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Work in Fishing Convention, 2007 (No. 188) - Netherlands (RATIFICATION: 2019)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). The Committee also notes the observations of the Dutch Fisheries Council (which consists of representatives of workers’ and employers’ organizations) communicated with the Government’s report, and the Government’s replies thereto. 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.

General questions on application. Implementing measures. The Committee notes the Dutch Fisheries Council’s (hereinafter, DFC) comment that against the advice of the social partners in sea-fishing, the Netherlands has chosen to implement the Convention, in an unduly complicated manner, through numerous existing legal instruments. Moreover, the regulations are difficult to access by their users, especially fishers and fishing vessel owners; this situation does not contribute to transparency and legal certainty. The DFC considers that the Government seems to have overlooked the ILO “Guidelines on flag State inspection of working and living conditions on board fishing vessels” (2017), according to which the competent authority should draw up and update legal and technical guidance for the commercial fishing industry to help fishing vessel owners, skippers, fishers, fishers’ representatives, and others to ensure compliance with legal requirements on working and living conditions. The Committee notes that, in reply to the DFC’s observations, the Government indicates that it experienced the process of implementation of the Convention as a constructive tripartite dialogue, in which there was mutual respect and good cooperation. In this respect, the Government recalls that: (i) according to the explanatory note accompanying the implementing legislation, during the drafting process there was regular dialogue with social partners, who were in agreement with the text; and (ii) the implementing legislation was reviewed by the Council of State prior to submission to Parliament without any substantive comments by the former. The Government further indicates that implementing the Convention through amending the existing legal provisions protects the coherence of the legal system. Multiple discussions had been carried out on the DTC’s substantive comments, which lead to finding common ground on some issues, but not on others. The Government points out that the goal of the tripartite consultations on the first report was not to reach a negotiated agreement on every item; it concludes that it greatly values a strong and open social dialogue. The Committee welcomes the efforts undertaken by the Government and the social partners to implement the Convention and encourages the Government to continue a constructive dialogue with the social partners taking into account the issues raised below.

Article 3. Scope of application. Exclusions. 1. The Committee takes note of the Government’s information that it excluded the so called "inland fishing" from the scope of application of the Convention as it is a small business covered by a different legislation. The Committee further notes the Government's information that fishing vessels of less than 12 meters in length have been partly excluded from the scope of application of the Convention (in particular, Article 13), for a maximum of five years after 15 November 2019, in line with the Council Directive (EU) 2017/159. During these five years tripartite social dialogue shall establish training standards for skippers and other fishers aboard such small fishing vessels. The Committee notes that, according to the Organization for Economic Cooperation and Development (OECD) Review of Fisheries Country Notes - Fisheries and Aquaculture (January 2021), in Netherlands “small-scale vessels, those below 12 meters in length, accounted for 41.2 per cent of the total number of vessels”. The Committee requests the Government to supply updated statistics on the number of Dutch-flagged fishing vessels under 12 metres covered by the Convention, and to indicate what percentage of the fishing fleet they represent. It also requests the Government to provide information on the concrete measures taken or envisaged, in collaboration with the social partners concerned, to extend the protection afforded by the Convention to fishing vessels of less than 12 metres.

2. The Committee notes the DFC’s indication that, pursuant to its section 2(2)(a), the Seafarers Act does not apply, inter alia, to all fishing vessels operating in waters within, or closely adjacent to, sheltered waters or areas where Dutch port regulations apply, which is based on Article II, paragraph 1(i), of the Maritime Labour Convention, 2006, as amended (MLC, 2006), but not on Convention No. 188. This exclusion (section 2(2)(a) of the Seafarers Act) relates to Articles 8, 10-20, and 32, paragraph 3(b), of the Convention. According to the DFC, a revision programme for the Seafarers Act is currently underway in which this oversight could be corrected. Finally, according to the DFC a further, but tacit exception has been made for the application of Article 13(b) of the Convention to fishing vessels that only have self-employed fishers working on board (i.e., fishers who do not work under an employment agreement, such as those who entered into a partnership agreement in marine fisheries) and remain at sea for less than four days. The Committee recalls that the only possible exclusions from the scope of application of the Convention are those provided for by Article 3, paragraph 1, and shall be listed in the first report, indicating the reasons thereof and the equivalent applicable measures. The Committee requests the Government to: (i) provide its comments in respect to the Dutch Fisheries Council's observations; and (ii) indicate the measures taken to ensure that the legislation implementing the Convention applies with no limitations to all fishers working on fishing vessels covered by the Convention.

