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Maritime Labour Convention, 2006 (MLC, 2006) - Cabo Verde (RATIFICATION: 2015)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that Cabo Verde had not ratified any maritime labour Convention prior to the MLC, 2006. It further notes that Cabo Verde has not submitted a declaration of acceptance of the amendments to the Code of the Convention adopted in 2014 by the International Labour Conference and is therefore not bound by these amendments. 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.

Article I of the Convention. General questions on application. Implementing measures. The Committee notes the Government’s intention to review its legislation in order to fully implement the Convention. The Committee recalls that according to Article I, each Member undertakes to give complete effect to its provisions in order to secure the right of all seafarers to decent employment. In this respect, the Committee reminds the Government that it may avail itself of the technical assistance of the Office and requests the Government to provide a copy of all relevant new legislation or other regulatory instruments implementing the Convention once they are adopted.

Article II, paragraph 1(f). Scope of application. Seafarer. The Committee notes that section 339 of the Shipping Code defines seafarer as the person who works on board vessels dedicated to maritime transport and are holders of a seaman’s book. It also notes that section 326(c) of the Labour Code defines seafarer as any person engaged to provide his or her services on board a vessel in accordance with the applicable labour and commercial law. Recalling that under Article II(1)(f) 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, the Committee requests the Government to ensure that the Shipping Code and the Labour Code are harmonized in order to ensure that the protection afforded by the Convention is guaranteed to all seafarers within the meaning of the Convention.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that two private recruitment and placement services operate in its territory and that they have been issued interim operating certifications. However, the Government has indicated that currently there are no provisions regulating the system of certification. The Committee further notes that sections 354 and 355 of the Shipping Code contain relevant provisions relating to Regulation 1.4 and Standard A1.4, including the fact that the recruitment process should be free of charge for the seafarer. The Committee notes that, while section 355 of the Shipping Code provides that recruitment and placement agencies shall establish an insurance in case of death, incapacity due to occupational injury and repatriation, the same insurance does not cover, any monetary loss that seafarers may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them. The Committee requests the Government to provide information on measures adopted or envisaged, after consultation with the shipowners’ and seafarers’ organizations concerned, with regard to the establishment of a system of certification, together with information on the supervision of recruitment and placement services operating in the territory and the investigation of complaints (Standard A1.4, paragraphs 2, 6 and 7). It further requests the Government to indicate the measures which give effect to the minimum requirements for the operation of private seafarer recruitment and placement services pursuant to Standard A1.4, paragraph 5 (prohibition of blacklists, the keeping of registers, qualification of seafarers, protection of seafarers in foreign ports and management of complaints, system of protection to compensate seafarers from monetary loss). The Committee also requests the Government to provide information on measures adopted or envisaged with regard to the use of recruitment and placement services that operate in countries that have not ratified the Convention, by shipowners of Cape Verdean ships and whether they conform to the requirements of Standard A1.4, paragraphs 9 and 10, of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(c). Seafarers’ employment agreement. Signed original. The Committee notes that sections 329 to 331 of the Labour Code implement several aspects of Standard A2.1, paragraph 1(a) and (c), of the Convention. However, national legislation does not require seafarers working on ships flying Cape Verdean flag to have a seafarers’ employment agreement (SEA) signed by both the seafarer and the shipowner or shipowner’s representative, as it is required under Standard A2.1, paragraph 1(c). The Committee requests the Government to indicate the measures taken or envisaged to ensure that national legislation conforms to the requirements of Standard A2.1, paragraph 1(c), of the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 5 and 6. Seafarers’ employment agreement. Minimum notice period for termination. With regard to minimum notice periods, the Committee notes that termination of an SEA may be immediate in case of mutual agreement, in accordance with section 216 of the Labour Code. The Committee recalls that Standard A2.1, paragraph 5, provides that the duration of these minimum periods shall be determined after consultation with the shipowners’ and seafarers’ associations concerned, but shall not be shorter than seven days. The Committee also recalls that Standard A2.1, paragraph 6, provides that a notice period shorter than the minimum may be given in circumstances which are recognized under national law or regulations or applicable collective bargaining agreements as justifying termination of the employment agreement at shorter notice or without notice. In determining those circumstances, each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. The Committee therefore requests the Government to ensure that national legislation gives full effect to the requirements of Standard A2.1, paragraph 5, of the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1(b) and (d). Seafarers’ employment agreement. Examination and advice before signing. Information available on board. The Committee notes that the national legislation does not ensure that seafarers are given an opportunity to review and seek advice on their SEA before signing it, as it is required under Standard A2.1, paragraph 1(b). It also notes that the national legislation does not ensure either that seafarers have easy access on board ship to information about their conditions of employment, as required under Standard A2.1, paragraph 1(d). Therefore, the Committee requests the Government to indicate the measures taken or envisaged to give effect to Standard A2.1, paragraph 1(b) and (d), of the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that the Government has adopted a model document regarding a seafarer’s record of employment. However, there is no prohibition in law regarding the inclusion in such document of any statement as to the seafarers’ wages, as required under Standard A2.1, paragraph 3. The Committee requests the Government to provide information on measures adopted or envisaged to give full effect to the provisions of Standard A2.1, paragraphs 1(e) and 3, of the Convention.

