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Article 2(a)(i) of the Convention. Safety standards. Hours of work. The Committee notes the Government’s reference to sections 248–252 of the Consolidation of Labour Laws (CLT) and collective agreements regulating hours of work. Recalling that limits on maximum hours of work or minimum hours of rest have been incorporated in Standard A2.3(4) of the Maritime Labour Convention, 2006 (MLC, 2006), the Committee requests the Government to transmit sample copies of applicable collective agreements regulating hours of work and rest of seafarers.
Article 2(a)(i). Safety standards. Medical examination. The Committee notes the Government’s explanations concerning the system of compulsory medical examination for all workers. It also notes the reference to section 30.5 of Regulatory Norm No. 30 (NR-30). However, the information provided is not sufficiently detailed with regard to the specific circumstances of work at sea and thus does not allow any conclusive assessment as to whether national laws and regulations are substantially equivalent with the requirements of the Medical Examination (Seafarers) Convention, 1946 (No. 73). The Committee therefore again requests the Government to indicate: (i) whether the nature of the medical examination to be made and the particulars to be included in the medical certificate were prescribed by the competent authority after consultation with the shipowners’ and seafarers’ organizations concerned (Article 4(1) of Convention No. 73); (ii) whether the medical certificate attests the particulars listed in Article 4(3) of Convention No. 73; and (iii) the period of validity of the medical certificate (Article 5(1) of Convention No. 73). In this respect, the Committee recalls that the same requirements on the seafarers’ medical examination have been incorporated in Regulation 1.2 and the corresponding Code of the MLC, 2006.
Article 2(a)(ii). Social security measures. The Committee notes the Government’s indication that Decree No. 3048/99 provides the basis for free health and medical care for all workers in Brazil. The Government adds that in case of occupational sickness or industrial accident, the employer is responsible for the payment of wages for the first 15 days of cessation of work, the National Social Security Institute being responsible for the payment of monthly benefits throughout the period during which the worker qualifies for sickness allowance. The Committee observes that the information provided is not sufficiently detailed and does not permit an assessment of whether the existing social security regime is substantially equivalent with the requirements of the relevant Conventions listed in the appendix of this Convention. The Committee therefore again requests the Government to indicate which of the three Conventions, that is, the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), the Sickness Insurance (Sea) Convention, 1936 (No. 56), or the Medical Care and Sickness Benefits Convention, 1969 (No. 130), it intends to apply for the purposes of this Convention. It also requests the Government to provide a copy of Decree No. 3048/99 or any other laws or regulations dealing with social security protection for seafarers. In addition, the Committee highlights that the objective of progressive implementation of a comprehensive social security protection for seafarers has been incorporated in Regulation 4.5 and the corresponding Code of the MLC, 2006, and that at the time of its ratification member States are expected to cover at least three of the nine branches enumerated in the Convention.
Article 2(a)(iii). Shipboard conditions of employment. Freedom of association. The Committee notes that freedom of association and the right to organize for Brazilian citizens and foreigners is protected under section 8 of the Federal Constitution. It also notes the Government’s indication that the sections of the CLT on trade union organization to which the Committee had referred in previous comments are currently revised as part of the ongoing labour law reform through the tripartite National Labour Forum. Recalling the importance that the MLC, 2006, attaches to the fundamental right to freedom of association and the right to collective bargaining in its Article III, the Committee requests the Government to keep the Office informed of any progress made in the process of revision of the CLT with regard to trade union rights.
Articles 2(f) and 4 of the Convention and Part IV of the report form. Ship inspections. Practical application. The Committee notes the Government’s reference to a document entitled “Application of Convention No. 147 in Brazil: The role of the labour inspectorate” which contains a detailed description of the procedures for investigating complaints and the functioning of the inspection authorities. As this document has not been received by the Office, the Committee requests the Government to forward another copy. It also requests the Government to provide, together with its next report, up-to-date information on the practical application of the Convention, including, for instance, the number of seafarers covered by the relevant legislation, statistics on flag State and port State inspections, the number and nature of any complaints considered and the action taken, copies of any standardized inspection checklist or inspection report form and official publications, such as activity reports of the Special Ports and Waterways Labour Inspection Unit.
