Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Colombia

Convenio sobre las indemnizaciones de desempleo (naufragio), 1920 (núm. 8) (Ratificación : 1933)
Convenio sobre la colocación de la gente de mar, 1920 (núm. 9) (Ratificación : 1933)
Convenio sobre el contrato de enrolamiento de la gente de mar, 1926 (núm. 22) (Ratificación : 1933)
Convenio sobre la repatriación de la gente de mar, 1926 (núm. 23) (Ratificación : 1933)

The Committee notes the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), received on 29 and 31 August 2014 respectively. The CTC and the CUT underscore the need to ratify the Maritime Labour Convention, 2006 (MLC, 2006), which revises Conventions Nos 8, 9, 22 and 23 and provides for more suitable standards for the protection of the workers’ rights of seafarers. The Committee requests the Government to send its comments on this matter.

In order to give an overall view of the issues raised regarding the application of maritime conventions, the Committee considers it appropriate to examine these instruments in a single set of comments, as set out below.

Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8). Article 2. Indemnity for unemployment resulting from the loss or foundering of a vessel. The Committee notes that in its report, the Government indicates that, although there are no specific measures to provide unemployment compensation for seafarers in the event of shipwreck, Act No. 1636 of 2013 and Decree No. 2852 of 2013 regulate the mechanism for protection of the unemployed, the aim of which is to ensure social protection for the most vulnerable workers, including seafarers, in the event of unemployment, ensuring that such workers still have access to health, pension savings and family allowances as well as access to labour intermediation and job training. In the absence of any specific protection, the Committee recalls that Article 2 of the Convention requires that, in the event of the loss or foundering of the vessel, every person employed thereon shall be paid an indemnity for all days during which the person remains in fact unemployed. The amount of the indemnity shall be established on the basis of the wages payable under the contract, but the total indemnity may be limited to two months’ wages. The Committee further recalls that according to Article 3, the Convention seeks to ensure that seafarers have the same remedies for recovering such indemnities as they have for recovering arrears of wages earned during the service. The Committee requests the Government to indicate the measures taken or adopted in order to give full effect to the provisions of the Convention.

The Committee notes that the CUT indicates that in the event of shipwreck in the territory of Colombia, the General Maritime Directorate (DIMAR) conducts judicial inquiries into maritime accidents. However, the procedures established by DIMAR are designed to establish causes and liability in maritime accidents and not to reinstate the rights of the workers affected, or to set compensation for them. Consequently, says the CUT, there is no form of protection for these workers. The CUT further indicates that the situation is particularly serious in the case of small and medium-sized vessels on the Pacific coast of Colombia due to the informality of employment in this area. The Committee requests the Government to send its comments on these observations.

Placing of Seamen Convention, 1920 (No. 9). Article 2(1). Business carried on for pecuniary gain. In its previous comments, the Committee noted that private non-fee-charging recruitment and placement services that seek employment for seafarers were authorized to operate pursuant to the provisions of the Labour Code and of Decree No. 3115 of 1997 allowing workers, including seafarers, to be placed by private fee-charging placement or employment agencies, in breach of the provisions of the Convention. The Committee notes that in its report, the Government indicates that Decree No. 3115 of 1997 was repealed by Decree No. 722 of 2013, in turn repealed by Decree No. 2852 of 2013 “to regulate the public employment services and the benefit scheme of the mechanism for the protection of the unemployed, and to establish other provisions”. The Government indicates that with the new employment service created by Act No. 1636 of 2013 and Decree No. 2852 of 2013, it is clearly established that workers, including seafarers, may not be charged any fee whatsoever, whether they are placed by employment agencies, temporary work agencies or the public employment service, in conformity with the provisions of Article 2 of the Convention and that, consequently, no form of placement of seafarers may give rise to the payment of fees by such workers, directly or indirectly, to a person, company, or other agency. The Committee nonetheless notes that the CUT indicates that although the placement of seafarers should be free of charge and carried on by non-fee-charging agencies, the legislation has not as yet been amended in order to align it with the Convention. With regard to Act No. 1636 of 2013 on the establishment of a public employment service, the CUT indicates that since this service is not designed specifically for seafarers and is still being developed, it cannot be regarded as a solution to the placement of workers or be deemed to give effect to the Convention. The CUT further indicates that seafarers are recruited through employment exchanges and almost never directly through agencies, and that there are no public or up-to-date statistics on the situation of workers, labour inspections or procedures to sanction enterprises for failure to observe workers’ rights. The Committee requests the Government to send its comments on these observations. The Committee also requests the Government to provide: (i) information on how compliance with the new Act No. 1636 of 2013 and with Decree No. 2852 of 2013 is monitored; (ii) statistical data on the number of seafarers hired through private employment agencies since the entry into force of the law; and (iii) information on the existence and on the number, if any, of complaints for violation of the provision on the gratuity of services provided by placement agencies.

