Solicitud directa (CEACR) - Adopción: 2017, Publicación: 107ª reunión CIT (2018)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Panamá (Ratificación : 2009)

Otros comentarios sobre C186

Solicitud directa

2017
2014

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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that the amendments to the Code of the MLC, 2006, approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Panama on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments.

General questions on application. Scope of application. Article II, paragraphs 1(f) and (i), 3 and 5 of the Convention. Seafarers and ships. Technical personnel on offshore drilling platforms or Mobile Offshore Drilling Units (MODUs). In its previous comment, the Committee noted that, in accordance with the legislation applying the Convention, technical personnel on offshore drilling platforms or MODUs shall not be considered as seafarers, except for persons who, on account of their training and qualifications, are covered under the regulations of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention) (section 3 of Executive Decree No. 86 of 2013 and Merchant Marine Circular 265 (MMC-265) of 21 January 2013). It also noted that, in accordance with MMC-251 of 24 July 2012, the certification required by Regulation 5.1.3 of the Convention only applies on a voluntary basis to platforms or MODUs. The Committee requested the Government to clarify whether platforms or MODUs were considered “ships” for the purpose of the application of the Convention. The Committee notes the Government’s indication in its report that platforms or MODUs are considered “ships”, in accordance with the MLC, 2006. The Committee recalls that the Convention does not allow for the partial application of its provisions if the ship concerned is a ship covered by the Convention and if the workers concerned come within the definition of “seafarer” in the Convention. The Committee requests the Government to indicate the measures adopted to ensure that all workers on MODUs enjoy the protection provided by the Convention, and that such platforms are subject to mandatory certification when they fall within the cases specified in Regulation 5.1.3, namely ships of: (a) 500 gross tonnage or over, engaged in international voyages; and (b) 500 gross tonnage or over, flying the flag of a Member and operating from a port, or between ports, in another country (Regulation 5.1.3., paragraph 1).

Cadets. In its previous comment, the Committee noted that although, in accordance with MMC-265, cadets are not considered seafarers, the work that they carry out is regulated by section 9 of Executive Decree No. 86 of 2013, which provides that, as an exception to the prohibition of work on board a ship for persons under 18 years of age, cadets under that age who for educational reasons carry out their professional practice on board ship are allowed to “be employed or engaged or to work on board a ship with Panamanian registration”. The Committee requested the Government to clarify the extent to which the Convention is implemented in the case of cadets who work in any capacity on board a ship to which the Convention applies and are to be regarded as seafarers for the purpose of the legislation implementing the Convention. The Committee notes the adoption of Panama Maritime Authority Resolution No. 092-2017 of 18 May 2017 which establishes the status of cadets on board ships flying the Panamanian flag, and the minimum requirements to be contained in the training agreement signed between the shipowner, the cadet and/or the maritime training centre. In this regard, the Committee notes that the Government considers that: (a) as the relationship between the shipowner and the cadet is concerned with training and not employment, it is not possible to apply the provisions contained in the MLC, 2006, such as those relating to conditions of employment, including those regulating employment agreements, wages, leave, and compensation in the event of the loss of the ship; (b) the position of cadets must be regulated through special regulations that ensure their living conditions and accommodation on board and their right to be in a safe environment. The Committee notes that, in accordance with the third paragraph of the aforementioned Resolution, cadets who are in training on board ship, during their period of seagoing service, shall have no functions or duties other than those in the training programme and tasks arising from emergency situations. They shall always be under the supervision of a training official on board, and may not perform tasks that involve responsibilities on board other than those required to complete their training programme. Under the terms of the ninth paragraph, cadets in training may only occupy the post of “cadet” on the crew list, otherwise they shall be considered seafarers and all of the provisions relating to seafarers shall be applicable to them, in accordance with Executive Decree No. 86 of 2013. While taking note of this information, the Committee recalls that, in accordance with Article II, paragraph 1(f), the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. The Committee considers that obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets are to be regarded as seafarers for the purpose of the Convention. The Committee underlines that the protection afforded by the Convention is particularly important for the more vulnerable categories of persons, such as cadets. The Committee therefore requests the Government to adopt the necessary measures in order to ensure that cadets are regarded as seafarers and that they enjoy the protection provided for by the Convention. The Committee is certainly aware of the reported and anticipated shortage of qualified officers to effectively man and operate ships engaged in international trade and the difficulties encountered to ensure that cadets fulfil the minimum mandatory seagoing service which forms part of the requirements prescribed in the STCW Convention for certification. In these circumstances, the Committee recalls that, as foreseen in Article VI, paragraph 3, of the Convention, Governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Regulation 2.1 and Standard A2.1, paragraph 4(f); Regulation 2.4 and Standard A2.4; Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Duration of the seafarers’ employment agreement, entitlement to paid annual leave, and the maximum period of on-board service. The Committee notes that Executive Decree No. 86 of 2013 provides that: (a) a fixed-term seafarers’ employment agreement must always be established in writing and its duration shall be no longer than one year (section 36); (b) seafarers have the unwaivable right to paid annual leave amounting to 2.5 calendar days per month of employment, during which the shipowner may not request the seafarer to return on board, except in cases of emergency (sections 79, 84 and 85); (c) the maximum uninterrupted period of time on board, at the end of which seafarers have the right to repatriation, shall not exceed 12 months (section 90); and (d) seafarers shall lose their right to be repatriated, inter alia, when they sign a new employment agreement with the same shipowner, after disembarking (section 96(2)). The Committee further observes, however, that MMC-262 establishes that “[t]he maximum duration of a definite seafarers employment agreement shall be no more than one (1) year, initially; nevertheless this agreement could be extended for an additional period of six (6) months, as far as both parties mutually agree. … The right of repatriation that the seafarer has, once the main contract has ended [one year], shall be moved to the time in which the extension period of the contract ends”.

