Placing of Seamen Convention, 1920 (No. 9) - Colombia (RATIFICATION: 1933)

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The Committee notes the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), received on 29 and 31 August 2014 respectively. The CTC and the CUT underscore the need to ratify the Maritime Labour Convention, 2006 (MLC, 2006), which revises Conventions Nos 8, 9, 22 and 23 and provides for more suitable standards for the protection of the workers’ rights of seafarers. The Committee requests the Government to send its comments on this matter.

In order to give an overall view of the issues raised regarding the application of maritime conventions, the Committee considers it appropriate to examine these instruments in a single set of comments, as set out below.

Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8). Article 2. Indemnity for unemployment resulting from the loss or foundering of a vessel. The Committee notes that in its report, the Government indicates that, although there are no specific measures to provide unemployment compensation for seafarers in the event of shipwreck, Act No. 1636 of 2013 and Decree No. 2852 of 2013 regulate the mechanism for protection of the unemployed, the aim of which is to ensure social protection for the most vulnerable workers, including seafarers, in the event of unemployment, ensuring that such workers still have access to health, pension savings and family allowances as well as access to labour intermediation and job training. In the absence of any specific protection, the Committee recalls that Article 2 of the Convention requires that, in the event of the loss or foundering of the vessel, every person employed thereon shall be paid an indemnity for all days during which the person remains in fact unemployed. The amount of the indemnity shall be established on the basis of the wages payable under the contract, but the total indemnity may be limited to two months’ wages. The Committee further recalls that according to Article 3, the Convention seeks to ensure that seafarers have the same remedies for recovering such indemnities as they have for recovering arrears of wages earned during the service. The Committee requests the Government to indicate the measures taken or adopted in order to give full effect to the provisions of the Convention.

The Committee notes that the CUT indicates that in the event of shipwreck in the territory of Colombia, the General Maritime Directorate (DIMAR) conducts judicial inquiries into maritime accidents. However, the procedures established by DIMAR are designed to establish causes and liability in maritime accidents and not to reinstate the rights of the workers affected, or to set compensation for them. Consequently, says the CUT, there is no form of protection for these workers. The CUT further indicates that the situation is particularly serious in the case of small and medium-sized vessels on the Pacific coast of Colombia due to the informality of employment in this area. The Committee requests the Government to send its comments on these observations.

Placing of Seamen Convention, 1920 (No. 9). Article 2(1). Business carried on for pecuniary gain. In its previous comments, the Committee noted that private non-fee-charging recruitment and placement services that seek employment for seafarers were authorized to operate pursuant to the provisions of the Labour Code and of Decree No. 3115 of 1997 allowing workers, including seafarers, to be placed by private fee-charging placement or employment agencies, in breach of the provisions of the Convention. The Committee notes that in its report, the Government indicates that Decree No. 3115 of 1997 was repealed by Decree No. 722 of 2013, in turn repealed by Decree No. 2852 of 2013 “to regulate the public employment services and the benefit scheme of the mechanism for the protection of the unemployed, and to establish other provisions”. The Government indicates that with the new employment service created by Act No. 1636 of 2013 and Decree No. 2852 of 2013, it is clearly established that workers, including seafarers, may not be charged any fee whatsoever, whether they are placed by employment agencies, temporary work agencies or the public employment service, in conformity with the provisions of Article 2 of the Convention and that, consequently, no form of placement of seafarers may give rise to the payment of fees by such workers, directly or indirectly, to a person, company, or other agency. The Committee nonetheless notes that the CUT indicates that although the placement of seafarers should be free of charge and carried on by non-fee-charging agencies, the legislation has not as yet been amended in order to align it with the Convention. With regard to Act No. 1636 of 2013 on the establishment of a public employment service, the CUT indicates that since this service is not designed specifically for seafarers and is still being developed, it cannot be regarded as a solution to the placement of workers or be deemed to give effect to the Convention. The CUT further indicates that seafarers are recruited through employment exchanges and almost never directly through agencies, and that there are no public or up-to-date statistics on the situation of workers, labour inspections or procedures to sanction enterprises for failure to observe workers’ rights. The Committee requests the Government to send its comments on these observations. The Committee also requests the Government to provide: (i) information on how compliance with the new Act No. 1636 of 2013 and with Decree No. 2852 of 2013 is monitored; (ii) statistical data on the number of seafarers hired through private employment agencies since the entry into force of the law; and (iii) information on the existence and on the number, if any, of complaints for violation of the provision on the gratuity of services provided by placement agencies.

