Officers' Competency Certificates Convention, 1936 (No. 53) - Argentina (Ratification: 1955)

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information:

The Government addressed the questions raised in the communications made by the Union of United Maritime Workers (SOMU), dated 29 March 1993 and 2 December 1994, with the most complete and exhaustive information available. The letter dated 5 January 1995 referred to by the Committee had not been received at the time of the preparation of this report, despite the requests made to the ILO Buenos Aires Office, and as a result it was not possible to refer to it in the submission. In order to deal with the matters raised in the communications of the SOMU, the Government made the appropriate inquiries in the many areas involved in maritime transport. At the same time, the Government considered it appropriate to concentrate in the reply requested on those points expressly emphasized by the Committee, while noting the difficulty involved in giving a precise response in view of the diffuse and general nature of the submissions of the SOMU. The Government concluded that the trade union organization did not provide the specifications necessary for the points raised by the SOMU to be considered possible contraventions in practice of the Convention. Those points were the following:

(1) "The new regulations on the training of ships' personnel in the merchant marine (REFOCAPEMM), allows foreign seafarers with less training than their Argentine counterparts to work on ships registered in Argentina." If this assertion were accurate, it would imply that there was an incompatability between internal regulations and the Convention. This was not the case, as from a simple reading of sections 1.06 to 1.10 of the Regulation on the training of ships' personnel in the merchant marine (REFOCAPEMM), it is apparent that national and foreign officers must submit accreditation, which must be confirmed with respect to foreigners, and additional qualifications (fire course in order to have access to tanker-ships, among others) and a physical fitness examination. Within the national context, the procedure for the supervision of the competency of officers is carried out under the supervision of the Argentina Army which grants and/or confirms qualifications, and the Argentina Naval Prefecture which grants accreditation to crew members (in this case, the officers). This is supported by section 2 of Act 17.371 which clearly establishes that all engagement of crews of ships flying the flag of Argentina is subject to the sole requirement of technical-occupational accreditation of the crew by the competent authority and their registration in the register kept by the harbour captains in national ports. None of the provisions cited contravene international labour standards and, in the absence of more specific details, the allegations made by the SOMU were incorrect.

(2) "Granting of embarkation documents to minors." In the absence of any indication of specific violations detected by the trade union, this irregularity asserted in the submissions of the SOMU was rejected by the competent authority. There does exist a category of apprentices who, from the age of 16, join the "Escuela de Formación y Capacitación para el Personal de Marinería" (Training and Competency School for Marine Crew) under the Argentina Naval Prefecture and undergo practical training, but as of recently seafarers have only been able to obtain qualifications once they have reached 18 years of age (section 2.02, item 1 of REFOCAPEMM). In the event that any irregularity of this kind is found, the Government, pursuant to its power to supervise the administrative authority, immediately proceeds to put ashore the crew concerned while applying the appropriate penalties.

(3) "Granting of embarkation documents to foreigners with very dubious qualifications." As stated above, REFOCAPEMM does not contain provisions that allow foreign seafarers with less training than their Argentine counterparts to work on ships registered in Argentina. Considering that the SOMU is making an allegation of a general nature, it is pointed out that the scope of the application of the standard covers "officers" as defined in Article 2 of the Convention.

It is necessary that the crew of a ship conform to security manning requirements, which guarantee that Argentine crew or those with the required knowledge of the national language are the only persons involved in steering the ship. Specific regulations to this effect have been issued. The operational manning requirements (necessary particularly with regard to fishermen) involves certification and the requirements specified under the regulations in effect; inspections have occurred (detection of crew who are not on the list or improperly embarked) which have resulted in the putting ashore of such persons, the deaccreditation of the captain, the immobilization of the ship and very serious monetary penalties for the shipowner. With regard to the specific reference to the ship "Revolución Productiva", the understandable concern of the trade union that the supply of work for its members be maintained should not be confused with non-compliance with the Convention. In this case, the standards with regard to safety manning were respected. With reference to "embarkation documents for enterprises", the Government is not aware of what the SOMU is referring to in alluding to such a "supposed" class of embarkation documents, since the National Prefecture is the only authority to issue embarkation documents and to determine that the crew on board are exactly the same as authorized by the embarkation documents.

