Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention du travail maritime, 2006 (MLC, 2006) - Portugal (Ratification: 2016)

Autre commentaire sur C186

Demande directe

2023
2020

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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 Association of Merchant Shipping Shipowners (AAMC) communicated with the Government’s report. It also notes that the amendments to the Code of the Convention approved in 2014 and 2018 by the International Labour Conference will enter into force for Portugal on 13 December 2023, and that the amendments approved in 2016 will enter into force for Portugal on 18 April 2024.

Article II, paragraphs 1(f) and 2 of the Convention. Definitions and scope of application. Seafarers. In reply to the Committee’s previous comment, the Government indicates that non-maritime individuals performing functions of a permanent nature and in constant mutation, embarked on vessels engaged in local passenger traffic are people who provide various services on board, such as bar service, or cleaning, not linked to the shipowner, but to companies subcontracted to provide various services to the ship, passengers and/or shipowner and whose “rotation” is exclusively controlled by the service provider. While noting this information, the Committee is bound to recall that for the purpose of the Convention, “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies, including catering and cleaning staff and other personnel employed by third contractors. The Committee accordingly requests the Government to take the necessary measures to ensure that in all vessels to which the Convention apply, seafarers in charge of general and complementary services not directly linked to the navigation are considered seafarers in the laws and regulations implementing the Convention.

Cadets. In reply to the Committee’s previous comment, the Government indicates that cadets are designated as trainee officers according to section 15 of ordinance 235/2020, and as such are considered as seafarers. The Committee takes note of this information, which addresses its previous request.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Government indicates in its reply that, according to section 26(1) of Decree-Law No. 265/72, of 31 July of 1972, as amended, local traffic vessels are those that operate within ports and their respective rivers, estuaries, lakes, lagoons and stretches and, in general, within the inland waters of the area of jurisdiction of the captaincy or maritime delegation in which they are registered. The Committee observes, however, that local vessels may operate in coastal navigation (section 26(2)). The Committee recalls that the MLC, 2006, does not contain the concept of “coastal waters” and that ships excluded from the scope of application with respect of the navigational area are defined under Article II, paragraph 1(i).Recalling that, under the Convention, a ship means a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply, the Committee requests the Government to explain the meaning and extent of the expression “ships engaged in coastal navigation”.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. In reply to the Committee’s previous comment, the Government indicates that section 14(1) of Law No. 146/2015, of 9 September 2015 constitutes special legislation for seafarers and, as such, prevails over the general provision included in section 223 of the Labour Code. According to section 14(1), persons under 18 years may not work on board between 10 p.m. on one day and 7 a.m. on the following day, or during a period provided for in collective labour regulations of at least nine consecutive hours covering an interval between zero and five o’clock. The Committee takes note of this information, which addresses its previous request.

Regulation 1.2 and Standard A1.2, paragraph 4. Medical Certificate. Qualified medical practitioner. In reply to the Committee’s previous comment, the Government indicates that sections 97 and 135 of the Statute of the Order of Physicians, approved by Decree-Law no. 282/77, of June 5 1977, as well as sections 6 and 7 of the Code of Ethics of the Portuguese Medical Association, approved by Regulation No. 707/2016, of 21 July 2016, provide for the technical and deontological independence which all doctors must observe when carrying out their professional activity. The Committee takes note of this information, which addresses its previous request.

Regulation 1.4 and Standard A1.4, paragraphs 2 and 5. Recruitment and placement. Private services. Requirements. In its reply to the Committee’s previous comment, the Government indicates that, to comply with the principle of equal opportunities in access to employment, recruitment and placement agencies may not use means, mechanisms or lists to prevent or impede seafarers from accessing jobs for which they are qualified, and refers to section 23 (1)(b) of Decree-Law No. 260/2009, of 25 September 2009, which prohibits recruitment agencies to practice any form of direct or indirect discrimination, under penalty of committing a very serious offense punishable by a fine up to 12,000 euros. The Committee takes note of this information. While noting the standardized procedure for the certification and inspection of seafarer recruitment and placement agencies, issued by the maritime authority (DGRM), provided by the Government, the Committee notes the observations submitted by AAMC alleging that several agencies are operating in Portugal for the recruitment and placement of seafarers without being certified for that purpose. AAMC further states that the modifications to Decree-Law No. 260/2009, of 25 September 2009 to ensure its application to seafarer recruitment and placement services were not preceded by consultations to AAMC, as required by Standard A1.4, paragraph 2 of the Convention. The Committee requests the Government to provide its comments in this regard. Noting that no information is provided on how the Government ensures that seafarer recruitment and placement services operating in its territory make sure, as far as practicable, that the shipowner has the means to protect seafarers from being stranded in a foreign port, the Committee further requests the Government to indicate how it complies with this requirement of the Convention (Standard A1.4, paragraph 5(c)(iv)).

