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

Convention du travail maritime, 2006 (MLC, 2006) - Brésil (Ratification: 2020)

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes the observations of the National Confederation of Workers in Waterway and Air Transports, Fishing and Ports (CONTTMAF) received on 2 September 2022. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for Brazil at the same time as the Convention. It also notes that Brazil has not submitted a declaration of acceptance of the amendments to the Code of the Convention approved in 2018 by the International Labour Conference and is therefore not bound by these amendments. The Committee further notes the efforts undertaken by the Government and the social partners to implement the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

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 Brazil 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 I of the Convention. General questions on application. Implementing measures. The Committee notes that the Government refers in several parts of its report to the direct application of the Convention. The Committee further notes that, in certain cases, it is unclear which legislation or other measures (e.g. collective agreements) apply, as the existing provisions are conflicting or have not been updated to incorporate the specific requirements of the Convention. The Committee also notes CONTTMAF’s observation that the MLC, 2006 implementation process has not been completed in Brazil, as the competent authority has not yet published all the legal instruments necessary for its effective application. The Committee hopes that the Government will adopt in the near future all the necessary measures to address any inconsistencies or gaps in its legislation or other implementing measures, in consultation with the seafarers’ and shipowners’ organizations, in order to give full effect to the Convention.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee notes the Government’s information that under Order MTP No. 3.802, of 16 November 2022, published on 18 November 2022, seafarer means any person who works continuously on board a ship to which the MLC, 2006 applies. This definition does not include persons who perform occasional work on board, such as maintenance and repair technicians, scientists, researchers, geologists, inspectors, superintendents, shipowners, pilots, port workers, and “other workers not members of the ship’s crew”. Any doubts as to whether any other category of worker constitutes a seafarer shall be resolved by the competent authority after consultation with the shipowners’ and workers’ representatives. In this respect, the Committee notes the Government’s statement that to date, no cases of doubt have arisen in this respect. The Committee observes that the definition contained in Order MTP N°3.802 is narrower than the one provided by the Convention which also covers persons who are employed or engaged in any capacity on board and that the very broad scope of the term “other workers not members of the ship’s crew” in section 2(IV) is likely to lead to the exclusion of categories of persons that should be covered by the Convention. The Committee requests the Government to clarify whether the decision concerning the categories of personnel that are not to be regarded as seafarers for the purpose of the Convention has been made after consultation, as required under Article II, paragraph 3, of the Convention. It also requests the Government to review its definition to fully comply with the Convention and to clarify the meaning of “other workers not members of the ship’s crew”.

Article II, paragraphs 1(i), 4, 5 and 7. Definitions and scope of application. Ships. National determination. 1.The Committee notes the Government’s reference to section 2(II) of Order MTP No. 3.802, which excludes from the definition of ship – in addition to categories excluded by the definition of ship under the Convention – offshore drilling units, production, storage and unloading units flying the Brazilian flag. Any doubts as to whether any other category of vessel constitutes a ship shall be resolved by the competent authority after consultation with the shipowners’ and workers’ representatives. The Committee notes the Government’s indication that no cases of doubt have arisen in this respect.The Committee requests the Government to clarify whether the decision concerning the categories of vessels that are not to be regarded as ships for the purpose of the Convention has been made after consultation, as required under Article II, paragraph 5, of the Convention. It also requests the Government to provide information on the legislation regulating working conditions of persons working on board offshore drilling units, and production, storage and unloading units.

2.The Committee recallsthat Order MTP No. 3.802 only gives effect to some of the matters covered by the Convention. It also notes that section 0302 of NORMAM-01 regulating ships navigating in open sea, revised by order DPC/DGN/MB No. 63 of 22 September 2022, provides that the MLC, 2006 is applicable to Brazilian-flagged ships engaged in commercial activities of more than 500 GT. The Committee recalls that the Convention applies to all ships under its scope regardless of their tonnage. The Committee notes the Government’s information in relation to Article II(6), that consultations with shipowners’ and seafarers’ organizations have not yet been held, but they will be carried out in the near future so that this matter can be regulated and the exceptions applicable to ships under 200 GT can be established. The Committee requests the Government to take the necessary measures to harmonize its legislation to ensure that the provisions of the Convention are given effect with regard to all ships under its scope. It also requests the Government to communicate information on measures taken, if any, pursuant to Article II(6) and the relevant consultations carried out.