The Committee emphasizes that the duration of the seafarers’ employment agreement and the maximum period on board are two different concepts. On the one hand, the Convention does not establish a maximum period for seafarers’ employment agreements, which may be for an indefinite period of time. On the other hand, the Committee considers that, when read in conjunction, Standard A2.4, paragraph 3, on the prohibition of forgoing annual paid leave, and Standard A2.5.1, paragraph 2(b), on repatriation demonstrate that the maximum period of service on board is 11 months. The Committee requests the Government to indicate the measures adopted to ensure compliance with the maximum period of on-board service of 11 months in all cases, and particularly in the case where a fixed-term seafarers’ employment agreement with a maximum initial duration of one year is extended by six months by agreement between the parties.

Regulation 2.3 and Standard A2.3, paragraphs 12 and 13. Hours of work and hours of rest. In its previous comment, the Committee noted that section 73 of Executive Decree No. 86 of 2013 provides that exceptions to the restrictions on seafarers’ minimum hours of rest will be allowed pursuant to Standard A2.3, paragraph 13, of the Convention, provided that they are recognized in a collective agreement “or they are aligned to the provisions established” in the STCW Convention. The Committee requested the Government to clarify whether any exceptions to the limits under Standard A2.3 have to be made in a collective agreement, as provided for under Standard A2.3, paragraph 13. The Committee notes the Government’s indication that: (a) to date, it has not authorized any collective agreements that apply the exceptions to the limits provided for under Standard A2.3; (b) in practice, when it has held consultations with shipowners on this matter, it has indicated that exceptions to such limits can only be adopted if they are recognized in a collective agreement and are aligned to the STCW Convention; and (c) exceptions can therefore only be made on the basis of a considered and approved formula, as in the case of those established by the STCW Convention. While noting that the practice described by the Government is in conformity with the Convention, the Committee is bound to point out that section 73 of Executive Decree No. 86 of 2013 poses a problem in terms of compatibility with Standard A2.3, paragraph 13, as it allows for two options: namely, that the exceptions can be recognized in a collective agreement “or” can be aligned to the provisions of the STCW Convention. The Committee requests the Government to indicate the measures adopted in order to ensure that the legislation clearly limits the possibility of adopting exceptions to Standard A2.3 through collective agreements authorized or registered by the competent authority. It also requests the Government to indicate whether exceptions have been granted based on the STCW Convention.

In its previous comment the Committee requested the Government, with regard to the application of Standard A2.3, paragraph 12, to clarify who is responsible for keeping records of seafarers’ daily hours of work or of their daily hours of rest on board a vessel. The Government indicates in this regard that the person responsible for performing this duty is the captain or a person designated by the captain, who is required to organize watchkeeping, in accordance with sections 76 and 78 of Executive Decree No. 86 of 2013. The Committee takes note of this information.

Regulation 2.5 and Standard A2.5.1. Repatriation. In its previous comment, the Committee noted that, in accordance with section 96 of Executive Decree No. 86 of 2013, seafarers lose their right to be repatriated if they do not claim it within a week following the start of their entitlement to repatriation (section 96(4)). Recalling that, in accordance with Guideline B2.5.1, paragraph 8, the entitlement to repatriation may lapse if the seafarers concerned do not claim it within a reasonable period of time to be defined by national laws or regulations or collective agreements, the Committee requested the Government to clarify the criteria used to determine the above timeframe. In this respect, the Government indicates that it considered this period sufficient for seafarers to end their employment relationship with the shipowner and request their repatriation. The Committee takes note of this information.

