Fishermen's Articles of Agreement Convention, 1959 (No. 114) - Spain (Ratification: 1961)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the Government’s reports on the application of Conventions Nos 113, 114 and 126 relating to the fishing sector. The Committee also notes the observations of the General Union of Workers (UGT) and of the Trade Union Confederation of Workers' Commissions (CCOO), received on 22 and 31 August 2016, respectively, as well as the Government’s reply to those observations. In order to provide an overview of matters arising in relation to the application of the Conventions on the fishing sector, the Committee considers it appropriate to examine them in a single comment, as follows.

The Committee notes with interest the measures that the Government plans to take in order to transpose Council Directive (EU) 2017/159, of 19 December 2016, implementing the Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation, concluded on 21 May 2012 between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers' Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche). The Committee requests the Government to provide information on any measures or legal provisions adopted within this framework that have an impact on the application of the ILO Conventions on the fishing sector.

Medical Examination (Fishermen) Convention, 1959 (No. 113)

Article 2 of the Convention. Medical certificate for fishers. The Committee notes that the CCOO refers to the need for medical staff to have access to job evaluation reports in relation to medical examinations so that they are fully aware of the occupational health risks workers face and have more precise information at their disposal when conducting such examinations. In this regard, the Committee notes the Government’s indication that the concerns raised by CCOO will be taken into account during the development of the regulations of Act No. 47/2015 on social protection for workers in the maritime fishing sector. The Committee requests the Government to provide information on any developments in this area to ensure that doctors who grant medical certificates have all the necessary information at their disposal to discharge fully the functions entrusted to them by the Convention.

Article 5 of the Convention. Independent examinations by a medical referee. The Committee notes the UGT’s indication that, in accordance with section 10 of Royal Decree No. 1696/2007, regulating pre-embarkation maritime medical examinations, persons denied a certificate only have one administrative recourse, which is determined by the Director-General of the Social Marine Institute, only taking into consideration reports by the doctor who refused to grant the certificate. The Committee notes the Government’s indication that, in the context of the regulations that are being drafted under Act No. 47/2015, a draft text is being prepared which includes the possibility for anyone who disagrees with the result of a medical examination to request another assessment by a different maritime health practitioner. The Committee requests the Government to provide information on the developments of the draft text or any other measure taken to ensure that anyone denied a medical certificate is able to request another examination by one or more medical referees.

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

Articles 3 to 11 of the Convention. Fishers’ articles of agreement. In its previous comments, the Committee requested the Government to take the necessary measures, without delay, to ensure the application of the provisions of the Convention relating to the obligation to conclude fishers’ articles of agreement in writing (Article 3), the particulars that must be contained in the agreements (Article 6), the possibility for the fisher to obtain information on board about the conditions of employment (Article 8) and the need for national legislation, collective or individual agreements to determine the circumstances in which the fisher may demand his immediate discharge (Article 11). The Committee notes with interest the draft bill of February 2019, seeking to revise the amended text of the Workers’ Charter, approved by Royal Legislative Decree No. 2/2015 of 23 October 2015, on work in fishing. Prepared within the framework of the transposition of the European Union Directive, the draft bill seeks to amend section 8(2) of the amended text of the Workers’ Charter in order to require, in all cases, employment contracts for fishers in writing. The Committee also notes with interest the draft Royal Decree establishing working conditions in fishing, of September 2019, also prepared within the framework of the transposition of the Directive. This draft bill regulates, in a detailed manner, the content of fishers’ articles of agreement. The Committee requests the Government to provide information on the progress made on the draft bill and draft Royal Decree.

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

Article 3 of the Convention. Applicable legislation. In its previous comments, the Committee requested the Government to provide information on any new legislation adopted in order to give effect to Article 3 which establishes the obligation for each Member to maintain in force legislation that ensures the application of the provisions of Parts II (Planning and control of crew accommodation) III (Crew accommodation requirements) and IV (Application to existing ships) of the Convention. The Committee notes that the draft Royal Decree of September 2019 establishing working conditions in fishing regulates certain aspects of accommodation on board fishing vessels and establishes minimum safety and health requirements applicable to the accommodation. The Committee requests the Government to provide information on the progress made on the draft Royal Decree of September 2019.

