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Article 3(1) of the Convention. Signature of articles of agreement. The Committee notes the Government’s reference to section 442 of the Consolidation of Labour Laws (CLT) and section 7 of Act No. 9.537 of 11 December 1997, which provides that the embarkation and disembarkation of a crew member is subject to the rules set out in the seafarer’s employment agreement, as presumably implementing the requirements of this Article of the Convention. However, the Committee considers that there is nothing in these two provisions that expressly provides for a written agreement signed by both the shipowner and the seafarer. The Committee therefore requests the Government to indicate how effect is given to this requirement of the Convention.
Articles 6(3) and 9. Content of the agreement and notice period. The Committee notes the Government’s indication that seafarers’ employment agreements are mostly concluded for an indefinite period and that notice periods – 30 days – are regulated by section 487 of the CLT. Particulars including service periods on board, voyages, date and place of embarkation and disembarkation, are stipulated in point 0105 of Maritime Authority Regulations 13 (NORMAM–13). It also notes, however, that point 0105 of NORMAM–13 does not comprise all the points enumerated in Article 6(3) of the Convention. It further notes that under Article 6(10)(c) of the Convention, the agreement itself has to lay down the conditions entitling either party to rescind it, as well as the required period of notice. Recalling that the same list of particulars has been incorporated in Standard A2.1(4) of the Maritime Labour Convention, 2006 (MLC, 2006), (with the addition of seafarer’s entitlement to repatriation, and health and social security benefits), the Committee requests the Government to provide information on the steps taken to ensure that all mandatory details are contained in the agreement, including the conditions entitling either party to rescind the agreement.
Article 14(2). Certificate on quality of work. The Committee notes the Government’s statement that there are no provisions in national law entitling seafarers to obtain a certificate from the master as to the quality of their work. It therefore again requests the Government to indicate steps taken or envisaged to ensure that seafarers have at all times the right to demand such certificate as provided for in this Article of the Convention.
Part V of the report form. Practical application. The Committee requests the Government to provide up-to-date information on the practical application of the Convention, including, for instance, inspection results, samples of seafarers’ employment agreements, specimen copies of the Employment and Social Welfare Book (CTPS) and the Registration and Record Book (CIR) and copies of applicable collective agreements.
Finally, the Committee recalls that Convention No. 22, as well as 67 other international maritime labour instruments, is revised by the MLC, 2006. Most of the provisions of this Convention have been incorporated without any significant changes in Regulation 2.1 and the corresponding Code of the MLC, 2006. The Committee, therefore, encourages the Government to take measures to ensure compliance with the provisions of Convention No. 22, in a manner that would also facilitate the implementation of corresponding requirements of the MLC, 2006, once ratified and entered into force.
The Committee notes the comments made by the Trade Union of Maritime Workers of the Port of Rio Grande concerning the 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.
Article 3, paragraph 1, and Article 6, paragraph 3, of the Convention. The Committee recalls that under Article 3, paragraph 1, of the Convention, articles of agreement shall be signed both by the shipowner or his representative and by the seaman. Article 6, paragraph 3, prescribes the particulars that this agreement shall contain.
In its previous comments, the Committee asked the Government to indicate the provisions of the national legislation prescribing that the seaman’s articles of agreement contain the matters set out in Article 6, paragraph 3. It notes the Government’s indication that Brazilian law provides for two types of documents for waterways employees: the Employment and Social Welfare Book (CTPS), and the Registration and Record Book (CIR). The Committee asks the Government to: (i) clarify whether under the legislation of Brazil, in addition to these two documents, a separate written agreement shall be signed between the shipowner or his representative and the seaman; (ii) indicate specific provisions of national laws or regulations prescribing the particulars that must be included into this agreement, and, if this is not the case; (iii) take all necessary legislative and practical measures to ensure that such separate agreement is signed between the shipowner and seamen, containing particulars mentioned in Article 6 of the Convention.
