Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo en la pesca, 2007 (núm. 188) - Francia (Ratificación : 2015)

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The Committee notes the Government’s first and second reports on the application of the Work in Fishing Convention, 2007 (No. 188). Following a first review of the available information and documents, the Committee draws the Government’s attention to the following issues. The Committee notes the efforts undertaken by the Government and social partners to implement the Convention. If considered necessary, the Committee may come back to other matters at a later stage.

Articles 2, 3 and 4 of the Convention. Scope of application. The Committee notes the Government’s indication that, except in relation to accommodation, the size of the vessel is not taken into account in terms of the protection of fishers. The Committee also notes with interest that, for other matters, the protection specifically provided for in the Convention for fishers working on vessels of a length equal to or greater than 24 metres includes those working on smaller vessels (Article 2(3)). The Committee notes the Government’s indication that fishing vessels engaged in fishing operations on waterways, lakes and canals are excluded from the scope of application of the rules that give effect to the Convention in France and that these exclusions are justified by “the low number of persons concerned and the short trips made by these vessels, which are mainly close to the shore”. The Government adds that the fishers concerned are subject to ordinary law, “namely, the Labour Code and its regulations which offer sufficient protection”.

Article 6. General principles. Implementation. Implementing measures. The Committee notes that section L. 5611-2 of the Transport Code provides that the following vessels may be registered on the French International Register: “… 3 professional fishing vessels equipped for deep-sea fishing, classified in the first category and working in areas defined by regulation”. The Committee notes that the Government’s report contains very little information on the laws, regulations and other measures governing working and living conditions on board fishing vessels registered on the French International Register. The Committee requests the Government to provide detailed information on the number of fishing vessels registered on the French International Register and other non-metropolitan registers, and the number, the place of residence and origin of fishers who work on board these vessels.

The Committee notes that section L. 5541-1-2 of the Transport Code provides that “for the application of the provisions of the Maritime Labour Convention, 2006, and the ILO Work in Fishing Convention, 2007 (No. 188) to non-salaried persons covered by section L. 5511-1 (3) and (4), a decree shall specify which of the provisions of this Book apply to them, with the necessary adjustments by reason of the non-salaried status”. Noting that the decree referred to in section L. 5541-1-2 has not been adopted, the Committee requests the Government to indicate which of the provisions of the Transport Code apply to non-salaried fishers and to provide detailed explanations of any adjustments made.

Article 14(2). Conditions of service. Manning and hours of rest. Vessels remaining at sea for more than three days. Minimum hours of rest. Exceptions. The Committee notes that section L. 5544-16 of the Transport Codes provides that an agreement or an extended collective agreement may determine, by type of vessel, navigation or category of personnel, the manner in which derogations may be made from the provisions relating to weekly and daily rest periods, in particular by providing for the organization and distribution of working periods of work during the week or over a period other than a week to take account of fishing operations at sea or other periods of intense work, constraints due to the port or weather, or the safety of the vessel at sea. The section also specifies that “the collective agreements or accords shall only be extended if they envisage: (1) measures to ensure compliance, in all circumstances, with requirements of watchkeeping; (2) the granting of consecutive rest periods to prevent fatigue; (3) the granting of leave to compensate for derogations from the limits referred to in Part I; (4) measures to control that rest is effectively taken on board and to prevent fatigue”. The Committee recalls that Article 14(2) of the Convention provides that the competent authority may permit, “for limited and specified reasons”, temporary exceptions from the rest periods laid down in paragraph 1(b). However, in these circumstances, “it shall require that fishers shall receive compensatory periods of rest as soon as practicable”. The Committee requests the Government to: (a) indicate if such collective agreements have been concluded and extended; (b) explain how it ensures that the applicable collective agreements and accords only allow for exceptions “for limited and specified reasons”; (c) indicate whether exceptions can be granted by other means than the conclusion of collective agreements that can be extended; and (d) where applicable, explain how it is ensured that compensatory periods of rest are received by fishers as soon as practicable.

Article 16(1)(b) and Annex II. Conditions of service. Fisher’s work agreement. Particulars to be included. The Committee notes that the Government refers to sections L. 5542-3 and L. 5542-4 of the Transport Code, which specify the particulars that must appear in the fisher’s work agreement. The Committee notes the Government’s indication that French law does not currently establish that the periods of rest or the registration of the vessel are particulars that must be included, as required by Annex II(c) and (p) of the Convention, but that these are likely to be added shortly. Recalling that the fisher’s work agreement must also indicate, if possible, the place at which and the date at which the fisher is required to report on board for the start of service, as well as the provisions to be supplied to the fisher, unless some alternative system is provided for by national legislation or regulations (Annex II(g) and (h)), the Committee notes that these particulars are not provided for in the legislation currently in force. The Committee therefore requests the Government to provide a copy of the measures taken or envisaged to ensure that the content of fishers’ work agreements is in compliance with the requirements of Annex II of the Convention.

