Solicitud directa (CEACR) - Adopción: 2014, Publicación: 104ª reunión CIT (2015)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Panamá (Ratificación : 2009)

Otros comentarios sobre C186

Solicitud directa

2017
2014

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General questions on application. Implementing measures. Information in the Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). Panama has previously ratified 15 maritime labour Conventions that were automatically denounced on the entry into force of the Convention for Panama. The Committee notes that the main legislation implementing the Convention is Executive Decree No. 86 of 2013 and that the Convention is also implemented through various resolutions and Merchant Marine Circulars (MMCs). The Committee understands that these MMCs, which are subject to revision, are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. The Committee notes that the Government supplied a copy of the Declaration of Maritime Labour Compliance (DMLC) Part I and the form for a DMLC Part II. It observes that the DMLC Part II provided by the Government is a blank form and is not an example of an approved DMLC Part II that has been drawn up by a shipowner to set out the measures adopted to ensure ongoing compliance with the national requirements and measures proposed to ensure that there is continuous improvement, as provided under Standard A5.1.3, paragraph 10(b), of the Convention. The Committee requests the Government to provide one or more examples of an approved DMLC Part II that applies paragraph 10(b) of Standard A5.1.3 giving due consideration to the guidance provided in Guideline B5.1.3.

General questions on application. Scope of application. Article II, paragraphs 1(f) and (i), 3 and 5. Seafarers and ships. The Committee notes that section 3 of Executive Decree No. 86 of 2013 provides that the Decree “… applies to all Seafarers employed, hired or working in any position on board a vessel as defined in article 1”. Section 3 also exempts several categories of persons from the application of the Decree, including under section 3(f) “Technical personnel in Platforms or MODU (Mobile Offshore Drilling Units)”. However, it also provides that “… with regards to offshore drilling platforms or MODUs, persons who, due to their training and qualification are covered under the regulations of the STCW Convention, shall be considered as Seafarers”. MMC-265 dated 21 January 2013 provides the same information. The Committee also notes that MMC-251 dated 24 July 2012 states that:

1. … the certification required by Regulation 5.1.3 of the Maritime Labour Convention, 2006 shall not apply to Platforms or MODU (Mobile Offshore Drilling Units), since their main service involves operations of drilling, exploration or exploitation of resources beneath the seabed and also, they do not engage in international navigation or voyages.
2. Shipowners or operators may, if desired, request voluntary certification through a Recognized Organization authorized for the issuance of the Maritime Labour Certificate.
3. Likewise, the MLC, 2006 provisions that regulate the working relationship apply solely to the personnel directly related to the navigation of the Platform or MODU.

That Circular also refers to the resolution adopted by the 94th Session of the International Labour Conference (resolution VII) concerning information on occupational groups and to the criteria it sets out to guide a competent authority when making a determination, in the event of doubt as to whether a person is considered a seafarer for purposes of the Convention. The Committee notes that the Government indicates that no cases of doubt have arisen as to whether the MLC, 2006 applies to a ship or particular categories of ships. The Committee also notes that the definition of vessel in section 1 of Executive Decree No. 86 of 2013 follows the definition of “ship” in Article II, paragraph 1(i) of the Convention and that section 2 of the Decree provides that it “… applies to all ships flying Panamanian flag, either publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or similar pursuits and ships of traditional build such as dhows and junks. It does not apply to warships or naval auxiliaries”. The Committee, therefore, observes that it is not clear whether MODUs are considered ships or not, for the purpose of the application of the Convention.

The Committee also notes that MMC-265, mentioned above, states that cadets are not considered as seafarers and states at paragraph 5 that “... national regulations define a Cadet as ‘An aspiring merchant marine officer, whose training program includes the improvement of academic and professional skills, as well as the formation of attitudes and behaviours under the observance and strict compliance of rules, regulations and existing orders”. The Committee, however, notes that work carried out by cadets is regulated under section 9 of Executive Decree No. 86 of 2013, which provides, as an exception to the prohibition of work on board a ship for persons under 18 years of age, that cadets under that age who for educational reasons carry out their professional practice on board a ship are allowed to “be employed or engaged or to work on board a ship with Panamanian registration”.

