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

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the reports submitted by the Government on the application of maritime Conventions Nos 22, 133, 146, 147, 163, 164, 166 and 178. With a view to providing an overview of the matters raised in relation to the application of these maritime Conventions, the Committee considers it appropriate to examine them in a single comment, as follows.

The Committee notes the Government’s indications that the Tripartite Committee on Maritime Working Conditions (CT–Maritime) has held several meetings on issues relating to the ILO maritime Conventions, with a primary focus on the implementation of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Government also indicates that it is in the process of ratifying MLC, 2006, after which it will adopt regulations to implement the Convention in domestic legislation. Pending the ratification of MLC, 2006, the discussions held by the CT–Maritime will continue in order to bring the existing legislation into conformity with the requirements of the maritime Conventions in force, based on the Committee’s comments. The Committee further notes the information provided by the Government on the inspections carried out regarding the issues covered by the maritime Conventions.

The Committee observes that, based on the recommendations of the Special Tripartite Committee established under MLC, 2006, the Governing Body decided that countries bound by, inter alia, Conventions Nos 22, 146 and 166 should be encouraged to ratify MLC, 2006, which would involve the automatic denunciation of these Conventions (GB.334/LILS/2(Rev.)). In this regard, the Committee encourages the Government to ratify MLC, 2006, and requests the Government to provide information on any progress achieved in this regard.

Seamen’s Articles of Agreement Convention, 1926 (No. 22). Article 3 of the Convention. Agreement signed by shipowners or their representatives and by seafarers. In its previous comment, in light of the fact that section 443 of the Consolidated Labour Laws (CLT) provides that a contract of employment may be either written or oral, the Committee requested the Government to indicate how it is ensured that the seafarer’s contract of employment is signed both by the shipowner or his or her representative and by the seafarer. The Committee observes that the Government repeats the information provided previously and adds that labour inspectors verify the existence of a valid employment agreement signed by the shipowner or his or her representative and by the seafarer, in accordance with all of the requirements set out in the Convention. The Government also indicates that, pursuant to section 13 of the CLT, each worker has an employment and social security record card on which they must record all employment and which must be signed by their employer. While observing that, according to the Government’s indication, Article 3 is applied in practice, the Committee recalls that Article 3 of Convention No. 22 (a provision that has been incorporated into MLC, 2006), each Member shall adopt laws or regulations requiring all seafarers working on ships that fly its flag to have a seafarers’ employment contract signed by both the seafarer and the shipowner or a representative of the shipowner. The shipowner and the seafarer concerned shall each have a signed original of the seafarers’ employment agreement. This agreement must also contain the information required by Article 6 of the Convention. The Committee requests the Government to indicate the legislative measures adopted that require seafarers to have an employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner.

Article 6. Particulars of articles of agreement. In its previous comment, the Committee requested the Government to indicate the manner in which it ensures that seafarers’ employment contracts contain the particulars listed in Article 6(3). In view of the lack of information provided by the Government, the Committee requests it to supply information in this regard.

Article 14(2). Certificate on quality of work. In its previous comment, the Committee requested the Government to indicate the measures taken to ensure that seafarers have at all times the right to obtain from the master a certificate on quality of work. The Committee notes the Government’s indication that, in order to give full effect to this Article of the Convention, discussions were initiated within the CT-Maritime and are ongoing. The Committee requests the Government to provide information on the measures adopted to give effect to Article 14(2) of the Convention.

Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133)

Article 5(1)–(9). Sleeping rooms. Article 6(1). Floor area of mess rooms. Article 7. Recreation facilities. Articles 8(1)–(5) and (7), and 9. Sanitary facilities. Article 10. Minimum headroom. Article 11. Lighting. In its previous comment, the Committee noted that the issues addressed with regard to the requirements on sleeping rooms, floor area of mess rooms, recreation facilities, sanitary facilities, minimum headroom and lighting, would be discussed by the National Standing Committee for Waterways (CPNA) and the CT–Maritime, and requested the Government to provide information on the progress achieved in this regard. The Committee notes the Government’s indication that the discussions are ongoing in the CPNA and the CT–Maritime in order to bring the legislation into force, particularly Regulation No. 30 on maritime occupational safety and health, into conformity with the Convention. The Committee encourages the Government to take, without delay, the necessary measures to ensure conformity with the detailed requirements of the Convention regarding sleeping rooms, mess rooms, recreation facilities, sanitary facilities, minimum headroom and lighting.

