Medical Examination (Fishermen) Convention, 1959 (No. 113) - Brazil (RATIFICATION: 1965)

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request, and has no further matters to raise in this regard.

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Articles 3 and 4 of the Convention. Medical examination for fishers – Validity of medical certificates. Further to its previous comment, the Committee notes the adoption of Decree No. 36 of the Ministry of Labour and Employment of 29 January 2008, adding Annex I on industrial and commercial fishing to Regulatory Standard No. 30 (NR-30) of the Ministry of Labour and Employment of 4 December 2002, concerning the safety and health of workers in the maritime sector. More concretely, the Committee notes that under section 5.1 of the new Annex I, shipowners are responsible for implementing the Medical Occupational Health Inspection Programme (PCMSO) with regard to fishers by carrying out regular annual check-ups for all fishers under the age of 18 years and over the age of 45 years, in accordance with Regulatory Standard No. 7 (NR-7). Regarding the validity of medical certificates, the Committee had previously drawn attention to Article 4(1) of the Convention, which requires annual medical examination for all fishers of less than 21 years of age, and asked for measures to be taken in order to bring the legislation into line with the Convention in this respect. However, following the adoption of the Work in Fishing Convention, 2007 (No. 188), which revises Convention No. 113 together with other ILO fishing instruments, it would no longer be required to amend the legislation as Article 12(2) of Convention No. 188 provides for a maximum validity of one year only for fishers under the age of 18. For the rest, Convention No. 188 essentially reproduces the provisions of Convention No. 113, while affording greater flexibility in respect of vessels which are less than 24 metres in length and do not normally remain at sea for more than three days. The Committee accordingly invites the Government to give favourable consideration to the new comprehensive standard on fishers’ working and living conditions and to keep the Office informed of any decision taken in this regard. It also requests the Government to indicate any measures taken as a follow-up to the Americas Regional Seminar on the ILO Work in Fishing Convention, held in Rio in August 2009.

Part V of the report form. Practical application. The Committee notes the statistical information provided by the Government according to which 808 inspection visits relating to occupational health and safety on board fishing vessels were conducted in the period 2008–10, resulting in 66 notices for failure to comply with the relevant legislation, including 26 notices concerning medical certificates. The Committee requests the Government to continue to provide up to-date information concerning the application of the Convention in practice.

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The Committee notes the information provided in the Government’s report, in particular the adoption of Circular No. 61 (instrução normativa) of the Labour Inspection Secretariat – SIT/MTE of 18 January 2006, which establishes the national and regional coordination service of the Port and Maritime Labour Inspectorate, and Regulation MTE-NR 30 of 4 December 2002, on the safety and health of workers in the maritime sector. The Committee would like to receive further information on the following points.

Article 3 of the Convention. Prescribing the nature of the medical examination and the content of the medical certificate. The Committee notes the Government’s indication that fishers are categorized as maritime sector workers by virtue of section 1, paragraph 3, of Decree No. 2596 of 18 May 1998, and that the medical examination of these workers must therefore comply with the provisions of Regulation NR-7, which establishes the Occupational Health Medical Supervision Programme (PCMSO), and Regulation MTE-NR 30 of 4 December 2002 on the safety and health of workers in the maritime sector. It also understands that the Fisheries Sub-Commission, a tripartite body, is working on extending and adapting the legislation to fishers, and that specific regulations for this category of workers are being drawn up. The Committee asks the Government to keep it informed in this regard and to provide a copy of any relevant legal text as soon as it has been adopted.

Article 4. Validity of medical certificates for fishermen under 21 years of age. The Committee notes the information indicating that the validity of periodic medical examinations is established in the PCMSO and can vary from six months to two years, depending on the risks and on the specific duties that the worker concerned must perform. It also notes that, at present, the PCMSO sets the validity of medical certificates for all workers below 18 years of age and over 45 years of age at one year, but that the Fisheries Sub-Commission may soon make amendments so as to bring the legislation into line with the Convention. The Committee hopes that the Government will take the necessary measures without delay, and asks it to keep the Committee informed of any progress made in this area.

Article 5. Examination by an independent medical referee. The Committee notes the Government’s indication that the employee, having been considered unfit for work by the doctor chosen by the employer, may undergo a medical examination by the National Social Security Institute (INSS), and that, ultimately, the judicial authorities establish the worker’s fitness to work. The Committee asks the Government to indicate the legal or regulatory text containing these provisions.

Part V of the report form. The Committee notes the information provided in the labour inspection report for 2003 and the information on the characteristics of the fishing industry (fleet, number of professional fishers and enterprises, capacity and economic importance of the sector, etc.). The Committee asks the Government to continue providing general information on the manner in which the Convention is applied in practice, indicating, for example, the number of professional fishers covered by the Convention and providing statistics, where available, on the number of medical examinations carried out and medical certificates issued each year, extracts of the reports of the national and regional coordination services of the Port and Maritime Labour Inspectorate, information on the number and nature of the contraventions reported and the penalties imposed, etc.

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Articles 3 and 4 of the Convention. The Committee notes the Government’s report which states that the Ministry of Labour and Employment has no specific legislation applicable to fishing boats. It notes, furthermore, that according to the Government’s report under the Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16), medical examinations for all workers are governed by Regulatory Standard No. 7 providing a medical supervisory programme for occupational health under which persons under 18 years of age and over 45 years of age who are in employment subject to the consolidated labour laws, must pass a medical visit annually. The Committee requests the Government to indicate whether this regulatory standard is applicable to employment in the maritime fishing industry. If so, it recalls that by virtue of the Convention, the certificate of physical fitness for maritime fishing must remain in force for a period not exceeding one year for persons of less than 21 years of age, and not 18 years of age as provided in the abovementioned Standard. The Committee trusts that the Government will take appropriate measures to bring national regulations and practice into conformity with the provisions of the Convention.

Article 5. Please indicate the arrangements that have been made to enable persons who have been refused a certificate to apply for a further examination by independent medical referee or referees.

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Article 4, paragraph 1, of the Convention (annual medical examination for young persons under the age of 21). The Committee notes that in accordance with the legislation cited by the Government in its response regarding the application of this Article (regulatory standard No. 7 of the Occupational Health Medical Supervision Programme), an annual examination is required only for those workers under the age of 18. However, Decree No. 70.334/72, which appears in Appendix 2 to the report, increases to 21 years the age of those subject to a compulsory annual examination. The Committee would therefore be grateful if the Government would clarify which of the two standards governs the frequency of examinations for fishermen under the age of 21.