Article 8(2) and (3). Responsibilities of fishing vessel owners, skippers and fishers. Responsibilities of the skipper. The Committee notes the Government's information that Article 8(2)-(3) is implemented by sections 4-6 of the Seafarers Act and section 4 of the Ships Act. It notes that those provisions deal with the master/skipper duty in relation to manning, watchkeeping and protection of fatigue, security and safety. The Committee notes the DFC’s allegation that, notwithstanding such provisions (also including section 27 of the Seafarers Act), national legislation lacks clear text giving effect to Article 8(2)-(3) of the Convention. The Committee requests the Government to provide its comments in this respect.

Article 9(1)-(2). Minimum age.The Committee notes that the Government, referring to the applicable legislation (mainly, the "Further regulation of child labour", the Working Time Act, and the Occupational Safety and Health Decree), indicates that the minimum age for work aboard fishing vessels is 16 years. However, young persons of 15 years are allowed to work aboard fishing vessels during school holidays if the work “does not form part of the fishing operations”. The Committee notes that under section 1:1(2)(i) of the “Further Regulation of Child Labour”, work carried out by a child on a sea fishing vessel is not considered light work. Recalling that Article 9(2) only allows young persons of the age of 15 to perform light work during school holidays, the Committee requests the Government to specify what types of work (which do not form part of the fishing operations) they can perform on board fishing vessels and under what conditions, and to indicate the relevant provisions. It also requests the Government to provide information on the consultations carried out pursuant to Article 9(2).

Article 11(e). Medical examination. Right to appeal. The Committee notes that under section 42(3) of the Seafarers Act, the person examined, who has been refused the issue of a certificate of medical fitness, shall have the right to a further examination by an arbitrator, if there are medical grounds to assume that the reason for the first rejection no longer applies. The Committee recalls that under Article 11(e) of the Convention, the fisher shall have the right to a further examination by a second independent medical practitioner every time she/he has been refused a certificate or has had limitations imposed on the work she/he may perform. Noting that section 42(3) of the Seafarers Act imposes a condition to the right to a further medical examination that is not in line with the Convention, the Committee requests the Government to bring its national legislation in conformity with Article 11(e).

Article 12(1)(b). Medical examination. Certificate. The Committee notes the Government's information on the legislation implementing Article 12 (the Seafarers Act, the Seafarers Decree and the Rules on Medical Examination in Shipping, 2012). It requests the Government to provide information on the provisions implementing Article 12(1)(b).

Articles 13(b) and 14(b). Hours of rest. The Committee notes the Government's indication that Articles 13(b) and 14(b) have been implemented by the Working Time Decree for Transport, Chapter 6A. It also notes that both the Government and the DFC indicate that such Chapter only applies to fishing vessels having employed fishers aboard (section 6A.2:1a, paragraph 1) and to other fishing vessels that remain at sea for more than three days (section 6A.2:1a, paragraph 2). In this context, the DFC points out that the legislation does not include a general provision requiring fishing vessel owners to ensure that fishers are given regular periods of rest of sufficient length to ensure safety and health. Therefore, a tacit exception has been made for fishing vessels remaining at sea for less than three days having only self-employed fishers working on board. The Committee requests the Government to indicate the measures taken to ensure that the national provisions implementing Article 13(b) apply to fishing vessels remaining at sea for less than three days and that the provisions implementing Articles 13(b) and 14(b) also cover self-employed fishers working on board.

