Medical Examination (Fishermen) Convention, 1959 (No. 113) - Peru (Ratification: 1962)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the reports provided on the application of Conventions Nos 112, 113 and 114. The Committee also notes the information provided by the Government that the Work in Fishing Convention, 2007 (No. 188), is in the process of being submitted to the competent authorities. The Committee requests the Government to provide information on any developments relating to the possible ratification of Convention No. 188.

The Committee notes that the Government refers to the establishment of a Multi-sectoral Commission which prepared a report on work in the fishing sector. The report addresses various subjects, including the revision of Presidential Decree No. 009-76-TR, which regulates the employment contracts of anchovy fishers on small vessels and determines the labour regime of fishers. The Committee requests the Government to provide information on any action taken to follow-up on the report.

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on fishing, the Committee considers it appropriate to examine them in a single comment.

Minimum Age (Fishermen) Convention, 1959 (No. 112). Article 2 of the Convention. Minimum age. The Committee previously requested the Government to specify the applicable national legislation respecting the minimum age for work in fishing. While noting the information provided by the Government, the Committee notes that the legislation that is currently in force does not contain a provision setting in general the minimum age of 15 years for artisanal fishing in accordance with Article 2 of the Convention. The Committee observes in this regard that, according to the information provided by the Government, the proposed new Code for Children and Young Persons, prepared in 2011, which raises the general minimum age for admission to work or employment from 14 to 15 years, is still in the process of being examined by the State. The Committee requests the Government to take the necessary measures to bring the legislation into full conformity with this provision of the Convention.

Medical Examination (Fishermen) Convention, 1959 (No. 113). Article 3 of the Convention. Consultation with organizations of fishing boat owners and fishers. The Committee notes Departmental Decision No. 0745-2018-MGP/DGCG, of 5 July 2018, approving the updating of the rules for the medical examination of seafarers, fishers, personnel on recreational vessels and bahía personnel. The Committee recalls that, in accordance with Article 3(1) of the Convention, the competent authority shall, after consultation with the organizations of fishing boat owners and fishers concerned, where such organizations exist, prescribe the nature of the medical examination to be made and the particulars to be included in the medical certificate. The Committee requests the Government to indicate whether tripartite consultations were held prior to the adoption of the updated rules.

Article 4(1). Period of validity of medical certificates of young fishers. The Committee previously requested the Government to take the necessary measures to ensure that the medical certificate of young fishers has a maximum period of validity of one year, in accordance with the requirements of the Convention. The Committee notes in this respect the Government’s indication that a process is being undertaken of updating the existing rules, which includes the issue of the period of validity of the medical examination of young persons. The Committee requests the Government to take without delay the necessary measures to give effect to Article 4(1) of the Convention, which establishes a period of validity of one year for the medical certificates of young fishers.

Article 5. Examination by an independent medical referee. The Committee previously requested the Government to take the necessary measures rapidly to ensure that a person who, after examination, has been refused a certificate may apply for a further examination by an independent medical referee, in accordance with Article 5 of the Convention. The Committee regrets to note that the Government has not provided information on the adoption of the requested measures. The Committee therefore once again requests the Government to adopt without further ado the necessary measures to give effect to this requirement of the Convention.

Fishermen’s Articles of Agreement Convention, 1959 (No. 114). Article 3 of the Convention. Written articles of agreement. The Committee previously requested the Government to take the necessary measures without delay to ensure that each fisher has written articles of agreement, signed both by the owner of the fishing vessel or his authorized representative and by the fisher, in accordance with the requirements of Article 3. The Committee regrets to note that, according to the information provided by the Government, no progress has been made in this respect. The Committee once again urges the Government to take the necessary measures without delay to give full effect to the provisions of Article 3 of the Convention.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 3 of the Convention. Consultation with fishing-boat owners and fishers’ organizations. The Committee notes the Government’s indication that the regulations adopted on medical examinations of fishers were not the subject of previous consultations with fishing-boat owners and fishers’ organizations, but that they do take into account the relevant standards and recommendations of the respective international organizations. The Committee nevertheless draws the Government’s attention to the importance of the consultation of the employers’ and workers’ organizations concerned in the implementation of international labour standards, including in the application of this Convention. Consultation is fundamental, even when transposing the Government’s international commitments in relation to intergovernmental organizations, such as the International Maritime Organization (IMO), into domestic law. Consequently, the Committee hopes that the Government will not fail to take the necessary measures to hold the consultations provided for in the Convention prior to the adoption of any future provisions for the Convention’s implementation.