Seafarers’ Annual Leave with Pay Convention, 1976 (No. 146)

Article 9. Cash payment in lieu of leave. The Committee notes the Government’s indication, in reply to the Committee’s previous request, that, due to its ratification, Convention No. 146 was the force of law. In this way, section 143 of the CLT, under which seafarers are allowed to request that one third of their leave entitlement take the form of a cash payment, is applied in conjunction with Article 9 of the Convention, which allows for annual leave to be substituted by a cash payment only in exceptional cases. The Government adds that the labour inspectorate carries out inspections with a view to ensuring that the substitution of annual leave is only permitted in accordance with Article 9 of the Convention.

Article 10. Time of annual leave. In its previous comment, the Committee requested the Government to provide information on the progress achieved by the CT–Maritime in ensuring conformity with Article 10(1) of the Convention, which provides that the time at which the leave is to be taken shall, unless it is fixed by regulation, collective agreement, arbitration award or other means consistent with national practice, be determined by the employer after consultation and, as far as possible, in agreement with the seafarer concerned or his or her representatives. The Committee notes the Government’s indication that section 136 of the CLT, which provides that annual leave shall be granted at a period most convenient to the employer’s interests, subject to the exceptions specified, does not require the time of annual leave to be agreed upon with the worker. The Government indicates, however, that collective agreements may comply with Article 10(1), as they provide for more favourable conditions for workers with regard to determining the time of annual leave. The Committee requests the Government to adopt the necessary measures to ensure full conformity with Article 10(1) of the Convention and requests it to provide information in this regard.

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)

Article 2(a)(i). Safety standards. Medical examination. In its previous comment, the Committee requested 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). The Committee notes that section 30.5.4 of Regulation No. 30, as amended, provides that the medical criteria and medical certificate template established in Table III must be applied for maritime workers operating vessels intended for navigation in the open sea. The Committee notes that the minimum criteria for medical examinations and the medical certificate template, which are in conformity with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW), are in conformity with Convention No. 73.

Article 2(a)(ii). Social security measures. In its previous comment, the Committee noted the Government’s indication on Decree No. 3048/99, which provides the basis for free health and medical care for all workers in Brazil. The Government also supplied information on the allowances provided in case of occupational sickness or industrial accident. The Committee requested 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 intended to apply for the purposes of this Convention. The Committee notes the Government’s indication that social security benefits, for both sickness and accidents, are the responsibility of the Ministry of Social Security, and are determined based on the form of contribution and not on the sector of work. The Government also indicates that it has not ratified any of the three Conventions on social security. The Committee recalls that Article 2(a)(ii) of Convention No. 147 provides that each Member undertakes to have laws or regulations laying down, for ships registered in its territory, appropriate social security measures; and to satisfy itself that the provisions of such laws and regulations are substantially equivalent to one of the above Conventions, in so far as the Member is not otherwise bound to give effect to the Conventions in question. The Committee observes that, in accordance with Article 2(a)(ii), for not having ratified any of these three Conventions, Brazil is required to demonstrate that the provisions contained in domestic legislation are substantially equivalent to those contained in one of the three Conventions (Nos 55, 56 or 130). The Committee requests the Government to provide information on the manner in which it has adequately demonstrated that its domestic legislation is substantially equivalent to at least one of Conventions Nos 55, 56 and 130 with regard to seafarers working on board ships registered in its territory.

Article 2(a)(iii). Shipboard conditions of employment. Freedom of association. In its previous comment, the Committee requested 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. The Committee notes the adoption of Act No. 13467 reforming the CLT, with regard to, inter alia, freedom of association issues. The Committee recalls that, in accordance with Article 2(a)(iii) of the Convention, each Member which ratifies this Convention undertakes to have laws or regulations laying down shipboard conditions of employment and shipboard living arrangements, and to satisfy itself that the provisions of such laws and regulations are substantially equivalent to the Conventions or Articles of Conventions referred to in the Appendix to this Convention, including Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in so far as the Member is not otherwise bound to give effect to the Conventions in question. The Committee requests the Government to indicate the manner in which the reform of the CLT affects the respect of the freedom of association of seafarers working on board ships registered in Brazil.

