Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention du travail maritime, 2006 (MLC, 2006) - Argentine (Ratification: 2014)

Autre commentaire sur C186

Demande directe

2022
2018

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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006), and the observations of the General Confederation of Labour of the Argentine Republic (CGT–RA), received on 1 September 2021. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Argentina on 8 January 2019 and 26 December 2020, respectively.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers' Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006 by Argentina during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II, paragraphs 1(f) and 2, of the Convention. Scope of application. Seafarers. The Committee notes that the Government, in reply to its previous comments, referring to sections 501.0301 and 501.0302 of Decree No. 770/19 (Maritime, river and lake shipping regulations), which repeals Decree No. 4516/73, indicates that all personnel who perform tasks on ships flying the national flag must enlist with an “embarkation document” (card or book), regardless of whether or not they are counted in minimum safe crewing levels. The Committee requests the Government to confirm whether all legislation which gives effect to the Convention applies to all personnel working on ships flying the Argentinian flag, including those who do not belong to the statutory crew of the ship.

Cadets. The Committee notes that, in reply to its previous request concerning the measures taken to ensure that cadets are considered as seafarers, the Government refers to the regulations governing apprentices’ contracts (Act No. 25013 of 1998) and indicates that since the link between the cadet and the shipowner constitutes an employment relationship, cadets are considered to be seafarers. Observing that Act No. 25013 of 1998 is of a general nature and recalling that in its first report the Government indicated that the maritime legislation did not apply to cadets, the Committee requests the Government to indicate in detail how it is ensured that cadets enjoy the protection afforded by the Convention, specifying, in particular, how the contract between the cadet and the shipowner fulfils the requirements of Regulation 2.1 and the Code.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage.The Committee requests the Government to provide information on: (i) any measures adopted under Article II, paragraph 6, to apply certain details of the Code differently to ships under 200 gross tonnage not engaged in international voyages; and (ii) the consultations held in accordance with Article II, paragraph 6.

Article V. Implementation and enforcement. Observing that the Government, in reply to its previous comments, refers to the certification and inspection of ships, the Committee recalls that Article V provides that each Member shall take steps to prohibit violations of the requirements of this Convention and establish sanctions or require the adoption of corrective measures which are adequate to discourage such violations (Article V, paragraph 6). The Committee once again requests the Government to provide information on the application of Article V, paragraph 6.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comments, the Committee noted that although Decree No. 1117/2016 of the Ministry of Labour, Employment and Social Security provides that work at sea constitutes a hazardous type of work for young persons under 18 years of age, Decree No. 4516/73 permits cadets between 16 and 18 years of age to work on ships, and asked the Government to indicate the measures taken to bring its legislation into line with the provisions of the Convention. Observing that, with respect to cadets, the Government refers to its reply relating to Article II, paragraphs 1(f) and 2, the Committee requests the Government to take the necessary steps without delay to give full effect to Standard A1.1, paragraph 4, determining the types of work which cadets cannot perform because of the danger to their health or safety, further to consultations with the shipowners’ and seafarers’ organizations.

Regulation 1.2 and the Code. Medical certificate. The Committee notes the Government’s indication, in reply to its previous comments, that the legislation relating to medical certificates (Decree No. 770/19, Act No. 20.094/1973 and Ordinance No. 2/13 DPSN of the Argentinian Naval Authority) applies to all seafarers covered by the MLC, 2006, whether or not they form part of the operational crew of the ship, since the corresponding physical fitness requirements have to be met for the respective “embarkation document” to be issued. The Committee notes this information, which addresses its previous request.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that the Government, in reply to its previous request on the application of Standard A1.4, paragraph 3(d), provides information on the system for the certification of private agencies for the recruitment and placement of seafarers pursuant to Regulation 1.4. The Committee requests the Government: (i) to provide information on how effect is given to the detailed requirements of Standard A1.4, paragraphs 5–7; and (ii) to clarify the measures taken by recruitment and placement services operating in accordance with a collective agreement to protect and promote seafarers’ employment rights, indicating how these measures are comparable to those provided for in Standard A1.4, paragraph 5.

