Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) - Peru (Ratification: 1962)

In previous comments, the Committee noted certain problems in application of national legislation regarding sickness and accident insurance in the maritime fishing sector and requested the Government to supply information on the measures taken to strengthen the capacity of the inspectorate to supervise application of the national legislation in practice. It also requested the Government to supply statistical information on the number of enterprises in the maritime fishing sector which have taken out the supplementary insurance for high-risk activities (SCTR) instituted by section 19 of the Social Security Modernization Act No. 26790 in regard to health, 1997. In fact, under Supreme Decree No. 009-97-SA issuing regulations under the Act, fishing is considered as a high-risk activity and therefore subject to compulsory SCTR insurance. Under this insurance, workers enjoy a specific system in regard to medical treatment, while cash benefits in the event of incapacity for work are financed by the health insurance scheme.

In this regard, in the further communications received between October 2004 and January 2005, the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates once again drew attention to serious and persistent failure to apply in practice the national legislation and regulations, as well as the lack of will by the Government to confront the existing problems. According to the trade union, shipowners persistently fail to comply with their obligation to affiliate their workers to the supplementary insurance for high-risk occupations which results in depriving them of any protection in the event of illness or accident. The trade union therefore urges the Government to convene a round table at national level in order to find a solution to the problems of social security, health and industrial injury for workers in the industrial maritime fishing sector.

In its latest report received by the Office in October 2005, the Government gives no reply to these concerns or to the requests expressed by the trade union. It provides a list of activities already undertaken or planned by the labour inspection services in various regions of the country in order to supervise the manner in which the obligation to affiliate to the SCTR is complied with in practice by fishing enterprises. Furthermore, it provides the statistical information requested earlier regarding the number of enterprises in the maritime fishing sector affiliated to the SCTR special scheme.

The Committee takes due note of this information and hopes that in its next report the Government will provide its observations regarding the concerns expressed by the above trade union. In regard to medical benefits, first, the Committee notes that on the basis of the statistics supplied by the Government, despite the inspection campaign mentioned in the report, only a small number of enterprises in this sector are actually affiliated to the supplementary insurance for high-risk occupations. Indeed, while there are some 2,541 fishing enterprises in the country, at 22 July 2005 only 168 of them had subscribed to high-risk occupation insurance. The Committee would be grateful if the Government would supply in its next report explanations on this matter, particularly the reasons why workers of certain enterprises are still deprived of this legal protection whereas section 82 of Supreme Decree No. 009‑97-SA issuing regulations under Act No. 26790 provides that all workers performing high-risk activities must be affiliated to the SCTR supplementary insurance. The Committee recalls that it is primarily the duty of the Government to ensure that the protection provided by the Convention is effectively applied and to see that it is fully observed in practice. On this score, the Committee requests the Government to indicate how effect is given in practice to section 88 of Regulation No. 009-97-SA which provides that the insurance institutions must cover sick or injured persons despite failure by employers to make social security payments and may subsequently claim the amounts involved from the employers. Please also provide information on the sanctions imposed on employers who do not comply with their obligations under the SCTR supplementary insurance and on the measures envisaged to oblige all maritime fishing companies to comply with their legal obligations.

With regard to cash benefits due in the event of seafarers’ illness or accident, the Committee would be grateful if the Government would indicate how the Convention is given effect where shipowners fail to contribute to insurance schemes. The Committee recalls that, under Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, the shipowner ceases to be liable for medical assistance or payment of the whole or part of the salary in the event of illness or accident causing temporary incapacity only from the time at which the person concerned becomes entitled to medical benefits under a compulsory insurance scheme.

Furthermore, the Committee notes the Government’s statement that it will shortly provide information on the legal procedures initiated against the Atlántida company for non-payment of social insurance contributions providing cover against invalidity and death. The Committee notes that the new communications from the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates show persistent failure by this company to comply with the law. Bearing in mind the extreme vulnerability of persons in the event of illness or accident, the Committee trusts that the Government, in its next report, will be in a position to indicate the manner in which these cases have been resolved and will communicate all the legal decisions handed down on the question as well as, if applicable, the sanctions imposed on the above enterprise. Please supply information on any benefits received by workers in this enterprise from the insurance institutions and on the action taken by these institutions in their right of recourse against the Atlántida company.

[The Government is asked to reply in detail to the present comments in 2008.]