Seafarers’ Welfare Convention, 1987 (No. 163)

Articles 2(1) and 5. Welfare facilities and services. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that welfare services and facilities are reviewed frequently. The Committee notes the information provided by the Government on the welfare services at sea and in port, and on the inspections carried out in this regard. However, it observes that the Government does not provide information on the measures adopted to guarantee that welfare facilities and services are reviewed frequently to ensure that they are appropriate in the light of changes in the needs of seafarers resulting from technical, operational and other developments in the shipping industry, as set out in Article 5 of the Convention. The Committee once again requests the Government to provide information on the measures adopted to give full effect to Article 5 of the Convention.

Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164)

Article 5(4). Inspection of the medicine chest at regular intervals. In its previous comments, the Committee requested the Government to indicate the manner in which it is ensured that the medicine chest and medical equipment carried on board are inspected at regular intervals not exceeding 12 months. Noting the Government’s indication that the matter is still being examined by the CT–Maritime, the Committee requests it to provide, without delay, information on the progress achieved in this regard.

Article 8. Medical doctor on board ships. In its previous comments, the Committee requested the Government to adopt measures to ensure that all ships carrying 100 or more seafarers and ordinarily engaged on international voyages of more than three days’ duration carry a medical doctor as a member of the crew. Noting the Government’s indication that the matter is still being examined by the CT–Maritime, the Committee requests it to provide information on the progress achieved in this regard.

Article 9(1). Persons in charge of medical care. In its previous comment, the Committee noted that under section 0113 of NORMAM-01/DPC, ships engaged in coastal navigation must carry a nurse or health auxiliary for voyages of over 48 hours for passenger ships and over 72 hours for cargo ships. The Committee recalled that, in accordance with Article 9(1) of the Convention, all ships to which this Convention applies and which do not carry a doctor shall carry as members of the crew one or more specified persons in charge of medical care and the administering of medicines as part of their regular duties. The Committee therefore requested the Government to indicate the manner in which it is ensured that ships engaged in coastal navigation for voyages of under 48 hours for passenger ships and under 72 hours for cargo ships carry one or more specified persons in charge of medical care and the administering of medicines as part of their regular duties. Noting the Government’s indication that the matter is still being examined by the CT–Maritime, the Committee requests it to provide, without delay, information on the progress achieved in this regard.

Article 12. Standard medical report form. In its previous comments, the Committee requested the Government to adopt a standard medical report form as required by the Convention. The Committee notes that the Government, as in its previous report, refers to the seafarers’ health certificate and not to the medical report form, the requirements for which are set out in Article 12 of the Convention. The Committee recalls that a medical certificate attests the aptitude of a person to work as a seafarer (see comment on Convention No. 147, Article 2(a)(i)), while a medical report form is a model for use by ships’ doctors, masters or persons in charge of medical care on board and hospitals or doctors ashore, and is designed to facilitate the exchange of medical and related information concerning individual seafarers in cases of illness or injury (Article 12(1) and (2)). The Committee once again requests the Government to take the necessary measures to adopt a standard medical report form as required by Article 12 of the Convention.

Repatriation of Seafarers Convention (Revised), 1987 (No. 166)

Articles 4(5), 6, 7 and 12. Arrangements for repatriation. In its previous comments, the Committee requested the Government to adopt supplementary provisions to Decree No. 6968 of 29 September 2009, in order to regulate the following matters which are not contained in the Decree: (i) prohibiting the shipowner from requiring an advance payment to cover repatriation costs (Article 4(5)); (ii) entitling the seafarer to obtain their passport and identity documents for the purpose of repatriation (Article 6); (iii) prohibiting the deduction of time spent awaiting repatriation or repatriation travel time from paid leave (Article 7); and (iv) ensuring that the text of the Convention is available to crew members in an appropriate language (Article 12). The Committee notes the Government’s indication that, since its ratification by Brazil, Convention No. 166 has the force of law, and must be applied throughout the national territory. The Government also indicates that the various regulatory instruments in force in Brazil coexist in a harmonious and complementary manner, and in case of conflict between regulations, those most favourable to the workers are applied.