Article 25. Accommodation and food. Requirement to adopt laws, regulations or other measures. The Committee notes that Part V of the Convention on accommodation and food is implemented in French law mainly by means of the Transport Code, Decree No. 84-810 of 30 August 1984 and sections 215, 227 and 228 of the General Regulations, annexed to the Order of 23 November 1987 on ship safety. The Committee notes that section 110(2) specifies the definitions of “new vessel” and “existing vessel”, without making reference to “the building contract”, as provided for in paragraph 1(a) of Annex III to the Convention. The Committee notes that section 215.1 provides that “(1) Unless provided otherwise, the provisions of this section shall apply to any vessel 12 meters in length or over sailing more than 20 miles from the nearest land. (2) For all commercial or fishing vessels under 12 metres in length, the head of the vessel safety centre, or the competent study committee, shall determine the applicable provisions, taking into account the construction characteristics and specific navigation conditions. (3) For any commercial or fishing vessel sailing within 20 miles of the nearest land, the competent authority for the examination of the plans and documentation may, insofar as the organization of the work and the operation of the vessel imply the accommodation and catering for all or part of the crew on board, and in view of the number and functions of the crew members, require the application of the measures of this section to such vessels”. The Committee notes that section 215.30, which contains specific measures of application to fishing vessels, provides that: “(1) The provisions of this chapter concern the accommodation on board fishing vessels. Unless otherwise provided in another section of this regulation, they shall apply to any vessel of 12 metres in length or more. (2) However, the competent study committee may derogate from the provisions of this section for vessels which do not normally return to their home port for periods of less than 36 hours and whose crew does not live permanently on board while in port. (3) For any vessel of less than 12 metres in length, the competent authority for the examination of plans and documents shall determine the applicable provisions taking into account the construction characteristics of the ship and the special navigation conditions”. The Committee also notes that section 227 relating to fishing vessels less than 12 metres in length contains a chapter on health and accommodation. The Committee recalls that the member State is required to ensure the application of Articles 26 and 27 of the Convention to all vessels to which the Convention applies and that the provisions of Annex I apply to all new decked fishing vessels, subject to any exclusions provided for in accordance with Article 3 of the Convention. The competent authority may, after consultation, also apply the requirements of the Annex to existing vessels, when and so far as it determines that this is reasonable and practicable (Annex III, paragraph 2). The Committee requests the Government to provide detailed explanations on the manner in which it ensures that the applicable rules relating to accommodation on board “existing vessels”, within the meaning of paragraph 1(a) of Annex III, meet the requirements of Article 26 of the Convention. The Committee requests the Government to provide detailed information on the measures adopted pursuant to paragraphs 2 and 3 of section 215.1 and paragraph 3 of section 215.30.

Article 28(1) and Annexe III, paragraphs 14, 15 and 16. Accommodation and food. Openings into and between accommodation spaces. Concerning vessels under 12 metres, the Committee notes that section 227-8.01 contains measures giving effect to the provisions on accommodation and food but does not specify that there shall be no direct openings into sleeping rooms from fish rooms and machinery spaces except for the purpose of emergency escape (paragraph 16 of Annex III of the Convention). The Committee requests the Government to indicate the measures taken or envisaged to give full effect to this provision of the Convention.

Article 28(1) and Annex III, paragraphs 44–50. Accommodation and food. Sleeping rooms. The Committee notes that several requirements in Annex III do not appear to be reflected in the General Regulations annexed to the Order of 23 November 1987. They do not specify that the maximum number of persons to be accommodated in any sleeping room shall be legibly and indelibly marked in a place in the room where it can be conveniently seem (Annex III, paragraph 44). Section 215 does not specify the minimum inside dimensions of the berths for vessels 12 metres in length and over (Annex III, paragraphs 45–47). They do not require a desk suitable for writing, with a chair to be provided on vessels of 24 metres in length and over (Annex III, paragraph 49) nor that sleeping accommodation shall be situated or equipped, as practicable, so as to provide appropriate levels of privacy for men and for women (Annexe III, paragraph 50). The Committee requests the Government to indicate the measures adopted or under preparation in order to give full effect to paragraphs 44–47, 49 and 50 of Annex III.

Article 28(1) and Annex III, paragraph 67. Accommodation and food. Sick bay. The Committee notes that section 215.14 provides that any vessel with a crew of 12 persons or more and making crossings of over 48 hours shall be equipped with a sick bay. Vessels of less than 500 gross tonnage sailing within 20 miles of the nearest land may be exempted from this requirement. The Committee recalls that paragraph 67 of Annex III provides, without taking into consideration the type of navigation, that for vessels of 45 metres in length and over, there shall be a separate sick bay. The space shall be properly equipped and shall be maintained in a hygienic state. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to paragraph 67 of Annex III.

