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Work in Fishing Convention, 2007 (No. 188) - Estonia (RATIFICATION: 2016)

The Committee notes the Government’s first and second reports on the application of the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. If considered necessary, the Committee may come back to other matters at a later stage.

Article 3 of the Convention. Exclusions. The Committee notes the Government’s information that the Seafarers Employment Act of 2014 (SEA), which mostly implements the provisions of the Convention, does not apply to fishing vessels under 24 metres in length. The Government indicates that, therefore, this category of fishing vessels is excluded from the scope of application of the Convention. The Government informs in this regard that the decision was taken in consultation with representative organizations of shipowners and seafarers in consideration of the small size of those vessels to which it would be difficult and often impossible to apply the requirements of the Convention. The Committee also notes the Government’s subsequent information that it is in the process of implementing the Council Directive (EU) 2017/159 of 19 December 2016 implementing the Agreement concerning the implementation of the Work in Fishing Convention, 2007 (No. 188), of the International Labour Organization, concluded on 21 May 2012, between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche). The Government indicates that, therefore, in the future, some provisions of the SEA will also be applied to employment on fishing vessels under 24 metres in length. It informs that the legislation has not been adopted yet and further information will be given in its next report. While taking note of the Government’s information, the Committee observes that, according to the EU Annual Report – fishing fleet (2018), small vessels under 12 metres account for 98 per cent of all fishing vessels in Estonia. Therefore, the exclusion of fishing vessels under 24 metres would render the Convention applicable only to a very limited number of fishers in the country. The Committee requests the Government to supply updated statistics on the number of Estonian-flagged fishing vessels under 24 metres and to indicate what percentage of the fishing fleet they represent. In addition, in accordance with Article 3(3)(b), the Committee requests the Government to provide information on any measures taken with a view to extend the protection afforded by the Convention to all fishing vessels of less than 24 metres.

Article 5. Basis for measurement. The Committee notes the Government’s indication that in Estonian maritime law, both length overall (LOA), length (L) and gross tonnage are used in parallel. The Committee also observes that part of the legislation applicable to fishing vessels covered by the Convention refers to gross tonnage. The Committee recalls that under Article 5, the competent authority, after consultation, may decide to use length overall (LOA) in place of length (L) as the basis for measurement, in accordance with the equivalence set out in Annex I. In addition, only for the purpose of the paragraphs specified in Annex III of the Convention, the competent authority, after consultation, may decide to use gross tonnage in place of length (L) or length overall (LOA) as the basis for measurement in accordance with the equivalence set out in Annex III. The Committee requests the Government to indicate how it ensures compliance with this provision of the Convention.

Article 8(3). Responsibility and freedom of the skipper. The Committee notes the Government’s information that under paragraph 62 of the Merchant Shipping Code, the master is responsible for the general management of the ship, including navigation, applying all measures necessary for ensuring safe navigation, maintaining order on the ship, and preventing anything that could harm the ship or the persons or cargo on board the ship. Orders issued by the master within the limits of his or her authority shall be obeyed without argument by all persons on board the ship. The Committee requests the Government to indicate in detail how it is ensured in national law and practice that the skipper is free from constraint on the part of the fishing vessel owner to take any decision that he or she deems necessary for the safety of the vessel and its safe navigation and safe operation, or the safety of the fishers on board.

Article 9(4). Minimum age. List of types of hazardous work. Authorization to work as from the age of 16. The Committee notes the Government’s indication that under paragraph 7(2) of the Employment Contracts Act (ECA), an employer shall not enter into an employment contract with a person under 18 years of age if the work is likely to harm her/his health, physical or psychological capacity, morals and social development. Paragraph 7(3) provides that the Government shall establish by regulation the list of types of work and hazards prohibited for persons under 18 years. The Committee notes that Regulation No. 94, adopted in June 2009, contains a list of types of occupations and works prohibited to persons under 18 years. The Committee observes that the list of types of hazardous work in Regulation No. 94 was adopted almost 20 years before the ratification of the Convention and does not seem to take into account the specific conditions of work on board fishing vessels. The Committee also notes that pursuant to section 6 of Regulation No. 94, exceptions to the prohibition of employing persons under 18 years in certain forms of work may be made in the context of a professional training curriculum (provided by law) with a training adviser and with supervision regarding the minor’s health and safety. The Committee requests the Government to: (a) specify how it is envisaged to adapt the list of types of hazardous work to take into account the specific conditions of work on board fishing vessels for young persons under 18 years of age, and to provide information on the relevant consultations required by the Convention; and (b) to specify whether apprentices between 16 and 18 years of age may perform hazardous work on board fishing vessels and, if so, to indicate whether they are required to complete basic pre-sea safety training, as required by Article 9, paragraph 5.

