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Information System on International Labour Standards

Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Cabo Verde (Ratificación : 2015)

Otros comentarios sobre C186

Solicitud directa
  1. 2022
  2. 2018

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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 also notes that Cabo Verde has not submitted a declaration of acceptance of the amendments to the Code of the Convention approved in 2014 by the international labour Conference and therefore is not bound by these amendments. The Committee further notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Cabo Verde on 8 January 2019 and 26 December 2020, respectively.
Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers' Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006 by Cabo Verde during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.
Article I of the Convention. General questions on application. Implementing measures. The Committee notes the Government’s indication in reply to its previous comment, that the Shipping Code of Cabo Verde and its supplementary legislation are being reviewed in order to bring domestic law into line with the Convention. It notes the draft Law on Maritime Labour, which regulates the work of seafarers on board Cabo Verdean ships and the responsibilities of Cabo Verde as a flag and port State. It further notes that the draft law revising the Shipping Code has been discussed in general in Parliament in June 2022 and that, according to the Government, it is expected that the code and its supplementary regulations will be adopted in 2022. Noting that the draft legislation covers issues which are also regulated by the Labour Code and other existing legislation, the Committee draws the attention of the Government to the need to avoid any inconsistencies in the applicable provisions to ensure full conformity with the requirements of the Convention. The Committee therefore requests the Government to adopt the necessary measures to give effect to the provisions of the Convention taking into account the points raised below and to provide a copy of the relevant texts once adopted. The Committee also requests the Government to clarify whether the Shipping Code and the draft law on Maritime Labour have been elaborated after consultation with the shipowners’ and seafarers’ organizations concerned and to provide information on the outcome of such consultations. The Committee reminds the Government that it may avail itself of the technical assistance of the Office.
Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee notes that, although the Shipping Code was amended by Legislative Decree No. 3/2020, its section 339 - which defines seafarer as the person who works on board vessels dedicated to maritime transport and holds a seaman’s book -, has not been revised. It notes that the same definition is included in the draft Law for a new Shipping Code (section 366). The Committee also notes that the draft Law on Maritime Labour defines seafarer as any person engaged to perform his/her activity on board any ship or vessel other than one which navigates exclusively in inland waters or areas where port regulations apply. Noting that these various definitions are not fully in line with Article II, paragraph 1 (f) of the Convention, the Committee requests the Government to amend its legislation to ensure that the protection afforded by the Convention is guaranteed to all persons employed, engaged or working in any capacity on board a ship to which the Convention applies. The Committee also notes that the draft Law on Maritime labour also contains a non-exhaustive list of persons who are not considered seafarers. The Committee further notes that such list includes guest entertainers, (…) and any other worker whose work on board is occasional and short term, with their principal place of employment being onshore. The Committee has not been able to find information on the criteria used to determine the categories of workers whose work on board is occasional and short term, with their principal place of employment being onshore, and who are therefore not to be considered seafarers for the purpose of the Convention. The Committee considers that clear criteria should be adopted in this regard in order to avoid legal uncertainties as to the categories of persons covered by the Convention. The Committee requests the Government to adopt more precise criteria to define the categories of persons which are not to be regarded as seafarers under the draft legislation (categories of workers whose normal place of work is not on board a ship), after consultation with the shipowners' and seafarers' organizations concerned, in accordance with Article II, paragraph 3.
Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that the Shipping Code defines “ship” as “any floating engine engaged in navigation on water, with flush-deck and length exceeding 24 (twenty-four) meters.” (section 138). It notes that the same definition is used in the draft Law revising the Shipping Code (section 3f)). The Committee recalls that the MLC, 2006 applies to all ships, irrespective of their tonnage, size or the nature of their voyage, other than those expressly excluded under Article II, paragraph 4. While Article II, paragraph 6, provides flexibility with respect to the application of “certain details of the Code” to ships of less than 200 gross tonnage that do not voyage internationally, this Article does not provide for the exclusion of a ship, or a category of ships, from the protection offered by the Convention. The Committee therefore requests the Government to adopt the necessary measures to ensure that the Convention is applied to ships of less than 24 metres that fall within the definition of Article II.