Article 14(2) and (3). Hours of rest. Temporary exceptions. The Committee notes the Government's information that Article 14(2) has been implemented by section 6A.3:2(1)(b), of the Working Time Decree for Transport in so far as the Minister uses her/his competence for a temporary exemption. The Committee notes that section 6A.3:2 of the same Decree provides that the Minister of Infrastructure and Water Management can grant an exemption from section 6A.2:2 (hours of rest), under conditions which provide, as far as possible, an equivalent level of protection, inter alia, by granting compensatory rest periods. The Committee requests the Government to: (i) specify the "limited and specified reasons" (Article 14(2)) under which temporary exceptions may be granted; and (ii) provide examples, if any, of exceptions/alternative requirements, including details on the consultations carried out and on how these requirements are substantially equivalent and do not jeopardize the safety and health of the fishers (Article 14(3)).

Article 15. Crew list.The Committee notes the Government's reference to sections 33 and 34 of the Seafarers Act giving application to Article 15. Noting that section 34 of the Seafarers Act provides for possible exemptions, which are not contemplated under Article 15, the Committee requests the Government to clarify whether exemptions may be granted for fishers and on which basis and to provide, if any, examples thereof. It also requests the Government to indicate the provisions implementing the obligation to provide the crew list to authorized persons ashore prior to departure of the vessel, or communicate it ashore immediately after departure of the vessel.

Article 17(a). Fisher’s work agreement. Examination of the terms. The Committee notes that sections 3:44, 7:611 and 7:740 of the Civil Code referred to by the Government, while providing for the principle of good faith between employer and employee, do not ensure that a fisher has the opportunity to review and seek advice on the terms of the fisher’s work agreement before it is concluded. The Committee requests the Government to take the necessary measures to give full effect to Article 17(a).

Article 18. Fisher's work agreement. Availability to the fisher and concerned parties. The Committee notes the Government's information that this provision has been implemented by section 69da of the Seafarers Act. It further notes that, according to the DFC, the second part of the provision has not been implemented satisfactorily because, considering the privacy protection of fishers, while "the social partners requested an exhaustive list of stakeholders authorized to inspect a fisher’s work agreement", this was not taken into account by the legislator. The Committee requests the Government to provide its comments in this respect.

Articles 20 and 22(4)-(5). Recruitment and placement. Private employment agencies directly employing fishers.The Committee notes the Government's and DFC's information that the Netherlands has ratified the Private Employment Agencies Convention, 1989 (No. 181) and allows, pursuant to Article 22(4) of Convention No. 188, a Dutch or foreign third party (i.e., not the fishing vessel owner) to be the employer of a fisher working aboard a Dutch fishing vessel. In such case, the formal employer makes the fisher available to the fishing vessel owner who then assigns the fisher her/his tasks and supervises the execution of these tasks (“posting” or “loan-out”). The Government also refers to sections 7:694(1), in conjunction with sections 7:610, 7:690 and 7:740(1) of the Civil Code, which put the posting agreement on an equal footing with the work agreement in sea-fishing and give posted fishers the same protection vis-à-vis the posting agency as employees have vis-à-vis their employer under legislation implementing Convention No. 181. The Committee also notes the Government's reference to section 738 of the Civil Code concerning the ship's manager liability for the fulfilment of the obligations arising from sections 706-709, 717, 719, 720 and 734-734l when “the employer irrevocably does not fulfil them, has been convicted and does not proceed to performance”. The Committee requests the Government to indicate: (i) how it implements Article 20, and in particular the requirement that the fishing vessel owner shall have evidence of contractual or similar arrangements where fishers are not employed or engaged by her/him; (ii) how the responsibilities under Convention No. 188 are concretely allocated between private employment agencies and the fishing vessel owner pursuant to Article 12 of Convention No. 181; and (iii) how the requirement of Article 22(5) (liability of the fishing vessel owner) is given effect for any failure of the private employment agency to meet its contractual obligations regarding matters not covered under section 738 of the Civil Code (e.g., repatriation). It further requests the Government to provide information on the supervision of private employment agencies directly employing fishers, infringements detected, and sanctions imposed.