Article 9, paragraph 1. The Committee notes the Government’s indication that the national law does not provide for any justifiable grounds for dismissal other than extremely serious breaches listed in section 482 of the Codification of Labour Laws, as approved by Decree No. 5452, of 1 May 1943 (as amended). It asks the Government to indicate the legislative provisions allowing termination by either party of an agreement for an indefinite period in any port where a vessel loads or unloads, provided that notice of not less than 24 hours is given, in cases other than "discharge for just cause".
Article 14, paragraph 2. In its previous comments, the Committee asked the Government to indicate the provisions of national law providing the right for all seamen, in addition to the record mentioned in Article 5, to obtain from the master a separate certificate as to the quality of his work or, failing that, a certificate indicating whether he has fully discharged his obligations under the agreement. It notes the Government’s indication that there are no provisions in national law that establish a seaman’s right to obtain from the master a certificate as to the quality of his work. The Committee asks the Government to take the necessary measures to give full effect to the requirements of this provision of the Convention.
The Committee notes the changes in national legislation with the entry into force of Act No. 9.537 LESTA of 11 December 1997 concerning traffic safety in national waters and standard NORMAM-13 governing admission into the occupation, qualification and career of seamen. It requests the Government to supply particulars on the following points.
Article 2, paragraph (b), of the Convention. The Committee notes from the Government’s report that Act No. 9.537 defines the term "seaman" as any person having a qualification approved by the maritime authorities for work on a vessel as a professional (section 2). The Committee recalls that under the Convention the term "seaman" has a broader definition and includes every person employed or engaged in any capacity on board any vessel and entered on the ship’s articles, excluding masters, pilots, cadets and pupils on training ships and duly indentured apprentices, naval ratings, and other persons in the permanent service of a Government. The Government is therefore requested to indicate to the Committee whether national legislation is also applicable to any person employed in any capacity on board vessels flying its flag in accordance with this provision of the Convention and, if not, to indicate the measures it intends to take to ensure compliance.
Article 5. The Committee notes that standard NORMAM-13 no longer contains the points contrary to the Convention formerly contained in the Regulation on Maritime Traffic (RTM), repealed by Act No. 9.537. It notes, however, from the Government’s report that Act No. 9.537 and the Consolidation of Labour Laws (section 442) provide that the registration document issued to every seaman must specify the type of contract and the form of payment. The Committee reminds the Government that under Article 5, paragraph 2, of the Convention the document issued to the seaman shall not contain any statement as to his wages and requests the Government to explain what is meant by the expression "form of payment".
The Committee requests the Government to supply an example of the document mentioned in Article 5, paragraph 1, of the Convention.
Article 6. The Government is requested to indicate the provisions of its legislation prescribing that the seaman’s articles of agreement must contain the matters set out in Article 6, paragraph 3, of the Convention.
Article 9, paragraph 1. The Committee notes that under section 487 of the Consolidation of Labour Laws, termination without fair grounds of an agreement for an indefinite period requires the party exercising this right to inform the other party at least 30 days in advance. The Government is requested to indicate the procedure applicable for termination on fair grounds. The Committee also requests the Government to indicate the legislative provisions allowing termination by either party of an agreement for an indefinite period in any port where a vessel loads or unloads provided that notice of not less than 24 hours is given.
Article 13. The Committee notes that under the regulations in force a seaman may be promoted to the category immediately higher only after acquiring the necessary supplementary qualifications. It requests the Government to indicate the measures by which provisions of Article 13 of the Convention allowing a seaman to claim his discharge when he can obtain a post of a higher grade are given full effect.
Article 14, paragraph 2. The Committee requests the Government to indicate the provisions in domestic law providing the right for all seamen to obtain from the master a separate certificate as to the quality of his work or, failing that, a certificate indicating whether he has fully discharged his obligations under the agreement.
The Committee notes the Government's report and the adoption of Decree No. 511 of 27 April 1992, which amends or repeals certain provisions of Decree No. 87.648/82 (Shipping Regulations - RTM).
