Work in Fishing Convention, 2007 (No. 188) - Namibia (Ratification: 2018)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

General questions on application. Implementing measures. The Committee notes that the Government provides scarce information on the application of the Convention. It notes that the Convention is mostly given effect by the Merchant Shipping Act, No. 57 of 1951 (hereinafter, MSA) and its implementing regulations, and subsidiarily by the Labour Act (No. 11/2007). The Committee notes, that, in the framework of the ILO Sustainable Supply Chains to Build Forward Better (SSCBFB) Project, funded by the European Commission, the Government, together with the social partners, has been engaging with the Office in a number of activities aiming to, inter alia, establish a coordination mechanism, undertake flag State inspections of living and working conditions on board fishing vessels, and develop a standardized fisher’s work agreement. The Committee requests the Government to indicate the measures adopted to give full effect to the Convention, including the concrete outcomes of the on-going efforts supported by the Office.

Articles 1 and 2 of the Convention. Definitions and scope of application. Fishers. The Committee notes the Government’s information that except for the term “fisher”, other definitions are covered under the relevant legislation, particularly the MSA and the Marine Resource Act, No. 27 of 2000. The Committee further notes that the applicable legislation does not define uniformly a “fishing vessel”: while the MSA defines “fishing boat” as any ship engaged in sea fishing for financial gain or reward excluding any sealing or whaling boat, its implementing regulations define a fishing vessel as any sea-going vessel used commercially to catch or harvest any living resource from the sea (Construction and Equipment Regulations for Fishing Vessels, No. 61 of 2002; Education, Training and Certification of Namibian Seafarers Regulations, No. 41 of 2004). The Government indicates that the competent authority has not excluded types of fishing vessels from the requirements of the Convention. The Committee requests the Government to provide a definition of “fishing vessel” and to take the necessary measures to harmonize the applicable legislation to ensure that it covers all fishing vessels under the scope of the Convention (Article 1(g)). The Committee further notes that the relevant legislation does not contain a definition of the term “skipper”, who is defined under the Convention as the “fisher” having command of a fishing vessel (Article 1(e) and (l)). The Committee further requests the Government to indicate how the term skipper is defined under the applicable legislation.

Article 7. Competent authority and coordination. The Committee notes the Government’s information that a mechanism for coordination is not in place and technical assistance has been requested to set it up. The Committee requests the Government to indicate the measures taken to comply with Article 7 of the Convention and expects that the Office will continue to provide such assistance.

Article 8(1)–(4). Responsibilities of fishing vessel owners, skippers and fishers. The Committee notes the Government’s indication that Article 8 is implemented through the MSA, the Construction and Equipment Regulations and the Manning of Ships Regulations, No. 41 of 2003, without providing reference to the relevant provisions. The Committee requests the Government to provide information on the national provisions implementing the detailed requirements of Article 8 of the Convention.

Article 9. Minimum age.The Committee notes that the Government provides no information on the application of Article 9. It also notes that the MSA prohibits the employment of children under 15 years in any capacity on board ships (section 110) and that the minimum age to work as a cadet is 16 years (section 90). Recalling that under Article 9 of the Convention, the minimum age for work on board a fishing vessel is 16 years and that persons of the age of 15 may only work on board a fishing vessel when authorized by the competent authority in the cases provided for in Article 9(1) and (2), theCommittee requests the Government to indicate the measures taken to fully comply with these provisions of the Convention.

The Committee further notes that under the MSA, the minimum age to work as trimmers and firemen is 18 years with some exceptions, e.g. for young persons working on training ships under supervision, or when there is no person of 18 years available (section 111(1)(a) and (b)). The Committee observes that this section does not fully comply with Article 9(5) of the Convention, which provides for specific requirements for allowing persons from the age of 16 years to perform types of hazardous work. The Committee requests the Government to indicate: (i) whether it has determined the types of hazardous activities on board fishing vessels prohibited for young persons under 18 years after consultation and taking into account the risks concerned and the applicable international standards (Article 9(4)); (ii) the measures taken to bring its legislation into full conformity with Article 9(5); and (iii) how it gives effect to Article 9(6).