Article 21(4). Repatriation. Recovery of the cost.The Committee notes the Government's indication that Article 21(4) needs no implementation. It also notes the comment by the DFC that the Government's view has not been documented in the legislative history of the implementation of the Convention. The DFC stresses that abandoned fishers will struggle to claim their repatriation rights if the Dutch State defaults on its responsibility. It also questions whether the right of repatriation against the Dutch State is enforceable for the individual fisher. The Committee notes the Government's indication in reply to the DFC that the explanatory note presented to the Dutch Parliament when the law implementing the Convention was introduced stated that Article 21(4) does not require implementation as it contains an obligation by the State party. Referring to section 718 of the Civil Code, the Government adds that if the employer does not comply with these obligations, the shipowner is responsible. While noting the Government's indications, the Committee requests it to indicate the measures taken to ensure the concrete enforceability of the Flag State obligation to arrange for the repatriation of the fisher concerned when the fishing vessel owner fails to provide for it.

Articles 25-28 and Annex III. Accommodation. Requirement to adopt laws, regulations or other measures.The Committee notes the Government’s information that Part V is incorporated in sections 48, 48a and 64 of the Seafarers Act (general provisions on accommodation, recreational facilities, food and drinking water). The Committee notes that under section 48(2), in accordance with paragraph 3 of Annex III to Convention No. 188, certain requirements may be waived by the Minister. The Committee further notes the information provided by the Government and the DFC that for existing fishing vessels the Netherlands continues to apply the Accommodation of Crews (Fishermen) Convention, 1966, No. 126, and implemented Convention No. 126 in the Crew Members Decree.The Committee notes that the Government does not provide information on legislation or other measures adopted pursuant to Articles 25-27 and Annex III concerning accommodation of new fishing vessels as defined in paragraph 1(a) of the Annex. In this context, the Committee notes that the Crew Members Decree would need to be revised to ensure full conformity with the requirements of Convention No. 188 for new fishing vessels (e.g., with respect to floor area of sleeping rooms and requirements for sanitary facilities). The Committee requests the Government to indicate the laws, regulations or other measures adopted in accordance with Articles 25-27 to give full effect to Annex III concerning accommodation of new fishing vessels ad defined in paragraph 1(a) thereof. Recalling Article 28(2) and paragraph 84 of Annex III, the Committee also requests the Government to provide information on the variations authorized by the Minister pursuant to section 48(2) of the Seafarers Act.

Articles 29(d) and 30(d). Medical care. Radio or satellite communication.The Committee notes that Chapter 9 of the Fishing Vessel Decision, 2002, on radio communications (Fishing Vessel Decision) referred to by the Government only applies to fishing vessels with a length of 45 meters or more and to new Dutch fishing vessels with a length of 24 meters or more. Recalling the scope of the Convention (Article 2) and its comments under Article 3, the Committee requests the Government to indicate the measures taken to ensure that Article 29(d) also applies to fishing vessels of less than 24 meters covered by the Convention. It further requests the Government to specify whether radio or satellite communication is used to contact persons or services ashore that can provide medical advice (Article 29(d) and 30(d)), and to indicate the provision according to which vessels of more than 24 meters shall carry on board a list of radio or satellite stations through which medical advice can be obtained (Article 30(e)).

Article 29(e). Right to medical treatment ashore. The Committee requests the Government to indicate how it gives effect to Article 29(e), reproducing the text of the relevant national provisions.

Article 30(f). Medical care free of charge.The Committee notes that the provisions referred to by the Government (section 6.5 of the Fishing Vessel Decision, and sections 25, 49 and annex 5 to the Scheme Safety Sea vessels), while establishing that the shipowner shall arrange for the supply and renewal of the medical equipment at his own expense (section 25 of the Fishing Vessel Decision), do not appear to contemplate the requirement that medical care while the fisher is on board or landed in a foreign port should be provided free of charge. The Committee requests the Government to indicate how it gives effect to Article 30(f).

