Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) - Peru (Ratification: 1962)

In its previous comments, the Committee noted the information provided by the Government with regard to the comments made in May 1999 and January and March 2000 by the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates concerning the operational difficulties of the system of supplementary occupational risk insurance (SCTR) established under the Social Security Modernization Act No. 26790. The Committee pointed out the need for the Government to take adequate measures to prevent seafarers who are victims of accidents or who contract a disease from being left without protection and for this purpose to strengthen the inspection system to ensure that employers comply with the obligation to include their workers in the register of enterprises carrying out high-risk activities and to take out the SCTR envisaged by Act No. 26790 for this purpose. The Committee therefore requested information on the application in practice of the SCTR as it relates to seafarers.

On this subject, the Government indicates in its report that during 2001 at the national level a total of 1,184 enterprises were registered under the SCTR, which is a supplementary protection system for persons who are insured normally under the social security system in respect of health and who perform high-risk activities. Furthermore, over the past year, a total of 5,507 technical inspections were undertaken on occupational safety and health related to the supplementary occupational risk insurance, 640 of which were in construction, six in mining, 4,366 in industry and 495 in services. The purpose of these inspections is to verify that employers have complied with the obligation to take out this insurance. The Government adds that the function of inspection activities is not just to inspect, but also to provide guidance with regard to the rights and obligations deriving from labour law. The Committee notes this information with interest. However, it observes that the inspections referred to hardly appear to cover seafarers. It therefore requests the Government to provide information on the activities carried out by inspection bodies in this sector, including copies of the relevant reports and, where applicable, examples of the administrative sanctions imposed upon shipowners.

The Committee also requested the Government to provide information on whether the fishing enterprises Chapsa and Atlántida, which are referred to by the Trade Union of Fishing Boat Owner-Masters of Puerto Supe, have also subscribed to the SCTR and, if not, to provide information on the cases referred to by the above trade union. With regard to the fishing enterprise Chapsa, the Committee notes the inspection carried out by the Sub-directorate of Occupational Health and Safety Inspection. During the inspection, it was verified that the enterprise was included on the register of employers carrying out high-risk activities and that it had paid the premium to take out the insurance policy for its workers, with health, invalidity and survivors’ coverage. It also notes that a further inspection on 14 October 2002 determined the number and names of the workers covered by the SCTR with health, invalidity and survivors’ coverage on the date of the programmed inspection. The Committee requests the Government to provide the text of the final report when it is available.

With regard to the fishing enterprise Atlántida, the Sub-directorate of Occupational Health and Safety Inspection, in accordance with the respective provisions, investigated an employment accident following a complaint by the Federation of Fishing Boat Owner-Masters of Peru. During the investigation, it verified that the enterprise was included on the register of enterprises carrying out high-risk activities and that it had taken out the SCTR insurance, with health coverage for the accident mentioned in the schedule with the Social Health Insurance Scheme (ESSALUD). However, it found that it had not complied with the obligation to take out the above supplementary insurance for invalidity and survivors’ coverage. Subsequently, on 5 December 2001, a follow-up inspection was carried out, which found that although on the date of the accident (23 June 1998) the enterprise provided justifications that it had taken out the SCTR with health coverage and made the payment of the corresponding premium in the name of Mr. Juan Morales de la Cruz, it could not establish having taken out the SCTR with invalidity and survivors’ coverage, nor the payment of the corresponding premium. In view of the above, a fine was imposed upon the enterprise, in accordance with Legislative Decree No. 910 (approved by Supreme Decree No. 020-2001-TR).

With regard to the cases referred to by the Federation of Fishing Boat Owner-Masters of Peru, the Government states that, at its request, the administrative authority investigated the employment accidents denounced in the enterprises Chapsa and Atlántida. The investigation undertaken found that the above enterprises were duly included in the register of employers carrying out high-risk activities, and that they were registered for the payment of remuneration to injured workers. However, financial penalties were imposed upon the enterprises based on the finding that they had not taken out the SCTR in relation to invalidity and survivors’ coverage, and had not paid the corresponding premium.

Without prejudice to the administrative penalties imposed, employers which do not comply with the obligation to register with the administrative labour authority or to take out supplementary occupational risk insurance for all workers covered by this obligation, or take out inadequate coverage, are liable for the cost of the benefits provided by ESSALUD and the Insurance Standardization Office (ONP) in the event of injury to workers, irrespective of their civil responsibility to the worker and his dependants for the damage and injury caused. In the event of an employment accident or occupational disease occurring as a direct consequence of failure to comply with occupational health and industrial safety standards, or serious negligence attributable to the employer or failure to comply with protection or prevention measures, the injury is covered by ESSALUD, the health care provider, the ONP or the insurer, although they may exercise the right to claim the cost of the benefits provided from the employer.

The Committee notes the Government’s statement with interest. It recalls that, under the terms of Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, a shipowner may cease to be liable for the grant of medical benefits and for the payment of wages in whole or in part in respect of the seafarer in the case of injury resulting in incapacity for work from the time at which such seafarer becomes entitled to cash benefits under compulsory sickness insurance, compulsory accident insurance or workmen’s compensation for accidents in force for seafarers in the territory in which the vessel is registered. The Committee requests the Government to provide information on the case of Mr. Juan Morales de la Cruz, with an indication on whether the corresponding premium has been paid to the SCTR for invalidity and survivors’ coverage and, if so, on the manner in which the institution has covered the accident. Finally, the Committee requests the Government to indicate whether the enterprises Chapsa and Atlántida have paid the corresponding premium to SCTR for invalidity and survivors’ coverage. It also requests it to indicate the negative effects that failure to pay the above premium has had on the workers in the above enterprises.

[The Government is asked to reply in detail to the present comments in 2003.]