The Committee observes that section 96(2)(d) of Executive Decree No. 86 of 2013 establishes that seafarers shall lose the right to be repatriated when they sign a new employment agreement with the same shipowner. The Committee observes that the Convention does not provide for the possibility of losing the right to be repatriated in the circumstances set out in Standard A2.5.1, paragraph 1. The only case in which this entitlement could lapse, in accordance with the Convention, is that provided for in Guideline B2.5.1, paragraph 8, as referred to above. While emphasizing the fundamental importance of the right to repatriation, the Committee requests the Government to ensure that all provisions in domestic legislation that deprive seafarers of this right are limited to the circumstances provided for in the Convention. In this regard, the Committee requests the Government to amend Executive Decree No. 86 of 2013 to bring it into conformity with the Convention.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 3.1 and Standard A3.1, paragraphs 20 and 21. Exemptions from the requirements on accommodation and recreational facilities. In its previous comment, the Committee noted that MMC-302 relating to “Exemption certificate and dispensation letter”, provides for the issuing of an exemption certificate for vessels that do not meet the national requirements giving effect to the provisions of the mandatory part of the Code (Part A) relating to Regulation 3.1, and a dispensation letter for vessels that do not meet the national requirements giving effect to the provisions of the non-mandatory part of the Code (Part B) relating to Regulation 3.1. The Committee asked the Government to adopt the necessary measures to ensure that any exemptions relating to accommodation, recreational facilities, food and catering are authorized only within the limitation provided for in Regulation 3.1 and the Code of the Convention. The Committee also asked the Government to provide information on any exceptions granted under Executive Decree No. 86 of 2013, and on whether the organizations of shipowners and seafarers had been consulted prior to granting such exceptions. The Committee notes the Government’s indication that all of the exemptions set out in Regulation 3.1 were the subject of tripartite consultations with the participation of representatives of the Government, seafarers and shipowners. The Government also indicates that the issuing of exemption and/or dispensation certificates is an administrative practice, and therefore consultations are not held with the social partners in this respect. The Committee recalls that, according to Standard A3.1, paragraph 21, any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee observes in this regard that the examples of exemption certificates provided by the Government do not describe in detail the “circumstances in which such exemptions can be clearly justified” or the “strong grounds” required by Standard A3.1. The Committee also observes that in one case exemptions are authorized which are not provided for in the Convention, involving the exemption of a tugboat from compliance with the provisions of Standard A3.1, paragraph 8 (requirements for lighting). The Committee once again requests the Government to ensure that all exemptions from Regulation 3.1 are limited to the cases and conditions provided for in Standard A3.1, paragraphs 20 and 21. The Committee also requests the Government to provide a detailed list of the exemptions and waivers granted by type of vessel and type of exemption.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. In its previous comment, the Committee requested the Government to indicate whether it had adopted national guidelines for the management of occupational safety and health on board ships flying its flag, required under Regulation 4.3, paragraph 2. The Committee notes that the Government refers in this regard to MMC-274 relating to “Marine casualties”, which refers to the Guidelines for implementing the occupational safety and health provisions of the Maritime Labour Convention, 2006 adopted by the ILO. The Committee also notes the Government’s indication that, as these Guidelines were the result of a tripartite meeting at the ILO, it was not considered necessary to submit them for consultation at the national level. However, the Committee observes that this Circular simply contains a reference to the aforementioned Guidelines and does not instruct shipowners to take account of their content. The Committee recalls that, in accordance with Regulation 4.3, paragraph 2, each Member shall develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag, after consultation with representative shipowners’ and seafarers’ organizations and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations. Observing that such national guidelines have not been adopted in Panama, the Committee requests the Government to indicate the measures adopted to give effect to Regulation 4.3, paragraph 2.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. In its previous comment, the Committee requested the Government to specify whether any ports had been designated by the competent authority pursuant to section 193 of Executive Decree No. 86 of 2013 and to provide information as to whether any of the funding mechanisms listed in section 193 had been adopted. The Committee notes the Government’s indication that no ports have been designated in accordance with section 193 of Executive Decree No. 86. The Government also indicates that the Five-Year Projects Plan of the Panama Maritime Authority includes a project entitled “Development of shore-based welfare facilities for seafarers”, which was approved by the Ministry of Economic and Financial Affairs for incorporation into the 2017 budget. The Government indicates that these new facilities are to be located in Colón, outside the port area, to ensure greater benefits for all seafarers in the Atlantic coastal region. The Committee requests the Government to provide, in its next report, up-to-date information on the application of Regulation 4.4 and the Code.

