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

Peru

Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) (Ratification: 1962)
Sickness Insurance (Sea) Convention, 1936 (No. 56) (Ratification: 1962)

The Committee notes the reports provided by the Government on the application of the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), and the Sickness Insurance (Sea) Convention, 1936 (No. 56). In order to provide an overview of matters arising in relation to the application of these maritime Conventions, the Committee considers it appropriate to examine them in a single comment, which is set out below.

Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55). Article 6. Repatriation. In its previous comment, the Committee requested the Government to indicate the legal provisions giving effect to the requirements of this Article of the Convention, in particular those relating to the specific destinations to which the seafarer may be repatriated and the items of expense covered. The Committee notes that section 447.1 of the regulations implementing Legislative Decree No. 1147 (adopted by Supreme Decree No. 015-2014-DE of 28 November 2014) provides that seafarers have the right to be transported to the port of embarkation at the expense of the shipowner in the event of illness, provided that the seafarer cannot continue to carry out his or her duties or cannot be expected to continue doing so in specific circumstances. The Committee requests the Government to indicate the items of expense covered for the repatriation of a sick or injured seafarer (Article 6(3)).

Article 8. Safeguarding property left on board. In its previous comment, the Committee requested the Government to adopt measures to ensure that the national legislation requires shipowners or their representatives to take steps to safeguard the property left on board by sick, injured or deceased seafarers. The Committee notes that the Government has not provided information on this matter. The Committee also notes that section 404 of the regulations implementing Legislative Decree No. 1147, like the repealed Decree No. 028-DE/MGP, provides that the captain is obliged to safeguard all of the papers and clothing of any seafarer who dies on board the ship. However, it does not provide for the adoption of measures for safeguarding property left on board by sick or injured seafarers. The Committee requests the Government to indicate the measures adopted to bring the legislation into conformity with the Convention in this regard.

Sickness Insurance (Sea) Convention, 1936 (No. 56). Articles 1 and 2. Payments under the compulsory sickness insurance scheme. In its previous comment, the Committee noted the adoption of SBS Resolution No. 14707-2010 of 15 November 2010 concerning the dissolution of the Fishers’ Social Benefits and Social Security Fund (CBSSP). The Committee requested the Government to indicate how it ensures in practice the payment, under all circumstances, of cash benefits for a minimum period of the first 26 weeks of incapacity and to supply detailed information on any measures taken to reorganize and operate an insurance body responsible for providing the benefits prescribed by the Convention. The Committee also requested the Government to provide its comments in response to the observations of the General Confederation of Workers of Peru (CGTP) regarding, inter alia, the absence of legislative provisions guaranteeing the payment of cash benefits for at least the first 26 weeks of incapacity.

The Committee notes the Government’s indication, in response to the Committee’s comments and the observations of the CGTP, that under section 447.2(c) of the regulations implementing Legislative Decree No. 1147, with a view to guaranteeing the access to social security of working and retired fishers covered by Decision SBS No. 14707-2010, the National Congress adopted Act No. 30003 of 27 March 2013, which governs the special social security scheme for working and retired fishers. The Government indicates that the Act and its implementing regulations (Supreme Decree No. 007-2014-EF) regulate the following financial benefits: the “direct transfer to retired fishers” benefit (TDEP); the retirement pension for fishers affiliated to the special pension scheme for fishers (REP); the disability benefit for fishers affiliated to the REP; the payment of the TDEP as survivors’ benefit; and a survivors’ benefit from the REP. The Government adds that section 2(b) of Act No. 30003 guarantees full insurance for fishers and their dependants, and those in receipt of a pension from the now dissolved CBSSP, as regular members of the contributory social security health scheme under the aegis of the Social Health Service of Peru (ESSALUD). In this regard, section 27 of the Act provides that fishers affiliated to the REP or the Pension Funds Private Administration System (SPP) are covered by ESSALUD as regular members of the contributory social security health system. To this effect, the provisions of Supreme Decree No. 005-2005-TR, or any superseding legislation, are applicable, even in the event that the fisher was not affiliated to the CBSSP. Under section 6 of Supreme Decree No. 005-2005-TR, dependent fishers, retirees and their dependants shall be entitled to the benefits established in Supreme Decree No. 009-97-SA, implementing the Social Health Insurance Modernization Act. The Government also refers to section 15 of the regulations governing the temporary incapacity benefit, which provides that the benefit shall be equal to the average daily wages during the 12 months preceding the contingency, multiplied by the number of days for which the benefit is to be paid. If the total number of months is less than 12, the average shall be determined on the basis of the length of time that the regular member has been contributing. The benefit shall be granted for a maximum consecutive period of 11 months and ten days. Entitlement to the benefit starts on the 21st day of incapacity; during the first 20 days the employer is still required to pay wages. Lastly, the Government indicates that, as of 30 June 2015, a total of 2,724 fishers were affiliated to the REP and there were 7,523 beneficiaries in receipt of TDEP benefits.