In compliance with the request in the comments of the Committee and in order to provide additional information to support this submission, the Government considers it useful to send an account, divided by headings, of the inspections carried out by the administrative authority during the last year which points out the existing concern for compliance with the Convention in practice. In addition to this, meetings have commenced within the relevant areas to evaluate periodically the level of efficiency of supervision, and the Argentine Naval Prefecture has been available to the trade union that made the submissions in meetings held previously to receive any properly detailed accusation that that organization considers it necessary to communicate.

In addition, a Government representative stated that the observations provided by the Union of Maritime Workers (SOMU), which were the source of the comments of the Committee of Experts, were very ambiguous and vague. For this reason, it was very difficult for the Government to provide a precise explanation to the allegations which were taken up by the Committee of Experts with regard to compliance with Convention No. 53.

She referred to the great effort made to bring together the necessary information in order to provide adequate replies, which appeared in the written information. She then referred to the regulations on the training of ship's personnel in the merchant marine (REFOCAPEMM) (Decree No. 572/94), governing internal procedures, which include the conditions required in Articles 3 and 4 of the Convention. Chapter 2 of the REFOCAPEMM, entitled "qualifications", provided in detail which seafarers on board ship were covered by the Convention. Foreign officers serving on board ships were required to have accredited certificates of competency as well as qualifications confirming additional training and physical fitness examinations. As to the competent authorities, they met the standards with supplementary regulatory provisions, such as that of the Argentina Naval Prefecture No. 7 of 17 June 1993 which was submitted to the ILO together with the written reply which was available to this Committee and the Committee of Experts. Pursuant to this provision, accreditation of officers was granted only to those who were able to verbally communicate in Spanish and who were familiar with the applicable standards concerning safety in navigation and pollution prevention. Therefore, no one who was unable to speak Spanish or lacked the proper qualification could serve as an officer on board ship under the terms of the Convention.

Second, she noted that the application of the standards was ensured by frequent inspections carried out by the Argentina Naval Prefecture, either on a selective basis or through special inspections when there was a risk of danger or failure to apply the relevant regulations. In this regard, she noted that last year there were more than 18,000 inspections. Since an inspection system could always be improved, the meetings concerning inspections, which were periodically held, served the purpose of evaluating the cases of non-compliance, especially those which could be described in a precise and detailed manner and were referred to by the SOMU.

She further stated that the Government reassured this Committee that the trade union (which comprised all maritime workers except officers) that had submitted complaints to the ILO was entitled to present any detailed information or complaint which it believed pertinent, not only to the competent authorities but also to the tripartite body established following the ratification in 1987 of Convention No. 144. At no time had this tripartite Committee received any complaints from the trade union nor any request for a hearing.

She noted that the competent authorities in her country were willing to address any complaint brought by the trade union. This approach would be much more effective than bringing forth a vague complaint concerning non-compliance with the Convention. In this way the ILO would be able to dedicate more time to addressing topics of utmost importance to fundamental rights.

The Workers' members emphasized that this case was put on the list of cases to be dealt with by the Committee because of the footnote requesting information for the Conference. The written and oral information must be further examined by the Committee of Experts which had noted that the Government had not replied on several occasions to communications from the SOMU. It was clear that if this information had been provided earlier it might have avoided the footnote. However, in its written information, the Government totally rejected the foundation of the observations of the seafarers' union. Moreover, this information gave the impression that the Government was trying to discredit and even to ridicule the allegations made by the SOMU. The Workers' members could not accept this way of behaving. Moreover, the information provided was too general and seemed to indicate that there was no problem and that the number of inspections was sufficient. This remained difficult to believe, especially when the communications had gone unanswered for such a long time.

The Workers' members insisted that the Committee requests the Government to provide complete information on the three points indicated: the qualification of foreign seafarers, the conditions for granting embarkation documents to minors and foreign seafarers, and the question of the constitutionality of Decree No. 817/92 and of the REFOCAPEMM.