Seamen’s Articles of Agreement Convention, 1926 (No. 22). Article 3(1) and (2). Conditions and guarantees for the signing of the agreement. In its previous comments, the Committee noted the absence of any provisions giving effect to Article 3(1) and (2) of the Convention. In its report, the Government indicates that the national legislation, particularly Decree No. 1015 of 1995, is consistent with Article 3 of the Convention. In particular, the articles of agreement must be signed by the shipowner or its representative and the seafarer, and must be examined or studied before being signed by the seafarer or the seafarer’s advisor, and must be signed in observance of the minimum rights and guarantees laid down in the legislation of Colombia, the clauses of the agreement being subject to administrative oversight by the Ministry of Labour and judicial oversight by the labour courts. The Government also indicates that since the national labour legislation provides that any clauses of a work contract that violate the law or ILO Conventions are without effect, any articles of agreement of seafarers are bound to be deemed consistent with ILO Conventions. The Committee observes that Decree No. 1015 of 1995, while providing that the clauses of internal work regulations are to be displayed in sites accessible to seafarers, does not provide expressly that seafarers must be able to examine the articles of agreement before signing them, or establish conditions for the signing of the agreement by the seafarer. Bearing in mind that Article 3(1) implies the implementation of practical measures (“Reasonable facilities to examine the article of agreement before they are signed shall be given to the seaman and also to his advisor”) and that Article 3(2) refers expressly to national law as a means of applying the Convention, the Committee requests the Government to provide information on the measures taken to give effect to Article 3(1) and (2) of the Convention.

The Committee notes the observations of the CUT reporting that most seafarers are recruited under verbal agreements and in some instances where they sign an agreement, they are not given a copy. The Committee requests the Government to send its comments on this matter.

Repatriation of Seamen Convention, 1926 (No. 23). Articles 3 and 6. Obligations pertaining to repatriation. On this subject, the Committee notes that in its report the Government indicates that according to section 6(7) of Decree No. 4976 of 2011, as amended by Decree No. 2063 of 2013, the Special Migration Fund covers cases of “support and assistance to Colombians in a foreign territory who need immediate protection because they are highly vulnerable and defenceless and lack any personal means for a dignified return or for assistance”, and that these include instances of repatriation of seafarers. Furthermore, the Committee notes that according to the CUT, the repatriation of seafarers is an ongoing problem and that the Government, as head of DIMAR, has no clear authority to protect crew members and ensure their repatriation, whether they are foreigners in Colombia or Colombians abroad. With regard to foreigners in Colombia, the first problem they meet is the requirement of a visa in order to leave the country. If the shipowner or shipping agent fails to provide the necessary support for the crew member’s repatriation, the latter has to wait, sometimes for months, before being repatriated and the outcome will depend on the support that consulates are able to provide. In such cases the maritime authority does not intervene and is under no obligation to do so. The CUT adds that in the case of Colombian seafarers in other places, DIMAR affords them no form of support for repatriation and that, in practice, it is trade union organizations that advise, provide support and assist in the repatriation process. The Committee requests the Government to send its comments on these observations.

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Article 2, paragraph 1, of the Convention. Pecuniary gain. The Committee notes the adoption of Decree No. 4369 of 2006 concerning temporary employment services, which abrogates Decrees Nos 24 and 503 of 1998. From the information contained in the Government’s report, the Committee understands, however, that private fee-charging recruitment and placement services finding employment for seafarers are still authorized to operate pursuant to the provisions of the Labour Code and of Decree No. 3115 of 1997, which is contrary to the provisions of the Convention. The Committee again requests the Government to bring national legislation into conformity with the Convention.