Articles 31(b) and 32(3)(b)-(c). Occupational safety and health and accident prevention. Training.The Committee notes the Government's information on the legislation implementing Articles 31(b) and 32(3) (e.g. section 19(a) of the Seafarers Act, section 6.3(6) of the Decree Fishing Vessels, and section 8(3)-(5) of the Working Conditions Act). It notes the DFC’s comment that Article 31(b) has not been properly implemented, as the Netherlands has left the implementation of such provision to an advisory body, without establishing any legal requirement. In fact, sections 19 and 19a of the Seafarers Act (power to issue regulations on professional requirements for the performance of duties on board fishing vessels) were not implemented, nor was section 16 of the Working Conditions Act regarding the regulation of specific requirements. The DFC adds that, for those who will not become officers, there is no pre-sea vocational training required (nor available) that meets Article 31(b) requirements. The DTC further indicates that, since this shortcoming has consequences for the safety and health of fishers and safety at sea in general, a small number of responsible fishing vessel owners have cooperated with a maritime education and training institute to introduce a ‘quick-fix’ training that meets the requirements of Article 31(b) for those fishers who work on the trawl deck of large pelagic freezer-trawlers. However, there is no equivalent for fishers working on other types of fishing vessels (unless they are educated, trained and certificated as fishing vessel officers). The Committee notes that in reply to the DFC observations, the Government indicates that the Dutch Safety Board has made recommendations in relation to fishing training in its report “Capsizing and sinking of fishing vessels”; the Government’s response to those recommendations will be communicated in a future report. In this context, the Committee requests the Government to indicate the measures taken to give full effect to Articles 31(b) and 32(3) with respect to all fishers working on fishing vessels covered by the Convention.

Article 31(e). Occupational safety and health and accident prevention. Joint Committees. The Committee notes the Government's reference to sections 26(a) and (e) of the Ships Act. It also notes the DFC’s observations that while the Netherlands formally implemented Article 31(e) in Chapter III A, paragraph 1, of the Ships Act, the tripartite General Committee for the Prevention of Occupational Accidents of Seafarers, established by this Act, has stopped its activities. The social partners in shipping and fishing have now, under the Umbrella of the Maritime Platform, formed their own voluntary committee for the prevention of occupational accidents of seafarers and fishers but such committee has no legal basis. The DFC further indicates that, while the Ships Act prescribes safety committees of seafarers on board ships (Chapter III A, paragraph 2), the provision does not apply to fishing vessels. However, the owners of larger Dutch fishing vessels tend to prescribe a safety committee of fishers that advises the skipper and the owner on occupational safety and health issues. The Committee requests the Government to provide its comments in this respect. It further requests the Government to indicate the measures taken to ensure compliance with Article 31 (e) of the Convention.

Article 32(2)(a). Occupational safety and health and accident prevention. On-board procedures. While noting the Government's reference to sections 3, 5 and 8 of the Working Conditions Act (generally applicable provisions), the Committee observes that the applicable legislation does not provide for occupational health and safety requirements for ships of over 24 metres. The Committee requests the Government to provide information on how it concretely gives effect to Article 32(2)(a) requiring that fishing vessel owners, in accordance with national laws, regulations, collective bargaining agreements and practice, establish on-board procedures for the prevention of occupational accidents, injuries and diseases, taking into account the specific hazards and risks on the fishing vessel concerned. It also requests the Government to provide information on the consultations carried out in this regard.

Article 41. Flag State responsibilities. Fishing certificate.The Committee notes the Government's reference to section 48f of the Seafarers Act regulating the fishing certificate that is issued to fishing vessels covered by Article 41(1) after inspection in 11 areas covering the working and living conditions of fishers. The Committee further notes the DFC’s comments which refer to a few oversights in the sample certificate. The Committee requests the Government to provide an example of a fishing certificate issued pursuant to section 48f of the Seafarers Act.

Article 43. Compliance and enforcement. Responsibilities of the flag State and port States.The Committee notes the information provided by the Government on the system of complaints concerning an alleged breach of the Convention (section 69b of the Seafarers Act), as well as on the onshore complaint procedure (section 7.3 of the Seafarers Regulation). The Committee requests the Government to provide information on the number of investigations carried out pursuant to such provisions and on the measures taken as a result thereof. It further requests it to provide information on any port State control measures taken pursuant to Article 43(2) (e.g. number and nature of cases considered, and nature of any action taken), as well as on the applicable procedures (Article 43(3)).