Finally, the Committee takes this opportunity to recall that Convention No. 147, as well as 67 other international maritime labour instruments, is revised by the MLC, 2006. It also recalls that the notion of substantial equivalence has been incorporated and further defined in Article VI(3) and (4) of the MLC, 2006, while an innovative and comprehensive inspection regime is established in Title 5 of the Convention. In this latter respect, the Committee highlights the adoption by an ILO tripartite experts’ meeting in September 2008 of the Guidelines for flag State inspections and the Guidelines for port State control officers as an essential aspect of ensuring widespread harmonized implementation of the MLC, 2006. Noting that the Government has taken active steps for the early ratification of the MLC, 2006, the Committee requests the Government to keep the Office informed of any further developments in this regard.
The Committee notes the comments made by the Trade Union of Maritime Workers of the Port of Rio Grande concerning alleged non-observance of the international labour standards on board two vessels, N/T Dunay and N/T Borislav, both flying the flag of Ukraine, and the Government’s response to these comments. The Government had emphasized that Ukrainian legislation should be applied on board the vessels which are the subject of the comments of the union. Should non-compliance with the ILO standards be proven, international responsibility would lie with Ukraine, not Brazil.
The Committee recalls that, under Article 4, paragraph 1, of the Convention, if a Member which has ratified this Convention and in whose port a ship calls in the normal course of its business or for operational reasons receives a complaint or obtains evidence that the ship does not conform to the standards of this Convention, after it has come into force, it may prepare a report addressed to the government of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office, and may take measures necessary to rectify any conditions on board which are clearly hazardous to safety or health. The Committee asks the Government to clarify whether any such report had been addressed to the Government of Ukraine in this particular case, and whether in the past such reports have been sent to the respective governments of the countries in which the ships are registered.
The Committee notes the Government's reports for the period up to 1998. It requests the Government to provide additional information on the following points:
Article 1, paragraph 3, of the Convention. Please confirm whether Convention No. 147 in fact applies to seagoing tugs and, if so, indicate the specific provisions of the national legislation governing employment on board such tugs.
Article 1, paragraphs (a), (b) and (c). Please clarify whether the Regulations on Maritime Shipping (the "RTM") are applicable to ships primarily propelled by sail, whether or not they are fitted with auxiliary engines; to ships engaged in fishing or in whaling or in similar pursuits; and to small vessels and vessels such as oil rigs and drilling platforms when not engaged in navigation.
Article 2(a). (Conventions listed in the appendix to Convention No. 147, but not ratified by Brazil): Please indicate which of the three Conventions (Conventions Nos. 55, 56 or 130) the Government intends to apply for the purposes of substantial equivalence.
-- Convention No. 55: Please indicate (i) what are the specific provisions of national laws or regulations (if any) establishing the liability of the shipowner in cases referred to in Article 2, paragraph 1, of Convention No. 55; (ii) those determining the amount of medical care and maintenance provided at the expense of the shipowner (Article 3); (iii) what is the length of the liability of the shipowner to defray the expense of medical care and maintenance (Article 4, paragraph 1); (iv) whether the shipowner ceases to be liable in respect of a sick or injured person in cases indicated in Article 4, paragraph 3; (v) whether the scope of liability of the shipowner covers items listed in Article 5, paragraph 1; (vi) what is the length of liability of the shipowner to pay wages in whole or in part in respect of the person no longer on board and what are the specific provisions of the national laws or regulations establishing such length (Article 5, paragraph 3); (vii) whether the shipowner is liable to defray burial expenses in case of death occurring on board, or in case of death occurring on shore if at the time of his death the deceased person was entitled to medical care and maintenance at the shipowner's expense and, if so, indication of the specific provisions of national laws or regulations establishing such duty of the shipowner (Article 7, paragraph 1).
-- Convention No. 56: Please indicate: (i) whether under the national laws or regulations the insured person is entitled free of charge, as from the commencement of his illness and at least until the period prescribed for the grant of sickness benefit expires, to medical treatment by a fully qualified medical practitioner and to the supply of proper and sufficient medicines and appliances (Article 3, paragraph 1, of Convention No. 56); (ii) whether under national laws or regulations the insured person is required to pay any part of the cost of medical benefit (Article 3, paragraph 2); (iii) whether the insurance institution shall provide for the treatment of the sick person in a hospital and in such case shall grant him full maintenance together with the necessary medical attention and care and, if so, what are the specific provisions of national laws or regulations establishing such duty (Article 3, paragraph 4); (iv) whether national laws or regulations have provisions equivalent to Article 4, paragraph 1; (v) whether under national laws or regulations the right to insurance benefit continues in respect of sickness occurring during a definite period after the termination of the last engagement and, if so, what is the length of this period and what are the specific provisions of the national laws or regulations establishing such period (Article 7); (vi) whether under the national laws or regulations the insured person has a right of appeal in case of dispute concerning his right to benefit (Article 10, paragraph 1).