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes the Government’s reply to its previous comment, indicating that the issue is under review and referring to the standardized procedure for the certification and inspection of seafarer recruitment and placement agencies, issued by the maritime authority (DGRM). Such procedure establishes that, following inspection and favourable opinion issued by the DGRM regarding compliance with the requirements of Standard A1.4, the private recruitment agency must, within 15 days, present a certificate of constitution of a guarantee on behalf of the Maritime Administration as provided for, with the necessary adaptations, in section 18 of Decree-Law No. 260/2009, of 25 September 2009, in its most up-to-date version. The Committee notes, however, that the financial security referred to in section 18 only guarantees the agency’s responsibility for the repatriation of the seafarer, up to six months after it has been placed, and does not encompass all the situations that must be covered by the system of protection provided for in Standard A1.4, paragraph 5(c)(vi) of the Convention. The Committee requests the Government to adopt the necessary measures to fully implement this provision of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1. Seafarers’ employment agreements. Requirements. The Committee notes the Government’s reply that, in addition to the employment contract on board ship, in which there is a relationship of legal subordination (section 7), section 8 of Act No. 146/2015, of 9 September 2015, provides that such Act and the requirements of the Convention are also applicable to service contracts on board ship, meaning in cases of self-employment, where the seafarer undertakes to provide the other with a certain product or result of their work. The Government states that this ensures that all seafarers within the meaning of Article II of the Convention are covered by the above-mentioned Act. The Committee further notes that section 9 of the Labour Code establishes that its provisions are subsidiarily applicable to employment contracts with special regimes, such as seafarers’ employment contracts on board ships. The Committee takes note of this information. The Committee further notes that, as indicated by the Government in its reply, section 27 of Act No. 146/2015 implements Standard A2.1, paragraph 1(d).The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreements. Termination. Shorter notice period for urgent reasons. Noting the Government’s indication that the issue is under review, the Committee reiterates its previous request.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. The Committee notes with interest that sections 2, 20 and 21-C of Act No. 146/2015 have been amended to incorporate into the national legislation provisions giving effect to the 2018 amendments to the Code of MLC, 2006. The Committee takes note of this information.

Regulation 2.3 and Standard A2.3, paragraph 2. Hours of work and hours of rest. Limits. Noting the Government’s indication that the issue is under review, the Committee reiterates its previous request.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. In its reply to the Committee’s previous comment, the Government indicates that matters not regulated by Act No. 146/2015 are subsidiarily regulated by the Labour Code, which provides for 13 mandatory public holidays (section 234). The Committee requests the Government to provide detailed information on the manner in which section 234 of the Labour code is applied to seafarers. The Committee notes the Government’s indication that hours of work of young seafarers are regulated by sections 73 and 77 of the Labour Code, which provide that their working hours must not exceed eight hours per day and 40 hours per week, and that there must be a daily break of 1 to 2 hours to ensure that the young seafarer does not work longer than four and a half consecutive hours. The Government further indicates that it is giving consideration to Guideline B2.3.1, paragraph 1(c) of the Convention. The Committee takes note of this information and requests the Government to provide information on any developments on this issue.