Regulation 1.1 and Standard A1.1, paragraph 3. Minimum age. Night work. The Committee notes that, although workers under the age of 18 are prohibited from performing work between 8 p.m. and 7 a.m., they may do so if this type of work is indispensable for their vocational training and is authorized by the Department of Labour (section 267 of the Labour Code).The Committee requests the Government to indicate how this provision of the Labour Code is applied in the maritime sector and in particular how it gives effect to Standard A1.1, paragraph 3, b).
The Committee also notes that section 12(2)(b) of the draft Law on Maritime Labour allows for seafarers under 18 to perform night work when it is indispensable to prevent or repair a serious damage to the ship, due to an (…) exceptional circumstance even if foreseeable, the consequences of which could not have been avoided. The Committee requests the Government to indicate the measures taken or envisaged to ensure that exceptions to night work are only allowed in conformity with the Convention.
Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that the Government refers to Law No. 113/VIII/16 of 10 March 2016, which approves the National List of Hazardous Child Labour. The Committee notes that the list includes a section of work in "fishing and activities related to the sea", which is likely to jeopardize the health or safety of a young person, but that such work is only forbidden to children under 16 years.The Committee requests the Government to adopt the necessary measures to ensure that the employment, engagement or work of seafarers under the age of 18 is prohibited where the work is likely to jeopardize their health or safety, as required by Standard A1.1, paragraph 4 and to adapt the existing list giving due consideration to Guideline B4.3.10 in determining such types of work, after consultation with the shipowners’ and seafarers’ organizations concerned.
Regulation 1.4 and Standard A1.4, Paragraphs 2 and 5. Recruitment and placement. Private services. Requirements. Referring to its previous comments, the Committee notes that the Government has not identified any further provisions in the national legislation giving effect to the requirements of Standard A1.4, paragraphs 2 and 5(a) and (c), regarding prohibition of blacklisting; keeping registers; ensuring that seafarers examine their employment agreements before and after they are signed, and for them to receive a copy of the agreements; qualification of seafarers; and protection of seafarers in foreign ports. Noting that private seafarer recruitment and placement services operate in the country, the Committee requests the Government to adopt the necessary measures, after consultation with the shipowners’ and seafarers’ organization concerned, to implement the detailed requirements of Standard A1.4, paragraphs 2 and 5(a) and (c).
With regard to the implementation of Standard A1.4, paragraph 5(c)(vi), noting that the Government does not provide any new information in this respect, the Committee recalls that the insurance provided by section 355 of the Shipping Code is not sufficient to comply with the requirement of this Standard, as the system of protection should not only cover compensation for death, incapacity due to occupational injury and repatriation, but also for any monetary loss that seafarers may incur as a result of the failure of a recruitment and placement service or of the relevant shipowner under the employment agreement to meet those obligations. The Committee requests the Government to indicate the measures taken to ensure full compliance with Standard A1.4, paragraph 5(c)(vi).
Regulation 1.4. Standard A1.4, paragraph 6. Recruitment of seafarers. Supervision of the seafarers’ recruitment and placement services. The Government indicates that, although no regulation exists for the certification and licensing of recruitment agencies, all operators in the maritime transport sector must be registered with and licensed by the maritime administration and are duly entered into the maritime authority's database. Recalling that Standard A1.4, paragraph 6, requires that the competent authority closely supervises and controls all seafarers’ recruitment and placement services, the Committee requests the Government to provide information on the operational functioning of the licensing system and the supervision of the seafarers’ recruitment and placement services operating in Cabo Verde.
Regulation 1.4 and Standard A1.4, paragraph 7. Recruitment and placement. Investigation of complaints. The Committee notes the Government’s reply that, if a labour dispute is not resolved administratively by agreement between the parties, the maritime administration refers the case to the labour inspectorate, the National Social Security Institute and the competent courts for appropriate legal action. The Committee takes note of this information.
Regulation 1.4, paragraph 3 and Standard A1.4, paragraph 9. Recruitment and placement. Services based in countries in which the Convention does not apply. In reply to the Committee’s previous request, the Government indicates that section 28 of the draft law on Maritime labour provides that shipowners must certify, to the extent possible, that public or private recruitment and placement services which are located in States that have not ratified the Convention and whose services are used for the recruitment and placement of seafarers on board ships flying the Cabo Verdean flag follow the rules set out in the Convention. The Committee takes note of this information and expects that the draft law will be adopted without delay.