The Employers' members observed that the Committee had not dealt with this question before and according to their documentation there were no observations from the Committee of Experts on this problem. It was really a question of complaints and accusations put forward by the trade union in the last two or three years and the Government was called upon to answer them. The complaint was that Argentina was allowing ships to be crewed by people who were not adequately qualified and whose training was not in accordance with the Convention. For example, seafarers were hired who did not speak Spanish, thus increasing the possibility of accidents, while the purpose of this Convention was to try to reduce accidents. In general, it was also indicated that as far as the fishing fleet was concerned, there were many complaints that Chilean citizens were being hired who did not have adequate qualifications and the example cited, however, was a ship with a crew made up almost entirely of Russian nationals. The Government replied that all the regulations conformed with the standards.

They thought the only thing to do was to ask the Government to provide written information on all these points and then the Experts would have their first opportunity to decide on this kind of case and, if they felt appropriate, make known their observations. At a later date they would decide whether they wanted or needed to deal with this case again. They observed that it was not possible to consider the substantive matters at this time.

The Workers' member of Argentina stated that the Government's reply to the comments of the Committee of Experts was inadequate as it only partially dealt with the points raised in the communications from the SOMU. Moreover, it should be underscored that the Government had failed on three occasions to reply to these communications.

In order to better understand the question, he emphasized that it was about basic facts, meaning the Government's decision to allow Argentine shipowners to fly foreign flags, while retaining Argentine registration, and the promulgation of Decrees Nos. 817 and 1264, both of 1992. According to these Decrees, 62 collective agreements were suspended. They contained clauses on training of seafarers and the supervisory mechanisms guaranteeing the embarkation of seafarers in conformity with the required qualifications.

Moreover, article 36 of Decree No. 817/92, which established that collective bargaining in the maritime sector was subordinated to certain conditions linked to the necessities of economic transformation, was held unconstitutional by the Supreme Court. This was relevant because it was the absence of rules which facilitated hiring foreign workers who were non-residents in Argentina and whose qualifications were very inferior to those of the majority of Argentine seafarers, which explained why these workers were inclined to accept very poor working conditions and very low salaries. Thus, while in theory capacity certificates were required, in practice there was considerable flexibility in this regard.

Concerning the embarkation of workers who were minors, the speaker stated that they were hired as "apprentices", but that once on board they were given professional tasks and worked for 12 or more hours per day. Moreover, they were often employed to replace crew normally required to complete these tasks, especially in the fishing industry. It was deregulation which was at the origin of these violations, some of which had been acknowledged by the Government in its written reply.

Finally, he emphasized that, at present, Argentine unions had only been able to discuss informally with the Government and that no conclusive solutions had been found. He pleaded with the Committee to request that labour relations in this sector be regulated.

A representative of the International Transport Workers' Federation stated that, under the pretext of flexibility, the Argentine maritime sector was today in an anarchic situation in which seafarers' contracts were precarious. According to the speaker, this precariousness was due to the entry into force of Decrees Nos. 1772/91, 817/92 and 1493/92, among others. He then reviewed articles 1.06 to 1.09 of the REFOCAPEMM in order to underline that these standards, not only allowed the employment of people not meeting the required qualifications, but moreover discriminated against Argentine seamen, compared to foreign seamen. This was due to the very broad character of these texts which failed to provide guarantees of effective application. He then wished to emphasize that the SOMU had reported individual infractions to the competent authorities, especially concerning the granting of embarkation documents to minors, who often carried out difficult tasks ill suited to their age, and to foreigners who did not speak either English or Spanish, and to persons with dubious qualifications which could not be properly evaluated based on certificates issued abroad. Moreover, he drew attention to the title of article 1.08 of the REFOCAPEMM dealing with "employment without requirement of qualification". In addition, crew requirements were quite simply defined by the shipowner, according to the repeal of article 142 of the law on navigation No. 20094 by Decree No. 817/92, which provided that requirements should be jointly set by the shipowner and the unions.

As for the granting of embarkation documents by companies, it was indicated that this practice was widespread in the fishing industry, especially for foreign seamen. This reality could not be denied, all the more so as, as an understaffed crew, as was most often the case, meant that the on-board seafarers must perform additional work. In this regard, he referred to the case of the vessel "Revolución productiva" mentioned in the Committee of Experts' report.