-- Convention No. 130: Please indicate: (i) whether the seafarers are provided with the medical care of a curative nature and, under prescribed conditions, with the medical care of a preventive nature and, if so, what are the respective provisions of national laws or regulations (Article 7, of Convention No. 130); (ii) what are the specific provisions of national laws or regulations establishing the right of seafarers to the provision of medical care of a curative or preventive nature in respect of the contingency referred to in subparagraph (a) of Article 7 (Article 8); (iii) whether national laws or regulations have provisions equivalent to Articles 9, 10, 12, 13 and Article 16, paragraph 1; (iv) whether under national laws or regulations the beneficiary or his breadwinner is required to share in the cost of the medical care referred to in Article 8 of the Convention and, if so, how it was ensured that the rules concerning such cost sharing have been so designed as to avoid hardship and not to prejudice the effectiveness of medical and social protection (Article 17); (v) whether apprentices are entitled to the sickness benefit (Article 19); (vi) whether national laws or regulations have provisions equivalent to Article 27, paragraph 1, and Article 29, paragraph 1.
-- Convention No. 73: Please indicate: (i) whether the nature of the medical examination to be made and the particulars to be included in the medical certificate were prescribed by the competent authority after consultation with the shipowners' and seafarers' organizations concerned (Article 4, paragraph 1, of Convention No. 73); (ii) whether the medical certificate shall attest the particulars listed in Article 4, paragraph 3, and, if so, what are the specific provisions of the national laws or regulations establishing such requirement (Article 4, paragraph 3); (iii) what is the period of validity of the medical certificate and what are the respective provisions of the national laws or regulations establishing such period (Article 5, paragraph 1); (iv) what is the period of validity of a medical certificate in so far as it relates to the colour vision and indication of the specific provisions of the national laws or regulations establishing such period (Article 5, paragraph 2).
-- Convention No. 68 (Article 5): Please indicate: (i) whether there exist laws or regulations concerning food supply and catering arrangements designed to secure the health and well-being of the crews of the vessels; (ii) whether these laws or regulations require the provision of food and water supplies which, having regard to the size of the crew and the duration and nature of the voyage, are suitable in respect of quantity, nutritive value, quality and variety; and (iii) whether these laws or regulations require the arrangement and equipment of the catering department in every vessel in such a manner as to permit of the service of proper meals to the members of the crew.
-- Convention No. 87: Please indicate: (i) whether seafarers who are not citizens of Brazil can establish and, subject only to the rules of the organizations concerned, join organizations of their own choosing without previous authorization and whether they can exercise union functions (Article 2 of Convention No. 87); (ii) whether the Minister of Labour has discretionary powers to approve the constitution and rules of occupational associations or whether such approval is a mere formality (Article 2); (iii) how it is ensured that workers' and employers' organizations have the right to formulate their programmes (Article 3, paragraph 1); (iv) what are the specific powers of the officers of the Ministry of Labour appointed by the Minister of Labour or his representative under section 525 of the Codification of Labour Laws (the "CLL") (Article 3, paragraph 2); (v) what is the criteria for determining whether under section 528 of the CLL the dispute or occurrence disturbs the operation of an occupational organization; (vi) what are the specific powers of the representative of the Ministry of Labour, appointed under section 528 of the CLL; (vii) whether there exists a right of appeal against the decision of the Ministry of Labour to intervene under section 528 of the CLL; (viii) details on the practical application of section 528 of the CLL; (ix) whether the Government intends to repeal the provisions of sections 534 and 535 of the CLL imposing restrictions on the right of trade unions to establish and join federations and confederations and the provision of section 565 of the CLL making international affiliation subject to previous authorization by Decree of the President of the Republic.
-- Standards of hours of work: Please indicate whether national laws or regulations establish any limitations on the overtime when the vessel is at sea.