Labour Inspection (Seafarers) Convention, 1996 (No. 178)

Article 3(3). Inspection following substantial changes. In its previous comments, the Committee requested the Government to specify which provision of NORMAM-01/DPC ensures that ships flying the Brazilian flag are inspected within three months of substantial changes in construction or accommodation arrangements. The Committee notes the Government’s indication that the initial inspection for the issuance of navigation safety certificates are carried out during or after the construction, alteration or substantial alteration of a ship, including in cases of substantial changes. The Government also indicates that, despite the fact that NORMAM-01/DPC does not provide for a specific period of time in which initial inspection visits must be carried out, NORMAM-06/DPC specifies that one of the requirements for recognition as a classification society that issues certificates is the maintenance of a permanent administrative and technical structure capable of addressing inspection requests within 48 hours. The Committee also notes the Government’s indication that, in practice, inspection visits are carried out at the request of the person concerned within three months. The Committee observes that the scope of application of the provisions on inspection visits (chapter 10 of NORMAM-01/DPC) does not extend to all of the ships covered by Convention No. 178, that is, “every seagoing ship, whether publicly or privately owned, which is registered in the territory of a Member for which the Convention is in force and is engaged in the transport of cargo or passengers for the purpose of trade or is employed for any other commercial purpose” (Article 1(1)), with the exception of the vessels described in Article 1(4). The Committee requests the Government to indicate the measures adopted to ensure that all ships covered by the Convention are inspected within three months after substantial changes in construction or accommodation arrangements have been made, in accordance with Article 3(3) of the Convention.

Article 6. Compensation for unreasonable detention or delay. The Committee notes that the Government indicates, in response to its previous request that shipowners who suffer any damage as the result of the detention of the ship by the inspectorate may bring their case before the courts, which will examine the case and determine whether any compensation is due or any other compensatory measures are to be taken.

Articles 8 and 9. Annual reports and inspection reports. In its previous comments, the Committee requested the Government to adopt the necessary measures to ensure that an annual report is prepared (Article 8) and that: (i) a copy of the inspection report is posted on the ship’s notice board for the information of the seafarers or sent to their representatives; and (ii) the inspection report pursuant to a major incident is submitted no later than one month following the conclusion of the inspection (Article 9). The Committee notes that, with regard to the requirements on annual inspection reports, the Government indicates that the Federal System of Labour Inspection – Web (SFIT-Web) came into operation in 2015, and that the Inspection Report Unit was to be established in December 2016, thus allowing for the issuance of annual reports that included information on the ships inspected, the results of the inspections, and on the labour inspectors.

With regard to the requirements on inspectors’ reports, the Committee notes the Government’s indication that, copies of inspection reports are not usually posted on the ship’s notice board, but rather are only sent to workers’ trade union representatives, to ensure the confidentiality of the information on seafarers (particularly in the case of accidents). Following discussions on the need to meet the requirements of the Convention in this regard, a standard report form was developed and submitted for adoption by the Secretariat of Labour Inspection.

The Committee also notes the Government’s indication that, in accordance with Ministry of Labour Order No. 643 of 2016, the time limit for the submission of inspection reports will be determined by the inspection directorate. Consequently, the conformity of such time limits with the provisions of the Convention will depend on the decision made by this authority. The Committee requests the Government to provide information on the progress achieved to ensure that, in case of an inspection pursuant to a major incident, reports are submitted no later than one month following the conclusion of the inspection, in accordance with Article 9(2) of the Convention.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes that in its reports sent on the application of a number of maritime Conventions the Government indicates that: (i) a Tripartite Committee on Maritime Working Conditions (CT–Maritime) has been created by Decree No. 2.242 of the Ministry of Labour and Employment (MTE), of 14 September 2010, with the mandate to function as a tripartite consultative body in relation to matters arising from ratified maritime Conventions; (ii) a number of requests made by the Committee of Experts in relation to the application of these Conventions have been sent to the CT–Maritime for examination; and (iii) measures were being taken to bring the national legislation into conformity with the Maritime Labour Convention, 2006 (MLC, 2006), with a view to its ratification. While noting these efforts, the Committee will continue to examine the conformity of national legislation with the requirements of ratified maritime Conventions. In order to provide a comprehensive view of the issues to be addressed in relation to the application of these Conventions, the Committee considers it appropriate to examine these issues in a single comment, as follows.