Articles 3, paragraphs 2 and 4-6; 6, paragraphs 2 and 3; and 15, of the Convention. The Committee notes the information supplied by the Government in its report, to the effect that in recent years the maritime manpower agencies have stepped up their activities in flagrant disregard of the legislation in force, particularly the rules on seafarers' work contracts set out in the RTM, which is hindering application of the Convention. Furthermore, seafarers' trade unions have made frequent complaints to this effect to the labour inspectorate and shipping authorities and to the Federal Public Prosecutor.
The Committee hopes that the Government will be in a position to indicate in its next report that appropriate measures have been taken to ensure observation of the provisions of the Convention (Article 15) particularly with regard to the application of Articles 3, paragraphs 2 and 4-6; and 6, paragraphs 2 and 3.
Article 5, paragraph 2. The Committee notes that section 60 of the RTM provides that references to conduct (i), sanctions and their causes (j) and praise and acts of bravery (m) are to be entered in the record book, contrary to this provision of the Convention which prohibits any statement as to the quality of the seafarer's work in the document issued to him. It asks the Government to indicate in its next report the measures taken or envisaged to ensure the effective application of this provision.
Article 9, paragraph 1. The Committee notes from the Government's report that a seafarer may be discharged only with the approval of the Brazilian port authorities or the Brazilian consular authorities abroad and only in one of the instances set out in section 109 of the RTM. The Committee understands, however, that this provision of the RTM was repealed by section 4 of Decree No. 511/92, and that, under section 12 of the RTM a seafarer may be discharged in any port whether or not there is a body empowered to approve his discharge, but that in such cases the captain must regularize the situation at the next port of call where the Brazilian port authorities are represented. The Committee would be grateful if the Government would provide specific information on the application in law and in practice of this provision of the Convention.
Article 9, paragraph 2. The Committee asks the Government to indicate which provision of the law requires notice to be given in writing.
Article 9, paragraph 3. Please give full information on the nature of the exceptional circumstances determined by the national legislation in accordance with this provision of the Convention.
Article 13. The Committee asks the Government to provide information on the practical effect given to this provision, indicating in particular to what extent seafarers apply for discharge and are replaced by competent persons to the satisfaction of the shipowner or his agent.
Article 14. The Committee notes that section 60(1)(h) of the RTM provides that the reason for discharge must be entered in the record book, which is contrary to this provision of the Convention. It asks the Government to indicate in its next report the measures taken or envisaged to ensure proper application of this Article of the Convention.
Point V of the report form. The Committee notes the statistics of the number of seafarers signed on and the number of unemployed and inactive seafarers, and the fact that the labour inspection statistics system managed by the Ministry of Labour is in the process of being reassessed and computerized. It would be grateful if the Government would provide all relevant information in this respect.
Further to its previous comments, the Committee notes the Government's report and, in particular, that its next report will indicate measures taken to restrict the activities of the maritime manpower agencies (Article 3, paragraphs 2 and 4 to 6; Article 6, paragraphs 2 and 3; and Article 15 of the Convention).
Article 5, paragraph 2, and Article 14. The Committee notes the information that the Government's next report will indicate the measures taken to harmonize the Shipping Regulations (RTM) - which provide in section 60, paragraph 1, that references to conduct (i), sanctions and their causes (j) and praise and acts of bravery (m) are to be entered in the record book, along with the reason for dismissal (h) - with these provisions of the Convention which provide, respectively, that the agreement given to the seaman shall contain no assessment of the quality of his work and that whatever the reason for termination of the agreement, an entry shall be made in the document but the reason shall not be given.
Article 9, paragraph 1. The Committee notes the indications that the Government supplies in its report relating to discharge procedures. It would be grateful if the Government would indicate how it is ensured that either party may terminate an agreement for an indefinite period in any port where the vessel loads or unloads, provided that the notice specified, which shall not be less than 24 hours, is given.