Regulation 1.1 and the Code. Minimum age. The Committee notes the Government’s indication that, according to the NORMAM-13/DPC adopted by the maritime authority, in order to work on board ships, seafarers must be in possession of an enrolment and registration booklet (“Caderneta de Inscricao e Registo”), which is only issued to persons over 18 years. The Committee requests the Government to clarify whether this requirement applies to all seafarers, including non-resident and non-national seafarers, employed, engaged or working on board Brazilian flagged ships in any capacity, including as apprentices, and to indicate the relevant applicable provisions.

Regulation 1.4 and Standard A1.4, paragraph 3. Recruitment and placement. Services operated by a seafarers’ organization. The Committee notes the observation by CONTTMAF that seafarer’s unions sign collective bargaining agreements with private recruitment and placement services. The Committee requests the Government to provide information regarding this practice.

Regulation 1.4 and Standard A1.4, Paragraphs 2 and 5. Recruitment and placement. Private services. Requirements. The Committee notes CONTTMAF’s observation that Brazil has not yet implemented in national legislation the provisions of the MLC, 2006 regarding private recruitment and placement services of seafarers and that there is no effective system of inspection and monitoring by the Government on these services. The Committee also notes that Order MTP No. 3.802 regulates the certification of private employment agencies supplying seafarers to serve on board ships, but does not give effect to the requirements of Standard A1.4, paragraph 5(c)(iv). The Committee requests the Government to indicate the measures taken to give effect to this requirement of the Convention. It also requests the Government to provide information on the number of private recruitment and placement services operating in Brazil, and to indicate how seafarers resident in Brazil are generally recruited for ships flying its flag and for ships flying the flags of other countries.

Regulation 1.4 and Standard A1.4, Paragraph 5(c)(vi). Recruitment and placement. System of protection.The Committee notes that Order MTP No. 3.802, requires private recruitment and placement services operating in the country to establish a system of protection, by means of insurance or other appropriate equivalent measure, to compensate seafarers for financial losses that they may incur due to the non-compliance of the MLC, 2006, the employment agreement, or the collective agreement by the service hiring entity responsible for their contracting. The Committee requests the Government to clarify whether such insurance encompasses the obligation carried out by the service provider to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service, as well as the monetary loss they may incur if the shipowner under the seafarers’ employment agreement fails to meet his/her obligations to the seafarers (Standard A1.4, paragraph 5(c)(vi), of the Convention). The Committee further requests the Government to provide information on how the system of protection operates in practice.