Seamen’s Articles of Agreement Convention, 1926 (No. 22). Articles 3, 6 and 7. Articles of agreement. The Committee previously requested the Government to indicate the manner in which effect was given to the provisions of the Convention concerning the signature of articles of agreement and their content. The Committee notes in this regard that the Government reiterates that the employment of seafarers is governed by the Consolidated Labour Laws (CLT). It further notes that the Carteira de Trabalho e Previdência Social (CTPS) and the Caderneta de Inscrição e Registro (CIR), to which the Government refers in its report, contain a record of employment but do not constitute contracts of employment. In addition, the Committee notes that relevant legislation contains references to contracts of employment, such as section 7 of Act No. 9.537, of 1997, and Normative Instruction No. 70 of the Labour Inspection Department of the MTE, of 2007, but such references do not entail compliance with the specific requirements of the Convention. Finally, the Committee notes the Government’s indication that seafarers’ contracts of employment are always written and signed by both parties. However, since section 443 of the CLT provides that a contract of employment can be either written or oral, the Committee requests the Government to indicate how it is ensured that: (i) the seafarer’s contract of employment is signed both by the shipowner or his or her representative and by the seafarer (Article 3); (ii) it contains the particulars enumerated in Article 6(3); and (iii) it is recorded in or annexed to the list of crew (rol de equipagem) (Article 7).

Article 14(2). Certificate on quality of work. The Committee previously requested the Government to indicate the measures taken to ensure that seafarers have at all times the right to obtain from the master a certificate on quality of work. Noting the Government’s indication that it would send a request to the CT–Maritime in order to give full effect to this provision of the Convention, the Committee requests the Government to provide information on progress achieved in this respect.

Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133). Article 5(1)–(9). Sleeping rooms. Article 6(1). Floor area of mess rooms. Article 7. Recreation facilities. Articles 8(1)–(5) and (7) and 9. Sanitary facilities. Article 10. Minimum headroom. Article 11. Lighting. The Committee previously noted that the existing legislation, in particular the Maritime Authority Standards for Vessels used in Open Sea Navigation (NORMAM-01/DPC), did not give full effect to the detailed requirements of these Articles of the Convention. The Committee notes the Government’s indication that it would bring the majority of these issues to the attention of the National Standing Committee for Waterways (CPNA) and the CT–Maritime. The Committee requests the Government to provide information on any progress achieved in this regard. The Committee reiterates its request to the Government to take the necessary measures to ensure conformity with the detailed requirements of the Convention regarding sleeping rooms, mess rooms, recreation facilities, sanitary facilities, minimum headroom and lighting.

Seafarers’ Annual Leave with Pay Convention, 1976 (No. 146). Article 9. Cash payment in lieu of leave. In its previous comments, the Committee noted that under section 143 of the CLT, seafarers were allowed to request that one third of their leave entitlement take the form of a cash payment. Recalling that it is only in exceptional cases that provision may be made for the substitution for annual leave of a cash payment, the Committee requests the Government to take the necessary measures to ensure that such substitution is allowed only in conformity with Article 9 of the Convention.

Article 10. Time of annual leave. In its previous comments, the Committee noted that under section 136 of the CLT, seafarers’ annual leave was granted at a period most convenient to the employer’s interests. The Committee recalls that, according to the Convention, the employer’s decision is to be taken after consultation and, as far as possible, in agreement with the seafarer concerned or his representatives. Noting that the Government indicates that it would send this matter to the CT–Maritime for its consideration, the Committee requests the Government to provide information on progress achieved in this respect.

Seafarers’ Welfare Convention, 1987 (No. 163). Articles 2(1) and 5. Welfare facilities and services. The Committee previously requested the Government to take the necessary measures to ensure that welfare services and facilities are reviewed frequently with a view to making sure that they are appropriate in the light of changes in the needs of seafarers resulting from technical, operational and other developments in the shipping industry. The Committee notes that the Government reiterates that welfare services and facilities are provided by voluntary organizations in partnership with seafarers’ unions, and that it is not aware of periodic reviews. Recalling that it is the Government’s responsibility to ensure the application of the Convention, the Committee reiterates its request to the Government to take the necessary measures to ensure that welfare services and facilities are reviewed frequently.

Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164). Article 5(4). Inspection of the medicine chest at regular intervals. The Committee previously requested the Government to indicate how it is ensured that the medicine chest and medical equipment carried on board are inspected at regular intervals not exceeding 12 months. Noting the Government’s indication that it would refer this matter to the CT–Maritime, the Committee requests the Government to provide information on progress achieved in this respect.

Article 8. Medical doctor on board ships. The Committee previously requested the Government to take measures to ensure that all ships carrying 100 or more seafarers and ordinarily engaged on international voyages of more than three days’ duration carry a medical doctor. Noting the Government’s indication that this matter has been raised in the CPNA and the CT–Maritime, the Committee requests the Government to provide information on progress achieved in this respect and reiterates its request to the Government to take the necessary measures to ensure that all ships carrying 100 or more seafarers and ordinarily engaged on international voyages of more than three days’ duration carry a medical doctor.

Article 9(1). Persons in charge of medical care. The Committee previously noted that under section 0113 of NORMAM-01/DPC, ships engaged in coastal navigation must carry a nurse or health auxiliary for voyages of over 48 hours for passenger ships and over 72 hours for cargo ships. It therefore requested the Government to indicate how it is ensured that ships engaged in coastal navigation for voyages of under 48 hours for passenger ships and under 72 hours for cargo ships carry one or more specified persons in charge of medical care and the administering of medicines as part of their regular duties. Noting the Government’s indication that this matter has been raised in the CPNA and the CT–Maritime, the Committee requests the Government to provide information on progress achieved in this respect.

Article 12. Standard medical report form. The Committee previously requested the Government to adopt a standard medical report form as required by the Convention. It notes that the seafarers’ health certificate to which the Government is referring in its report does not fulfil the requirement of the Convention according to which the standard medical report form must be specially designed to facilitate the exchange of medical and related information concerning individual seafarers between ship and shore in cases of illness or injury. Noting the Government’s indication that it would refer this matter to the CT–Maritime, the Committee requests the Government to provide information on progress achieved in this respect and reiterates its request to the Government to adopt a standard medical report form as required by the Convention.

Repatriation of Seafarers Convention (Revised), 1987 (No. 166). Articles 4(5), 6, 7 and 12. Arrangements for repatriation. The Committee recalls that it had previously requested the Government to consider the adoption of supplementary provisions to Decree No. 6.968 of 29 September 2009, in order to regulate the following matters which are not contained in the Decree: (i) prohibiting the shipowner from requiring an advance payment to cover repatriation costs (Article 4(5)); (ii) entitling the seafarer to obtain their passport and identity documents for the purpose of repatriation (Article 6); (iii) prohibiting the deduction of time spent awaiting repatriation or repatriation travel time from paid leave (Article 7); and (iv) ensuring that the text of the Convention is available to crew members in an appropriate language (Article 12). Noting the Government’s indication that some of these matters have been raised in the CT–Maritime, the Committee reiterates the need to put the legislation in conformity with the Convention and requests the Government to provide information on progress achieved in this respect.

Labour Inspection (Seafarers) Convention, 1996 (No. 178). Article 3(3). Inspection following substantial changes. The Committee previously requested the Government to specify how it is ensured that in cases of substantial changes in construction or accommodation arrangements, the ship shall be inspected within three months of such changes. It notes the Government’s reference to NORMAM-01/DPC in this regard. The Committee requests the Government to specify which provision of NORMAM-01/DPC ensures that ships flying the Brazilian flag are inspected within three months of substantial changes in construction or accommodation arrangements.

Article 6. Unreasonable detainment or delay. The Committee previously requested the Government to specify any provisions, legislative or other, ensuring that if a ship is unreasonably detained or delayed, the shipowner or operator of the ship shall be entitled to compensation for any loss or damage suffered and that, in any instance of alleged unreasonable detention or delay, the burden of proof shall lie with the shipowner or operator of the ship. It notes the Government’s indication that studies are being carried out for the issuance of a normative instruction to regulate the implementation of the Convention. The Committee requests the Government to take into account all the points raised by the Committee in its comments on the application of the Convention, when adopting this normative instruction, and to provide information in this regard.

