Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information supplied by the Government in its last report. It also notes that the Sindicato de Capitanes Potrones de Pesca de Puerto Supe y Anexos has supplied further information on the operating difficulties of the system of supplementary insurance against hazardous risks established by the Social Security Modernization Act on the Health Scheme (No. 26790). The Committee has already noted these difficulties in its comments on the application of Convention No. 56. The Committee also takes note of the information supplied by the Government in reply to the trade union’s comments.

The union states that the adoption of the Social Security Modernization Act on the Health Scheme (No. 26790) has resulted in the repeal of Act No. 18846 which granted compensation to fishermen and also to workers subject to special employment regimes in the event of temporary incapacity for work resulting from an occupational disease or industrial accident. The new regime established by Act No. 26790 affords less protection in this regard, despite the establishment of supplementary insurance for hazardous work. It seems that the provisions relating to this supplementary insurance are not sufficiently clear and 95 per cent of industrial employers and fishing boat owners have not subscribed to it. The supplementary information provided by the union refers to the case of several seafarers who are incapacitated for employment and have received no compensation from their employers who have referred the victims to the social security body.

In reply to these comments, the Government states that seafarers enjoy protection equivalent to that provided by Act No. 18846. In fact, in general, Act No. 27056 establishing a social security health scheme includes seafarers in its scope (section 4). Furthermore, in 1999, hired fishermen and self-employed fishermen were included as regular members of the social insurance health scheme, ESSALUD (Act No. 27177). Seafarers, fishermen and their dependants are thus entitled to benefits for prevention, promotion, recovery and rehabilitation, as well as cash benefits provided by ESSALUD. In addition, the regular members of ESSALUD may in certain cases be covered by a supplementary insurance for hazardous work (section 19 of Act No. 26790). This compulsory insurance is borne by employers who conduct high-risk activities, which include fishing. Employers who have not subscribed to this insurance are liable to the relevant administrative penalties and are responsible for the cost of benefits granted by the social security institute to workers in the event of accident. The Government considers, in these circumstances, that the provisions which govern this supplementary insurance are sufficiently clear and that, if the percentage of non-compliance with the obligation to contract this insurance is as high as that cited by the union, the inspection bodies will have to adopt the necessary measures.

The Committee notes all this information. It notes that the protection of seafarers in the event of sickness or accident is insured, on the one hand, by the 1987 regulations on harbour masters’ offices and maritime, river and lake activities, under which shipowners are responsible for medical assistance and maintenance of wages for seafarers in a situation of incapacity for work on board and, on the other hand, by the Social Security Modernization Act on the health scheme and its implementing regulations (social insurance regime in regard to health and supplementary insurance for hazardous work). The Committee notes, nevertheless, according to the information supplied by the trade union, that the system for protection of seafarers described above encounters difficulties of application in practice in that certain seafarers who are the victims of an accident or suffering from illness have no protection because neither the shipowner nor the general or supplementary health insurance system provides them with compensation for incapacity to work. In this regard, the Committee recalls that by virtue of Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, the shipowner may cease to be liable for medical assistance and payment of the whole or part of the wages due to a seafarer in the event of illness or accident resulting in incapacity for work, from the time at which the victim becomes entitled to medical benefits under a compulsory sickness insurance, compulsory accident insurance or workmen’s compensation for accidents in force for seafarers in the territory where the ship is registered. In these circumstances, the Committee would be grateful if the Government would communicate in its next report information on the application in practice of the supplementary insurance system for hazardous work in regard to seafarers. Please also supply information (including statistics, inspection body reports, administrative sanctions for shipowners, if any, etc.) on the measures taken or envisaged to ensure that in practice, on the one hand, employers subscribe to this insurance and that, on the other hand, notwithstanding failure to conclude such insurance, seafarers are entitled to the benefits guaranteed to them by this Convention in the event of sickness or accident.