Regulation 1.4, paragraph 3 and Standard A1.4, paragraphs 8 and 9. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes CONTTMAF’s observation that, in recent consultations, the Government was provided with a list of recruitment and placement services that, in their view, did not demonstrate compliance with the MLC, 2006 and employed Brazilian seafarers on ships of other flags with no collective bargaining agreements in force. The Committee requests the Government to provide its comments in this regard and to indicate the measures adopted or envisaged to give effect to Regulation 1.4, paragraph 3 and Standard A1.4, paragraph 8 of the Convention. The Committee also notes the Government’s indication that there are no national provisions to ensure that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories in which this Convention does not apply, verify, as far as practicable, that those services meet the requirements of this Standard (Standard A1.4, paragraph 9). While the Government indicates that, according to the regulations being developed, the shipowner will only be allowed to use private recruitment and placement services which are certified according to the Convention, the Committee notes, however, that Order MTP No. 3.802 does not establish such restriction and only regulates private recruitment services operating in Brazil. The Committee requests the Government to indicate how it gives effect to Regulation 1.4, paragraph 3 and Standard A1.4, paragraph 9 of the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1 and 3. Seafarers’ employment agreements. Requirements. The Committee notes the Government’s indication that section 443 of the Consolidated Labour Laws (CLT) provides that an employment contract may be either written or oral, but that in the case of seafarers, by virtue of the Convention, the contract must be in writing. While taking note of this information, the Committee recalls the requirement of Standard A2.1(1)(a) and (c) that all seafarers working on ships that fly its flag shall have a seafarers’ employment agreement (SEA) signed by both the seafarer and the shipowner; the shipowner and the seafarer concerned shall each have a signed original of the SEA.The Committee requests the Government to indicate how it implements Standard A2.1(1)(a) and (c), and to supply a copy of a model SEA. The Committee notes the Government’s information with respect to Standard A2.1(1)(b) and (d) that, although there are no specific regulations, seafarers can request help from their trade union, the Ministry of Labour and Social Security and other specialized bodies (Standard A2.1(1)(b)), and employers must report their working conditions to the Ministry and this information is posted online. Workers also have access to the available information, including the terms of collective agreements currently in force, through their trade unions (Standard A2.1(1)(d)). Recalling that Standard A2.1(1)(b) and (d) require the adoption of legislation, the Committee requests the Government to indicate the measures taken to give effect to this provision. The Committee notes that, with respect to Standard A2.1(1)(e) and (3), the Government refers to Ordinance No. 1.195/2019 (section 5), according to which employers who choose not to report working conditions electronically to the Ministry must keep on board ship a physical document with a record of their employees and record the information required under section 2 of the Ordinance in a record book. Recruitment data is also included in a seaman’s book. The Committee also notes the complementary information provided by CONTTMAF, according to which electronic submission of employment records has the same value as registering in the (previous) register book. The Committee requests the Government to indicate how it gives effect to Standard A2.1(3) and to supply an example of the approved document for seafarers’ record of employment.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee notes that the Government and CONTTMAF refer to Decree No. 5.452/1943 setting forth the circumstances justifying termination of the employment agreement without notice by the employer (section 482) and the employee (section 483).The Committee requests the Government to indicate the manner in which, in accordance with Standard A2.1, paragraph 6, account has been taken of the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes the Government’s information that Brazil has no regulations setting the criteria for maximum hours of work or minimum hours of rest. However, the collective bargaining agreements currently in force, the validity of which is recognized by the competent authority, use the criteria of minimum hours of rest for work on board Brazilian ships. It further notes that Brazil has ratified and internalized the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978. Consequently, NORMAM-01/DPC, item 0104, includes measures to control working and rest hours when dealing with safety crew on board vessels. The Committee notes that, while item 0104 of NORMAM-01/DPC mostly gives application to Standard A2.3: (i) it only applies to “crew members who are assigned duty as officer in charge of a watch or as a subordinate forming part of a watch and whose duties involve safety, prevention of pollution and protection of the ship”; and (ii) it includes exceptions to minimum hours of rest which are not allowed under the MLC, 2006. The Committee further notes the Government’s reference to sections 59 and 248 of the CLT on the issue of normal hours of work. The Committee finally notes that, with regard to Standard A2.3(6) and (12), the Government refers to the direct application of the Convention. The Committee notes that, considering the various implementing measures, it is unclear which legislation or other measures (e.g. collective agreements) give effect to Standard A2.3. Referring to its comments under Article I, the Committee requests the Government to take the necessary measures to harmonize its legislation to ensure that the requirements of Standard A2.3 are implemented with respect to all seafarers covered by the Convention. It also requests the Government to indicate the measures taken to guarantee that compensatory rest is granted to seafarers working during musters and drills, on call, and working in situations of emergency (Standard A2.3(7)-(9) and 14).

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s information that workers’ entitlement to paid annual leave is calculated on a minimum basis of 2.5 calendar days per month of employment. There is no specific formula for seafarers, whose leave is calculated in the same manner. The Committee further notes the Government’s reference to the generally applicable provisions of the CLT (sections 129 et seq.). Under section 130 of the CLT, after each 12-month period of work under an employment contract, employees shall be entitled to paid leave that may be reduced in proportion to the number of unjustified absences from work (30 days with less than five absences).The Committee requests the Government to indicate how it has given due consideration to Guideline B2.4.1(3) (calculation of leave pro-rata basis for seafarers employed for periods shorter than one year or in the event of termination of the employment relationship).The Committee notes that under section 136 of the CLT, leave shall be granted at the time that best meets the needs of the employer. It recalls that under Guideline B2.4.2(1), the time at which annual leave is to be taken should, unless it is fixed by regulation, collective agreement, arbitration award or other means consistent with national practice, be determined by the shipowner after consultation and, as far as possible, in agreement with the seafarers concerned or their representatives. The Committee requests the Government to indicate how it has given due consideration to Guideline B2.4.2(1).The Committee further notes the Government’s information that agreements to forgo the minimum period of leave are neither envisaged in nor prohibited by the laws. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to take the necessary measures to give effect to Standard A2.4(3) in order to ensure that any agreement to forgo annual leave is prohibited and that any authorized exceptions are limited to specific cases. The Committee notes that section 134(1) of the CLT allows the division of leave in three parts.It requests the Government to indicate whether and how this section is implemented with respect to seafarers and how it has given due consideration to Guideline B2.4.3(1) and (2).The Government refers to the collective agreement between the National Union of Merchant Marine Officers (SINDMAR) and Maersk (2022–2024), according to which for each day of work on board, seafarers shall enjoy a day of leave or a holiday: in the course of a year, seafarers shall be on board for 180 days and on shore for 180 days (30 holidays (“férias”) and 150 days off (“dias de folga”) (section 15).The Committee requests the Government to supply a copy of the above-mentioned collective agreement.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee notes the Government’s information that domestic law has no provisions on granting the right to shore leave, although they may be included in a collective agreement. In practice, shore leave is granted when ships are berthed at Brazilian ports. While noting this information, the Committee requests the Government to indicate the measures taken to ensure that the seafarers’ right to shore leave is also provided for by legislation.