In this respect, the Committee wishes to point out that the Maritime Labour Convention, 2006 (MLC, 2006), which is the up to date instrument in the field of, inter alia, recruitment and placement of seafarers, does not draw on the provisions of the present Convention. The MLC, 2006, allows for the operation of private recruitment and placement services for pecuniary gain, in conformity with a system of licensing or certification or other forms of regulation and other conditions set out in Title 1.4. The Committee invites the Government to consider the possibility of ratifying the MLC, 2006. The ratification of the MLC, 2006, would entail the denunciation of the present Convention. The Committee would be grateful if, in its next report, the Government would communicate information on any consultations held in this regard and on any progress achieved towards the ratification of the MLC, 2006, which would put an end to the longstanding situation of non-application of the requirements of Convention No. 9.

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The Committee notes that the Government’s report does not contain any replies to the previous comments. It hopes that the next report will provide full information on the points raised in its last direct request, which read as follows:

The Committee notes from the Government’s report, that one fee-charging employment agency continued to operate in Colombia pursuant to the provisions of the Labour Code, Decree No. 3115 of 1997, and Decree No. 24 of 1998.

The Committee recalls that under Article 2, paragraph 1, of the Convention, the business of finding employment for seamen shall not be carried on by any person, company, or other agency, as a commercial enterprise for pecuniary gain; nor shall any fees be charged directly or indirectly by any person, company or other agency, for finding employment for seamen on any ship. Under Article 3, paragraph 1, notwithstanding the provisions of Article 2, any person, company or agency, which has been carrying on the work of finding employment for seamen as a commercial enterprise for pecuniary gain, may be permitted to continue temporarily under government licence, provided that such work is carried on under government inspection and supervision, so as to safeguard the rights of all concerned. Under Article 3, paragraph 2, each Member which ratifies this Convention agrees to take all practicable measures to abolish the practice of finding employment for seamen as a commercial enterprise for pecuniary gain as soon as possible.

Colombia ratified Convention No. 9 in 1933, i.e. almost 70 years ago, and yet private agencies finding employment for seamen are still continuing to operate, even though fees are not borne by the seaman. The Committee asks the Government to take all necessary steps to bring the national legislation and practice into conformity with the requirements of the Convention and to report on any progress made in this respect.

The Committee recalls that the Governing Body of the International Labour Office invited the States parties to Convention No. 9 to contemplate ratifying the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), the ratification of which will, ipso jure, involve the immediate denunciation
of Convention No. 9 (see paragraphs 47 to 51, GB.273/LILS/4(Rev.1), November 1998) and will allow recruitment and placement agencies to operate for pecuniary gain, under the conditions set out in the aforementioned Convention. The Committee would be grateful if, in its next report, the Government would transmit information on any consultations held with this aim.

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The Committee notes from the Government’s report, that one fee-charging employment agency continued to operate in Colombia pursuant to the provisions of the Labour Code, Decree No. 3115 of 1997, and Decree No. 24 of 1998.

The Committee recalls that under Article 2, paragraph 1, of the Convention, the business of finding employment for seamen shall not be carried on by any person, company, or other agency, as a commercial enterprise for pecuniary gain; nor shall any fees be charged directly or indirectly by any person, company or other agency, for finding employment for seamen on any ship. Under Article 3, paragraph 1, notwithstanding the provisions of Article 2, any person, company or agency, which has been carrying on the work of finding employment for seamen as a commercial enterprise for pecuniary gain, may be permitted to continue temporarily under government licence, provided that such work is carried on under government inspection and supervision, so as to safeguard the rights of all concerned. Under Article 3, paragraph 2, each Member which ratifies this Convention agrees to take all practicable measures to abolish the practice of finding employment for seamen as a commercial enterprise for pecuniary gain as soon as possible.

Colombia ratified Convention No. 9 in 1933, i.e. almost 70 years ago, and yet private agencies finding employment for seamen are still continuing to operate, even though fees are not borne by the seaman. The Committee asks the Government to take all necessary steps to bring the national legislation and practice into conformity with the requirements of the Convention and to report on any progress made in this respect. It invites the Government to have recourse to the technical assistance of the ILO in drawing up legislation compatible with the provisions of Convention No. 9. Alternatively, the Government may wish to consider the possibility of ratifying the Recruitment and Placement of Seafarers Convention, 1996 (No. 179) which allows the operation of private recruitment and placement services in conformity with a system of licensing or certification or other form of regulation.

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The Committee notes the information supplied by the Government which replies partly to its previous comments.

