Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Seafarers' Annual Leave with Pay Convention, 1976 (No. 146) - Brazil (Ratification: 1998)

Article 4(1) of the Convention. Leave proportionate to length of service. Further to its previous comment, the Committee notes the Government’s statement that although entitlement to leave accrues during a twelve-month period of service, an amount proportionate to the leave due is paid in cash upon termination of the employment contract. This payment (corresponding to any unused period of leave) in cash applies, under section 147 of the Consolidation of Labour Laws (CLT), to employees who are dismissed without just cause, before having completed twelve months of service. The Government specifies that “without just cause” is interpreted to mean without serious misconduct. The Committee once again recalls that this provision of the Convention entitles seafarers to proportionate paid holidays regardless of the reason for termination of employment. It also recalls that the same provision has been incorporated in Guideline B2.4.1(3) of the Maritime Labour Convention, 2006 (MLC, 2006). Noting that section 147 of the CLT has been the subject of numerous comments made under the Paid Vacations (Seafarers) Convention (Revised), 1949 (No. 91), the Committee requests the Government to take all appropriate measures in order to bring the national legislation into conformity with this Article of the Convention.

Article 6(d). Periods not to be counted as part of annual leave. In the absence of the Government’s response on this point, the Committee is obliged to reiterate its request for additional explanations as to how it is ensured in law and practice that periods of compensatory leave are not counted as part of the minimum annual leave.

Article 9. Cash payment in lieu of leave. The Committee notes that under section 143 of the CLT, seafarers are entitled to receive one third of their leave entitlement in the form of cash payment calculated on the basis of the remuneration due to them for the days in question. Recalling that the Convention permits the substitution of a cash payment for annual leave only in exceptional cases, the Committee requests the Government to explain how section 143 of the CLT complies with this Article of the Convention.

Article 10. Time and place of annual leave. The Committee has been drawing the Government’s attention for several years to the need to amend section 136 of the CLT, which provides that seafarers’ annual leave will be granted at a period most suitable to the employer. In its latest report, the Government states that the matter has been referred for consideration at a higher level so that appropriate arrangements can be made, but adds that amending the CLT risks to be a lengthy process. The Committee recalls that the provisions of Article 10 of the Convention have been incorporated in Guideline B2.4.2 of the MLC, 2006. The Committee accordingly requests the Government to consider all necessary action to give effect to the requirements of this Article of the Convention. The Committee further requests the Government to transmit copies of any collective labour agreements containing clauses on seafarers’ entitlement to annual leave that would reflect the requirements of the Convention.

Finally, the Committee takes this opportunity to recall that most of the provisions of Convention No. 146 have been reflected without significant changes in Regulation 2.4, Standard A2.4 and Guideline B2.4 of the MLC, 2006, and therefore ensuring compliance with Convention No. 146 would greatly facilitate compliance with the corresponding requirements of the MLC, 2006. The Committee accordingly invites the Government to continue to apply Convention No. 146 in a manner that would also ensure implementation of the MLC, 2006 – once ratified and entered into force.