The Committee reminds the Government that the MLC, 2006 does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered by the Convention. Such partial application is only possible where: (a) the workers clearly do not come within the definition of “seafarer”; or (b) the ship concerned is clearly not a “ship” covered by the Convention; or (c) a doubt can arise in regard to (a) or (b) above and a determination has been made, in accordance with the Convention, that the categories of workers concerned are not seafarers or are not working on ships covered by the Convention; or (d) the provisions in the relevant legislation that do not apply to such workers relate to subjects that are not covered by the Convention. The Committee requests the Government to clarify whether platforms or MODUs are to be considered ships and to specify the extent to which the Convention is implemented in the case of cadets who work “in any capacity [including for educational reasons] on board a ship to which this Convention applies” and are to be regarded as seafarers for the purpose of the legislation implementing the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that section 72 of Executive Decree No. 86 of 2013 provides for minimum hours of rest as set out in paragraph 5(b) of Standard A2.3 of the Convention. The Committee also notes that section 73 of the Decree provides that exceptions to the restrictions on seafarers’ minimum hours of rest will be allowed pursuant to paragraph 13 of Standard A2.3, of the Convention, as long as they are included in a collective agreement “or they adjust to the provisions established in the STCW Convention”. The Committee also notes the Government’s indication that no collective agreements were authorized allowing exceptions to the limits on hours of rest. The Committee recalls that paragraph 13 of Standard A2.3 only allows exceptions (such as those provided for in the STCW) where those exceptions are permitted in a collective agreement. The Committee notes that the DMLC Part I appears to only envisage exceptions that have been provided for in collective agreements which have been authorized or registered by the Panama Maritime Authority. The Committee also notes that section 77 of Executive Decree No. 86 of 2013 appears to place the responsibility for keeping records of daily hours of rest (see paragraph 12 of Standard A2.3) on the seafarer concerned, although the DMLC Part I appears to indicate otherwise. The Committee requests the Government to provide information clarifying whether any exceptions to the limits under Standard A2.3 have been made in a collective agreement, as provided under paragraph 13 of Standard A2.3. It also requests the Government to provide further information on the application of paragraph 12 of Standard A2.3 and to clarify who is responsible for keeping records of seafarers daily hours of rest or work on board ship.

Regulation 2.5 and the Code. Repatriation. The Committee notes that Chapter VIII of Executive Decree No. 86 of 2013 regulates repatriation. According to section 96 of the Decree, a seafarer loses the right to be repatriated, inter alia, when she/he enters into a new employment agreement with the same shipowner following her/his disembarking (section 96(2)) and when she/he does not claim her/his right to be repatriated within a week following the time when she/he is entitled to be repatriated (section 96(4)). The Committee recalls that Guideline B2.5 provides guidance, which must be given due consideration by the Member when implementing the requirements of the Convention. Paragraph 8 of Guideline B2.5.1 provides that “the entitlement to repatriation may lapse if the seafarers concerned do not claim it within a reasonable period of time to be defined by national laws or regulations or collective agreements”. The Committee requests the Government to clarify the basis of the provision in section 96(2) of Executive Decree No. 86 of 2013 with respect to the loss of a seafarer’s entitlement to repatriation and to also clarify the basis for its decision that one week from the time when the seafarer is entitled to be repatriated (section 96(4) of the Decree) would represent a reasonable period of time.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that Executive Decree No. 86 of 2013 contains comprehensive provisions on this point, and that the Government has, in accordance with paragraph 2 of Article VI of the Convention, given due consideration to the Guidelines in Part B of the Code of the Convention when adopting these provisions. However, the Committee notes that MMC-302 (version November 2014, entitled “Maritime Labour Convention, 2006 (MLC, 2006). EXEMPTION CERTIFICATE AND DISPENSATION LETTER. TITLE 3. REGULATION 3.1 – ACCOMMODATION AND RECREATIONAL FACILITIES” states the following:

…

2. That the MLC establishes on its Article VI. The Regulations and the provisions of Part A of the Code are mandatory. The provisions of Part B of the Code are not mandatory.
3. That due to the large quantity of Panama flagged vessels whose construction was terminated, or whose keel was laid on a date after August 20th of 2013, and that they do not comply with the Standards and/or Guidelines of Title 3, Regulation 3.1, it becomes necessary that this Administration communicates to users of the Ship Registry, that while the National Legislation incorporates Standards and Guidelines, the Flag’s requirements, regarding Standards, which are of mandatory compliance, cannot be the same as the requirements regarding Guidelines, which are not mandatory, relating to ship construction and equipment, therefore, this Administration takes the following measures, destined to provide our users with a service in accordance to the demands of the MLC, 2006, as follows:

■ Whenever a ship does not comply with the regulations of Law Decree No. 86 of 2013, on TITLE IV. ACCOMODATION, RECREATIONAL FACILITIES, FOOD AND CATERING. CHAPTER I. ACCOMODATION AND RECREATIONAL FACILITIES (MLC, Title 3, Regulation 3.1, Standard A3.1, Part A in the MLC Code), it must apply for an exemption certificate, in accordance to the form and procedure established on MMC 191;

■ Whenever a ship does not comply with the regulations of Law Decree No. 86 of 2013, on TITLE IV. ACCOMODATION, RECREATIONAL FACILITIES, FOOD AND CATERING. CHAPTER I. ACCOMODATION AND RECREATIONAL FACILITIES. PANAMA MARITIME AUTHORITY (MLC, Title 3, Guideline, Part B in the MLC Code), it must request a dispensation letter … explaining the reasons and attaching a copy of the vessel’s plan. This letter will be issued without any cost ...

4. The exemption certificate and/or the dispensation letter, must be attached to the Declaration of Maritime Labour Compliance, and to the Maritime Labour Certificate, and must be available to the competent authorities.

The Committee notes that, although the Guidelines in Part B of the Code are not mandatory, they must be given due consideration when implementing the MLC, 2006. However, the distinction drawn in the Convention between the status of the mandatory provisions in the Standards in Part A of the Code and the provisions of the Guidelines in Part B of the Code is no longer relevant once the Member concerned has adopted its national legislation and other measures implementing the requirements of the Convention in the manner provided for in the Guidelines to the extent that the Member has determined to be appropriate. The Committee recalls in this respect paragraph 10 of the Explanatory Note to the Regulations and the Code of the Maritime Labour Convention which explains that:

… by following the guidance provided in Part B, the Member concerned, as well as the ILO bodies responsible for reviewing implementation of international labour Conventions, can be sure without further consideration that the arrangements the Member has provided for are adequate to implement the responsibilities under Part A to which the Guideline relates.