1. Article 2 of the Convention.The Committee notes that the Government indicates that it has examined the situation which examination revealed that there is only one employment agency for seafarers who are properly registered. The Committee requests that the Government confirm that this is the only agency either by registration or in practice which purports to continue fee-charging operations pursuant to Decree No. 1433 of 1983. The Committee also requests the Government to indicate what measures it has taken or envisages to take to ensure that it gives full effect to this Article of the Convention which prohibits fee-charging placement, or placement of seafarers by a commercial enterprise for pecuniary gain.

The Committee also requests the Government, once again, to supply detailed information on sanctions imposed on agencies or offices for violations of the provisions of this Article of the Convention.

2. The Committee has noted the draft decree relating to application of Act No. 129 of 1931 ratifying the Convention. Noting that its provisions are designed to give effect to paragraph 1 of Article 2 as well as Article 4 of the Convention it would be grateful if the Government would inform it on the progress of this draft.

3. The Committee notes that the Government's report does not provide the information requested in its previous comments concerning the application of Articles 4, 5 and 10, paragraph 1, of the Convention. It therefore reminds the Government of the terms of its previous observation which was as follows:

Article 4. The Committee notes the information concerning the reorganization of the employment service which is still under way, and in particular, the devolution of the function of promoting and carrying out the administration of a free public employment service to the National Service of Apprenticeship (SENA). The Government indicates, however, that there is no specific regulation of such service in regard to seafarers, though it is contemplated in the above-mentioned Act No. 50 as far as temporary workers are concerned. The Committee reiterates its hope that the Government will not fail to adopt the necessary measures as soon as possible with a view to give full effect to the provisions of this Article which requires the organization of an efficient and adequate system of public employment offices for finding employment for seafarers without charge.

Article 5. The Committee notes with regret that the Government's report contains no information on any measures taken in order to give effect to this Article, which provides for consultations to be held with representatives of shipowners and seafarers through committees constituted to advise on matters concerning the carrying on of public employment offices for seafarers. It once again expresses the hope that such measures will be taken in the very near future and asks the Government to provide, in its next report, information on any progress made in this regard.

Article 10, paragraph 1. The Committee would be grateful if the Government would continue to supply information, statistical or otherwise, concerning unemployment among seafarers and concerning the work of employment agencies for seafarers, as required by this Article of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee takes note of the information provided by the Government in reply to its earlier comments.

Article 2 of the Convention. In its earlier comments the Committee referred to Decree No. 1433 of 1983 which permits the continued operation of temporary employment agencies and fee-charging placement agencies. It also noted the adoption of Act No. 50 of 1990, sections 71 to 94 of which are regulated by Decree No. 1707 of 1991 and concern temporary employment agencies. The Government indicated that in most cases commercial companies do not use the free public employment services but their own recruitment services, or engage seamen through temporary employment agencies. In its latest report the Government expresses the intention to adopt the necessary measures in order to give full effect to this Article of the Convention. The Committee can but reiterate its hope that such measures will be adopted in the nearest future and that they will prohibit the fee-charging placement of seafarers, or their placement by a commercial enterprise for pecuniary gain, in conformity with this Article. It also would be grateful if the Government would provide more detailed information on sanctions for various violations imposed upon such agencies, referred to in the report.

Article 4. The Committee notes the information concerning the reorganization of the employment service which is still under way, and in particular, the devolution of the function of promoting and carrying out the administration of a free public employment service to the National Service of Apprenticeship (SENA). The Government indicates, however, that there is no specific regulation of such service in regard to seafarers, though it is contemplated in the above-mentioned Act No. 50 as far as temporary workers are concerned. The Committee reiterates its hope that the Government will not fail to adopt the necessary measures as soon as possible with a view to give full effect to the provisions of this Article which requires the organization of an efficient and adequate system of public employment offices for finding employment for seafarers without charge.

Article 5. The Committee notes with regret that the Government's report contains no information on any measures taken in order to give effect to this Article, which provides for consultations to be held with representatives of shipowners and seafarers through committees constituted to advise on matters concerning the carrying on of public employment offices for seafarers. It once again expresses the hope that such measures will be taken in the very near future and asks the Government to provide, in its next report, information on any progress made in this regard.