Article 10-12. Medical examination.The Committee notes the Government’s information that, under section 101 of the MSA, all seafarers are obliged to be in possession of a valid health certificate not older than six months from the date of issue before boarding any Namibian fishing vessel. The Committee notes that section 101 does not apply to ships of less than 100 GT (section 101(8)). The Committee recalls that according to Article 2, paragraph 3, no exemptions apply to fishers working on a fishing vessel of 24 metres in length and over or which normally remain at sea for more than three days. The Committee requests the Government to indicate how the exception under section 101 of the MSA complies with the requirements of Article 10, paragraphs 2 and 3 of the Convention. The Committee notes that the MSA does not regulate the nature of the medical examination, nor does it provide for the right to a further examination (Article 11 (a) and (e)). It also notes that no sample of medical certificate has been supplied (Article 11(b)), and that there is no information on how the requirements of Article 12(1)(a) are implemented with respect to fishing vessels of 24 metres in length and over, or those which normally remain at sea for more than three days. The Committee requests the Government to indicate the measures taken to ensure full conformity with the provisions of Articles 10-12.

Articles 13 and 14. Manning and hours of rest.The Committee notes that the Government provides no information on the application of Article 13 and indicates the implementation of Article 14 remains a challenge. The Committee notes that the Manning of Ships Regulations, which apply to fishing vessels, exclude ships navigating in inland waters (section 2). In this regard, the Committee observes that fishing vessels operating in inland waters have not been excluded from the scope of application of the Convention pursuant to its Article 3. The Committee notes that, in relation to working time, section 4 of the same Regulations states that the master shall ensure that the officers and ratings employed on the ship do not work more hours than is safe in relation to the performance of their duties about the safety of the ship or vessel. The Committee requests the Government to clarify how section 4 of the Manning of Ships Regulations applies to fishing vessels.It also requests the Government to indicate the measures taken to ensure full conformity with Articles 13 and 14 in relation to all fishing vessels covered by the Convention.

Article 15. Crew list.The Committee notes the Government’s information that: (i) the crew list is normally compiled by the shipowner/agent and submitted to the Maritime Administration for approval; and (ii) there is no standard crew list. The Committee also notes that section 188 of the MSA provides for the requirement of a crew list for the master or owner of a coasting ship or a fishing vessel who has entered into an agreement with the crew, which upon discharge of the crew shall be made out, signed and delivered to the proper officer. The Committee requests the Government to indicate how it ensures that the crew list is carried on board and communicated to the competent authority upon or after the vessels’ departure, pursuant to Article 15 of the Convention.

Articles 16-20. Fisher’s work agreement.The Committee notes that the Government provides scarce information on the application of the requirements of Articles 16-20. It also notes that section 106 of the MSA regulates crew agreements on fishing vessels. The Committee observes that the legislation is not in full compliance with the provisions of the Convention, in particular in relation to the following: (i) it is not clear whether section 102(3) of the MSA containing the list of particulars of a crew agreement also applies to fishing vessels (Article 16(b)); (ii) a number of particulars required by Annex II of the Convention are not included in the provisions of the MSA, nor those of the Labour Act; (iii) while section 109 of the MSA partly complies with Article 18, there is no provision requiring handing a copy of the agreement to the fisher and making the copy of the fisher’s work agreement available to competent authorities on request; (iv) there is no indication in the MSA that the agreement should be signed by the vessel owner (Article 20); and (v) it is not clear whether there is a work agreement between the vessel owner and the skipper. The Committee requests the Government to indicate the measures taken to ensure full conformity with Articles 16-20 of the Convention.