Regulation 2.5 and the Code. Repatriation. The Committee notes that the Government refers to Decree No. 6.968/2009 of 29 September 2009, which implements the Repatriation of Seafarers Convention (Revised), 1987 (No. 166). The Committee recalls that Convention No. 166 has been automatically denounced by Brazil following the ratification of the MLC, 2006. It also recalls that, while most of the provisions of Convention No. 166 have been incorporated into the MLC, 2006, the provisions of Standard A2.5.1 are slightly different from those of Convention No. 166 (e.g. Standard A2.5.1(1)(b) and (2)(b)). Referring to its comments under Article I, the Committee requests the Government to take the necessary measures to review its legislation to ensure that it fully gives effect to Standard A2.5.1.In this respect,the Committee also notes that under Decree No. 6.968/2009, the seafarer shall reimburse the shipowner for the cost of repatriation, inter alia, “where the seafarer resigns, except in the cases envisaged in this section”.Recalling Standard A2.5.1(3) and that the shipowner may not recover the cost of repatriation when the seafarer has terminated the SEA for justified reasons (Standard A2.5.1(1)(b)(ii)), the Committee requests the Government to clarify the meaning of “where the seafarer resigns, except in the cases envisaged in this section” in section 1(2) of Decree No. 6.968/2009.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes the Government’s information that, since Brazil does not have specific regulations on financial security, the relevant provisions of the MLC, 2006 are applicable. The Committee in this respect refers to its comments under Article I and recalls that under Standard A2.5.2(3), each Member shall ensure that a financial security system meeting the requirements of this Standard is in place for ships flying its flag to assist seafarers in case of their abandonment. The Committee requests the Government to reply to the questions included in the report form, indicating in each case the applicable national provisions.The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.6 and the Code. Seafarer Compensation for the ship’s loss or foundering. The Committee notes the Government’s indication that the general social security applicable to every worker in case of termination of employment would apply to seafarers in the event of the ship’s loss or foundering. The Government also refers to the CLT provisions regarding termination of employment, which establish a system of compensation on the basis of the length of service. The Committee is bound to observe, however, that such system bears little relevance to the specific unemployment protection for shipwrecked seafarers envisaged by the Convention. While noting that the Government provides an extract of a collective bargaining agreement providing for an indemnity payable to the seafarer in the amount of two salaries, the Committee notes the absence of legislation expressly providing for unemployment indemnity of seafarers in case of the ship’s loss or foundering. Recalling the content of Standard A2.6, paragraph 1, the Committee requests the Government to indicate the measures adopted or envisaged to implement Regulation 2.6. It further requests the Government to indicate whether, for the period during which they remain unemployed following the ship’s loss or foundering, seafarers working on board its ships are paid an indemnity at the same rate as the wages payable under the employment agreement (Guideline B2.6.1).

Regulation 2.7 and the Code. Manning Levels. The Government indicates in its report that the criteria applied for determining safe manning levels are the same for cooks and stewards as for other seafarers. The Committee requests the Government to indicate how the determination of the safe manning levels takes into account the requirements under Regulation 3.2 and Standard A3.2 concerning food and catering (Standard A2.7, paragraph 3). It further requests the Government to provide typical examples of a safe manning document or equivalent issued by the competent authority, together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it (Standard A2.7, paragraph 1).

Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee notes the Government’s information that Regulation No. 30 on maritime occupational safety and health (NR30) implements the requirements on decent accommodation and recreational facilities. The Government also indicates that the Accommodation of Crews Convention (Revised), 1949 (No. 92) and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), are applicable to ships constructed prior to the Convention’s entry into force.The Committee notes that NR30 implements only partially the detailed requirements of Standard A3.1(6)-(19) of the MLC, 2006 (e.g. ventilation, individual beds for crew members, berth’s dimensions, hospital accommodation), while it does not address other requirements (e.g. air conditioning, minimum floor area per person, headroom, maximum occupancy per room, a number of requirements for sanitary facilities, inspections on accommodation, etc.). As regards the implementation of Standard A3.1(20), the Government indicates that for the time being no exemptions were authorized for ships of less than 200 GT, but this provision will be implemented in the future after consultations with representatives of seafarers and shipowners. The Committee recalls that in its last comments on Convention No. 133, it noted that discussions were ongoing in the National Standing Committee for Waterways (CPNA) and the Tripartite Committee on Maritime Working Conditions (CT–Maritime) to bring the national legislation, particularly NR-30 on maritime occupational safety and health, into conformity, inter alia, with Convention No. 133. The Committee requests the Government to indicate: (i) the measures taken to give full application to the detailed requirements of Standard A3.1 regarding inter alia minimum headroom, heating, minimum floor area and maximum occupancy per sleeping room, mess rooms, sanitary facilities, frequent inspections by the master; (ii) the eventual exemptions authorized under paragraphs 20 and 21, including information on consultations with the shipowners and seafarers organizations concerned; and (iii) the measures adopted to ensure full conformity with Convention No. 133 for ships constructed prior to the entry into force of the MLC, 2006.

Regulation 3.2 and the Code. Food and Catering. The Committee notes the Government’s reference to NR-30, which partially gives effect to the requirements of Standard A3.2. It also notes that the Resolution of the Collegiate Board of the National Health Regulatory Agency (ANVISA) No. 72, of 29 December 2009, referred to by the CONTTMAF, appears to partly implement Standard A3.2, paragraph 2(a) with regard to water and food quality. The Committee requests the Government to indicate how it is ensured that food on board is of appropriate nutritional value (Regulation 3.2, paragraph 1 and Standard A3.2, paragraph 2(a)). The Committee notes the Government’s information that ships’ cooks are included in the crew list and undertook maritime training. It requests the Government to provide details on how the training course for ships’ cook gives effect to the requirements of Standard A3.2, paragraphs 2(c), 3 and 4, outlining the main elements of the course. The Committee notes the Government’s information that under section 30.8.1.2.1 of NR-30, ships navigating for less than 12 hours in areas where food may be provided by facilities ashore are exempted from carrying a ships’ cook, subject to compliance with hygienic and health conditions according to the applicable legislation. Recalling that Standard A3.2, paragraph 5 provides that only ships operating with a prescribed manning of less than ten, by virtue of the size of the crew or the trading pattern, may receive a dispensation from the competent authority to carry a fully qualified cook, the Committee requests the Government to indicate how section 30.8.1.2.1 of NR-30 complies with Standard A3.2, paragraph 5. The Committee notes the comment by CONTTMAF that Standard A3.2, paragraph 7 is addressed by section 6 of Resolution of ANVISA No. 72, of 29 December 2009, which provides that the master may carry out periodically health self-inspection according to Annex III of the Resolution. Observing that under section 6 of the above-mentioned Resolution inspections are only optional, the Committee notes that this provision is not in compliance with Standard A3.2, paragraph 7, which provides that the competent authority shall require that frequent documented inspections be carried out on board ships on the matters under (a)–(c), by or under the authority of the master. The Committee requests the Government to take the necessary measures to bring its legislation in full conformity with Standard A3.2, paragraph 7.