Regulation 1.4 and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes the Government’s indication, in reply to its previous comments, that inspectors have been instructed to follow guidelines in cases of seafarers employed through a seafarer recruitment and placement service based in a country which has not ratified the MLC, 2006. The Committee recalls that Standard A1.4, paragraph 9, provides that the obligation to ensure that seafarer recruitment and placement services based in countries or territories in which the Convention does not apply meet the requirements of the Standard shall rest on shipowners who make use of these services. The Committee once again requests the Government to indicate the measures adopted to give effect to Standard A1.4, paragraph 9.

Regulation 2.1 and Standard A2.1, paragraph 5. Seafarers’ employment agreements. Minimum notice period for termination. The Committee notes that, under section 636 of Act No. 20.094/1973, regarding employment contracts (“contratos de ajuste”) of indefinite duration, the conditions under which the parties may conclude the contract shall be laid down, including the obligation to give 48 hours’ notice in writing. The Committee recalls that, under Standard A2.1, paragraph 5, which must be applied by means of legislation, the duration of the minimum notice period for the early termination of a seafarers’ employment agreement shall not be shorter than seven days. The Committee requests the Government to indicate the measures taken to ensure full conformity with Standard A2.1, paragraph 5.

Regulation 2.1 and Standard A2.1, paragraphs 1–4. Seafarers’ employment agreements. Requirements. The Committee notes that the Government, in reply to its previous comments, provides several examples of employment contracts (“contratos de ajuste”) established in accordance with the collective agreements in force. It also notes that sections 635–638 of Act No. 20.094/1973 regulate the conditions and particulars of employment contracts (“contratos de ajuste”). In this regard, the Committee observes that: (a) section 638 of Act No. 20.094/1973 is not in full conformity with Standard A2.1, paragraphs 1(c), (d) and 3, since it does not provide that seafarers shall always have the right (without needing to ask) to keep a signed original of the seafarers’ employment agreement and to be given a document containing a record of their employment on board the ship without any statement as to the quality of their work or as to their wages; and (b) the applicable legislation does not appear to cover the requirements of Standard A2.1, paragraphs 1(b), (d) and 2. The Committee requests the Government to adopt the necessary measures to ensure the full conformity of its legislation with the above-mentioned requirements of Standard A2.1.

Regulations 2.1 and 2.2 and Standard A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages.Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarers’ employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions.

Regulation 2.3 and Standard A2.3, paragraph 12. Hours of work and hours of rest. Records. The Committee requests the Government to indicate how it gives effect to Standard A2.3, paragraph 12, ensuring that all seafarers receive a copy of the records pertaining to them which shall be endorsed by the master, or a person authorized by the master, and by the seafarers.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum annual leave with pay. Method of calculation. The Committee notes that the Government, in reply to its previous comments, once again refers to Act No. 20.744/1976 on employment contracts and to the collective agreements applicable to the maritime sector. Referring to its previous comments, the Committee requests the Government to indicate the measures taken to ensure the full conformity of its legislation with Standard A2.4, paragraph 2.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave.The Committee requests the Government to indicate the measures taken to ensure that seafarers are granted shore leave, indicating the applicable provisions.

Regulation 2.5 and Standard A2.5.1. Repatriation. The Committee notes that, in reply to its previous comments, the Governmentrefers to regulatory provisions and sections of collective agreements which do not give effect to the detailed requirements of Standard A2.5.1. The Committee recalls that these requirements cover, inter alia: the circumstances in which seafarers are entitled to repatriation (Standard A2.5.1, paragraphs 1 and 2(a)); the maximum duration of service periods on board, which must be less than 12 months (Standard A2.5.1, paragraph 2(b)); the obligations of shipowners, including those relating to destinations of repatriation, mode of transport, and items of expense to be covered (Standard A2.5.1, paragraph 2(c)); and the prohibition on requiring seafarers to make an advance payment towards the cost of repatriation (Standard A2.5.1, paragraph 3). The Committee requests the Government to adopt the necessary measures to give full effect to Regulation 2.5 and Standard A2.5.1. It also requests the Government to ensure that the legislation in force provides that employment contracts (“contratos de ajuste”) must include seafarers’ entitlement to repatriation (Standard A2.1, paragraph 4(i)).