Regulation 2.2 and the Code. Wages. Allotments. The Committee notes that national legislation does not contain any provisions requiring that shipowners take measures to provide seafarers with means to transmit all or part of their earnings to their families or dependants or legal beneficiaries, as required by Standard A2.3, paragraph 3. The Committee therefore requests the Government to provide information on measures adopted or envisaged to give full effect to the provisions of Standard A2.2, paragraphs 3, 4 (allotment system), and 5 (reasonable charge for the service and rate of currency exchange).

Regulation 2.3 and Standard A2.3, paragraph 2. Hours of work and hours of rest. The Committee notes that the Government has established a system based on hours of rest. The Committee further notes that the Labour Code and Ministerial Order No. 2/2017, of 23 January 2017, approving the Regulation on Training, Certification and Watchkeeping for Seafarers, considering the Manila amendments, contain relevant provisions regarding Regulation 2.3, paragraphs 1 and 2, and Standard A2.3. It also notes that section 161 of the Labour Code establishes that a worker cannot work more than two hours’ overtime per day, up to a maximum of 300 hours’ overtime per year. Noting the inconsistency of some of the existing provisions, the Committee requests the Government to provide information concerning the application, in practice, of the Ministerial Order No. 2/2017 and articles 161, 339, 340 and 352 of the Labour Code.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee also notes that section 340 of the Labour Code exempts the commander or master, the mate, the chief engineer officer, the engineer first officer, and the chief technician, from the normal working hours regime that is provided under section 339 of the same Code, compensated by the right to subsidy the amount of which is agreed between the parties. The Committee recalls that “seafarer” is defined under Article II, paragraph (1)(f), of the Convention as “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”. The Committee also recalls that Standard A2.3, paragraph 3, applies to all seafarers, within the meaning of the MLC, 2006. The Committee therefore requests the Government to indicate the measures taken to ensure that all seafarers, including the commander or master, the mate, the chief engineer officer, the engineer first officer, and the chief technician, are covered by the protection afforded by Standard A2.3, paragraph 3, of the Convention. Finally, the Committee requests the Government to indicate the measures adopted or envisaged to give full effect to the provisions in Standard A2.3, paragraph 14 of the Convention (exceptions to working hours in case of distress at sea).