Regulation 4.1 and the Code. Medical care on board and ashore. Noting that the Government refers to NORMAM-01, NR-30, and Resolution No. 72, of 29 December 2009, the committee observes that these instruments do not address the detailed requirements of the Convention regarding medical care on board ship and ashore. The Committee also notes that, concerning Standard A4.1, paragraph 1(d)) the Government indicates that the Convention is self-applicable, but also provides an example of text of a collective agreement clause, which excludes the liability of the shipowner to bear the costs with medicaments. Referring to its comments underArticle I, the Committee requests the Government to adopt the necessary measures to give full effect to Regulation 4.1 and Standard A4.1.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the Government does not provide detailed information on this issue and refers generally to the legislation governing the national social security system. The Government also refers to the provisions of a collective bargaining agreement. The Committee recalls that Regulation 4.2 calls for the adoption of laws and regulations to implement the provisions contained in the Standards. In the absence of more detailed statutory provisions, the Committee requests the Government to indicate the measures taken to implement the detailed requirements of Regulation 4.2 and Standard A4.2.1, paragraphs 1 and 3, with respect to all seafarers, including those not covered by the Brazilian social security. The Government is also requested to provide information on any measures that shipowners or their representatives are requested to take to safeguard the personal property of sick or injured or deceased seafarers and/or to return it to them or their next of kin (Standard A4.2.1, paragraph 7).

Regulation 4.2 and Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that no measures have been adopted to give effect to the requirements of the 2014 amendments to the Code of the Convention. Recalling that such provisions require the adoption of laws and regulations, the Committee requests the Government to indicate the measures adopted to give effect to Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2 and to provide an example of certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Government indicates that regulatory standards on occupational safety and health (OSH) are developed and reviewed through a tripartite process involving shipowners' and seafarers' organizations, notably where new technologies are identified. Regulatory Standard NR-30 contains guidance for the management of OSH on board ships, including training of seafarers and measures for accident prevention. It provides that shipowners must develop and implement the risk management programs on board ships and may use a risk assessment tool made available by the Ministry of Labour and Social Security, to structure such programs and prepare an action plan. The Committee notes that the Observatory on OSH, with ILO assistance, collects and analyses statistical data. In relation to harassment and bullying, the Committee also notes that the Public Labour Prosecutor has issued a guide on prevention of harassment, including sexual harassment, on board ships. In addition, the Committee notes that internal committees to prevent accidents (“CIPA”) must be established in companies employing seafarers, and that OSH groups (“GSSTB”) must be created on board ships of 500 Gross Tonnage or above.The Committee requests the Government to clarify how it ensures that a ship’s safety committee shall be established on board ships on which there are five or more seafarers (Standard A4.3, paragraph 2(d)). It also requests the Government to provide an example of a declaration of maritime labour compliance outlining a shipowner’s practices or on-board programmes (including risk evaluation) for the prevention of occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8),as well as a copy of the document(s) used for reporting unsafe conditions and occupational accidents on board ship (Standard A4.3, paragraph 1(d)).

Regulation 4.4 and Standard A4.4, paragraph 3. Development of shore-based welfare facilities in appropriate ports. Welfare boards. The Committee notes the Government’s information on the existing shore-based welfare facilities. The Committee requests the Government to provide information on any measures taken to encourage the establishment of welfare boards for regularly reviewing welfare facilities and services, as required by the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, at the time of ratification and in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security for seafarers: sickness benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit and survivors’ benefit. Noting that medical care is not included in the list of social security branches specified, the Committee recalls that, in order to complement the protection afforded under Regulations 4.1 and 4.2, Guideline B4.5, paragraph 1 stipulates that the protection to be provided at the time of ratification should at least include the branches of medical care, sickness benefit and employment injury benefit. The Committee notes, however, that the Government indicates that it provides protection in all nine branches in accordance with Standard A4.5, paragraphs 1 and 3, although the information provided for each branch is not sufficiently detailed and does not permit an assessment on whether and how seafarers may benefit from social security coverage. The Committee therefore requests the Government to provide detailed information on the branches of social security for which protection is provided for seafarers ordinarily resident in Brazil, paying particular attention to the branches for which it has acquired an international obligation and giving due consideration to Guideline B4.5, paragraph 1. The Committee also notes the Government’s indication that social security protection is only provided to seafarers employed by Brazilian enterprises; Brazilian nationals or residents who work on ships flying the flags of other countries may make voluntary contributions to Brazil's social security scheme. According to the Government, dependants of seafarers ordinarily resident in Brazil are only provided with social security protection if the seafarer is employed by a Brazilian enterprise and was hired under Brazilian law. If the seafarer was hired to work on foreign-flagged ships, an agreement between the flag State and Brazil is required. The Committee requests the Government to provide statistics on the number of those seafarers, as well as information on the measures taken to ensure that all seafarers ordinarily resident in Brazil, including those working for foreign flagged-ships, as well as their dependants, are entitled to social security benefits not less favourable than those enjoyed by shore workers. The Committee recalls that under Standard A4.5, paragraph 3, the Governments’ obligation to provide social protection to all seafarers ordinarily resident in its territory could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. Noting that Brazil is part of a number of bilateral and multilateral agreements on social security made with several countries, the Committee observes however that no information is provided on this in the report. The Committee requests the Government to indicate the measures taken or envisaged in any bilateral or multilateral arrangements regarding the provision of social security protection for seafarers, including the maintenance of rights acquired or in the course of acquisition, as required in Standard A4.5, paragraphs 3, 4 and 8. Finally, the Committee requests the Government to provide information on how shipowners’ and, if applicable, seafarers’ contributions to relevant social security schemes are monitored to verify that the contributions are made (Standard A4.5, paragraph 5 and Guideline B4.5, paragraphs 6 and 7).

