the Convention and the national legislation. It requests the Government to keep it informed of any progress made in this area.

The Committee also draws the Government’s attention to other points raised in its 2006 observation for which a report is expected in 2008.

The Committee would be grateful if in its next report the Government would explain why the workers of some enterprises are still denied protection under the law notwithstanding section 82 of Supreme Decree No. 009-97-SA, which provides that all workers engaged in high-risk activities must have the SCTR supplementary insurance. In the event of failure to take out SCTR supplementary insurance, the Committee points out that the Government has the primary responsibility for ensuring that the protection established by the Convention is properly implemented and that it is fully respected in practice. It also requests the Government to indicate the manner in which effect is given in practice to section 88 of these regulations, under which insurance institutions are required to bear the cost of sickness or injury where employers fail to pay insurance contributions, and may subsequently claim back from the employers the amounts they have paid out. Lastly, it requests the Government to provide information on the penalties incurred by employers for failure to meet their obligations under the SCTR supplementary insurance, and on the measures envisaged to secure observance by all maritime fishing companies of their obligations under the law.

With regard to cash benefits due to seafarers in the event of sickness or disease, the Committee would be grateful if the Government would indicate how effect is given to the Convention in the event of non-payment by shipowners of insurance contributions. It points out that under Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, where sickness or injury results in incapacity for work the shipowner does not cease to be liable until the sick or injured person becomes entitled to benefits under the compulsory insurance scheme.

Lastly, the Committee requests the Government to provide information in its next report on the outcome of the legal proceedings against the company Atlantida for non-payment of social insurance contributions in respect of invalidity and death. It hopes in particular that the Government will be in a position to report on how these matters have been settled and that it will provide all the relevant court decisions and any relevant information on: (i) the penalties imposed on the abovementioned enterprise; (ii) the benefits received by the workers of the enterprise from the insurance institutions; and (iii) the latters’ exercise of their right to bring proceedings against the abovementioned enterprise.

[The Government is asked to reply in detail to the present comments in 2008.]