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes that, despite the fact that the Government has supplied a copy of a certificate of financial security in accordance with Standards A2.5.2 and A4.2.1, the Government’s report does not contain any information in reply to its previous comments. The Committee therefore reiterates its previous request.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee notes that the examples of the international minimum safe manning document for a crew of more than ten seafarers provided by the Government in reply to its previous request do not include a cook, contrary to the provisions of Standard A3.2, paragraph 5. The Committee requests the Government to indicate the measures taken to ensure that, when determining manning levels, account is taken of all the requirements of Regulation 3.2 and Standard A3.2 regarding food and catering. The Committee also requests the Government to indicate how it has taken due account of the provisions of Guideline B2.7 (dispute settlement).

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s indication, in reply to its previous comments, that the Ministry of Labour has so far not established any instruments to give effect to these provisions of the Convention. The Committee requests the Government to take the necessary steps to give effect to Standard A3.1 with respect to all ships covered by the Convention.

Regulation 3.2 and Standard A3.2, paragraphs 5 and 8. Fully qualified cook. Minimum age. The Committee notes the Government’s indication, in reply to its previous request regarding the requirements relating to the minimum age and qualifications of ships’ cooks, that the minimum age for ships’ cooks is simply as indicated in the information given on the minimum age and apprentices/cadets. The Government also indicates that as regards compulsory courses and periods of service for ships’ cooks, specific courses are required, such as the maritime training school course. The Committee requests the Government to: (i) confirm that the minimum age for working as a ship’s cook, including as a trainee cook, is 18 years; and (ii) indicate the provisions which give effect to the requirement to carry a fully qualified ship’s cook on ships having more than ten crew members (see Regulation 2.7).

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee notes that the Government does not provide any new information in reply to its previous request. The Committee recalls that, as previously indicated by the Government: (i) medical treatment is free of charge for the worker if it is the result of an occupational accident or disease (Act No. 24.557/1995 on occupational risks); and (ii) if the contingency suffered by the worker does not originate from work, recourse is had to the subsystem of social welfare organizations, which have the task of assisting workers in foreign ports. The Committee requests the Government to indicate how it is ensured that all seafarers working on ships flying the Argentinian flag: (i) have the right to visit a qualified dentist without delay in ports of call, where practicable (Standard A4.1, paragraph 1(c)); and (ii) qualify for access to the system of social welfare with regard to the free provision of medical care and health protection services while on board ship or when disembarked in a foreign port. The Committee also requests the Government to provide information on the legislation adopted to give effect to Standard A4.1, paragraph 4(a) and (b).

Regulation 4.2 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. Financial security. The Committee notes that the Government, in reply to its previous comments, has provided a copy of a financial security insurance certificate which meets the requirements of Standard A4.2.1. The Committee requests the Government to: (i) provide information on the form taken by the system of financial security and the consultations held on this subject with the shipowners’ and seafarers’ organizations concerned; and (ii) indicate the national provisions which give effect to the requirements of Standards A4.2.1 and A4.2.2.

Regulation 4.2 and Standard A4.2.1, paragraph 7. Shipowners’ liability. Safeguarding of property left on board. The Committee notes that, in reply to its previous comments, the Government refers to sections 125 and 126 of Act No. 20.094, which govern the inventory of property of seafarers who have died on board. The Committee requests the Government to indicate how effect is given to Standard A4.2.1, paragraph 7, regarding property left on board by sick or injured seafarers.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s indication, in reply to its previous comment, that the draft regulations on safety and health in maritime work (file SRT No. 60106/15) have not yet been adopted. In the absence of specific regulations, Decree No. 351/79 issuing regulations for Act 19.587 on occupational safety and health, and its complementary and regulatory standards, is applied in this field. While noting this information, the Committee requests the Government to take the necessary steps to give effect to the requirements of Standard A4.3, paragraphs 1, 2 and 3. It also requests the Government to provide information on the policies and programmes for safety and health on ships and programmes for the prevention of occupational accidents and injuries and occupational diseases. Lastly, the Committee once again requests the Government to provide information on the adoption of national guidelines pursuant to Regulation 4.3, paragraph 2.