Regulation 2.1 and Standard A2.1, paragraph 1. Seafarers’ employment agreements. Requirements. In addition to the existing provisions in sections 329 to 331 of the Labour Code, the Government provides the draft Law on Maritime Labour, which requires that the seafarers’ employment agreement (SEA) is in written form signed by both parties, each having a signed original and must ensure decent working and living conditions in accordance with the mandatory provisions of the Convention; seafarers must have enough time to analyse the SEA and seek advice on its content in order to be duly informed before signing; while on board, seafarers must be in possession of a copy of the SEA (section 7). Copies of the SEA, as well as English translations, must be available on board for access by the seafarers and by the ship’s master and for review by competent port State authorities (section 27). The Committee notes that these provisions would bring the legislation in conformity with Standard A2.1, paragraph 1, and expects that the draft Law will be adopted without delay.
Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ employment agreement. Record of employment. The Committee notes that, in reply to its previous comment, the Government indicates that it has adopted Ministerial Order 21/2020, of 28 May 2020, which defines the model document to be submitted as a seafarer’s record of employment. It aims to record exclusively occupational maritime registration data and may not contain annotations or records of a disciplinary or criminal nature, statements about the quality of the seafarer’s work or any evaluation of such work. However, the Committee notes that there is no prohibition regarding the inclusion in such document of any statement as to the seafarers’ wages, as required under Standard A2.1, paragraph 3. The Committee requests the Government to indicate the measures taken to fully apply this provision of the Convention.
Regulation 2.1 and Standard A2.1, paragraphs 5 and 6. Seafarers’ employment agreement. Minimum notice period for termination. The Committee notes that, in reply to its previous comment, the Government states that the Labour Code establishes the terms under which a legal employment relationship involving any worker, including seafarers, may be terminated. For contracts of undetermined duration, a minimum notice by the employee of at least 15 days for each year of service is required (section 243 of the Labour Code). The Committee requests the Government to specify whether and how it gives effect to Standard A2.1, paragraph 6 related to the need of the seafarer to terminate the contract without penalty on shorter notice or without notice for compassionate or other urgent reasons.
Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions.
Regulation 2.2 and the Code. Wages. The Committee notes that, in reply to its previous request, the Government indicates that the draft Law on Maritime Labour (section 15) provides that payment of wages may be made by bank transfer and requires shipowners to pay all or part of a seafarer’s wages to whomever the seafarer designates; any cost charged shall be reasonable in amount and the rate of the currency exchange shall be the most favourable to the seafarer at the prevailing market rate or the official rate. The Committee notes that these provisions would bring the legislation in conformity with Standard A2.2 and expects that the draft Law will be adopted without delay.
Regulation 2.3 and Standard A2.3, paragraph 2. Hours of work and hours of rest. Noting that the Government does not provide the requested information concerning the application, in practice, of the Ministerial Order No. 2/2017 and sections 161, 339, 340 and 352 of the Labour Code, the Committee reiterates its previous request. The Committee further notes that the draft Law on Maritime Labour (section 9(2) and (7)) regulates this issue but allows for the option between maximum hours of work or minimum hours of rest to be decided by the shipowner. Noting that Standard A2.3should not be interpreted as giving shipowners or masters the choice of regimes, the Committee requests the Government to ensure that any legislation adopted to give effect to this provision of the Convention provides that the maximum hours of work and minimum hours of rest are fixed and not subject to selective application by shipowners or masters.
Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Government refers to the draft Law on Maritime Labour, which does not address the situation of the commander or master, the mate, the chief engineer officer, the engineer first officer, and the chief technician. Noting that the Government does not provide the requested information, the Committee reiterates its previous request.
Regulation 2.3 and Standard A2.3, paragraph 12. Hours of work and hours of rest. Records. The Government indicates that there are no national provisions with respect to the requirements that records of seafarers’ daily hours of work or of their daily hours of rest be maintained, in a standardized format, and that seafarers shall receive a copy of those records pertaining to them which shall be endorsed by the master, or a person authorized by the master, and by the seafarers.The Committee requests the Government to indicatethe measures taken to give full effect to this requirement of the Convention, including how it ensures that records of hours of rest may be monitored, as well as a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest.