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee notes the Government’s indication that the implementation of the Convention is enforced by the Federal System of Labour Inspection of the Ministry of Labour and Welfare. With regard to the requirement that all ships flying the Brazilian flag have a copy of the Convention available on board (Standard A5.1.1, paragraph 2), the Government indicates that the text of the Convention has been incorporated into Brazil’s domestic law by Decree No. 10.671/2021, of 9 April 2021, and this requirement is self-applicable. The Committee also notes that: (1) the Government is developing new laws and a certification system in line with the Convention and that, pending completion of the regulations on implementation of the MLC, 2006, voluntary certificates are issued by organizations recognized by the maritime authority and approved by the competent authority, represented by the Ministry of Labour; (2) Order MTP No. 994, of 23 December 2021 provides that such certificates shall be considered valid to certify the compliance with the Convention until 31 December 2022; and (3) after the Government’s report was received by the Office, Order MTP No. 3.802 was published and sets the procedure for the certification of ships by Brazil as a flag state, extending until 30 June 2023 the validity of the voluntary certificates issued under Order MTP No. 994. The Committee requests the Government to adopt without further delay the necessary measures to give full effect to Regulation 5.1 of the Convention, and establish an effective system for the inspection and certification of maritime labour conditions, in accordance with Regulations 5.1.3 and 5.1.4. It requests the Government to provide detailed information on the measures adopted to give effect to Regulation 5.1.1 and the Code, specifying how it implements its obligations under the Convention for ships of less than 500 gross tonnage.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s indication that it follows the International Maritime Organization (IMO)’s Guidelines for the authorization of organizations acting on behalf of the Administration. It also notes that Order MTP No. 3.802 sets the procedure for authorization of recognized organizations and includes a model agreement granting authorization to a recognized organization, which generally reflect the requirements of Standard A5.1.2, paragraph 1. The Committee notes however that neither such Order, nor the model agreement specifies whether authorized recognized organizations have the power to require rectification of deficiencies identified in seafarers’ working and living conditions and to carry out inspections in this regard at the request of a port State. The Committee therefore requests the Government to indicate how it gives effect to Standard A5.1.2, paragraph 2. It also requests the Government to supply an example of an authorization given to a recognized organization. The Committee further requests the Government to provide the list of recognized organizations, once available, specifying the functions that they have been authorized to carry out (Standard A5.1.2, paragraph 4).

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. The Committee notes the Government’s indication that, at the time of submission of the report, the issuing of certificates in accordance with the Convention had not yet begun. The Committee notes the adoption of Order MTP No. 3.802 after the submission of the report, which includes provisions on the procedure for certification of ships and a model Declaration of Maritime Labour Compliance (DMLC), parts I and II, Maritime Labour Certificate and interim certificate, which follow the models given in Appendix A5-II of the Convention. While noting this information, the Committee requests the Government to indicate the provisions that give effect to: Regulation 5.1.3 and Standard A5.1.3 in respect of the cases in which a maritime labour certificate is required; the maximum period of validity of the Maritime Labour Certificate (Standard A5.1.3, paragraph 1); the scope of the prior inspection and the requirements for an intermediate inspection (Standard A5.1.3, paragraph 2); the provisions respecting the renewal of the certificate (Standard A5.1.3, paragraphs 3 and 4); the cases in which a maritime labour certificate may be issued on an interim basis, as well as the maximum period of validity and scope of the inspection (Standard A5.1.3, paragraphs 5 to 8); the requirements for posting the Maritime Labour Certificate and DMLC on the ship and making them available for review (Regulation 5.1.3, paragraph 6, and Standard A5.1.3, paragraphs 12 and 13); and the cases in which a Maritime Labour Certificate shall be withdrawn (Standard A5.1.3, paragraphs 16 and 17).