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that section 353 of the Labour Law contains provisions that give effect to Standard A2.4, paragraphs 1 and 2, of the Convention. The Committee also notes that under section 54(2) of the Labour Code an employee may accept payment for up to 50 per cent of his or her annual leave and may also forgo taking annual leave in exchange for payment in certain situations. The Committee recalls that under Standard A2.4, paragraph 3, of the Convention, any agreement to forgo the minimum annual leave with pay of two-and-a-half calendar days per month is prohibited unless it is a case provided for by the competent authority. The Committee requests the Government to provide detailed information on the cases in which agreements to forgo the minimum annual leave with pay are authorized by the competent authority. The Committee notes that national legislation does not require shipowners to give seafarers appropriate shore leave. The Committee requests the Government to indicate the measures taken or envisaged to give effect to Regulation 2.4, paragraph 2, of the Convention.

Regulation 2.5 and the Code. Repatriation. The Committee notes that section 355 of the Shipping Code requires recruitment and placement services to provide insurance in an amount equivalent to that provided by national legislation in the events of death, incapacity for accident and repatriation. However, the Committee notes that there are no provisions implementing Regulation 2.5, paragraph 2. Recalling that ships must provide financial security to ensure that seafarers’ repatriation takes place, the Committee requests the Government to provide information on the measures adopted or envisaged to give full effect to the provisions of Regulation 2.5, paragraph 2. The Committee also notes that section 356 of the Labour Code, while providing for the circumstances where a seafarer has right to repatriation, does not cover the cases where the SEA expires while the seafarer is abroad or is terminated by the seafarers for justified reasons (Standard A2.5.1, paragraph 1(a) and (f)(ii)). It further notes that the existing legislation does not establish a maximum period of service on board following which a seafarer is entitled to repatriation as required by Standard A2.5, paragraph 2(b). The Committee therefore requests the Government to indicate the measures adopted or envisaged to give full effect to these requirements of the Convention.

Regulation 2.6 and Standard A2.6. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes the Government’s indication that seafarers’ compensation for the ship’s loss or foundering is covered by the unemployment benefit to which they are entitled in accordance with Decree Law 15/2015 of 5 March 2015. However, the Committee notes that a seafarer is entitled to the benefit only after 180 days of effective work and compensation is subject to a number of circumstances. The Committee requests the Government to indicate the measures adopted or envisaged to give effect to Regulation 2.6 and Standard A2.6 of the Convention.

Regulation 2.7 and Standard A2.7. Complaints. The Committee notes that national legislation does not provide procedures to investigate and settle complaints or disputes about determinations on the safe manning levels. The Committee requests the Government to explain how the guidance provided in Guideline B2.7 will be given due consideration in the national measures adopted in the future.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that the Committee refers to some provisions of the national legislation which do not cover all the requirements under Regulation 3.1 and the corresponding part of the Code. While noting the Government’s explanation that the lacuna in the legislation is due to the lack of shipbuilding tradition of the country, the Committee requests the Government to indicate the measures taken or envisaged to give effect to the detailed requirements of the Convention regarding accommodation and recreational facilities on board ships flying the Cape Verdean flag. The Committee further notes that national legislation does not provide the required frequency for on-board inspections of seafarers’ accommodation that are to be carried out by or under the authority of the master and the requirements for recording and review of those inspections. The Committee requests the Government to provide information on measures adopted or envisaged to give full effect to Standard A3.1, paragraph 18, of the Convention.