The Committee notes that MMC–302 also appears to provide for a general exemption from the national requirements implementing Regulation 3.1 and the Code of the MLC, 2006. In this regard, it reminds the Government that, as stated in paragraph 21 of Standard A3.1, exemptions in the application of Regulation 3.1 and Standard A3.1 of the MLC, 2006, are limited to those that are expressly permitted in that Standard. Finally, the Committee notes that the Decree provides for some exemptions to the requirements of accommodation allowed under the Convention (see sections 104, 111, 126, 127, 129, 137, 152(b) and 154 of the Decree). However, the Government provides no information on the consultations carried out before granting those exemptions, as required under paragraphs 9(a), 9(m), 10(a), 11(b), 15 and 20 of Standard A3.1. The Committee requests the Government to take the necessary measures to ensure that any exemptions regarding accommodation, recreational facilities, food and catering is made only within the limitation provided for under Regulation 3.1 and the Code of the MLC, 2006. The Committee also requests the Government to provide information on any exceptions granted under the sections of Executive Decree No. 86 of 2013 indicated above, and on whether the organizations of shipowners and seafarers have been consulted prior to granting such exceptions.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that legislation implementing this Regulation is Executive Decree No. 86 of 2013 (sections 180–185), as well as MMCs with respect to implementing provisions of instruments adopted by the International Maritime Organization (SOLAS Convention and the ISM Code on questions of ship safety and security). The Committee also notes that, while section 180 of Executive Decree No. 86 of 2013 establishes that it is the shipowner’s obligation to adopt effective safety and health policies and programmes at work, including an evaluation of risk, as well as training and education of seafarers, with the purpose of preventing work accidents, professional injuries or illnesses, the Government provides no information on these policies and programmes and also does not appear to have adopted national guidelines for the management of occupational safety and health on board ships flying its flag, in accordance with paragraph 2 of Regulation 4.3 and paragraph 1(a) of Standard A4.3. In this regard, the Committee wishes to draw the attention of the Government to the ILO Tripartite Expert Meeting on Maritime Occupational Safety and Health, held from 13 to 17 October 2014, which discussed and adopted guidelines for implementing the occupational safety and health provisions of the MLC, 2006. It recalls that paragraph 3 of Standard A4.3 requires that laws and regulations and other measures be regularly reviewed in consultation with representatives of shipowners’ and seafarers’ organizations. The Committee also notes that since the Government did not provide an example of an approved DMLC Part II outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (see paragraphs 1(c), 2(b) and 8 of Standard A4.3), it is also not possible to assess compliance with these aspects of the requirements. The Committee accordingly requests the Government to indicate whether the national guidelines required under paragraph 2 of Regulation 4.3 have been adopted after consultation with the representative shipowners’ and seafarers’ organizations. It also requests the Government to provide information on the application in practice of sections 180–185 of Executive Decree No. 86 of 2013. In addition, the Committee hopes that when supplying examples of DMLC Part II, the examples will include information as to how it is ensured that on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases are in place on ships flying Panamanian flag. The Committee notes that the Government provided a copy of an injury and illness medical record. The Committee requests the Government to also provide a copy of any other document used for reporting and/or investigating unsafe conditions or occupational accidents on board ship (paragraphs 1(d) and 6 of Standard A4.3).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes that section 193 of Executive Decree No. 86 of 2013 provides that the Republic of Panama, together with shipowners and seafarers, are to promote the development of welfare facilities in the appropriate ports of the country and that the competent authority is to establish which ports are available. The same section also refers to possible sources of funding for the development of welfare facilities. The Committee notes the Government’s information that there is one welfare facility in place, the “International Seafarers’ Centre”. The Committee requests the Government to specify whether any ports have been designated by the competent authority pursuant to section 193 of Executive Decree No. 86 of 2013. It also requests the Government to provide information as to whether any of the funding mechanisms listed in the abovementioned section 193 were adopted.

Regulation 4.5 and the Code. Social security. The Committee notes that, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government has specified the following branches of social security: scheme 1, old-age benefit, invalidity benefit and survivors’ benefit. For scheme 2, medical care; sickness benefit; old-age benefit; maternity benefit; invalidity benefit and survivors’ benefit. The Committee notes that Chapter V of the Executive Decree No 86 of 2013, which is entitled, “Social security”, provides in section 194 that the “Republic of Panama shall provide all Seafarers who reside regularly in its territory and the persons under their care, access to protection in matters of social security, pursuant to the national law and regulations in force.” Section 195 provides that this protection is in addition to the protection provided pursuant to Chapters I and II of the Decree (on shipowners’ liability in the event of seafarers’ occupational accidents, injuries and diseases and on protection of safety and health and prevention of accidents).

The Committee notes that section 77 of Act No. 51 of 2005 reforming the law on the Social Security Fund (CSS) provides that all workers who work in Panama, whether nationals or foreigners, including self-employed workers must be affiliated to the CSS. It further notes that Title III of Resolution No. 39489 of 23 March 2007, implementing Act No. 51, regulates the compulsory affiliation of seafarers working on Panamanian registered vessels assigned to domestic service. Section 87 of the resolution states that seafarers employed on board vessels assigned to domestic service are obliged to be affiliated to the CSS and section 89 specifies that this affiliation applies to national or foreign workers who permanently or occasionally work on board a ship assigned to domestic service for an employer who operates in the national territory and whose employees are subject to an employment relationship within the Panamanian Republic. Section 88 establishes that seafarers working on board vessels assigned to international service, irrespective of the flag or the registry of the ship may also affiliate to the CSS, under a voluntary social security scheme. The Government indicates that the voluntary regime does not provide for benefits for occupational injuries. The Committee notes that it is not clear whether the provision allowing for voluntary affiliation applies also to non-resident seafarers working on ships flying the flag of Panama that are engaged in international voyages.