Regulation 2.3 and Standard A2.3, paragraph 14. Hours of work and hours of rest. Immediate safety and distress at sea. The Committee notes the Government’s reference to the draft Law on Maritime Labour which regulates the master’s right to suspend hours of rest for the immediate safety of the ship. The Committee notes that the cases foreseen in section 13, paragraph 4 of the said draft Law go beyond those provided for in the Convention. Recalling that the suspension of the schedule of the hours of work is only allowed under Standard A2.3, paragraph 14, if necessary for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ships or persons in distress at sea, the Committee requests the Government to adopt the necessary measures to ensure full compliance with this provision of the Convention.
Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee notes the Government’s indication that, although no regulation exists, the shipowner may grant shore leave to benefit seafarers’ health and well-being consistent with the operational requirements of their positions.Considering that the right to shore leave is essential to the seafarer’s health and well-being, the Committee requests the Government to indicate the measures taken to ensure both in law and in practice that seafarers are granted shore leave in accordance with Regulation 2.4, paragraph 2.
Regulation 2.4 and Standard A2.4, paragraphs 1 and 2. Entitlement to leave. Method of calculation. The Committee notes that, according to section 353 of the Labour Code, for each month of service on board, the seafarer acquires the right to 10 consecutive days of rest on land, including annual leave and a complementary period of compensation for Sundays and holidays spent on board and other days off acquired while on service on board. The Committee also notes that section 52 of the Labour Code provides that annual leave for workers employed for periods of at least one year is 22 calendar days, and that where workers do not serve a full year, this shall be calculated on a prorated basis. The Committee requests the Government to explain how it ensures that seafarers are always provided a minimum of at least 2.5 calendar days of leave per month of employment, indicating how it has given due consideration to Guideline B2.4.1, paragraph 4.
Regulation 2.4 and Standard A2.4, paragraph 3. Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Possible exceptions to the prohibition to forgo paid annual leave. Maximum period of service on board. The Committee notes that, in reply to its previous request, the Government indicates that the competent authority has not authorized agreements to forgo annual leave with pay and that it applies the ordinary national legislation regarding annual leave. The Committee notes however that the possibility set out under section 54(2) of the Labour Code of replacing up to half of the annual leave period with a cash allowance, with no other condition than the agreement of the employer, is not in conformity with the Convention. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to adopt the necessary measures to give full effect to Standard A2.4, paragraph 3.
The Committee also notes that section 16 of the draft Law on Maritime Labour specifies a maximum period of service on board of 11 months and 15 days, following which a seafarer is entitled to repatriation. The Committee recalls that from the combined reading of Standard A2.4, paragraphs 2 and 3 on annual leave and Standard A2.5.1, paragraph 2(b), the maximum continuous period of shipboard service without leave is in principle 11 months. The Committee accordingly requests the Government to indicate the measures adopted to give full effect to these requirements of the Convention.
Regulation 2.5 and the Code. Repatriation. The Committee notes the Government’s reply to its previous comment, indicating that in order to bring domestic law into line with the Convention, section 16 of the draft Law on Maritime Labour specifies the situations in which a seafarer on ships flying the Cabo Verde flag is entitled to repatriation. The Committee notes, however, that such circumstances do not include the case “when the seafarers’ employment agreement is terminated by the shipowner”, neither “when the seafarers’ employment agreement is terminated by the seafarer for justified reasons”, as required by Standard A2.5.1 paragraph 1b). Regarding the latter, the Committee notes that, on the contrary, section 16(1)(a) of the draft Law prescribes that seafarers are entitled to repatriation in case of “termination of the employment agreement, except where terminated by the seafarer”. The Committee accordingly requests the Government to indicate the measures taken or envisaged to fully align its legislation with the requirements of Standard A2.5.1, paragraph 1 b).
The Committee also notes that section 16(3) of the draft Law on Maritime Labour generically refers to repatriation of the seafarer to “the place of destination”. The Committee draws attention to Guideline B2.5.1, paragraphs 6 and 7 and requests the Government to indicate how it has given due consideration to these provisions in implementing its responsibilities under Standard A2.5.1, paragraph 2(c).