Regulation 4.3 and Standard A4.3, paragraphs 5 and 6. Health and safety protection and accident prevention. Reporting, statistics and investigation. The Committee notes the Government’s indication, in reply to its previous comments, that under the provisions of Act No. 24.557/1995, any worker, employer or other person who becomes aware of any of the contingencies provided for in section 6 of the Act can report it to the occupational risk insurer (ART) contracted by the employer in order to authorize the corresponding coverage. The obligation applies throughout Argentina, so that workers on ships are covered by the standard procedures for reporting contingencies. The Committee also notes the information provided by the Government on the legislation relating to the investigation of serious occupational accidents, in particular SRT Resolution No. 230/03. Recalling that under Standard A4.3, paragraphs 5 and 6, the competent authority shall ensure that occupational accidents, injuries and diseases are reported, that statistics are compiled and that all occupational accidents are investigated, taking into account the guidance provided by the International Labour Organization, the Committee requests the Government to indicate the measures taken to give effect to these requirements, ensuring that all occupational accidents – and not only serious accidents – are investigated in accordance with the provisions of the Convention.

Regulation 4.5 and Standard A4.5, paragraph 8. Social security. Bilateral or multilateral agreements. Noting the lack of information in reply to its previous comments, the Committee once again requests the Government to send detailed information on social security coverage for seafarers contained in the bilateral and multilateral agreements signed by Argentina.

Regulation 5.1.3 and Standard A5.1.3. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance (DMLC). 1. The Committee notes the Government’s indication, in reply to its previous comments, that: (i) according to Resolution No. 636/2015, the maritime labour certificate has a period of validity of five years; and (ii) the intermediate inspection is carried out between the second and third year after the certificate was issued and is a full inspection carried out by the three competent bodies. The Committee requests the Government to provide information on the provisions which apply to renewal of the certificate (Standard A5.1.3, paragraphs 3 and 4).

2. Interim maritime labour certificate.Observing that the Government has not replied to its previous request, the Committee once again requests the Government to indicate the measures taken to bring the existing legislation into conformity with the requirements for issuing an interim maritime labour certificate laid down in Standard A5.1.3, paragraphs 5–8.

3. DMLC. The Committee once again observes that the DMLC, Part I, provided by the Government in reply to its previous request, only mentions, for each regulation, the references to the applicable national legislation, without indicating a summary of the content of its provisions. The Committee once again requests the Government to adopt the necessary measures to amend the DMLC, Part I, to bring it into conformity with the Convention.

4. End of validity and withdrawal of the maritime labour certificate. The Committee notes the Government’s indication, in reply to its previous comments, that the maritime labour certificate will lose its validity if an inspection reveals deficiencies in relation to the Code or national regulations, or if the certificate expires without the shipowner requesting its renewal. The Committee observes that the cases involving the end of validity of the certificate and its withdrawal referred to by the Government are not in conformity with Standard A5.1.3, paragraphs 14–17. The Committee also notes that the Government has not indicated the applicable legislation. The Committee once again requests the Government to adopt the necessary measures to give full effect to Standard A5.1.3, paragraphs 14–17.

Regulation 5.1.4. Flag State responsibilities. Inspection and enforcement. Qualified inspectors.Observing that the Government does not provide any information in reply to its previous comments, the Committee once again requests the Government to indicate the measures which give effect to: (i) Regulation 5.1.4, paragraph 1, and Standard A5.1.4, paragraphs 4, 5 and 10; and (ii) Standard A5.1.4, paragraph 7(c).

Regulation 5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee notes, in reply to its previous comments, the complaint procedure model provided by the Government, a copy of which must be provided to seafarers, together with a copy of their employment contracts. Observing that the model refers to a specific ship, the Committee requests the Government to confirm whether on-board complaint procedures are in place and the respective forms are made available on all ships flying the Argentinian flag.

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes the Government’s reference, in reply to its previous comments, to Resolution No. 230/03, which provides for the investigation of fatal occupational accidents, occupational diseases and serious accidents, with these being regarded as including those on the list of pathologies in Annex I to SRT Resolution No. 283/02, with the exception of accidents on the way to/from work. The Committee requests the Government: (i) to provide statistics on investigations pursuant to Resolution No. 230/03 into any serious marine casualty leading to injury or death, which involves a ship flying the Argentinian flag; (ii) to indicate whether the final investigation report must be made public.

[The Government is asked to reply in full to the present comments in 2025.]