Regulation 4.5 and Standard A4.5. Social security. In its previous comment, the Committee observed that the legislation in force in Panama (sections 87–89 of Resolution No. 39489 of 23 March 2007) appears to differentiate between shoreworkers and seafarers who are employed on board vessels assigned to domestic service, and seafarers who reside regularly in Panama and are employed on board vessels flying the Panamanian flag or on vessels flying the flag of another country which are engaged in international voyages. The Committee asked the Government to indicate the measures taken to provide seafarers who are ordinarily resident in Panama and are employed on ships that are engaged in international voyages with social security coverage no less favourable than that enjoyed by shoreworkers, in accordance with Standard A4.5, paragraphs 2 and 3. The Committee notes the Government’s indication that it is in the process of establishing an Inter-institutional Commission comprising representatives of the Social Security Fund, the Panama Maritime Authority and the Ministry of Labour and Labour Development. The main objective of the Commission is to create the necessary legal framework, including the amendments that need to be made to national legislation, to provide seafarers who reside regularly in Panama and are employed on board vessels engaged in international voyages with social security coverage no less favourable than that enjoyed by shoreworkers, with specific reference to the coverage of occupational hazards, which is the only coverage still not provided by the national social security system to seafarers on board vessels engaged in international navigation. The Committee recalls that Standard A4.5, paragraph 3, provides that each Member shall take steps according to its national circumstances to provide the complementary social security protection referred to in paragraph 1 of this Standard to all seafarers ordinarily resident in its territory, irrespective of whether they work on board vessels that are engaged in national or international voyages. The Committee requests the Government to provide information on the results of the inter-institutional work carried out and the specific measures adopted to give effect to Standard A4.5, paragraphs 2 and 3.

Regulation 5.1.4 and Standard A5.1.4. Flag State responsibilities. Inspection and enforcement. In its previous comment, the Committee asked for information on procedures to receive and investigate complaints, and in particular on the implementation of Standard A5.1.4, paragraphs 6, 7 and 9–11. The Committee notes the adoption of Resolution No. 106-36-DGMM of 25 April 2017, provided by the Government, which establishes the qualifications, training, competence, mandate and powers which inspectors of the Panamanian Merchant Marine must possess for making inspections under the MLC, 2006. The Committee notes the Government’s indication that inspectors of the Panama Maritime Authority, when conducting labour inspections in conformity with the Convention, detect deficiencies and communicate any complaint from crew members to the Directorate for Seafarers in accordance with section 202(g) of Executive Decree No. 86 of 2013. The Committee also notes the statistics on the number of complaints received and transmitted.

The Committee also asked the Government in its previous comment to provide information on any right of appeal granted under Standard A5.1.4, paragraph 8, with respect to an inspector’s decision to require any deficiencies in a ship to be remedied and to prohibit the ship from leaving port until the necessary measures are taken. The Committee notes the Government’s indication that any affected third party may file a claim for damage suffered as a result of the measures taken by the inspector if the ship is detained without justification and that any such claim comes within the competence of the Supreme Court of Justice as part of its jurisdiction regarding administrative disputes. The Committee takes note of this information.

Regulations 5.2, 5.2.1 and 5.2.2. Port State responsibilities. In its previous comment, the Committee asked the Government to provide more detailed information on the measures taken to implement Regulations 5.2.1 and 5.2.2 and the Code. It also asked the Government to provide information on the guidance that has been provided, in accordance with Standard A5.2.1, paragraph 7, to authorized officers concerning the kinds of circumstances justifying detention of a ship. The Committee notes that the Government has sent a copy of the draft resolution of the Directorate of the Merchant Marine describing the duties and powers of port State inspectors. The Government also indicates that inspectors of the Panama Maritime Authority are duly accredited to conduct maritime labour inspections in conformity with the MLC, 2006, and with the guidelines for port State inspectors adopted pursuant to the Convention. The Committee observes that the draft resolution gives effect to Standard A5.2.1. The Committee requests the Government to take account of the amendments of 2014 to the Code of the Convention and to provide a copy of the resolution once it has been adopted. The Committee also requests the Government to provide information on the legislation or other measures that give effect to Regulation 5.2.2 on procedures for handling complaints onshore.