Fishermen's Articles of Agreement Convention, 1959 (No. 114) - Panama (RATIFICATION: 1970)

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The Committee notes the Governments’ reports on the Conventions related to fishing. In order to provide an overview of the issues relating to the application of these Conventions, the Committee considers it helpful to examine them in a single comment as follows.

Fishermen’s Articles of Agreement Convention, 1959 (No. 114).

Article 8 of the Convention. Information as to the conditions of employment on board. The Committee, in its previous comments, requested the Government to indicate the measures taken to ensure that fishers can obtain clear information on board concerning their conditions of employment, in conformity with Article 8 of the Convention. The Committee notes in this regard the Government’s indication that: (a) the inspectors of the Panama Maritime Authority verify that fishers have a copy of their work agreement thereby ensuring that they can obtain clear information on board as to the conditions of employment; and (b) under section 100 of Legislative Decree No. 8 of 26 February 1998, these agreements should include information, among others, on the duration, voyage, working conditions, wages and termination of the agreement.

Fishermen’s Competency Certificates Convention, 1966 (No. 125).

Articles 6, 7, 8, 9, 11 and 12 of the Convention. Minimum age, minimum professional experience, examinations. The Committee in its previous comment recalled that it had been drawing the Government’s attention for several years on the failure of the national legislation to give effect to specific requirements of the Convention. In this regard, it noted that Resolution No. 008-2001 of 12 February 2001 of the Panama Maritime Authority on the rules for the issue of certificates of competency for seafarers was not in compliance with the minimum competency requirements established by the Convention, in particular: it set a lower minimum age for performing the duties of skippers or engineers on board a fishing vessel; it prescribed a lower minimum professional experience for skippers and engineers of fishing vessels; and finally it did not fully regulate the examinations for certificates of competency. The Committee had therefore requested the Government to adopt the necessary measures to bring national legislation into full compliance with the requirements of the Convention and to provide a copy of the text amending Resolution No. 008-2001, once adopted. The Committee notes that the Government indicates that this resolution is being amended by the General Directorate of Seafarers (DGS) of the Panama Maritime Authority to include the specific requirements of the Convention, and for this reason it hopes to be able to transmit soon a copy of the approved resolution to the Office. The Committee requests the Government to provide information of the developments and transmit a copy of the resolution once adopted.

Accommodation of Crews (Fishermen) Convention, 1966 (No. 126).

Article 3(2)(c) of the Convention. Implementing legislation. System of inspection. The Committee in its previous comment had requested the Government to provide a copy of the new crew accommodation inspection report form for fishing vessels, which was under review, in order to better reflect the requirements of Articles 6(2), 9(5), 10(2), 10(26) and 13 of the Convention. The Committee notes the Government’s indication that the new inspection report form has not yet been approved by the Panama Maritime Authority. The Committee requests the Government to take the necessary measures to give full effect to the Convention and to provide a copy of the new crew accommodation inspection report form for fishing vessels once approved.

Article 10(8). Exceptions to the requirements of maximum number of persons per sleeping room. The Committee had raised concerns on section 15 of Resolution No. 011-2005 of 26 July 2005 regulating the issuance of the certificates of inspection of crew accommodation (CICA), under which the Directorate General of Seafarers (DGS) was allowed to issue exemption or dispensation letters granting waivers to the application of some provisions of the Convention. It therefore requested the Government to explain further the exact conditions under which, and the limits within which, exemptions could be granted, as well as to provide a copy of any exemption or dispensation letters that might have been issued by the DGS. The Committee notes the Government’s explanation that exemptions can be granted only when allowed by the Convention itself as, for example, Article 10(8), which allows the competent authority to permit exceptions to the requirements of Article 10(6) and (7) (on the maximum number of persons per sleeping room) in particular cases if the size, type or intended service of the vessel make these requirements unreasonable or impracticable. The Government further clarifies that exemptions have a maximum duration of four years, which corresponds to the validity of a CICA. According to the Government, the exemption, once granted, should be both mentioned in, and the corresponding certificate attached to, the CICA, as shown in the two samples annexed to the report – which reflect the only two exemptions granted by the Panama Maritime Authority during the reporting period. The Government clarifies that no dispensation were granted to fishing vessels during the reporting period and, in any event, dispensation that could be granted under the abovementioned Resolution No. 011-2005 would allow vessels to navigate with an expired CICA only for a maximum period of six months. The Committee takes note of this information and requests the Government to keep the Office informed of any further exemption or dispensation letters granted by the Panama Maritime Authority.