Article 34. Medical care, health protection and social security. Social security. Ordinary residence. The Committee notes that section L. 5551-1 of the Transport Code provides that “mariners shall be registered with the seafarers’ old-age insurance scheme, when they are engaged in an activity directly related to the operation of the ship, within the meaning of section L. 5511-1: (1) Seafarers on board a ship flying the French flag and operating in commerce, fishing and aquaculture and pleasure boat sailing; (2) In accordance with the Maritime Labour Convention, adopted in Geneva on 7 February 2006, seafarers residing in France in a stable and ordinary manner and embarked on a ship flying the flag of a foreign State other than a ship referred to in section L. 5561-1 of the Code, if they fulfil the following conditions: (a) they do not fall within the scope of section L. 311-3(34) of the Social Security Code; (b) they are not subject to the social security legislation of a foreign State pursuant to European Union regulations or international social security agreements concluded with France; (c) they are not covered by social protection at least equivalent to that provided for in section L. 111-1 of the Social Security Code”. The Committee also notes the Government’s indication that there is a pension fund (old-age insurance) and a provident fund which intended to provide full social security protection for fishers. The Committee notes that, at this stage, the criterion of ordinary residence for the extension of protection, is only provided for in relation to the Maritime Labour Convention, 2006. The Committee recalls that Article 34 of Convention No. 188 provides that each Member shall ensure that “fishers ordinarily resident in its territory”, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to Article 34 of the Convention.

Article 36. Medical care, health protection and social security. Social security. Cooperation. The Committee notes that the Government has not provided information on the bilateral or multilateral cooperation agreements or any other arrangement concluded with other ILO Members for the purpose of progressively achieving comprehensive social security protection for fishers, irrespective of nationality, taking into account the principle of equal treatment, and to ensure the maintenance of the social security rights which have been acquired or are in the course of acquisition by all fishers, regardless of residence. The Committee requests the Government to provide detailed information on the cooperation agreements giving effect to the requirements of Article 36 of the Convention.

Article 37. Medical care, health protection and social security. Social security. Regional economic integration organizations. The Committee notes that the Government has not provided any information on the rules concerning the social security legislation to which fishers are subject, which may have been determined through bilateral or multilateral agreements or through provisions adopted in the framework of regional economic integration organizations. Noting that France is a Member of the European Union, the Committee requests the Government to provide detailed information on the rules determined in that context.

Article 40. Compliance and enforcement. Responsibilities of the flag State. Effective jurisdiction and control. The Committee notes the Government’s indication that the French labour inspection system ensures the social control of vessels flying the French flag. A total of 41 labour inspectors are responsible for monitoring fishing vessel owners. These inspectors mainly intervene by conducting inspections which lead to the drawing up of “compliance notices” addressed to the employer. The Committee notes that Decree No. 84-810 of 30 August 1984 contains several provisions which deal with the inspection of fishing vessels, but always in connection with the issue of social certification, which concerns only a limited proportion of fishing vessels. The Committee recalls that Article 40 of the Convention provides that each Member shall effectively exercise its jurisdiction and control over vessels that fly its flag by establishing a system for ensuring compliance with the requirements of the Convention including, as appropriate, inspections, reporting, monitoring, complaint procedures, appropriate penalties and corrective measures, in accordance with national laws or regulations. The Committee also recalls that these inspections concern all fishing vessels and not only those subject to the requirement to carry on board the valid document provided for in Article 41. The Committee requests the Government to indicate the measures taken or under preparation to give full effect to Article 40 of the Convention.

Articles 41 and 42(1). Compliance and enforcement. Responsibilities of the flag State. Valid document. The Committee notes that Decree No. 2018-275 of 16 April 2018 and an Order of 21 June 2018 have been adopted to give effect to Article 41 of the Convention on the valid document. The Committee notes the Government’s indication that, in order to implement the social certification process, 29 ship safety and occupational risk prevention inspectors have been trained on Convention No. 188 (for approximately 150 vessels to be certified). It notes that, at this stage, the Government has chosen not to authorize delegated organizations to carry out inspections and issue certificates. Finally, the Committee notes that the Government has provided a copy of an inspection report for the purpose of issuing a social certificate for fishing. The Committee notes these measures with interest and requests the Government to provide information on the progress made on the implementation of the social certification process relating to fishing vessels.

Articles 43 and 44. Compliance and enforcement. Responsibilities of the flag State. The Committee notes the Government’s indication that a new section 29 of Decree No. 84-810 is in the process of being adopted, as well as a decree which should specify the conditions for handling complaints from seafarers and fishers. The Committee requests the Government to keep it informed of the adoption of these measures. The Committee notes that section L. 5548-1 et seq. of the Transport Code establish a general framework for monitoring the application of the standards of the ILO relating to the work of seafarers on board ships flying a foreign flag which calls at a French port. The Committee notes, however, that sections 41-1 et seq. of Decree No. 84-810 of 30 August 1984 on the inspection of foreign ships by means of the port State inspection, and section 150 (control of foreign vessels by the port State) of the General Regulations annexed to the Order of 23 November 1987 on the safety of ships, only refer to the Maritime Labour Convention, 2006, and the maritime labour certificate that it provides for. The Committee requests the Government to indicate the measures taken or under preparation to give full effect to Article 43 of Convention No. 188 concerning the obligations of the port State, and requests the Government to indicate whether inspectors take into account the Guidelines for port State control officers, published in 2011.