Regulation 3.2 and the Code. Food and catering. The Committee notes that section 344 of the Labour Code contains some provisions regarding the requirements of Regulation 3.2, paragraph 1, and Standard A3.2, paragraphs 1 and 2, of the Convention. However, it does not regulate the quantity and quality of food and drinking water. Noting that national legislation does not ensure the respect of the following requirements: (i) in circumstances of exceptional necessity, the limitation of a dispensation permitting a non-fully qualified cook to service in a specified ship only until the next convenient port of call or for a period not exceeding one month (Standard A3.2, paragraph 6); (ii) documented inspections are carried out in scheduled frequency, in accordance with the ongoing compliance procedure under Title 5 (Standard A3.2, paragraph 7); (iii) ships’ cooks to be aged at least 18 (Standard A3.2, paragraph 8), the Committee requests the Government to indicate the measures taken to ensure the conformity of its legislation with these provisions of the Convention.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that some provisions of the Shipping Code and other regulations provide for medical care on board and ashore in general terms without giving effect to the detailed requirements of Regulation 4.1 and the Code. The Committee further notes the Government’s indication that there are no measures in place to ensure that: (i) 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)); (ii) ships carry on board a qualified doctor who is responsible for providing medical care to seafarers in specific circumstances (Standard A4.1, paragraph 4(b)); (iii) ships’ medicine chests, medical equipment and medical guides are inspected at regular intervals, to ensure that they are properly maintained (Standard A4.1, paragraph 4(a)); (iv) ships are required to carry appropriate equipment and maintain up-to-date contact information for radio or satellite communication to obtain onshore medical advice while on a voyage (Standard A4.1, paragraphs 1(b) and 4(d)). The Committee requests the Government to provide information on national measures adopted or envisaged to give full effect to the provisions of Regulation 4.1, paragraphs 1, 2 and 4 and Standard A4.1, paragraphs 1(a)–(d), 3 and 4(a)–(d), of the Convention. The Committee notes the Government’s indication that seafarers on board ships voyaging in Cape Verdean waters or visiting its ports have access to medical facilities on shore when in need of immediate medical or dental care and that the shipping agent of vessels arrange for medical visits based in accordance with the Constitution and the Health Act. The Committee requests the Government to indicate the relevant laws or regulations giving effect to the requirements of Regulation 4.1, paragraph 3. The Committee also notes the Government’s indication that there are no law or regulation to provide for a system using satellite or radio or similar forms of communication, to provide medical advice, free of charge, 24 hours a day to all ships. The Committee requests the Government to provide information on national measures adopted or envisaged to give full effect to the requirements of Standard A4.1, paragraph 4(d).

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the Shipping and Labour Codes lay down the shipowner’s obligation to cover medical and other expenses incurred due to the seafarers’ injury or sickness and to pay wages to the seafarers when no longer on board within certain limits. The Committee requests the Government to provide detailed information on how these provisions give effect to the provisions in Standard A4.2, paragraphs 2 and 4. The Committee notes that section 338 of the Labour Code does not require that personal property is to be returned to the next of kin in the event of the seafarer’s death. The Committee requests the Government to provide information on national measures that are into force or are adopted in future to give effect to the provisions of the Standard A4.2, paragraph 7, of the Convention.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the provisions of national legislation are of a general nature and that, although they address several matters, they do not cover all the requirements under Regulation 4.3 and Standard A4.3. The Committee requests the Government to provide information on measures adopted or envisaged to give full effect to the provisions of the Convention. The Committee reminds the Government that it can take into consideration the guidance provided in ILO Guidelines for implementing the occupational safety and health provisions of the Convention in the the national measures adopted in the future to give full effect to Regulation 4.3 and Standard A4.3.

Regulation 4.4 and the Code. Health protection, medical care, welfare and social security protection. The Committee notes the Government’s indication that there are currently no shore-based facilities operating in the country and that there are no plans either for the development of seafarer welfare facilities in its territory. Recalling the significance of access to shore-based welfare facilities for seafarers’ well-being, the Committee requests the Government to provide information on measures adopted in the future to give full effect to the provisions of Regulation 4.4 of the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security: medical care; sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit and survivors’ benefit. The Committee recalls that the Standard A.4.5, paragraph 3, requires a Member to undertake steps according to its national circumstances to provide the complementary social security protection referred to in Standard A4.5, paragraph 1, to all seafarers ordinarily resident in its territory, and request the Government to provide detailed information on the national measures that are in force or are adopted in future to give full effect to the provisions of the Convention. The Committee notes that national legislation foresees monitoring to ensure that social security contributions are made by employers and employees. It also notes the Government’s indication that there are no specific actions concerning shipping. The Committee requests the Government to provide information on national measures adopted or envisaged to give full effect to the provisions in Standard A4.5, paragraph 5.

Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes that the laws and regulations in force provided by the Government do not give effect to the detailed requirements of Regulation 5.1. The Committee draws the Government’s attention to the need to adopt the necessary measures to ensure compliance with all the aspects of Regulation 5.1.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes that Decree-Law No. 28/2016 of 12 April 2016, provides for the machinery to authorize recognized organization to carry out inspections or to issue certificates or to do both. The Committee requests the Government to provide detailed information on the national measures adopted to give effect to Regulation 5.1.2 and Standard A5.1.2, including an example of an agreement with a classification society. The Committee requests the Government to provide a current list of recognized organizations, 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 that the Government has not supplied a copy of the standard Maritime Labour Certificate, including Part I of the Declaration of Maritime Labour Compliance (DMLC) as well as an example of DMLC, Part II which has been prepared by a shipowner and has been accepted by the Government, when certifying a ship or ships. Recalling the significance of establishing a system for ensuring compliance with the requirements of Regulation 5.1.3, the Committee requests the Government to give full effect to the provisions of the Convention and provide these documents.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that the laws and regulations in force provided by the Government do not give effect to the detailed requirements of Regulation 5.1.4. The Committee requests the Government to indicate the measures taken or envisaged to give full effect to these provisions of the Convention.

Regulation 5.1.5 and the Code. Flag State responsibilities. On-board complaint procedures. The Committee notes that the Labour Code contains some provisions relating to Regulation 5.1.5, paragraph 2. However, it also notes that the existing legislation does not give effect to the detailed requirements of Regulation 5.1.5. The Committee requests the Government to indicate the measures taken or envisaged to give full effect to these provisions of the Convention.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes that national laws and regulations in force provided by the Government contain some provisions relating to the requirements of Regulation 5.2.1. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure full compliance with these requirements. The Committee notes that, according to the webpage of the Maritime and Port Authority, Cabo Verde participates in the Abuja Memorandum of Understanding (MoU) on Port State Control. The Committee notes that Abuja MoU has not been apparently amended to include the requirements set out in the MLC, 2006, among those that are to be inspected in port. The Committee requests the Government to provide information concerning a possible revision of the Abuja MoU in order to fulfil the requirements of the Convention. The Committee further notes that inspectors are not instructed as to the kinds of circumstances justifying detention of ship. The Committee requests the Government to provide information on the number of authorized officers appointed by the competent authority and the qualifications and training required for carrying out port State control, and on measures adopted or envisaged to give effect to the provisions in Standard A5.2.1, paragraph 7. The Committee further requests the Government to explain how the guidance provided in ILO’s 2008 Guidelines for port State control officers carrying out inspections under the Convention will be given due consideration in the national measures adopted in the future.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that the national laws and regulations in force do not give effect to the detailed requirements of Regulation 5.2.2 and Standard A5.2.2. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure the conformity of the national legislation with these requirements of the Convention.

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: for each type of ship (passenger, cargo, etc.), a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it; an example of the standard medical report form for seafarers and a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraphs 2 and 4(a)); an example of a document (e.g. Part II of the DMLC outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the relevant national guidelines (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a list of all seafarers’ shore-based welfare facilities and services, if any, operating in your country and a copy of a report or review prepared by a welfare board, if any, on the welfare services (Regulation 4.4); a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment (Regulation 5.1.1); an example(s) of authorizations given to recognized organizations (Regulation 5.1.1, paragraph 5; Regulation 5.1.2, paragraph 2); a copy of the annual reports on inspection activities; a standard document issued to or signed by inspectors setting out their functions and powers; and a copy of any national guidelines issued to flag State inspectors; a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (Standard A5.1.4, paragraphs 5, 7 and 13); a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of the model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly the national flag (Regulation 5.1.5); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7; a copy of a document, if any, that describes the onshore complaint-handling procedures (Regulation 5.2.2).

[The Government is asked to reply in full to the present comments in 2021.]