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Article 8 of the Convention. Information as to the conditions of employment on board. The Committee notes the information provided by the Government concerning the provisions respecting the facilities available for seafarers, including fishers, to examine the work agreement before it is signed and the requirement for the shipowner to provide them with a copy of the agreement. However, it draws the Government’s attention to the fact that Article 8 of the Convention is intended to enable the fisher to obtain clear information concerning his rights and obligations on board, and not only when signing the agreement. The Committee therefore requests the Government to adopt measures to ensure that fishers can obtain clear information on board concerning their conditions of employment. It requests the Government to keep the Office informed of any measures that may be taken in that regard. The Committee also recalls that the same requirement is set out in Article 18 of the Work in Fishing Convention, 2007 (No. 188), which provides that the fisher’s work agreement, a copy of which shall be provided to the fisher, shall be carried on board and be available to the fisher and, in accordance with national law and practice, to other concerned parties on request.

Part V of the report form. Application in practice. The Committee notes that, according to the information provided by the Government, the number of fishers at the domestic level who are covered by the provisions of the Convention was 295 in 2009, 163 in 2010 and 20 in the first six months of 2011. The Committee requests the Government to indicate the circumstances of this significant reduction in the number of fishers. It further notes that section 121 of Legislative Decree No. 8 of 26 February 1998 regulating work at sea and on navigable waterways establishes two maritime labour tribunals with jurisdiction over disputes relating to work performed at sea. The Committee requests the Government to provide further information on the operation of these tribunals, with an indication of whether they have jurisdiction over disputes relating to the application of the Convention. It also notes the examples of the forms used by the maritime labour inspection services, which were attached to the Government’s report and make reference to the work agreement of seafarers. The Committee requests the Government to continue providing information on the application of the Convention in practice, including indications on the number of contraventions reported each year to the provisions giving effect to the Convention and any corrective measures taken.

Finally, the Committee notes that the Panama Maritime Authority is currently focusing all of its efforts on the preparation of the draft regulations to give effect to the Maritime Labour Convention, 2006 (MLC, 2006), in the context of tripartite consultations, and that the Government cannot at present examine the possibility of ratifying Convention No. 188. The Committee requests the Government to keep the Office informed of any further developments in this regard.

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Article 4 of the Convention. Non-departure from the rules as to jurisdiction over the agreement. Further to its previous comments, the Committee notes the Government’s indications that the Labour Code contains provisions respecting the determination of the competence of labour tribunals. It further notes that, according to the Government, these rules are so imperious that section 675 of the Labour Code renders null procedural measures which are not referred to the competent tribunal, with a view to protecting workers against abuse. It also notes that, in accordance with Legislative Decree No. 8 of 26 February 1998 issuing the regulations governing work at sea and on other navigable waterways, the Department responsible for maritime labour issues is under the obligation to verify and approve all fishers’ articles of agreement. The Committee requests the Government to indicate whether the Department responsible for maritime labour issues ensures, in the framework of such control, that fishers’ articles of agreement do not contain any stipulation providing for a departure from the ordinary rules as to jurisdiction, as established by the Labour Code.

Article 8. Information as to the conditions of employment on board the fishing vessel. The Committee notes that in reply to its previous comments on this point the Government indicates that measures have not yet been adopted so that the fisher may satisfy her or himself on board as to the precise nature of the conditions of employment. It hopes that the Government will soon be in a position to report the adoption of measures for this purpose and requests it to keep the Office informed of any development in this respect.

Part V of the report form. Practical application. The Committee notes the statistical data provided by the Government concerning the number of workers and fishing vessels covered by the Convention. In view of the broad discrepancy between the data provided for 2008 and for 2009 (1,639 and 253, respectively), it requests the Government to specify whether the data in the table on the number of fishers indicates the total number of fishers covered by Convention No. 114 or the number of newly recruited fishers each year. The Committee also notes the model inspection reports attached to the Government’s report, which make explicit reference to several ILO Conventions, including Convention No. 114, and the indication of the measures adopted to remedy the contraventions identified. The Committee requests the Government to continue providing information on the application of the Convention in practice, including information on the number of inspections carried out on board fishing vessels each year and the percentage of cases in which contraventions of the provisions of Convention No. 114 have been identified. The Committee would also be grateful if the Government would provide a copy of the list of points that maritime labour inspectors have to verify during inspections carried out on board fishing vessels.