The Government representative stated that she had noted all the comments of the Committee which she would communicate in due course to the Government. She regretted that the Government's response was interpreted to be a mockery of the observations from the trade union representatives. She also emphasized that her Government had complied with the request for information by the Committee of Experts, which was to evaluate these replies.

The Employers' members observed that a vast quantity of information was provided on which the Committee could not take a decision. As this information had not been reviewed by the Experts, the Employers' members reiterated that the Committee of Experts must await the Government's report to assess the situation.

The Workers' members stated that the conclusions could be general but it was necessary to insist that the Government continue to provide all information requested.

The Committee noted the statement of the Government representative and felt that it was in rather general terms. This did not help in the examination of the complaints on merits. The Committee further noted that there had been no written statement from the Government on the matter, and this was the reason for the comments of the Committee of Experts. The Committee urged in the circumstances that the Government should furnish a full report to the Committee of Experts covering exhaustively all the issues, specifically as concerned conformity with the prescribed qualifications of the seafarers concerned and circumstances of the granting of embarkation documents to them, as well as the constitutional aspects of Decree No. 572/94.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information provided by the Government in response to its previous observation, including information concerning the application of the legislation in practice with regard to the recognition of foreign competency certificates as well as the number of competency certificates issued during the course of the last reporting period.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the rules applicable with regard to the recognition of certificates pursuant to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended in 1995, transmitted with the report.

The Committee notes with regret, however, that the Government has not replied to the requests for information made in its previous comments with regard to the practical application of the legislation on the recognition of foreign competency certificates. It requests the Government to transmit this information in its next report, as well as the number of national and foreign competency certificates recognized and issued during the course of the last examination period.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. It notes the Government’s indication that the Argentinian naval prefecture is the only governmental body authorized to issue embarkation certificates (cédulas de embarco) and that no private institution has this authority. Recalling the comments previously made by the Union of United Maritime Workers (SOMU) that the competency certificates for foreign seafarers were given recognition too easily, the Committee requests the Government to provide information on the practical application of the legislation concerning recognition of foreign competency certificates in Argentina. Please also provide information on the number of foreign competency certificates recognized during the latest reporting period.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report. It also notes the observations submitted by the Union of United Maritime Workers (SOMU) of 20 August 1996. In earlier comments, the Committee referred to the new regulations on training and qualification for seafarers in the merchant navy (REFOCAPEMM, sections 1.06 to 1.10) and to section 2 of Act 17.371 and considered that in the light of the information supplied by the Government, and the provisions of the national legislation, Articles 3 and 4 of the Convention are applied, at least in law. It noted, however, that according to the allegations of the SOMU and the indications supplied by the Worker member of Argentina at the 82nd Session of the Conference, the provisions regarding recognition of competency certificates for foreign seafarers were not complied with as such certificates were given recognition too easily or issued by private bodies. The Committee requested the Government to supply further information so that it can better understand the situation. It also requested it to supply further information on the results of meetings which were to be held in the Tripartite Consultative Committee.

The Committee notes the information supplied by the Government in its report to the effect that the Argentine naval prefecture has sole authority to issue embarkation certificates ("cédulas de embarco"). Granting of such a certificate by another authority or a private enterprise would constitute a violation of national legislation. The Committee requests the Government to supply information on how application in practice of the legislation regarding recognition of competency certificates and embarkation certificates is ensured. With respect to the consultations held in the Tripartite Consultative Committee, the Committee refers to its comments on the application of Convention No. 22.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the communications from the Union of United Maritime Workers (SOMU), dated 29 March 1993, 2 December 1994 and 5 January 1995. Although these communications were duly sent to the Government, as yet no reply has been received.

The SOMU alleges that the new regulations on the training of ship's personnel in the merchant marine (REFOCAPEMM), issued by Decree No. 572/94 allows foreign seafarers with less training than their Argentine counterparts to work on ships registered in Argentina. Furthermore, embarkation documents are granted to minors and foreigners with very dubious qualifications, who do not speak Spanish, which heightens the risk of accident. In this connection the above-mentioned Union refers to the situation in the fishing sector and states that ships flying the Argentine flag employ Chilean labour which is less skilled than Argentine labour and refers to the case of the ship "Revolución productiva" whose crew is made up almost entirely of Russian nationals, and it is not known how their suitability was ascertained. Furthermore, there are cases of embarkation documents being granted by enterprises. Lastly, the SOMU alleges that certain sections of Decree No. 817/92 which provides for the drafting of the new REFOCAPEMM are unconstitutional.