Article 21. Repatriation.The Committee notes that the Government provides scarce information on the application of Article 21. It also notes that the MSA provisions on repatriation of seamen (section 114) and relief and maintenance of distressed seamen (section 154) do not fully comply with the requirements of the Convention. In particular: (i) circumstances giving right to repatriation under section 114 of the MSA do not include all those provided by Article 21(1); (ii) the scope of section 114 is limited to Namibian citizens or citizens of a “treaty country” and does not cover all fishers working on board a Namibian vessel; (iii) there is no provision on maximum duration of service periods on board following which a fisher is entitled to repatriation, and the destinations to which fishers may be repatriated (other than “a proper return port”) (Article 21(3)); and (iv) under section 154, repatriation expenses other than excepted expenses are borne in first instance by the State and not by the fishing vessel owner as provided under Article 21(2). The Committee requests the Government to indicate the measures taken to ensure full conformity with Article 21 of the Convention. Referring to section 154 of the MSA, it also requests the Government to provide information on the procedure to be followed and the standard of proof to be applied before any fisher covered by the Convention can be found to be in serious default of his/her work agreement obligations pursuant to Article 21(2).

Articles 23 and 24. Payment of fishers.The Committee notes that the Government refers to section 120 of the MSA on payment of wages on discharge of the seamen and, in general, to the Labour Act. The Committee notes that under section 11 of the Labour Act, an employer must pay to an employee any monetary remuneration to which the employee is entitled not later than one hour after completion of the ordinary hours of work on the normal pay day, which may be daily, weekly, fortnightly, or monthly. The Committee requests the Government to specify whether, and in the positive, in what manner, section 11 of the Labour Act applies to fishers working on fishing vessels covered by the Convention. The Committee notes that section 26 of the MSA provides for the payment of seamen in a currency other than that mentioned in the agreement but does not mention transmission to their family. It further notes the Government’s indication that Article 24 is not applicable as 99 per cent of fishers work within the Economic Exclusive Zone. The Committee takes note of this information and requests the Government to keep the Office informed of any development regarding the application of Article 24.

Articles 25 to 28. Accommodation and food.The Committee notes that the Government refers to section 161 of the MSA and to the Construction and Equipment Regulations. It notes that section 161 of the MSA contains a very general provision requiring that the owner of a Namibian ship shall provide crew accommodation to the satisfaction of the proper officer, and in accordance with the regulations. It further notes that the requirement of the provision of bedding, towels, mess utensils and other articles for personal use (same section 161) only applies to ships of more than 100 GT. Sections 163 and 164 of the MSA concern powers of inspection of provisions, water and accommodation by the competent authority and regular inspections by the master. The Committee also notes that the Construction and Equipment Regulations do not give full effect to the detailed requirements of Articles 26, 27 and Annex III. The Committee requests the Government to indicate the measures taken to ensure full conformity with Articles 25-28 of the Convention and Annex III in relation to all fishing vessels covered by the Convention.

Articles 29 and 30. Medical care.The Committee notes that the Government refers to section 167 of the MSA. It notes that sections 167 and 168 of the MSA, which deal with medicines, appliances for the treatment and prevention of diseases and first-aid equipment, and inspections thereon, do not fully comply with the following requirementsof Articles 29-30 of the Convention: (i) medicine and medical equipment that takes into account the number of fishers on board, the area of operation and the length of the voyage (Article 29(a)); (ii) a fisher on board qualified or trained in first aid and other forms of medical care (Article 29(b)); (iii) instructions or other information on medical equipment and supplies to be carried on board in a language and format understood by the fisher (Article 29(c)); (iv) radio or satellite communication with persons or services ashore that can provide medical advice (Article 29(d)); and (v) provisions for fishing vessels of 24 metres in length and over in accordance with Article 30. The Committee further observes that section 169 of the MSA, while providing for the defray of the expenses for illness or injury by the owner, does not appear to fully implement the requirement of the right to medical treatment ashore and to be taken ashore in a timely manner for treatment in the event of serious injury or illness (Article 29(e)). The Committee requests the Government to indicate the measures taken to fully comply with the requirements of Articles 29-30.

Articles 31–33. Occupational safety and health and accident prevention.The Committee notes that the Government refers to section 167 of the MSA and, in general, to the Labour Act, the Regulations on Health and Safety of Employees at Work, 1997 (No. 156), and the Education, Training and Certification of Namibian Seafarers Regulations, 2004. It notes that the Government does not indicate the specific provisions implementing the requirements of Articles 31-33 of the Convention, especially those regarding the prevention of occupational accidents, occupational diseases and work-related risks on board fishing vessels, including risk evaluation and management; specific training for fishers; obligations of fishing vessel owners and fishers; reporting and investigation of accidents on board; and the specific requirements for fishing vessels of 24 metres in length and over normally remaining at sea for more than three days. The Committee requests the Government to provide detailed information on how the national provisions give effect to the requirements of Articles 31-33, reproducing the relevant legal texts or summarizing the content thereof.