Finally, the Committee understands that the tripartite representatives of Panama participated in a seminar to promote the ratification of the Work in Fishing Convention, 2007 (No. 188), which was organized by the ILO in Rio de Janeiro (Brazil) in August 2009. It requests the Government to keep the Office informed of any measures taken, in the context of the follow-up to this seminar, with a view to the ratification of Convention No. 188, which revises and consolidates most ILO Conventions on work in the fishing sector, including Convention No. 114.

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The Committee notes the information provided in the Government’s report. It would, however, like to receive further information on the following points.

Article 4 of the Convention. Non-departure from the rules as to jurisdiction over the agreement. The Committee notes that Legislative Decree No. 8 of 26 February 1998 issuing the regulations for work at sea and on inland waterways contains no provisions on measures taken to ensure that the agreement does not include any stipulation by which it is contracted to depart from the ordinary rules as to jurisdiction. The Committee also notes the information previously provided by the Government concerning Article 4 of the Convention, which indicated that the relevant measures would be taken so that the Maritime Affairs Department would carry out a prior review of labour contracts. The Committee asks the Government to keep it informed of any developments in this area and to specify the provisions, if any, that give effect to this provision of the Convention.

Article 5. Keeping and making available records of employment. The Committee notes that under section 6 of Legislative Decree No. 8 of 26 February 1998, the Maritime Authority of Panama (AMP) issues a seafarer’s booklet to crew members. It also notes the Government’s indication that the results of checks on fishers’ records of employment, carried out by the captain on board fishing vessels, are noted in the Seaman’s Book. The Committee asks the Government to provide a copy of a model seafarer’s booklet issued by the maritime authority and a copy of the seafarer’s book containing the records of employment of fishers on board fishing vessels.

Article 8. Information as to the conditions of employment on board fishing vessels. The Committee notes that Legislative Decree No. 8 of 26 February 1998 contains no provisions on measures taken to enable clear information to be obtained on board by the fisher as to the conditions of employment. The Committee also notes the Government’s indication in a previous report, that the Maritime Affairs Department would prepare the relevant regulations. The Committee asks the Government to indicate whether these regulations have been adopted and, if so, to provide a copy of them in its next report.

Part V of the report form. The Committee notes the statistical information provided by the Government, according to which 848 new fishermen’s articles of agreement were registered between 2003 and 2006. The Committee asks the Government to continue providing general information, including, for instance, statistical data on the number of workers protected by the measures giving effect to the Convention; details of the number and tonnage of the fishing vessels in operation which are covered by the Convention; inspection reports detailing the number and nature of violations reported; relevant documents or studies by the AMP; or any other information that would allow the Committee to assess the manner in which the Convention is applied in practice in the country.

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The Committee notes the detailed report of the Government. It would be grateful if the Government could provide with its next report a sample of fishermen’s articles of agreement (Article 3 of the Convention), a sample of fishermen’s record of employment (Article 5), and, if such statistics are available, information concerning the number of fishermen signed on during the year under review, the number and nature of the contraventions reported, etc. (Part V of the report form).

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The Committee notes the adoption of Legislative Decree No. 8 of 26 February 1998 issuing the Regulations respecting maritime work at sea and on inland waterways, and of Legislative Decree No. 7 of 7 February 1998 concerning the creation of the Panama Maritime Authority, the unification of the various maritime responsibilities of the public authorities and the adoption of other provisions.