Article 10, paragraph 1. The Committee would be grateful if the Government would continue to supply information, statistical or otherwise, concerning unemployment among seafarers and concerning the work of employment agencies for seafarers, as required by this Article.

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The Committee notes the information supplied by the Government in reply to its earlier comments.

Article 2 of the Convention. The Committee has expressed on several occasions its concern regarding the operation of fee-charging placement services in ports. It notes from the Government's report for the period 1986-90 that in most cases commercial companies do not use the free public employment services but their own recruitment services, or engage seamen through temporary employment agencies. In its earlier comments the Committee referred to Decree No. 1433 of 1983 which permits the continued operation of temporary employment agencies and fee-charging placement agencies. It notes, from the Government's report for the period ending 30 June 1991, the adoption of Law No. 50 of 1990, sections 71 to 94 of which are regulated by Decree No. 1707 of 1991 and concern the same subject. The Committee reiterates its hope that the Government will not fail to adopt the necessary measures in the very near future in order to give full effect to this Article of the Convention which prohibits the fee-charging placement, or placement by a commercial enterprise for pecuniary gain, of seafarers and provides for legal punishment for any violation.

Articles 4 and 10. The Government indicates that under Decree No. 1421 of 1989 the National Service on Apprenticeship (SENA) has been entrusted with the function of promoting and carrying out the administration of a free public employment service. The Committee requests the Government to indicate the extent to which the employment service reorganised in such a way covers seafarers and, more generally, to supply the information requested by the report from under Article 4. It would like to draw the Government's attention once again to the fact that Article 4 requires the organisation of an efficient and adequate system of public employment offices for finding employment for seamen without charge. It also reiterates its hope that the Government will provide the information, statistical or otherwise, requested in Article 10, paragraph 1. The Committee once again expresses the hope that the necessary measures would be taken by the Government in the very near future with a view to give full effect to the provisions of these Articles.

Article 5. The Committee regrets to note that the Government's report contains no new information in reply to its earlier comments concerning the application of this Article. It asks the Government once again to provide full particulars on measures taken or envisaged in order to give full effect to this Article which provides for consultations to be held with representatives of shipowners and seafarers through advisory committees constituted to advise on matters concerning the carrying on of public employment offices for seafarers.

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The Committee takes note of the Government's report containing a brief comment on its observation of 1989. The Government states that a public employment service for finding employment without charge is being developed through the National Employment Service, in the main cities, including those with large fishing and merchant shipping sectors. The Committee takes note of the foregoing, but again observes with regret that the questions it has been raising for several years on the application of the following provisions of the Convention have received no response.

I. 1. Article 2 of the Convention. The Committee has repeatedly expressed its concern regarding the operation of the fee-charging placement services in ports. In its observation of 1984 it referred, in particular, to Decree No. 1433 of 1983 which permits the continued operation of temporary employment agencies and fee-charging placement agencies. The Committee again expresses the hope that the Government will shortly adopt the necessary measures to give full effect to the above provision which prohibits the fee-paying placement, or placement by a commercial enterprise for pecuniary gain, of seafarers and provides for legal punishment for any violation.

2. Articles 4 and 10. In previous reports, the Government has stated that the National Employment Service (SENALDE) would be responsible for finding employment for seafarers. The Committee refers to its comments on the application of the Employment Service Convention, 1948 (No. 88), and recalls that Article 4 of Convention No. 9 requires the organisation of an efficient and adequate system of public employment offices for finding employment for seamen without charge. Accordingly, the Committee again expresses the hope that the Government will provide the information called for by the report form for Convention No. 9, on the organisation of a system of offices for finding employment without charge, in order to give full effect to these provisions.

3. Article 5. The Committee again expresses the hope that arrangements will also be made for consultations to be held with shipowners' and seafarers' representatives in the conditions set out in this Article, and that the Government will provide full particulars in this connection.

II. The Committee recalls that in previous reports, the Government referred to a draft labour law for seafarers that was prepared in 1983 with the assistance of an ILO expert. The Committee hopes that this draft will be re-examined or that, if appropriate, other suitable measures will be considered in order to bring the national legislation and practice into conformity with the Convention. [The Government is asked to report in detail for the period ending 30 June 1991.]