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes the Government’s indication that no information is yet available on the application of Regulation 5.1.4, paragraph 1 and Standard A5.1.4, paragraph 4. The Committee also notes that NORMAM-01, revised by Order DPC/DGN/MB No. 63 of 22 September 2022, which sets out rules for inspections of ships during or after the construction, alteration or substantial alteration of a ship, including in cases of substantial changes in construction or accommodation arrangements, only applies the requirements of the MLC, 2006 to ships of over 500 gross tonnage engaged in open sea navigation. The Committee requests the Government to provide information on the measures adopted to ensure that inspections take place at the intervals required by Regulation 5.1.3, where applicable, and that all ships covered by the Convention which do not fall within the scope of such regulation are inspected at least every three years.

Powers of inspectors. The Committee notes the Government’s indication that it applies Regulatory instruction No. 2, of 8 November 2021, with the necessary adaptations to the Convention. The Committee notes that such Regulatory instruction refers to the implementation of maritime instruments which were revised by the MLC, 2006 and has not been updated to incorporate all the requirements of Standard A5.1.4, paragraph 7. The Committee requests the Government to provide information on any measures adopted or envisaged to give full effect to this provision of the Convention.

Reporting on inspections. The Committee notes the Government’s indication that inspections are recorded through an online application available on the website of the federal labour inspection system (Sfitweb), to which only labour inspectors have access. The Committee recalls that, under Standard A5.1.4, paragraph 12 of the Convention, inspectors are required to submit a copy of the inspection report to the master and that a copy be posted on the ship’s notice board, and upon request, sent to their representatives. The Committee requests the Government to indicate how it gives effect to this requirement of the Convention. Furthermore, in the absence of information in this regard, it requests the Government to indicate how it ensures that, in case of an inspection pursuant to a major incident, reports are submitted no later than one month following the conclusion of the inspection (Standard A5.1.4, paragraph 14).

Regulation 5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee notes that Order MTP No. 3.802 requires the adoption of on-board complaint procedures according to the requirements set out in Standard A5.1.5 paragraphs 1 and 2, and prohibits any discriminatory practice or harassment of seafarers resulting from the submission of complaints. Recalling the importance of protecting seafarers against victimization and harassment, the Committee requests the Government to provide further explanations on how it ensures that victimization of seafarers for filing a complaint is penalized (Standard A5.1.5, paragraph 3).

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes that, according to NORMAM-09, the obligation to investigate is reserved only to very serious marine casualties, resulting in serious injury or death. Noting that in case of serious marine casualty leading to injury the holding of an investigation is optional under Brazilian legislation, the Committee recalls that Regulation 5.1.6, paragraph 1, provides that each Member shall hold an official inquiry into any serious marine casualty, leading to injury or loss of life that involves a ship that flies its flag. The Committee accordingly requests the Government to provide information on the measures taken to ensure full conformity with this requirement of the Convention.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes the Government’s indication that, although the labour authority conducts port State inspections, these are not yet part of an inspection and monitoring system. Such a system will be implemented in cooperation with the Brazil's navy, which already undertakes port State control concerning IMO Conventions. The Government also indicates that Brazil is a member of the Latin American Agreement on Port State Control, 1992 (Viña del Mar Agreement) and a total of 20 labour inspectors have been trained to conduct inspections of foreign ships. The Committee also notes CONTTMAF’s observation that the existing structure has not been adjusted to enable effective compliance with the new commitments assumed by Brazil with the ratification of the MLC, 2006, especially regarding the necessary increase of labour inspectors employed to perform Port State Control. The Committee draws the Government’s attention to the need to establish an effective port State inspection and monitoring system and requests the Government to provide detailed information on the measures taken in this regard.

Regulation 5.2.2 and Standard A5.2.2. Onshore complaint-handling procedures. The Committee notes the Government’s indication that labour complaints are received by the decentralized offices of the Ministry of Labour and Social Security and confidentiality is preserved. Seafarers’ complaints are normally handled by the Brazilian trade unions which represent them or by the ITF. The Government further indicates that the procedures are still being developed and statistics will be compiled once a monitoring system is in place.The Committee requests the Government to provide information on any developments in this regard, as well as on the number of reported onshore complaints, specifying if they were resolved.

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