Seamen’s Articles of Agreement Convention, 1926 (No. 22). Article 3(1) and (2). Conditions and guarantees for the signing of the agreement. In its previous comments, the Committee noted the absence of any provisions giving effect to Article 3(1) and (2) of the Convention. In its report, the Government indicates that the national legislation, particularly Decree No. 1015 of 1995, is consistent with Article 3 of the Convention. In particular, the articles of agreement must be signed by the shipowner or its representative and the seafarer, and must be examined or studied before being signed by the seafarer or the seafarer’s advisor, and must be signed in observance of the minimum rights and guarantees laid down in the legislation of Colombia, the clauses of the agreement being subject to administrative oversight by the Ministry of Labour and judicial oversight by the labour courts. The Government also indicates that since the national labour legislation provides that any clauses of a work contract that violate the law or ILO Conventions are without effect, any articles of agreement of seafarers are bound to be deemed consistent with ILO Conventions. The Committee observes that Decree No. 1015 of 1995, while providing that the clauses of internal work regulations are to be displayed in sites accessible to seafarers, does not provide expressly that seafarers must be able to examine the articles of agreement before signing them, or establish conditions for the signing of the agreement by the seafarer. Bearing in mind that Article 3(1) implies the implementation of practical measures (“Reasonable facilities to examine the article of agreement before they are signed shall be given to the seaman and also to his advisor”) and that Article 3(2) refers expressly to national law as a means of applying the Convention, the Committee requests the Government to provide information on the measures taken to give effect to Article 3(1) and (2) of the Convention.

The Committee notes the observations of the CUT reporting that most seafarers are recruited under verbal agreements and in some instances where they sign an agreement, they are not given a copy. The Committee requests the Government to send its comments on this matter.

Repatriation of Seamen Convention, 1926 (No. 23). Articles 3 and 6. Obligations pertaining to repatriation. On this subject, the Committee notes that in its report the Government indicates that according to section 6(7) of Decree No. 4976 of 2011, as amended by Decree No. 2063 of 2013, the Special Migration Fund covers cases of “support and assistance to Colombians in a foreign territory who need immediate protection because they are highly vulnerable and defenceless and lack any personal means for a dignified return or for assistance”, and that these include instances of repatriation of seafarers. Furthermore, the Committee notes that according to the CUT, the repatriation of seafarers is an ongoing problem and that the Government, as head of DIMAR, has no clear authority to protect crew members and ensure their repatriation, whether they are foreigners in Colombia or Colombians abroad. With regard to foreigners in Colombia, the first problem they meet is the requirement of a visa in order to leave the country. If the shipowner or shipping agent fails to provide the necessary support for the crew member’s repatriation, the latter has to wait, sometimes for months, before being repatriated and the outcome will depend on the support that consulates are able to provide. In such cases the maritime authority does not intervene and is under no obligation to do so. The CUT adds that in the case of Colombian seafarers in other places, DIMAR affords them no form of support for repatriation and that, in practice, it is trade union organizations that advise, provide support and assist in the repatriation process. The Committee requests the Government to send its comments on these observations.