The Committee recalls that paragraph 3 of Regulation A4.5 of the Convention provides that each Member shall ensure that seafarers that are subject to its social security legislation and, to the extent provided for in its national law, their dependants are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers. The Committee also recalls requirements under paragraphs 2 and 3 of Standard A4.5 which require each Member to take steps according to its national circumstances to provide at least three branches of social security to all seafarers ordinarily resident in its territory. The Committee observes, however, that legislation in force in Panama appears to create a difference between shoreworkers and seafarers who are employed on board vessels assigned to domestic service on one hand and seafarers ordinarily resident in Panama who are employed on board either ships flying its flag or ships flying the flag of another country and engaged in international voyages, on the other hand. The Committee requests the Government to indicate the measures taken to provide seafarers, who are ordinarily resident in Panama and are employed on ships that are engaged in international voyages, with social security coverage no less favourable than that enjoyed by shoreworkers and in accordance with paragraphs 2 and 3 of Standard A4.5.

Regulation 5.1 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes the information provided by the Government on the implementation of Regulation 5.1 The Government refers, with regard to guidelines for inspectors, to the new inspection system Panama Electronic Equipment for Marine Surveys (Pele Marine), implemented in June 2012 (see MMC-247 of July 2012). The Government indicates that Pele Marine is an innovative maritime inspection system that aims at streamlining the supervising process of the vessels under the Panamanian Maritime Authority and is expected to help ship inspectors in the supervision process using a digital tablet bundled with a wireless printer, and to help the Panamanian Maritime Authority with the transmitted data for processing the information obtained. The Committee notes various resolutions and MMCs supplied by the Government, such as resolution No. 106-53-DGMM of 2010 on annual safety inspection by flag State, MMC-269 of 21 January 2013 on the process of certification, and various MMCs and resolutions on the authorization of recognized organizations. The Committee notes, however, that the Government’s report contains little information on procedures to receive and investigate complaints, and in particular on the implementation of paragraphs 6, 7 and 9–11 of Standard A5.1.4 of the Convention. The Committee requests the Government to provide more detailed information in this respect. It also requests it to provide: a copy of the annual reports of inspections; a document describing the inspectors’ functions and mandate; and a copy of the form used for an inspector’s report. The Committee also notes the Government’s information that section 115 of Act No. 57 of 2008 provides that when there are grounds to believe that there is serious breach of safety norms in ships registered by the Maritime Authority, the General Directorate of the Panama Maritime Authority may order restrictions or detain ships until it receives evidence that deficiencies are remedied. Against that measure no appeal is allowed. The Committee observes that this provision does not appear to be in line with paragraph 8 of Standard A5.1.4 of the Convention in so far as paragraph 8 provides that any action taken pursuant to paragraph 7(c) of the Standard shall be subject to any right of appeal to a judicial or administrative authority. The Committee requests the Government to provide information on any right of appeal that is provided, as required by paragraph 8 of Standard A5.1.4 of the Convention.

Regulation 5.2, 5.2.1 and 5.2.2 and the Code. Port State responsibilities. The Government indicates that it is a member of the Latin American Agreement on Port State Control, 1992 (Viña del Mar Agreement). It also indicates that the Panama Maritime Authority has incorporated the requirements of the Convention in its port State inspections (PSC) and that it has seven authorized officers. The Government also indicates that its PSC system is submitted to evaluation of internal and external auditors. The Committee notes that the Government partly describes the procedures for port State inspection and onshore complaint procedures. In this regard, the Government also refers to a resolution adopted by the International Maritime Organization, resolution A.787(19) of 1995 on procedures for supervision by port States. Moreover, with regard to the guidelines for authorized officers carrying out PSC, the Government refers to the inspection system Pele Marine discussed above in connection with flag State inspections and to the respective website that does not appear to include information on this point. The Committee finally notes the statistical information provided by the Government regarding the implementation of Regulation 5.2.1. The Committee observes that the legal framework for PSC and onshore complaint-handling procedures is not clear. The Committee requests the Government to provide more detailed information on the measures it has adopted to implement Regulations 5.2.1 and 5.2.2 and the Code. It also requests the Government to provide information about the guidance that has been developed, in accordance with paragraph 7 of Standard A5.2.1, giving due consideration to Guideline B5.2.1, and provided to authorized officers, as to the kinds of circumstances justifying detention of a ship under paragraph 6 of Standard A5.2.1.

[The Government is asked to reply in detail to the present comments in 2016.]