The Committee notes, however, that the Government has not provided a report on the application of the Convention. It must therefore repeat its previous observation which read as follows:

The Committee notes the information provided by the Government in its report. It notes that the model articles of agreement for fishermen have still not been adopted. The Committee hopes that the Government's next report will indicate that the above-mentioned model articles of agreement have been adopted and that they will ensure the application of Article 6, paragraphs 3(a), (d), (e), (f), (g) and (i) of the Convention (particulars to be recorded in the articles of agreement). Furthermore, the Committee asks the Government to indicate the measures taken or envisaged to ensure the application of Article 3, paragraph 4 (provisions of the national law to ensure that the fisherman has understood the agreement). Point V of the report form. The Committee notes the text of the collective agreement and the statistics supplied with the Government's report. Please provide information on the number and nature of infringements recorded relating to the application of the Convention.

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The Committee notes the information provided by the Government in its report. It notes that the model articles of agreement for fishermen have still not been adopted. The Committee hopes that the Government's next report will indicate that the above-mentioned model articles of agreement have been adopted and that they will ensure the application of Article 6, paragraphs 3(a), (d), (e), (f), (g) and (i) of the Convention (particulars to be recorded in the articles of agreement). Furthermore, the Committee asks the Government to indicate the measures taken or envisaged to ensure the application of Article 3, paragraph 4 (provisions of the national law to ensure that the fisherman has understood the agreement).

Point V of the report form. The Committee notes the text of the collective agreement and the statistics supplied with the Government's report. Please provide information on the number and nature of infringements recorded relating to the application of the Convention.

The Government is asked to report in detail in 1996.

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The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

In the comments it has been making for several years, the Committee has drawn the Government's attention to the need to adopt measures for the application of Article 3, paragraph 4 (adequate provision in the national law to ensure that the fisherman has understood the agreement) and Article 6, paragraph 3(a), (d), (e), (f), (g) and (i) (particulars to be specified in the agreement) of the Convention. In its successive reports, the Government indicated that a new model fishermen's contract was being prepared and that a preliminary draft Bill for fishermen had been worked out with the cooperation of an ILO expert. This draft took account, in particular, of these provisions of the Convention. In 1988 the Government indicated that the Directorate-General of Consular and Maritime Affairs of the Ministry of Finance and Treasury would take the necessary measures once the system of engagement on board cargo ships had been defined. In its last report, the Government states that the above Directorate has not adopted any model fishermen's articles of agreement and that any such measure must be taken in consultation with the parties concerned.

The Committee hopes that these consultations have begun and that, in its next report, the Government will indicate the progress made in the application of the above-mentioned provisions of the Convention.

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In the comments it has been making for several years, the Committee has drawn the Government's attention to the need to adopt measures for the application of Article 3, paragraph 4 (adequate provision in the national law to ensure that the fisherman has understood the agreement) and Article 6, paragraph 3(a), (d), (e), (f), (g) and (i) (particulars to be specified in the agreement) of the Convention. In its successive reports, the Government indicated that a new model fishermen's contract was being prepared and that a preliminary draft Bill for fishermen had been worked out with the cooperation of an ILO expert. This draft took account, in particular, of these provisions of the Convention. In 1988 the Government indicated that the Directorate-General of Consular and Maritime Affairs of the Ministry of Finance and Treasury would take the necessary measures once the system of engagement on board cargo ships had been defined. In its last report, the Government states that the above Directorate has not adopted any model fishermen's articles of agreement and that any such measure must be taken in consultation with the parties concerned.

The Committee hopes that these consultations have begun and that, in its next report, the Government will indicate the progress made in the application of the above-mentioned provisions of the Convention.

The Government is asked to report in detail for the period ending 30 June 1993.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 3, paragraph 4, and Article 6, paragraph 3(a), (d), (e), (f), (g) and (i), of the Convention. With reference to its earlier comments, the Committee notes from the Government's report that the Directorate General of Consular and Maritime Affairs of the Ministry of Finance will take the necessary measures once the system of work contracts on board cargo ships has been defined. The Committee hopes that the Government will be able to state in its next report that the necessary steps have been taken to give effect to these provisions of the Convention.

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Article 3, paragraph 4, and Article 6, paragraph 3(a), (d), (e), (f), (g) and (i), of the Convention. With reference to its earlier comments, the Committee notes from the Government's report that the Directorate General of Consular and Maritime Affairs of the Ministry of Finance will take the necessary measures once the system of work contracts on board cargo ships has been defined. The Committee hopes that the Government will be able to state in its next report that the necessary steps have been taken to give effect to these provisions of the Convention.