Article 8. Annual reports. With reference to its previous request, the Committee notes that the Government reiterates that an annual report on inspection activities has not yet been produced. The Committee therefore requests the Government once again to take the necessary measures to ensure that such annual report is prepared, and to provide a copy thereof.

Article 9. Inspection reports. The Committee previously requested the Government to indicate how it is ensured that: (i) a copy of the inspection report is posted on the ship’s notice board for the information of the seafarers or sent to their representatives; and (ii) the inspection report pursuant to a major incident is submitted no later than one month following the conclusion of the inspection. The Committee notes that the information provided by the Government does not cover the obligation under Article 9 of the Convention. It is therefore bound to reiterate its request to the Government to ensure that: (i) a copy of the inspection report is posted on the ship’s notice board for the information of the seafarers or sent to their representatives; and (ii) the inspection report pursuant to a major incident is submitted no later than one month following the conclusion of the inspection.

[The Government is asked to reply in detail to the present comments in 2016.]

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

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.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report, the observation 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 this observation. Regarding the Committee’s comments on the substance of the Trade Union of Maritime Workers of the Port of Rio Grande observation, please refer to the comments it has made under Convention No. 147.

Article 4, paragraph 1, of the Convention. While under this provision of the Convention, seafarers shall be entitled to a proportionate holiday regardless of the reason for termination of employment, under section 147 of the Consolidation of Labour Laws (CLL) seafarers are entitled to a proportionate remuneration for holiday only when discharged without due cause. Correspondingly, it appears that, under section 147 of the CLL, seafarers who have been discharged for due cause are not entitled to remuneration for holiday.

The Committee asks the Government to take all necessary measures to bring section 147 of the CLL into conformity with the requirements of the Convention. It also asks the Government to clarify: (i) whether a seafarer whose length of service in any year is less than that required for the full entitlement to annual leave with pay and who has not been discharged may request an annual leave with pay proportionate to his length of service during that year; and (ii) what is the minimum period of work after which a seafarer may request such proportional leave with pay.

Article 10, paragraph 1, of the Convention. While under this provision of the Convention, the time at which the holiday is to be taken shall, unless it is fixed by regulation, collective agreement, arbitration award or other means consistent with national practice, be determined by the employer after consultation and, as far as possible, in agreement with the seafarer concerned or his representatives, section 136 of the CLL does not require even the consultation with the seafarer concerned. On the contrary, in accordance with section 136 of the CLL, the leave dates shall be most convenient to the employer’s interests. The Committee asks the Government to take all necessary measures to bring section 136 of the CLL into conformity with the requirements of the Convention.

Article 2, paragraph 2. Please clarify whether persons employed on board seagoing ships engaged in fishing or in operations directly connected therewith or in whaling or similar pursuits under the national legislation are considered as "seafarers".

Article 2, paragraph 3. Please indicate what ships are considered to be "seagoing" for the purpose of the Convention, and provide information on the consultations, which have taken place in accordance with this paragraph.

Article 2, paragraphs 4 and 5. Please indicate whether recourse has been had to these paragraphs and, if so, whether any consultations with the organizations of employers and workers concerned have taken place.

Article 5, paragraph 2. Please indicate how it is ensured that service off articles shall be counted as part of the period of service for the purpose of leave entitlement.

Article 6(d). Please describe the measures taken to ensure that periods of compensatory leave are not counted in the paid holiday, and the conditions laid down in this regard.

Article 10, paragraph 2. Please indicate how it is ensured that a seafarer is not required without his consent to take annual leave due to him at a place other than that where he was engaged or recruited, whichever is nearer his home, except under the provisions of a collective agreement or of national laws or regulations.

Article 10, paragraph 3. Please indicate how it is ensured that if a seafarer is required to take his annual leave from a place other than, that permitted by Article 10, paragraph 2, of the Convention, he is entitled to free transportation to the place where he was engaged or recruited, whichever is nearer his home; subsistence and other costs directly involved in his return there are for the account of the employer; and the travel time involved is not deducted from the annual leave with pay due to the seafarer.