Article 4(1). Period of validity of medical certificates of young fishers under 21 years of age. The Committee notes the adoption of Resolution No. 212-2007/DCG amending Resolution No. 268-2006/DCG, on which it commented previously. It notes that under section 3/I of Resolution No. 212 2007/DCG, the maximum period of validity of medical certificates for fishers is three years, but understands that this resolution does not set a reduced period of validity for young fishers. Recalling that under Article 4(1) of the Convention the period of validity of medical certificates for fishers under 21 years of age shall not exceed one year from the date of issue, the Committee hopes that the Government will take the necessary measures rapidly to bring the national legislation into conformity with the Convention on this point. The Committee requests the Government to keep the Office informed of any developments in this connection.

Article 5. Examination by an independent medical referee. The Committee notes that in response to its previous comment on this point, the Government indicates that medical examinations for seafarers are undertaken in certified medical centres and it confirms that there is no provision for a fisher to undergo a new examination if a medical certificate has been refused. The Committee nevertheless emphasizes that the right to appeal to an independent medical referee in the case of refusal to issue a medical certificate is particularly important, where such a refusal would prevent the fisher in question from working and therefore from receiving remuneration. This right is also reaffirmed in Article 11 of Convention on Work in Fishing, 2007 (No. 188). Consequently, the Committee trusts that the Government will take measures rapidly to ensure the effective implementation of this provision of the Convention and requests the Government to forward copies of any legal or regulatory texts adopted to this end.

Part V of the report form. Application in practice. The Committee notes the information provided by the Government regarding the number of fishers registered in Peru, by occupational category, and the number of medical examinations carried out per year. The Committee requests the Government to continue to provide information on the application of the Convention in practice, particularly of the type contained in its last report, with indications on the activities of the labour inspection services, infringements of national legislative provisions giving effect to the Convention, and any remedial action taken.

Finally, the Committee draws the Government’s attention to the fact that Articles 10 to 12 of Convention No. 188 reproduce the majority of the provisions of Convention No. 113, while offering greater flexibility to fishing vessels less than 24 metres in length which ordinarily are at sea for no longer than three days. The Committee emphasizes in this connection that the ratification of Convention No. 188 by a State party to Convention No. 113 entails the automatic denunciation of the latter Convention. The Committee requests the Government to consider the ratification of Convention No. 188 and to keep the Office informed of any decision taken on the matter.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 3 of the Convention. Consultation with fishing-boat owners’ and fishers’ organizations. The Committee notes that the General Directorate of Harbour Authorities and Coastguards is the authority competent to establish the minimum levels determining the capacity of crew members in the fishing sector. The Committee also notes the model medical certificate produced by the General Directorate of Harbour Authorities and Coastguards, and particularly the reference to the age of the fisherman and the type of activity performed on the fishing boat as factors to be taken into consideration in the medical examination. The Committee requests the Government to indicate whether, and in what manner, fishing boat owners’ and fishers’ organizations were consulted in prescribing the nature of the medical examination to be made and the particulars to be included in the medical certificate.

Article 4(1). Period of validity of medical certificates for young fishers under 21 years of age. The Committee notes that, under the terms of section 4/I(4) of resolution No. 268-2006/DCG of 26 June 2006, fishermen under 18 years of age have to undergo a medical examination each year. In this respect, the Committee recalls that, by virtue of the Convention, the medical certificate attesting to fitness for work in maritime fishing shall remain in force for a period not exceeding one year in the case of young persons of less than 21 years of age, and not 18 years of age, as established in the above provision. The Committee requests the Government to indicate the measures adopted or envisaged to bring the national legislation into conformity with the Convention on this point.