The Committee would be grateful if the Government would make all comments it deems appropriate on the above allegations, in the light of Article 3 (certificate of competency to perform the duties of master, navigational officer in charge of a watch, chief engineer or engineer officer in charge of a watch), and Article 4 (requirements for granting a certificate of competency) of the Convention.

[The Government is asked to supply full particulars at the 82nd Session of the Conference and to report in detail in 1996.]

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government to the 82nd Session of the Conference, and the ensuing discussions.

The Committee notes in particular that the national legislation (REFOCAPEMM, section 1(06) to (10), and Act No. 17371, section 2) require seafarers who have acquired their nautical skills abroad to request the confirmation of their qualifications, which involves being of the age required by the REFOCAPEMM to hold the qualification or certificate that is to be confirmed, as well as being in possession of the psychological and physical conditions required in the respective regulations, passing the appropriate theoretical and practical examinations and submitting documentation including, in addition to the certificates, embarkation papers and analytical programmes of the courses completed with success in nautical institutions. Furthermore, foreign seafarers wishing to embark temporarily on merchant ships registered in Argentina must, in the case of masters and officers, submit their certificates of competency delivered in accordance with international standards and have knowledge of the national language equivalent to the standardized maritime vocabulary of the International Maritime Organization. The procedure ends with the granting and/or confirmation of the certificate by the Argentinian Navy, whereas the actual endorsement or recognition of the certificate is the responsibility of the Argentinian Maritime Prefecture.

The Committee also notes that the Government did not understand the reference made by the Union of United Maritime Workers (SOMU) that certain enterprises were issuing embarkation documents, because according to the information supplied in the Conference the only authority empowered to issue embarkation documents was the National Maritime Prefecture. Furthermore, the Government states that the above trade union only represents maritime ratings, and not officers.

The Committee considers that in light of the information supplied by the Government, and the provisions of the national legislation, Articles 3 and 4 of the Convention are applied, at least in law. Nevertheless, it notes that the Worker member of Argentina stated in the Conference Committee on the Application of Standards that, although foreign seafarers are formally required to produce certificates, in practice recognition of such certificates is granted too easily. He stated that this was a result of the decision by the Government to permit Argentinian shipowners to use the flags of other countries, while remaining on the national register, and the adoption of Decrees Nos. 817 and 1264, both in 1992, which suspended 62 collective agreements containing clauses respecting the training of seafarers and supervisory machinery for the unionized sector guaranteeing the engagement of seafarers in accordance with the qualifications required.

The Committee considers that the information at its disposal does not permit it to gain a sufficiently clear idea of the situation. It hopes that the next meeting of the Tripartite Consultative Committee to Promote the Application of International Labour Standards, to which the Government referred in its report on the application of Convention No. 22, will clarify the matter.

The Committee would be grateful if the Government would supply information on the outcome of the discussions held in the above-mentioned body and in particular on the positions of the participating parties concerning matters raised by the SOMU with regard to navigating officers in charge of a watch, chief engineers and engineer officers in charge of a watch who, together with masters, are the seafarers to whom the Convention applies.

The Committee hopes that the Government will supply information that will enable it to gain a clearer understanding of the situation, particularly with regard to the situation of officers on vessels registered in Argentina, but which fly a foreign flag, as well as officers engaged on vessels which have been granted the benefit of the national flag and whose titles or certificates are subject to preferential recognition under the terms of section 1(06)(4) of the REFOCAPEMM. The Committee would also be grateful if the Government would consider in its replies the most recent communications from the SOMU, dated 11 and 14 August and 14 September 1995.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee hopes the Government will include in future reports, in so far as statistics are available, information as to the number of the different classes of certificates of competency issued, the contraventions reported and the action taken on them, extracts of reports of the inspection services, etc., as specified in point V of the report form.