CMNT_TITLE

Montenegro

Medical Examination (Fishermen) Convention, 1959 (No. 113) (RATIFICATION: 2006)
Fishermen's Articles of Agreement Convention, 1959 (No. 114) (RATIFICATION: 2006)

The Committee notes with concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments.

Repetition

Implementing legislation. The Committee had noted in its previous comments the Government’s indication that a draft law on maritime safety was under preparation. The Committee notes in this regard that the Law of 23 December 2013 on Maritime Safety (hereinafter, referred to as “the Law on Maritime Safety”) is currently in force in the country.

In order to provide an overview of the issues relating to the application of conventions related to fishing, the Committee considers it helpful to examine them in a single comment as follows.

Medical Examination (Fishermen) Convention, 1959 (No. 113)

Article 2 of the Convention. Medical certificate. The Committee had requested the Government to specify the legal provision establishing that fishers shall not be engaged for employment on a fishing vessel unless they produce a fitness medical certificate signed by a medical practitioner approved by the competent authority, in accordance with the provisions of Article 2of the Convention. In this regard, the Committee notes that under section 118(4) of the Law on Maritime Safety, an authorized medical doctor shall issue a seafarer’s medical certificate based on the established medical fitness, on a prescribed form. According to Annex 1 to the Rulebook on detailed conditions for determining medical fitness of seafarers (hereinafter, referred to as “the Rulebook”), which includes a model form of a certificate on medical fitness of seafarer, the medical certificate shall be signed by an occupational medicine specialist. Moreover, section 118(6) of the Law on Maritime Safety prescribes that prior to beginning work on a ship, seafarers shall hold a valid medical certificate attesting that they are medically fit to perform the duties assigned to them on a ship. The Committee takes note of this information.

Article 3. Nature of medical examination. The Committee had requested the Government to indicate any specific provisions regulating the nature of the medical examinations to be made and the particulars to be included in the medical certificate issued to fishers. The Committee notes in this regard that section 118(14) of the Law on Maritime Safety provides that the Government’s authority in charge of health care affairs under the consent of the Ministry shall prescribe more detailed requirements on medical examinations. The Committee further notes that the model form of the medical certificate included in Annex 1 to the Rulebook refers to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW Convention) and the Maritime Labour Convention, 2006, as amended (MLC, 2006) and takes into account the requirements of Article 3(1), (2) and (3) of the Convention. The Committee takes note of this information.

Article 4. Validity of medical certificates. The Committee had requested the Government to take measures to ensure that medical certificates of young persons of less than 21 years of age remain in force for a period not exceeding one year. The Committee notes in this regard that section 118(9) of the Law on Maritime Safety prescribes that medical examinations of seafarers under the age of 18, and of seafarers under the age of 21 engaged on fishing vessels shall be conducted every year, and that according to section 118(7) of the Law on Maritime Safety, seafarers’ medical certificates shall be valid for a period of two years, after which they shall be subject to re-examination of their medical fitness. The Committee takes note of this information.

Article 5. Further examination. Independence of the medical referee. Noting the Government’s indication that an appeals commission was provided for under the Health Insurance Fund, the Committee had requested it to specify the relevant legal provisions. The Committee notes in this regard that according to the provisions of section 118(5) of the Law on Maritime Safety, a person not satisfied with the assessment of medical fitness may submit a complaint to a health care institution for re-examination of medical fitness. The model form of the medical certificate included in Annex 1 to the Rulebook indicates that the examinee shall sign it only if confirming that she/he has been informed of the content of the certificate and of the right to a review in accordance with paragraph 6 of section A I/9 of the STCW Code. The Committee notes the Government’s reference to the provisions of section 9(1) items 10, 11 and 12 of the Rules on composition, method of establishment and the work of the first instance medical commission. According to the Government, these provisions stipulate that the Medical Commission gives an opinion on the merits of the complaint of the insured person on the findings and opinions of the chosen doctor and the exercise of other rights under the compulsory health insurance. The Committee further notes that section 2 of these Rules defines the Medical Commission as a professional medical authority and section 5 of the said Rules determines the composition of the Medical Commission (the Director of the Health Insurance Fund and specialised doctors from different branches of medicine). The Committee takes note of this information.

Fishermen’s Articles of Agreement Convention, 1959 (No. 114)

Articles 1 and 2 of the Convention. Implementing legislation. The Committee notes that section 153 of this Law regulates employment agreements for work on ships engaged in international voyage, whereas the Convention does not distinguish between international and domestic voyages. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that fishers engaged in domestic voyages are also covered by the provisions of the Convention.

Article 3. Signature of the articles of agreement. The Committee notes that section 153(4) of the Law on Maritime Safety provides that the ship operator or the company shall ensure that the crew member is informed about the conditions of employment on board and to submit a copy of the employment agreement at request of the competent authorities in the ports of call. However, it is not clear whether the signature of the agreement takes place under conditions that ensure adequate supervision by the competent authority, as prescribed by Article 3(2) and (3) of the Convention. The Committee therefore requests the Government to indicate the conditions which have been prescribed for the signature of the agreement to ensure adequate supervision by the competent public authority in accordance with Article 3(2) and (3) of the Convention.

Article 4. Non-departure from the rules as to jurisdiction over the agreement. The Committee notes that the Government has not provided any information on how it implements Article 4 of the Convention, which prescribes that “adequate measures shall be taken in accordance with national law for ensuring that the agreement shall not contain any stipulation by which the parties purport to contract in advance to depart from the ordinary rules as to jurisdiction over the agreement”. The Committee therefore requests the Government to indicate the measures taken or envisaged to give effect to this Article of the Convention.

Article 6. Particulars of the agreement. The Committee recalls that Article 6(3) of the Convention prescribes that the fisher’s employment agreement shall contain certain minimum particulars. The Committee notes, in this regard, that section 153(13) of the Law on Maritime Safety indicates that the particulars of the employment agreement shall be prescribed by the Government’s authority in charge of employment affairs. The Committee requests the Government to clarify whether the Government’s authority has prescribed the particulars of the employment agreement and, if so, to provide a copy of the relevant texts.

Article 7. List of crew. The Committee notes that, in its previous comment, it had requested the Government to specify how effect is given to Article 7 of the Convention according to which, if national law provides that a list of crew shall be carried on board, the articles of agreement should be recorded in or annexed to such a list. The Committee notes that the Government has provided no information in this regard. The Committee therefore requests the Government to indicate the effect given to Article 7 of the Convention.

Article 8. On-board information on conditions of employment. The Committee had requested the Government to indicate the measures adopted to enable clear information to be obtained on board as to the conditions of employment as required by Article 8 of the Convention. The Committee notes in this regard that, according to section 153(4) of the Law on Maritime Safety, the ship operator or the company shall ensure that the crew member is informed about the conditions of their employment on board and to demonstrate the copy of employment agreement at request of competent authorities in the ports of call; moreover, section 153(7) of this Law prescribes that if the collective agreement forms all or part of the seafarers’ employment agreement, a copy of that agreement shall be available on board. The Committee takes note of this information.