Article 5. Examination by an independent medical referee. The Committee notes that resolution No. 268-2006/DCG of 26 June 2006 contains no reference to the possibility for a fisherman who has been refused a certificate to undergo a further examination by an independent medical referee or referees. It also notes that the Government indicated in its previous report that, although there is no specific provision on this subject, nothing prevents the worker concerned from applying for a further examination. In this respect, the Committee recalls that Article 5 of the Convention requires arrangements to be made to enable any person to apply for a further examination by an independent medical referee or referees. The Committee requests the Government to indicate the measures adopted or envisaged to give full effect to this provision of the Convention.

Part V of the report form. Practical application. The Committee notes the Government’s indication that statistical information on the number and nature of the infringements reported will be supplied as soon as it is available. It requests the Government to provide additional information with an indication, among other data, of the number of professional fishers covered by the Convention, the number of medical examinations carried out and certificates issued each year, and any other information which would enable the Committee to assess the manner in which the Convention is applied in practice.

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

The Committee notes the information provided in the Government’s report, and particularly the adoption of Supreme Decree No. 016-2005-DE/MGP of 20 June 2005, respecting administrative procedures relating to the Peruvian navy, and resolution No. 268-2006/DCG on medical examinations of crew members of fishing vessels and traditional fishing boats. However, the Committee would be grateful to be provided with further information on the following points.

Article 3 of the Convention. Consultation with fishing-boat owners’ and fishers’ organizations. The Committee notes that the General Directorate of Harbour Authorities and Coastguards is the authority competent to establish the minimum levels determining the capacity of crew members in the fishing sector. The Committee also notes the model medical certificate produced by the General Directorate of Harbour Authorities and Coastguards, and particularly the reference to the age of the fisherman and the type of activity performed on the fishing boat as factors to be taken into consideration in the medical examination. The Committee requests the Government to indicate whether, and in what manner, fishing boat owners’ and fishers’ organizations were consulted in prescribing the nature of the medical examination to be made and the particulars to be included in the medical certificate.

Article 4, paragraph 1. Period of validity of medical certificates for young fishers under 21 years of age. The Committee notes that, under the terms of section 4/I(4) of resolution No. 268-2006/DCG of 26 June 2006, fishermen under 18 years of age have to undergo a medical examination each year. In this respect, the Committee recalls that, by virtue of the Convention, the medical certificate attesting to fitness for work in maritime fishing shall remain in force for a period not exceeding one year in the case of young persons of less than 21 years of age, and not 18 years of age, as established in the above provision. The Committee requests the Government to indicate the measures adopted or envisaged to bring the national legislation into conformity with the Convention on this point.

Article 5. Examination by an independent medical referee. The Committee notes that resolution No. 268-2006/DCG of 26 June 2006 contains no reference to the possibility for a fisherman who has been refused a certificate to undergo a further examination by an independent medical referee or referees. It also notes that the Government indicated in its previous report that, although there is no specific provision on this subject, nothing prevents the worker concerned from applying for a further examination. In this respect, the Committee recalls that Article 5 of the Convention requires arrangements to be made to enable any person to apply for a further examination by an independent medical referee or referees. The Committee requests the Government to indicate the measures adopted or envisaged to give full effect to this provision of the Convention.

Part V of the report form. The Committee notes the Government’s indication that statistical information on the number and nature of the infringements reported will be supplied as soon as it is available. It requests the Government to provide additional information with an indication, among other data, of the number of professional fishers covered by the Convention, the number of medical examinations carried out and certificates issued each year, and any other information which would enable the Committee to assess the manner in which the Convention is applied in practice.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report. It would be grateful if the Government provides in its next report information on the organization and working of inspection (Part III of the report form), information concerning the number and nature of the contraventions reported, if such statistics are available (Part V of the report form), as well as a sample of a medical certificate (Article 3 of the Convention).