Article 9(6). Minimum age. Night work. The Committee notes the Government’s reference to paragraph 49 of the ECA, according to which an employee between 15 and 17 years of age who is not subject to the obligation to attend school is not allowed to work from 10 p.m. to 6 a.m. The Committee notes that under Article 9(6) of the Convention, the term “night” shall cover a period of at least nine hours, starting no later than midnight and ending no earlier than 5 a.m. Noting that the Estonian legislation prescribes a period of eight hours, the Committee requests the Government to take the necessary measures to ensure full conformity with the Convention in this regard.

Article 10. Medical examination. The Committee notes the Government’s information that according to section 32 of the SEA, crew members shall undergo a prior medical examination and a regular medical examination pursuant to the procedure provided by the Maritime Safety Act (MSA). Under section 26(1) of the MSA, students at a maritime educational institution in the formal educational system, while studying, and crew members, during employment, shall regularly undergo a medical examination to establish their state of health and suitability for work on board a ship. Persons wishing to enter into a seafarer’s contract of employment shall, before entry into the seafarer’s contract of employment, undergo a prior medical examination to establish their state of health and suitability for work on board a ship (section 26(3)). Noting that according to data available at the Office, self-employed fishers account for 58 per cent of this category of workers, the Committee requests the Government to indicate whether the requirement of a medical certificate also applies to self-employed fishers working on board a fishing vessel and to indicate the applicable legislation.

Article 16. Fisher’s work agreement. Particulars set out in Annex II. The Committee notes the Government’s reference to sections 9 and 10 of the SEA to be read in conjunction with section 5 of the ECA, which set out the particulars to be included in the fisher’s work agreement. The Committee observes that some particulars required under Annex II of the Convention, such as the provisions to be supplied to the fisher and the capacity in which the fisher is to be employed/engaged, are not included in the above-mentioned provisions. The Committee requests the Government to indicate the measures to ensure full conformity with Article 16(b) and Annex II of the Convention.

Article 20. Fisher’s work agreement. Signature. The Committee notes the Government’s reference to paragraph 4 of the ECA providing for the requirement of a written employment contract. It also notes that paragraph 4(3) of the SEA provides that crew members shall enter into a seafarer’s employment contract. In the absence of specific information in this regard, the Committee requests the Government to confirm that each fisher shall have a written fisher’s work agreement signed by both the fisher and the fishing vessel owner or by an authorized representative of the fishing vessel owner. It further requests the Government to confirm that where fishers are not employed or engaged by the fishing vessel owner, the fishing vessel owner is required to have evidence of contractual or similar arrangements.

Article 21(2) and (4). Recovering cost of repatriation. The Committee notes the Government’s information that under paragraph 55(6) of the SEA, if the operator extraordinarily cancels a seafarer’s employment contract due to a “violation of duties” or the crew member’s illness or injury which the crew member withheld upon the entry into the seafarer’s employment contract or which he/she intentionally inflicted on him/herself, the operator may require the crew member to compensate for the costs of his or her repatriation. The Committee recalls that the Convention allows the cost of repatriation to be borne by the fisher only when the same has been found in accordance with national laws, regulations or other measures, to be in “serious default of his or her work agreement obligations” (Article 21(2). The Committee requests the Government to specify what situations constitute “violation of duties” pursuant to paragraph 55(6) of the SEA and how this provision gives effect to Article 21(2) of the Convention. It also requests the Government to provide information on provisions in national legislation setting out the procedure to be followed and the standard of proof to be applied before a fisher can be found to be in “serious default” of her/his employment obligations.

Article 22. Recruitment and placement. The Committee notes under section 71 of the SEA, in order to provide services for crew members, an employment placement service provider shall submit a notice of economic activities according to the General Part of the Economic Activities Code Act, which shall include the undertaking’s written confirmation that it will comply with certain obligations and requirements provided for in paragraphs 70(2) (prohibition of requiring fees) and 72(1). The Committee notes that paragraph 72(1) of the SEA lays out requirements for employment placement service providers who carry out intermediation with respect to crew members of ships with a gross tonnage of 200 or more engaged in international shipping. The Committee observes that it is not clear whether these provisions apply to fishing vessels covered by the Convention. The Committee requests the Government to provide clarifications in this regard. It further requests the Government to provide information on the manner in which fishers working on board fishing vessels navigating in coastal shipping, rivers, lakes or canals, are recruited.