Regulation 2.3 and Standard A2.3, paragraph 14. Hours of work and hours of rest. Immediate safety and distress at sea. The Committee notes that section 15(4) of Act No. 146/2015 allows for the suspension of the schedule of hours of rest to perform work for drills, customs procedures, quarantine or other health requirements. The Committee requests the Government to ensure that any suspension of the schedule of the hours of rest for reasons provided under section 15(4) of Act No. 146/2015, only occurs when it is necessary for the immediate safety of the ship, persons on board or cargo or for the purpose of giving assistance to other ships or persons in distress at sea, as permissible under paragraph 14 of Standard A2.3 of the MLC, 2006.

Regulation 2.4 and Standard A2.4, paragraphs 1 and 2. Entitlement to leave. Method of calculation. In reply to the Committee’s previous comment, the Government indicates that section 17(1) of Act No. 146/2015, of 9 September 2015, provides for the application to seafarers of the leave regime established in the Labour Code in all that is not stipulated in such section. Noting that the provisions in the Labour Code are of a general nature, the Committee requests the Government to adopt measures to ensure that national laws and regulations take proper account of the special needs of seafarers, indicating how it has given due consideration to Guideline B2.4. With regard to justified absences (Standard A2.4, paragraph 2), the Government indicates that they do not affect any of the worker’s rights (sections 65(1) and (2) and 255(1) of the Labour Code), and leave does not start or is suspended when the worker is temporarily impeded by illness or any other reason for which he is not responsible, provided that the employer is notified (section 244). The Committee takes note of this information.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition to forgo paid annual leave. Exceptions. Noting the Government’s indication that this matter is being revised, the Committee requests the Government to take the necessary measures to ensure that any exceptions to the prohibition of agreements to forgo the minimum annual leave are only authorized by the competent authority in exceptional circumstances, in order to guarantee the right of seafarers to enjoy a period of annual leave for the benefit of their health and well-being, and to prevent fatigue, vessel unseaworthiness and all risks related thereto.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes the Government’s reply to its previous comment, that section 340 of the Labour Code provides that the employment contract can be terminated among others by expiry, revocation, termination by the employee with just cause (“resolução”) and termination by the employee regardless of just cause/resignation (“denúncia”), in addition to other modalities foreseen by law, such as those in section 20 of Act No. 146/2015. Section 20(1)(a) of Act No. 146/2015 provides for the right to repatriation in all situations of termination of the employment contract, except when the seafarer resigns, i.e. when the employment contract is terminated on the seafarer’s initiative regardless of just cause (sections 114 and 400 of the Labour Code). The Committee takes note of this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. Noting the Government’s indication that the issue is under review, the Committee reiterates its previous request.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes with interest that Decree-Law No. 101-F/2020, of 7 December 2020 has incorporated into the national legislation provisions giving effect to the 2014 amendments to the MLC, 2006, with regards to the requirements of Standard A2.5.2. The Committee takes note of this information and 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 Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment Indemnity. In its reply to the Committee’s previous comment, the Government indicates that seafarers registered with the Portuguese social security system who find themselves in a situation of involuntary unemployment resulting from the loss of a ship or shipwreck, which has led to the expiry of their employment contract, will be entitled to unemployment benefit from the general social security system. The Committee requests the Government to take the necessary measures to ensure that in every case of loss or foundering of any ship, the shipowner shall pay to each and all seafarers on board, including those who are not required to contribute to the Portuguese social security system, an indemnity against unemployment resulting from such loss or foundering. The Committee requests the Government to indicate how it has given due consideration to Guideline B2.6 of the Convention in this respect.

Regulation 2.7 and the Code. Manning levels. Recalling that under Standard A2.7, paragraph 3, the competent authority shall take into account all the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering, the Committee requests the Government to indicate the measures taken to give effect to this provision of the Convention. It also 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). Finally, the Committee requests the Government to provide information on the existing mechanisms to investigate and resolve any complaints or disputes regarding the minimum safety manning levels (Guideline B2.7.1).

