Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Convention (n° 22) sur le contrat d'engagement des marins, 1926 - Cuba (Ratification: 1928)

The Committee notes the Government’s last report, as well as the sample articles of agreement used by the enterprise Naviera Petrocost when recruiting seafarers.

Article 5 of the Convention. Issue of a document containing a record of seafarer’s employment on board. In its previous comment, the Committee recalled that, pursuant to Article 5, paragraph 1, of the Convention, every seaman shall be given a document containing a record of his employment on board the vessel at the end of his contract. The form of the document, the particulars to be recorded and the manner in which such particulars are to be entered in it, shall be determined by national law. It shall not contain any statement as to the quality of the seaman’s work or as to his wages. The Committee once again asks the Government to provide a specimen of a document issued to seafarers pursuant to this provision of the Convention in its next report.

Article 6, paragraphs 2 and 3. Particulars of the agreement. The sample articles of agreement provided by the Government seem only to contain the obligations of the seafarer. In its report, the Government states that these sample articles of agreement are in conformity with the national regulations applicable to this sector. The Committee recalls that, under the terms of this provision, agreements must state clearly the respective rights and obligations of each of the parties. Mention must be made in particular of the provisions to be supplied to the seaman and the amount of his wages. The Committee requests the Government to indicate, in its next report, the measures taken or envisaged to bring national law and practice into conformity with these provisions.

Article 9. Termination of the agreement. Point 4 of the agreement used by the enterprise Naviera Petrocost relates to the termination of the agreement. It indicates that the seafarer must give at least 30 days’ notice when terminating the agreement; this notice may be given in written form or verbally in the presence of a witness. This point also provides that an agreement may only be terminated with the approval of the administrator and once a replacement has been found for the seafarer. The Committee recalls that termination of an agreement by one or other of the parties is a unilateral act that may not be linked to conditions such as the approval of a third person or the arrival of a replacement (Article 9, paragraph 1). Moreover, only in exceptional circumstances shall duly given notice not terminate the agreement (Article 9, paragraph 3). Finally, it emphasizes that Article 9, paragraph 2, of the Convention requires that notice be given in writing and does not authorize the giving of notice in verbal form, even in the presence of witnesses. Consequently, it seems that the agreement as well as the national legislation (the agreement used by Naviera Petrocost being, according to the Government, in conformity with the regulatory provisions applicable to this sector) contravene the provisions contained in the Convention. The Committee requests the Government to take all steps necessary to bring national law and practice into conformity with the Convention and to provide, in its next report, information on any developments in this regard.