Article 2(b)(i). The Committee asks the Government to indicate what measures have been taken to ensure effective jurisdiction in respect of the observance of the laws and regulations dealing with the matters mentioned in this paragraph.
Article 2(b)(ii). The Committee asks the Government to indicate whether there is any specialized institution entrusted with the duty of supervision over the observance of social security measures prescribed by national laws or regulations.
Article 2(c). Please indicate: (i) specific measures for the effective control of shipboard conditions of employment and living arrangements, where the State has no effective jurisdiction, agreed between shipowners or their organizations and seafarers' organizations; and (ii) the criteria for delimitation between the governmental control (exercised by the labour inspection within the framework of the Ministry of Labour; the Ministry of Fleet through the Directorate of Ports and Coasts and other bodies) and non-governmental control established by respective agreements between shipowners or their organizations and seafarers' organizations.
Article 2(d)(i) and (ii). Please provide a more detailed description of the procedure: (i) for the investigation of complaints arising in connection with the engagement of seafarers on ships registered in the territory of Brazil; and (ii) for the investigation of complaints made in connection with the engagement in the territory of Brazil of seafarers of Brazil or foreign seafarers on ships registered in a foreign country.
Article 2(f). Please provide information on the working of the inspection (size of inspection staff; number and results of inspections and investigations of complaints; penalties imposed); and indicate how cooperation is organized between the labour inspection and the Directorate of Ports and Coasts.
Article 2(g). Please indicate whether the final reports of such inquiries are made public; and provide information on the number of inquiries held during the current reporting period, and on measures taken as a result.
Article 4, paragraph 1. Please provide information on the number and nature of cases considered and on the nature of any action taken.
Part IV of the report form. The Committee asks the Government to provide detailed information on any measures adopted following the assessment and proposals of the tripartite working group, created in accordance with Order No. 893, dated 15 September 1992, and on progress achieved in the application of the Convention through enhanced inspection.
The Committee also asks the Government to provide copies of the following documents:
-- Order No. 3.214 on the approval of regulatory norms on safety and medicine at work, dated 8 June 1978;
-- Order No. 16 on the establishment of norms for the operation of foreign ships in waters under national jurisdiction, dated 23 April 1993;
-- PORTOMARINST No. 20-02-A, adopted by the Directorate of Ports and Coasts of the Ministry of Marine.
The Committee notes the information provided by the Government in its report of November 1997 according to which the tripartite working group set up under Order No. 893 of 15 September 1992 with a view to implementing Convention No. 147 has prepared labour inspection provisions and proposals for various maritime regulatory standards; it also notes that the working group's report will be forwarded to the Office.
The Committee recalls that in its previous comments it requested the Government to provide a detailed list of the legislation guaranteeing the application of the Convention, in particular in respect of the Conventions listed in the appendix to the Convention which have not been ratified, and to provide copies of the texts which have not already been sent to the Office. For its part, the Committee notes that the Office has requested the Government, on several occasions (October 1995, June 1996, January 1997), to provide copies of these texts. While noting the information provided by the Government concerning the working group's undertakings, the Committee urges the Government to provide, as soon as possible, copies of the relevant texts guaranteeing the application of the Convention.
The Committee notes the information contained in the Government's first report. It notes in particular that a tripartite working group has been set up composed of representatives of the Ministries of Shipping and Labour, the National Union of Shipowners and the National Federation of Workers in the Shipping and Fishing Sector and is elaborating standards to ensure that effect is given to the Convention. In this connection it notes the report of the national seminar on Convention No. 147 organized with ILO participation, which took place from 16 to 19 November 1993 in Rio de Janiero, and that the above-mentioned working group has prepared four preliminary draft of regulations concerning: the work done by labour inspectors; guidelines for cooperation between the inspection units of the Ministries of Shipping and Labour; defining the term "seagoing ship"; and setting occupational health and safety standards for the shipping sector. The Committee encourages the Government to request any technical assistance it may need from the Office in preparing these regulations. It would be grateful if the Government would provide a detailed list of the laws that apply to the Convention, particularly in relation to the Conventions listed in the appendix to the present Convention and not ratified by Brazil, and to provide a copy of the texts which have not yet been communicated to the Office. Please provide detailed information on the laws and regulations, or other measures, under which each Article is applied, together with fuller information on the provisions for which specific indications are requested in the report form.