The Committee notes further that, according to section 16(4) of the draft Law on Maritime Labour, shipowners shall not receive from seafarers any form of advance payment towards the cost of repatriation; however, where the seafarer was responsible for the situation that led to the repatriation, the shipowner may recover those costs from the seafarer's wages or other entitlements. With regard to the possibility provided by the Convention to recover the cost of the repatriation from the seafarer, the Committee underlines that it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. The Committee accordingly requests the Government to indicate the measures taken to give effect to the requirements of Standard A2.5.1, paragraph 3 in this respect, as well as to provide details on the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarers’ employment obligations”.
With regards to its previous comment concerning the implementation of Regulation 2.5, paragraph 2, the Committee notes the Government’s reply that, as foreseen in section 17 of the draft Law on Maritime Labour, shipowners must provide financial security for each ship in the form of insurance or a security deposit, in an amount sufficient to cover the costs of transport, food and accommodation; remuneration due until the seafarer reaches its destination; transport of personal effects; medical care, and other costs associated with the seafarer’s travel. Evidence of financial security shall contain information in accordance with Appendix A2-I of the Convention. The Committee further notes that section 18(4) of the draft Law would give effect to Standard A2.5.2, paragraph 9 of the Convention. The Committee takes note of this information and requests the Government to provide information on progress made in the adoption of the draft Law on Maritime Labour.
Regulation 2.6 and Standard A2.6. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes that section 24 of the draft Law on Maritime Labour, to which the Government refers in its reply, provides that the shipowner shall compensate seafarers for material damages resulting from the ship’s loss or foundering. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A2.6 and to indicate how due consideration is given to Guideline B2.6.1 regarding the calculation of the indemnity against unemployment.
Regulation 2.7 and the Code. Manning Levels. Noting that no specific information is provided on the question previously raised, the Committee requests the Government to indicate how complaints or disputes about determinations on the safe manning levels on a ship are investigated and settled. The Committee also requests information on how the requirements on manning levels take into account the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee further requests the Government to provide typical examples of safe manning documents issued by the competent authority.
Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s reply to its previous comment, indicating that the Convention has supra-legal force in the country, and that section 216 of the Shipping Code adopted by Decree-law No. 14/2010, of 15 November 2010, provides that national ships must comply with the technical, safety, pollution prevention and habitability conditions set out in the international conventions in force in Cabo Verde, in the Shipping Code and in the regulations approved by the Government. According to the Government, the maritime authority relies on the MLC, 2006 for its inspections and the Shipping Code and its supplementary legislation are being developed, reviewed and updated in order to regulate these matters. The Government further indicates that domestic law will be brought into full compliance with the provisions of the Convention concerning inspections of seafarers’ accommodations, to be conducted by the master. However, the Committee notes that neither the draft Law proposal revising the Shipping Code nor the draft Law on Maritime Labour provided by the Government address any of these issues in detail. The Committee therefore requests the Government to adopt the necessary measures to ensure that the detailed requirements of the Convention regarding accommodation and recreational facilities are applied on board ships flying the Cabo Verdean flag, including those foreseen in Standard A3.1, paragraph 18. The Committee also requests the Government to provide information on the implementation of Standard A3.1, paragraph 19 (variations of accommodation standards for differing religious and social practices).
Regulation 3.2 and Standard A3.2, paragraphs 1 and 2. Food and catering. Minimum Standards. The Committee notes that the draft Law on Maritime Labour that the Government refers to in its reply does not provide minimum standards for the quality, nutritional value, quantity and variety of food that apply to meals provided for seafarers on board ships that fly its flag and for the organization and equipment of the catering department. The Committee therefore requests the Government to adopt the necessary measures to give full effect to these provisions of the Convention.
Regulation 3.2 and Standard A3.2, paragraphs 5 and 6. Food and catering. Fully qualified cook. In the absence of reply to its previous comment on this matter, the Committee requests the Government to indicate whether dispensations have been issued to permit non-fully qualified cooks to serve as ships’ cooks in accordance with Standard A3.2, paragraph 6, and, if so, to specify the frequency and nature of the cases in which these dispensations were issued.
Regulation 3.2 and Standard A3.2, paragraph 7. Food and catering. Frequent inspections. Noting that the Government has not provided information regarding frequent documented inspections to be carried out on board ships, by or under the authority of the master, the Committee once again requests the Government to indicate the measures taken to give effect to these provisions of the Convention.