Regulation 2.8 and the Code. Career and skill development and employment opportunities. The Committee notes that the National Strategy for the Sea and its Action Plan (2021–30) foresee the creation of incentives to boost highly qualified blue jobs, as well as measures to promote employment and to encourage career development of seafarers, including: (i) projects between social partners, education and training institutions and public administration to assess the skills needed for emerging maritime activities; (ii) training of seafarers in new technologies so that they benefit from new opportunities as technological developments occur; (iii) financial mechanisms to support on-board training for students of officer and master courses; and (iv) the promotion of equal access for women to the maritime professions by adopting measures to combat discrimination and inequality and to promote their employment. The Committee takes note of this information. The Committee also notes the Government’s indication, in reply to its previous comment, that although Ordinance no. 235/2020, of 8 October 2020 which establishes the functional content and requirements for access to the profession of seafarers has been published, approval is still awaited for the draft regulatory ordinances provided for in articles 20 and 31 of Decree-Law No. 166/2019, of 31 October 2019, concerning the training and certification of seafarers. The Committee requests the Government to provide a copy of such ordinances once adopted.

Regulation 3.1 and the Code. Accommodation and recreational facilities. Noting the Government’s indication that the issue is under review, the Committee reiterates its previous request.

Regulation 3.2 and Standard A3.2, paragraph 8. Food and catering. Ship’s Cook. Minimum Age. Noting the Government’s reply that it is awaiting the publication of the draft ordinance regulating article 31 of Decree-Law No. 166/2019 (certification of seafarers), the Committee requests the government to provide a copy of such legislation once available.

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee requests the Government to provide information on the measures in place to ensure that seafarers are permitted by the shipowner/master to visit a qualified medical doctor or dentist without delay in ports of call, where practicable (Standard A4.1, paragraph 1(c)). The Committee notes that, according to section 21 of Act No. 146/2015, the shipowner must ensure and bear the costs for the treatment of a seafarer who, while on a voyage, suffers a natural illness or accident other than an occupational accident and requires treatment ashore outside national territory, including essential dental care. The Committee accordingly requests the Government to provide information on how it ensures that, in the case of occupational accidents and diseases, the shipowner bears the cost of medical care provided to all seafarers on board Portuguese flagged vessels when landed in a foreign port, irrespective of their nationality and place of residence. The Committee notes that there is no information on measures of health protection and medical care of a preventive character for seafarers working on board a ship. The Committee requests the Government to provide information on how it gives effect to Standard A4.1, paragraph 1(e). The Committee further requests the Government (i) to clarify whether medical and dental treatment, required medicine, and related care on board, including for occupational accidents and diseases, are provided to all seafarers free of charge, and to indicate the applicable provisions (Standard A4.1, paragraph 1(d)); (ii) to provide information on whether medical advice using radio or satellite, or other forms of communication is provided free of charge, 24 hours a day to all ships irrespective of the flag they fly; (iii) to send the standard medical report form for seafarers adopted pursuant to Standard A4.1, paragraph 2.

Regulation 4.2 and Standard A4.2.1, paragraph 1(d). Shipowners’ liability. Cost of burial expenses. The Committee observes that section 24(3) of Act No. 146/2015 foresees the liability of shipowners to pay the cost of burial expenses only in the event of the death of a seafarer not resulting from an occupational accident or illness. The Committee requests the Government to indicate how it gives effect to the requirement under Standard A4.2.1, paragraph 1(d), in all cases of death occurring on board or ashore during the period of engagement.

Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee takes note that, in reply to its previous comment, the Government provides information on the legislation governing compensation of occupational injuries. The Committee observes that, if the accident does not constitute a work accident or if the illness or accident results from an intentional act by the seafarer, section 21(8) of Act No. 146/2015 excludes the liability of the shipowner to pay wages to the seafarer as required by Standard A4.2.1, paragraph 3. The Committee recalls that Standard A4.2.1, paragraph 5, provides that national laws or regulations may only exclude the shipowner from liability in respect of: (a) injury (but not illness) incurred otherwise than in the service of the ship; (b) injury or sickness due to the wilful misconduct of the sick, injured or deceased seafarer; and (c) sickness or infirmity intentionally concealed when the engagement is entered into. The Committee requests the Government to indicate how it ensures that any exclusion of the responsibility of the shipowner is limited to the cases listed in Standard A4.2.1, paragraph 5.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes with interest that Decree-Law No. 101-F/2020, of 7 December 2020 has incorporated into the national legislation the provisions giving effect to the 2014 amendments to the MLC, 2006, with regards to the requirements of Standards A4.2.1 and A4.2.2. The Committee takes note of this information and requests the Government to provide a sample of an existing certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee takes note of the detailed information provided by the Government in reply to its previous comment, including legislation and documents giving effect to this Standard. It notes, however, that the Working Conditions Authority has published occupational safety and health (OSH) on board manuals developed by different seafarers’ representative organizations, which do not cover all the matters listed under Guideline B4.3.1. The Committee requests the Government to provide information on (i) any steps taken to develop and promulgate, after consultation with representative shipowners’ and seafarers’ organizations, national guidelines for occupational safety and health on board ships that fly its flag; and on (ii) how it gives consideration to Guideline B4.3.1, paragraph 4. Noting that there does not seem to be a requirement in the national legislation for a safety committee to be established on board a ship on which there are five or more seafarers, the Committee also requests the Government to indicate the measures taken to that end.

