Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

In its previous comments, the Committee had noted the trade union allegations on the persistent failure of employers to affiliate fishers to the supplementary insurance for hazardous occupational activities (SCTR), as well as the 2005 government statistics, according to which only 168 of 2,541 fishing enterprises had subscribed to the SCTR. The Committee therefore requested the Government to provide information on the penalties incurred by employers for failure to meet their obligations towards fishers as regards the SCTR (section 82 and Annex 5 of Supreme Decree No. 009-97-SA), and on the measures envisaged to secure observance by all maritime fishing companies of their obligations under the law. Furthermore, the Committee hoped that Supreme Decree No. 003-2007-PRODUCE of 2 February 2007, according to which large industrial fishing vessels must show a certificate attesting to payment of social security contributions (constancia de no adeudo) in order to be permitted to leave port, would, in practice, be an incentive to all shipowners to fulfil their obligations under the Convention and the national legislation, and requested the Government to keep the Office informed on any progress made in this area.

The Government indicates that, further to the above Supreme Decree No. 003-2007, the related Supreme Decree No. 019-2007-PRODUCE of 17 October 2007 specifies that permission to large fishing vessels to depart shall only be granted if the obligation to regularly pay the contributions under, inter alia, the SCTR is met. The Decree further provides that the competent authority shall transmit to the relevant ministries the list of the permissions granted to leave port as well as the list identifying the cases and reasons for which fishing vessels have not been authorized to leave port, for the purpose of adopting adequate supervisory and fiscal measures and imposing appropriate sanctions.

The Government also reports that, following a series of inspections performed in 2007 pursuant to communication No. 0170-2007-MTPE/2/11.4 of 23 March 2007, further inspections of 33 fishing enterprises with industrial vessels fishing anchovies have been carried out in June 2008 by 44 labour inspectors from the National Directorate for Labour Inspection at the request of the Ministry of Production. The scope of inspection specifically related to the SCTR and payslips (including information on remuneration and health and social security benefits). The Chamber of Commerce of Lima indicates that inspections have become more frequent and effective so that less and less employers take the risk to incur a penalty relating to the payment of the SCTR or other social security obligations.

The Committee requests the Government to indicate the impact of the above measures on the affiliation to the SCTR and payment of SCTR contributions by employers. In particular, the Committee asks the Government to supply, in its next report, up to date statistics on the cases where fishing vessels have been prohibited from leaving port under Supreme Decree No. 003-2007-PRODUCE, to describe the reasons invoked, and to indicate the penalties imposed against employers for not taking out SCTR or not paying SCTR contributions as well as other enforcement actions taken. Given that the inspection report has yet to be completed, the Committee further asks the Government to communicate, with its next report, a copy of the final inspection report containing the infringements detected and the sanctions imposed for not taking out SCTR or not paying SCTR contributions. Please also indicate the number of claims, in relation to occupational diseases or accidents, filed under the SCTR during the reporting period.

Moreover, the Committee notes from Report No. 030-2008-DPR.SA/ONP supplied by the Insurance Standardization Office (ONP) that, from the entry into force of the SCTR in 1997 until 17 June 2008, no claims for economic benefits arising from occupational diseases or accidents in the fishing sector have been filed under section 88 of Supreme Decree No. 009-97-SA, which provides for benefits by insurance institutions in the event of failure of employers to take out SCTR or pay contributions under the SCTR. In view of the above, the Committee understands that the provisions of national legislation guaranteeing the right to benefits in case of non-affiliation to the SCTR or non-payment of SCTR contributions by the employers have so far not been implemented in practice. It asks the Government to indicate the manner in which workers whose employers have failed to affiliate them to the SCTR or to pay relevant contributions, have been granted the medical and cash benefits guaranteed by the Convention. Please indicate the number of such cases as well as any measures taken or envisaged to inform the workers concerned about their rights under section 88 of Supreme Decree No. 009-97-SA.

Lastly, the Committee requested the Government to provide information on the outcome of the legal proceedings against the company Atlantida for non-payment of social insurance contributions in respect of invalidity and death. According to the Government’s report, a sanction amounting to a fine of 6,200 nuevos soles was imposed on the fishing company for non-payment of social insurance contributions in respect of invalidity and death in 36 cases. The Committee asks the Government to indicate whether there are cases in which workers have lost their rights to medical and cash benefits as a consequence of the company’s failure to pay the relevant contributions. If there are such cases, please provide information on the benefits received by the workers from the insurance institutions.