Articles 25, 26 and Annex III. Accommodation. Various requirements. The Committee notes that Regulation No. 112 concerning requirements for accommodation on fishing vessels referred to by the Government gives application to these provisions of the Convention. The Committee notes that the Government has not provided information on how the following requirements included in Annex III are implemented: the definition of a new fishing vessel (paragraph 1); ensuring compliance in case of new construction or reconstruction (paragraph 9); submission of plans on accommodation to the competent authority (paragraph 10); ensuring that ventilation systems are controlled and operative at all times when fishers are on board (paragraph 25); ensuring that ventilation arrangements are in place to protect non-smokers from tobacco smoke (paragraph 24); ensuring that the system of heating is operative when fishers are living or working on board (paragraph 27); ensuring that air conditioning is also provided on the bridge, radio room and any centralized machinery control room (paragraph 28); ensuring means of blocking the light in case sleeping spaces have natural light (paragraph 30); providing emergency lighting in sleeping rooms (paragraph 32); the location of mess rooms (paragraphs 51–54); and the establishment of a separate sick bay for all vessels of 45 metres and over covered by the Convention (paragraph 67). The Committee requests the Government to provide information in this regard.

Article 34. Social security. The Committee notes the Government’s indication that social security in Estonia is based on a contributory system. All benefits of this system are guaranteed on an equal basis with Estonian citizens for all permanent residents in Estonia (including fishermen) and those residing in Estonia on the basis of a temporary residence permit or right of residence, for whom social tax has been paid. Social tax is paid by the employer to the employee in relation to the amount of wages and salaries paid in cash and other fees. The Government specifies that there are no special laws on social security regarding fishers. The Committee requests the Government to describe in detail the social security protection benefits granted to fishers who are ordinarily resident in Estonia – including fishers working on foreign-flagged vessels – as well as their dependants, are entitled under conditions no less favourable than those applicable to other workers (including employed and self-employed persons) ordinarily resident in the Estonian territory.

Article 38. Protection in the case of work-related sickness, injury and death. The Committee notes the Government’s indication that during a voyage, a fisherman is provided with medical assistance in case of injury caused by an accident at work and an occupational disease. After returning to home country, the fisherman will be provided with medical assistance in the same way as all others who need medical care. It also notes that paragraphs 34(1) and (2) of the SEA provide that owners shall bear the costs related to the provision of medical care for an ill or injured crew member on board ship or at a healthcare provider as of the day the crew member became ill or injured but at most 16 weeks from the commencement of the injury or sickness. The SEA also includes provisions on the obligations of owners in case of death of the crew members, including the payment of costs of transportation and burial (paragraph 38). The Committee finally notes that section 2(4) of the SEA excludes fishing vessels over 24 metres from the application of the income replacement provisions in paragraph 34(3). The Committee notes the Government’s information that, under the Health Insurance Act, from the fourth to eighth day, the benefit is paid by an employer and from the ninth day and onwards by the Health Insurance Fund. The Committee requests the Government to indicate how it is ensured that all fishers covered by the Convention who work on board Estonian-flagged fishing vessels, including those who do not reside in Estonia, have access to appropriate compensation in accordance with Article 38 of the Convention.

Article 41. Fishing certificate. The Committee notes the Government’s reference to the provisions of the MSA on the fishing certificate (paragraphs 1113 et seq.). It notes in particular that paragraph 1117 of the MSA provides that the format of fishing certificates shall be established by a regulation of the Minister responsible for the area. The Committee requests the Government to indicate whether such a regulation has been adopted, and if so, to provide a summary of the relevant parts. It also requests the Government to supply a model fishing certificate.

Article 43(1). Flag State control. Investigation of complaints. The Committee notes the Government’s information that there have been no investigations during the report period. It also notes that the legislation referred to by the Government, especially the MSA, sets for the procedure for initial, intermediate and renewal inspections, as well as for inspections for the issuance of an interim certificate (sections 1114 et seq.). However, the Government provides no details on the investigation of cases of non-compliance with the requirements of the Convention that involve fishing vessels flying the national flag. The Committee requests the Government to provide information in this regard.