Regulation 3.2 and Standard A3.2, paragraph 8. Food and catering. Ship’s cook. Minimum age. The Committee notes the Government’s reply indicating that the legislation does not prescribe the minimum age of 18 years for ship’s cooks. Noting that neither the draft Law revising the Shipping Code nor the draft Law on Maritime Labour address this issue, the Committee requests the Government to adopt the necessary measures to ensure that in no circumstances a person under the age of 18 is employed or engaged or works as a cook on board a ship.
Regulation 4.1 and the Code. Medical care on board and ashore. The Government indicates that the updating of the Shipping Code and the development of its supplementary legislation are ongoing to align national legislation with the Convention. The Committee notes, however, that neither the Law proposal revising the Shipping Code, nor the draft Law on Maritime Labour provided by the Government give full effect to Regulation 4.1, paragraphs 1, 2 and 4 and Standard A4.1, paragraphs 1(a)–(d), 3 and 4(a)–(d) of the Convention. Recalling its previous comment, the Committee requests the Government to provide detailed information on the measures adopted to ensure that the detailed requirements of these provisions of the Convention are applied on board ships flying the Cabo Verdean flag.The Committee also requests the Government to provide an example of the standard medical report form for seafarers and a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraphs 2 and 4(a)).
Regulation 4.2 and Standard A4.2.1, paragraphs 1(a) and (c), and 2. Shipowners’ liability. Sickness and injury. Expenses of medical care and board and lodging away from home.Limits. The Committee notes that section 348 of the Labour Code provides that any seafarer that becomes sick or injured during the voyage, suffers a work accident or acquires a disease because of and while on duty, whether or not the voyage has started, shall be paid wages and will receive treatment, medical assistance and medicines for the account of the shipowner. The Committee requests the Government to clarify how it ensures that shipowners are liable to bear the costs for seafarers working on their ships in respect of employment and non-employment related sickness and injury of the seafarers occurring between the date of commencing duty and the date upon which they are deemed duly repatriated, or arising from their employment between those dates, in accordance with Standard A4.2.1, paragraph 1(a).
The Committee notes that sections 348 and 349 of the Labour Code state that if the seafarer needs to be disembarked to receive treatment, the captain shall provide the exact amount necessary for the treatment and for the return of the seafarer to the port of recruitment. In case of hospitalization, rations are not due. The responsibility of the shipowner ceases once the seafarer has recovered or the responsibility is transferred to the social security system or to the insurer. The Committee requests the Government to indicate the provisions requiring shipowners to defray the costs of necessary medicines, therapeutical appliances, food and lodging for sick or injured seafarers away from home for at least 16 weeks from the day of the injury or the commencement of the sickness, or until recovery or the sickness or incapacity has been declared of a permanent character (Standard A4.2.1, paragraphs 1(c) and 2).
Regulation 4.2 and Standard A4.2.1, paragraph 1(b). Shipowners’ liability. Death or long-term disability. The Committee notes that the Government does not provide detailed information on this issue and refers generally to the legislation governing the national social security system. The Committee also notes that section 348(5) of the Labour Code provides that crew members who suffer an accident or contract an illness while on and because of their duty, will, from the immediate day following their disembarkation in national territory, be subject to the regime established in the law regulating occupational diseases and work accidents in force in the port of recruitment. The Committee requests the Government to indicate the specific national provisions implementing the requirements of Standard A4.2.1, paragraph 1(b) and to provide detailed information on how in practice they apply to seafarers who work on board ships flying the Cabo Verde flag, including to seafarers who are not covered by the Cabo Verde social security legislation.
In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standard A4.2.1, paragraphs 8 to 14, and Standard 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. While recalling that Cabo Verde is not bound by the 2014 amendments, the Committee notes that sections 21 and 22 of the draft Law on Maritime Labour regulate the financial security that must be provided by the shipowner in case of death or incapacity of the seafarer due to accident or occupational illness taking into account those provisions of the Convention. The Committee encourages the Government to provide information on any developments in this regard.
Regulation 4.2 and Standard A4.2.1, paragraph 4. Shipowners’ liability. Wages of an injured or sick seafarer no longer on board. Limits.The Committee notes that section 20 of the draft Law on Maritime Labour provided by the Government establishes that the shipowner shall pay full wages, or the difference between the sickness benefit or the temporary invalidity benefit and those wages, as long as the seafarer remains on board or is disembarked and waiting to be repatriated. After such period, should the seafarer not be entitled to such benefits, the shipowner shall pay an amount equivalent to half the wages for a period of 16 weeks from the day of the accident or the commencement of the sickness. Noting that these provisions would bring the legislation in conformity with Standard A4.2.1, paragraph 4 of the Convention, the Committee expects that the draft Law on Maritime Labour will be adopted without delay.
Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee notes that section 20 of the draft Law on Maritime Labour provides that the shipowner is excluded from liability in case the accident is not considered a “work accident” or when the illness or accident results from a “wilful act” of the seafarer. The Committee also notes that section 350 of the Labour Code excludes the liability of the shipowner to defray the expense with medical treatment in other situations in case of a “wilful act or omission” of the seafarer. The Committee recalls that Standard A4.2.1, paragraph 5(a) and (b), provides that national laws or regulations may exclude the shipowner from liability in respect of injury incurred “otherwise than in the service of the ship” or sickness due to the “wilful misconduct” of the sick, injured or deceased seafarer. The Committee requests the Government to clarify how it ensures that the cases where the shipowner’s liability may be excluded remain within the limits set out under Standard A4.2.1, paragraph 5.
Regulation 4.2 and Standard A4.2.1, paragraph 7. Shipowners’ liability. Safeguarding of property left on board. The Committee notes the Government’s reply that section 25 of the draft Law on Maritime Labour provides that the shipowner shall safeguard property left on board by sick, injured or deceased seafarers and ensure its return to them or their next of kin. Noting that these provisions would bring the legislation in conformity with Standard A4.2.1, paragraph 7, the Committee expects that the draft Law on Maritime Labour will be adopted without delay.
Regulation 4.3 and the Code. Health and safety protection and accident prevention. Noting that the Government provides no relevant information in reply to its comments, the Committee again requests the Government to indicate the specific legislative provisions and other measures that give effect to the detailed requirements of Standard A4.3 and set standards for occupational safety and health protection and accident prevention on ships that fly its flag.The Committee further requests the Government to provide an example of a document (e.g. DMLC, Part II) outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the relevant national guidelines (Regulation 4.3, paragraph 2); and a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)).
Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Government indicates that it plans to implement a port modernization plan which will include the development of facilities at main ports. Recalling that each Member shall determine, after consultation with the shipowners’ and seafarers’ organizations concerned, which ports are to be regarded as appropriate, the Committee requests the Government to provide information on any developments regarding the establishment of seafarer welfare facilities in its ports.
Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee notes that most of the legislation regulating social security for seafarers, complementing the protection provided under Regulations 4.1 and 4.2, only applies to seafarers working on board ships flying the Cabo Verde flag.The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide social security protection to all seafarers ordinarily resident in its territory, including those working on board ships flying a foreign flag. The resulting protection shall not be less favourable than that enjoyed by resident shore workers. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The Committee accordingly requests the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in Cabo Verde, including those who work on board ships flying a foreign flag, are granted social security coverage in the branches specified upon ratification, which is no less favourable than that enjoyed by shore workers resident in Cabo Verde. In this context, the Committee requests the Government to provide statistics on the number of seafarers resident in Cabo Verde who work on ships flying a foreign flag, as well as on any bilateral or multilateral agreements covering social security of those seafarers.
Regulation 4.5 and Standard A4.5, paragraph 5and Guideline B4.5, paragraphs 6 and 7. Social security. Monitoring of payment of contributions. Noting that the Government provides no relevant information in reply to its comments, the Committee again requests the Government to provide information on how shipowners’ and, if applicable, seafarers’ contributions to relevant social security schemes are monitored to verify that the contributions are made, giving due consideration to Guideline B4.5, paragraphs 6 and 7.
Regulation 4.5 and Standard 4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee requests the Government to indicate which fair and effective procedures are in place for the settlement of disputes relating to social security for seafarers, as required under Standard A4.5, paragraph 9.
Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes the Government’s reply to its previous comment, indicating that sections 29 to 36 ofthe draft Law on Maritime Labour establish the system for the inspection and certification of labour conditions on ships flying the Cabo Verdean flag.The Committee expects that the draft Law on Maritime Labour will be adopted without delay.
Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. Referring to its previous comment, the Committee notes that the Government provides a list of recognized organizations but does not provide information on the functions that they have been authorized to carry out in respect of the Convention. The Committee requests the Government to provide a copy of any complementary legislation which gives full effect to Regulation 5.1.2 and Standard A5.1.2 once adopted, as well as an example of an agreement with a recognized organization relevant for the MLC, 2006. The Committee also requests the Government to provide an updated list of recognized organizations, specifying the functions that they have been authorized to carry out in respect of the Convention (Standard A5.1.2, paragraph 4).
Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. The Committee notes that, in reply to its previous comment, the Government refers to sections 32 et seq. of the draft Law on Maritime Labour. While noting that, if adopted, the draft Law would reflect in general the requirements of Standard A5.1.3 on the Maritime Labour Certificate and the DMLC, the Committee draws the Government’s attention to certain inconsistencies in cross references contained in such draft Law and between the model documents contained in its Annexes and those prescribed in Appendix A5-II of the Convention. The Committee also brings to the attention of the Government that the model DMLC annexed to the draft Law does not contain references to the national requirements and legal provisions embodying the relevant prescriptions of the Convention. The Committee requests the Government to ensure that the new legislation, once adopted, fully complies with the requirements of Regulation 5.1.3 and the Code, and to provide a copy of the Maritime Labour Certificate and Declaration of Maritime Labour Compliance referring to the relevant national legal provisions, including concise information on their main content.
Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that the draft Law on Maritime Labour contains provisions dealing with flag State inspections. However, the draft Law does not require that all ships within the meaning of the Convention shall be inspected every three years in accordance with the detailed requirements of Regulation 5.1.4 and Standard A5.1.4. The Committee requests the Government to indicate how effect is given to these provisions in respect to all ships within the meaning of the Convention.
Regulation 5.1.5 and the Code. Flag State responsibilities. On-board complaint procedures. The Committee notes the Government’s reply indicating that section 26 of the draft Law on Maritime Labour establishes the on-board complaints procedure. The Committee notes, however, that the foreseen procedure is limited to alleged breaches of relevant national legislation, instead of covering breaches of any of the requirements of the Convention. With respect to on-board complaint procedures, section 26(12) states that seafarers are not to be penalized for filing a complaint but does not elaborate on the arrangements to guarantee protection against victimization or penalty. The Committee requests the Government to indicate how it gives effect to Regulation 5.1.5, paragraphs 1 and 2 and Standard A5.1.5, paragraph 4. The Committee further requests the Government to provide a copy of the model for on-board complaint procedures, if adopted, or of typical procedures that are followed on ships flying the Cabo Verde flag.
Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. In reply to the Committee’s request, the Government provides a copy of Decree-Law 63/2018 of 12 December 2018, establishing the port State control (PSC) regime in the framework of the Abuja Memorandum of Understanding (MoU) on PSC, as well as the inspection procedures to be followed by the national authority. The Committee notes with interest that such Decree-Law includes the requirements set out in the MLC, 2006 among those that are to be inspected in port, as well as guidance as to the kinds of circumstances justifying detention of a ship. Noting that, if adopted, section 37 of the draft Law on Maritime Labourwould reflect the requirements set out in Regulation 5.2.1, paragraph 2 of the Convention, the Committee requests the Government to adopt it without delay. The Committee also requests the Government to indicate how it ensures that a more detailed inspection covers the matters listed in Appendix A5-III, except in the case of a complaint (Standard A5.2.1, paragraph 2).
The Committee further notes the Government’s indication that, at the time of the report, there were 13 inspectors qualified to perform inspections on board, as well as the information provided on the qualifications and training required for carrying out port State control foreseen in section 19 of Ministerial Order No. 7/2008 of 31 March 2008 and in section 5 and annex XII of Decree-Law 63/2018. The Committee requests the Government to provide the following statistical information: (i) number of foreign ships inspected in port; (ii) number of more detailed inspections carried out according to Standard A5.2.1, paragraph 1; (iii) number of cases where significant deficiencies were detected; and iv) number of detentions of foreign ships due to conditions on board ship that are hazardous to the safety, health or security of seafarers, or constitute a serious or repeated breach of the requirements of the MLC, 2006 (including seafarers’ rights).
Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes with interest that section 35 of Decree-Law 63/2018 of 12 December 2018 submitted by the Government complies with these provisions of the Convention. The Committee takes note of this information, which addresses its previous request.
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