Articles 34-37. Social security.The Committee notes the Government’s reference to the MSA (section 169), the Labour Act and the Social Security Act, No. 34 of 1994. The Government further indicates that: (i) the protection covers work-related sickness, injury, maternity and death benefit, and that at the moment of signing the employment contract fishers are registered with the Social Security Commission; (ii) affiliation to social security is compulsory; and (iii) no bilateral / multilateral agreements are in place. The Committee notes the Social Security Act applies to every “employee” defined under section 2 as any person younger than 65 years, other than an independent contractor, who (a) is employed by or working for any employer and who is receiving or entitled to receive any remuneration in respect thereof; or (b) in any manner assists in the carrying on or the conducting of the business of an employer, and includes, in the case of an employer who carries on or conducts business mainly within Namibia, any such natural person so employed by, or working for, such employer outside Namibia or assisting such employer in the carrying on or conducting of such business outside Namibia, if such person is a Namibian citizen or lawfully admitted to Namibia for permanent residence therein. The Committee requests the Government to provide information on whether the social security coverage under the applicable legislation extends to all fishers ordinarily resident in the Namibian territory and their dependants, including fishers who reside in Namibia and are employed on ships flying a foreign flag, under conditions no less favourable than those applicable to other workers ordinarily resident in the Namibian territory. It also requests the Government to specify how self-employed fishers benefit from social security coverage.

Articles 38 and 39. Protection in the case of work-related sickness, injury and death. The Committee notes the Government’s reference to section 169 of the MSA, which provides for the defray of the expenses for illness or injury resulting from the seafarer being discharged or left behind at a place other than his proper return port. This section provides that while, in general, expenses shall be defrayed by the shipowner without deduction from wages (i.e. necessary medical advice, treatment and medicines, expenses for burial, etc.), “in all other cases, any reasonable expenses duly incurred by the owner for any master, seaman, or apprentice-officer in respect of illness, and also any reasonable expenses duly incurred by the owner in respect of the burial of any master, seaman or apprentice-officer who dies whilst on service, shall, if proved to the satisfaction of the proper officer, be deducted from the salary or wages of the master, seaman or apprentice-officer” (section 169(4)). The Committee requests the Government to provide information on the cases under section 169(4) of the MSA in which expenses are not defrayed by the shipowner and the onus of proof and procedure thereof in relation to the wording “if proved to the satisfaction of the proper officer”.

The Committee notes that section 169 does not apply to persons working on board fishing vessels who are entitled to be remunerated only by a share in the profits or the gross earnings of the working of the boat. The Committee requests the Government to provide information on the extent to which Articles 38 and 39 are otherwise given effect in relation to those fishers.

Articles 40 to 44. Compliance and enforcement.The Committee notes the Government’s reference to sections 70 et seq. of the MSA, and to the Marine Resources Act in relation to investigations by fisheries inspectors of cases of non-compliance under the same Act. The Government also indicates that inspections on working conditions are carried out “at the offices and not on board”. The Committee notes that the MSA contains provisions on the inspection on food, water, accommodation, medicines, and safety issues related to the International Maritime Organization Conventions. It further notes that fisheries inspectors under the Marine Resources Act have the power to inspect the vessels’ fishing gear, cargo and stores, any marine resources aboard and any document, but not to supervise working and living conditions of fishers. The Committee finally notes that there is no information on the certificate of fishing vessel, nor on port State control inspections. The Committee requests the Government to provide information on the certificate of fishing vessel and on port State control inspections. The Committee also requests the Government to indicate the measures taken to give effect to Articles 40-44 by establishing an effective system for the flag and port State inspection of living and working conditions on board fishing vessels and the training of inspectors accordingly.