Regulation 4.4 and Standard A4.4, paragraphs 2 and 3. Development of shore-based welfare facilities in appropriate ports. Welfare boards. The Committee notes the Government’s information on the existing shore-based facilities in the Autonomous Region of Madeira. The Committee requests the Government to provide information on the measures taken to promote the development of shore-based facilities at appropriate ports in Continental Portugal and 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 the legislative provisions and detailed information concerning the social security benefits afforded to seafarers, both with respect to the national shipping register and the international shipping register of Madeira (RIM) provided by the Government in reply to its previous comment, as well as on the monitoring of contributions made by shipowners and seafarers and on the established procedures for the settlement of disputes relating to social security. The Government also provides information on bilateral and multilateral arrangements in which Portugal participates regarding the provision of social security protection, including the maintenance of rights acquired or in the course of acquisition. The Committee also notes that seafarers and their dependents who are residents in Portugal have access to medical care as beneficiaries of the National Health Service. The Committee takes note of this information. The Committee notes, however, that unemployment benefit is only accessible to national or resident seafarers working on board Portuguese flagged ships and subject to mandatory social security contributions to the general scheme. It also notes that national seafarers working on board foreign flagged ships are only entitled to voluntary affiliation in the case of sickness, old age, maternity, occupational disease, invalidity and survivors’ benefit, and would need to bear alone the financial burden of both employer and employee’s contributions. The Committee requests the Government to provide information on the measures taken to ensure that social security protection referred to in paragraph 1 of the Standard A4.5 is extended to all seafarers ordinarily resident in Portugal, regardless of their nationality and regardless of the flag of the ships they work on, in a manner no less favourable than that enjoyed by shore workers, in accordance with Standard A4.5, paragraphs 2 and 3. The Government further indicates that it has not adopted new legislation for providing comparable benefits to non-resident foreign seafarers working on ships flying its flag, in the absence of adequate coverage in the branches referred to in paragraph 1 (Standard A4.5, paragraphs 6 and 7) and that no other legislative measures are currently planned to improve the benefits currently provided to seafarers or to extend social security protection for seafarers to branches not covered at present (Standard A4.5, paragraph 11).The Committee requests the Government to keep it informed on any future developments in this regard.

Regulation 5.1.4 and Standard A5.1.4, paragraph 16. Flag State responsibilities. Inspection and enforcement. Compensation in case of wrongful exercise of the inspectors’ powers. Noting the Government’s indication that the issue is under review, the Committee reiterates its previous request.

Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. The Government indicates in its reply that, according to section 13(2)(d) of Decree-Law no. 44/2002, of 2 March 2002, it is the port captain’s responsibility, when exercising the functions of maritime authority, to carry out an investigation into maritime accidents and, in relation to accidents involving injury or death, to carry out the necessary procedural steps. At the end of the investigation, the report and conclusions are forwarded, where applicable, to the court (if there is a civil dispute), to the insurers involved, to the parties involved and their representatives if they so request, and to the Directorate-General for Maritime Authority. The Committee takes note of this information.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. Noting the absence of reply or information on this issue in the Government’s report, the Committee reiterates its previous request for the Government to provide all the relevant information in this respect.

[The Government is asked to reply in full to the present comments in 2026 .]