Finally, the Committee notes that the CCOO in its observations welcomes the so-called SEGUMAR campaigns for the prevention of occupational hazards in fishing conducted by the Ministry of Development, the Ministry of Labour and Immigration and the Ministry of Environment and Rural and Marine Affairs, as well as detailed information provided by the Government on those campaigns.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 3 to 11 of the Convention. Fishermen’s articles of agreement. With reference to its previous comments, the Committee notes the Government’s confirmation that the employment relationships of fishers are regulated by the Workers’ Statute, and that no other legal provisions apply to them. Regarding the requirement that articles of agreement are to be concluded in writing, pursuant to Article 3 of the Convention, the Government indicates that section 8 of the Workers’ Statute lists the cases in which the employment contract must be established in writing. These include apprenticeship contracts, part-time contracts and certain fixed-term contracts. Articles of agreement for maritime fishing, however, are not included in this list. The Government also refers to Royal Decree No. 1424/2002 of 27 December 2002 which regulates communication to the public employment services of the content of employment contracts and copies thereof, as well as the use of telematics to this end. However, the Committee notes that the Royal Decree provides only for the communication of the content of employment contracts, without requiring that they be concluded in writing in all circumstances. Section 1 of the Decree, in fact, provides that the obligation for employers to communicate the content of employment contracts concluded by them applies “whether or not these must be formalized in writing”. The Government also mentions Royal Decree No. 1659/1998 of 24 July 1998 to apply section 8(5) of the Workers’ Statute which deals with information for workers on the main elements of the employment contract. The Committee notes that, while communication of this information is certainly useful and contributes to the protection of the workers, the provisions of this Royal Decree and of section 8(5) of the Workers’ Statute do not give effect to the provisions of the Convention regarding the formalities for concluding fishers’ articles of agreement and the particulars they must contain. Nor are the legal requirements relating to the crew list and book service, to which the Government also refers, any more likely to ensure implementation of the Convention.

Consequently, the Committee can only note with concern that the current legislation does not ensure application of the main provisions of the Convention that address, in particular, the obligation to conclude fishers’ articles of agreement in writing and the particulars they are bound to contain. It urges the Government rapidly to take the necessary measures to bring its legislation into conformity with the Convention, the requirements of which are to a large extent reproduced in the Work in Fishing Convention, 2007 (No. 188), which is the consolidated and up-to-date instrument in this area.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Articles 3 to 11 of the Convention. Fishers’ articles of agreement. The Committee notes that the Government, without replying to its previous comment concerning gaps in Act No. 8/1980 of 10 March 1980 issuing general regulations for workers, confirms that the regulations applying to fishers’ articles of agreement are identical to those in force for other workers. The Committee understands that, in a 1996 socio-economic analysis of the fishing sector (Report 7/1996 of 27 November 1996), the Economic and Social Council noted the absence in the Spanish legal system of fishing-specific regulations concerning employment contracts. It also understands that a number of Spanish academics have pointed out the gaps in the Spanish social legislation – particularly with respect to fishers’ articles of agreement, following the repeal of ordinances on work in fishing. The Committee can only express its concern at the absence, in Act No. 8/1980, of provisions giving effect to the main requirements of the Convention, such as the written form of the articles of agreement (Article 3), the particulars that must be contained in this agreement (Article 6) and the possibility for the fisher to obtain information on board about the conditions of employment (Article 8). Consequently, the Committee requests the Government to provide a detailed report describing the way in which the implementation of the various provisions of the Convention are ensured and, if applicable, the measures it envisages taking in order to guarantee their full application. The Government is also requested to submit a copy of collective agreements applicable to the fishing sector that might contain provisions relating to the articles of agreement.

Finally, the Committee draws the Government’s attention to the Work in Fishing Convention, 2007 (No. 188), which revises in an integrated manner most of the existing ILO fishing instruments and sets out a new comprehensive standard on fishers’ working and living conditions. In particular, Articles 16 to 20 and Annex II of Convention No. 188 draw upon and expand on the provisions of Convention No. 114. The Committee accordingly invites the Government to consider favourably the ratification of Convention No. 188 and requests it to keep the Office informed of any decision taken in this regard.

[The Government is asked to reply in detail to the present comments in 2012.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information provided in the Government’s report, including the adoption of the laws and regulations mentioned therein, and would like to receive further information on the following points.

The Committee notes that, pursuant to the transitional provisions of Act No. 8/1980 of 10 March 1980 issuing general regulations for workers, the Order of the Ministry of Labour and Social Security of 28 December 1994 extended, until 31 December 1995, the application of the Orders of 16 January 1961 on trawler fishing and 26 July 1963 on seine net fishing and other fishing techniques, which previously gave effect to the provisions of the Convention. The Committee understands that, in line with efforts to phase out old heteronomous regulations of a sectoral nature concerning labour relations, these texts have not been in force since 1 January 1996, and that fishers’ articles of agreement are currently governed by Act No. 8/1980 of 10 March 1980 issuing general regulations for workers, as consolidated by Legislative Decree No. 1/1995 of 24 March 1995.

Furthermore, the Committee notes that the Act issuing general regulations for workers contains no provisions to give effect to Articles 4 (departure from the ordinary rules as to jurisdiction over the agreement), 5 (keeping of records of employment and making such records available to fishers) and 8 (information on board as to the conditions of employment) of the Convention. It also notes that, pursuant to section 8, paragraph 1, of the same Act, articles of agreement may be concluded orally. In this regard, the Committee recalls that, under the terms of Article 3 of the Convention, fishers’ articles of agreement shall be concluded in writing; they shall contain all the particulars listed in Article 6; and shall be recorded in the list of crew, as envisaged in Article 7. The Committee requests the Government to confirm that the abovementioned Orders of 1961 and 1963 are no longer in force and to indicate the laws or regulations that currently give effect to the abovementioned provisions of the Convention.

Part V of the report form. The Committee notes the information provided by the labour inspection services concerning fishing sector violations reported during the course of 2005. It also notes the statistical data on the number of articles of agreement registered between 2000 and 2006. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in the country.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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).