Guideline for an approach to undertaking a comparative analysis (or “gap analysis”) of the Work in

Fishing Convention, 2007 (No. 188) and national laws, regulations or other measures concerning
decent conditions of work on board fishing vessels with regard to minimum requirements for work
on board; conditions of service; accommodation and food; occupational safety and health
protection; medical care and social security

Purpose of this Guideline

 These guidelines suggest the approach the Government may wish to follow in determining
the extent to which its laws and regulations and other measures would need to be adjusted
or complemented to meet the requirements of the Work in Fishing Convention, 2007 (No.
188).
 Undertaking a comparative or “gap” analysis is the first step towards ratification of the
Convention. It consists of a detailed legal analysis of those provisions of national laws,
regulations or other measures that are intended to give effect to the provisions of
Convention No. 188, and it clearly indicates where changes are needed to amend or
otherwise adjust national laws or regulations, or to take other measures, to bring them in
line with at least the minimum provisions of the Convention. An example of the matrix
form of a gap analysis is provided in Appendix I of this document.

 In keeping with Article 19, paragraph 8 of the ILO Constitution, it should be borne in mind
that “In no case shall the adoption of any Convention or Recommendation by the
Conference, or the ratification of any Convention by any Member, be deemed to affect any
law, award, custom or agreement which ensures more favourable conditions to the workers
concerned than those provided for in the Convention or Recommendation.” It should be
noted that a similar provision, is found in Convention No. 188 in Article 6, paragraph 2:
“Nothing in this Convention shall affect any law, award or custom, or any agreement
between fishing vessel owners and fishers, which ensures more favourable conditions than
those provided for in this Convention.”

It would be very helpful if the gap analysis could be preceded by a brief description of the fishing
sector (fleet size and composition, number of fishers, etc.)

The gap analysis should include copies of all relevant legal texts (including texts in the original
language).

Breadth of issues covered by the Convention

As noted above, the Convention addresses a very wide range of issues, including minimum
requirements for work on board; conditions of service; accommodation and food; occupational
safety and health protection; medical care and social security. It will therefore be necessary to
review laws, regulations and other measures falling within the area of responsibility of several
ministries, departments and agencies, and perhaps also regional or local laws, regulations or other
measures. This might involve, for example: the labour ministry, agriculture/fisheries ministry,

1
maritime safety authorities, social security department, port health authorities, coast guard, national
statistics institute, and perhaps others.

Scope of the Convention

Article 2, paragraph 1, provides that “Except as otherwise provided herein, this Convention applies
to ALL fishers and all fishing vessels engaged in commercial fishing operations”. This should be read
in conjunction with the definitions in Article 1. Looking at Article 1(a), note that “commercial
fishing” means ALL fishing operations, including fishing operations on rivers, lakes or canals, with the
exception of subsistence fishing and recreational fishing (See Appendix II for an ILO informal opinion
concerning the meaning of “subsistence fishing”).

When undertaking the gap analysis, it will therefore be very important to review the laws,
regulations and other measures concerning all fishers and fishing vessels engaged in commercial
fishing operations. The analysis should not, for example, automatically exclude “artisanal” or “small-
scale” fishing vessels from its coverage.

Note that Article 1(e) provides that “fisher means every person employed or engaged in any capacity
or carrying out an occupation on board any fishing vessel, including persons working on board who
are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in
the permanent service of a government, shore-based persons carrying out work aboard a fishing
vessel and fisheries observers”.

The scope of the Convention, as noted above, does NOT cover fishers who are not working on
vessels and it would NOT cover fishworkers working ashore (for example, in post-harvesting
activities such as processing (when done ashore) and marketing). Such workers could, however, be
addressed in a separate document.

Note that, in accordance with Article 2, paragraph 2, “In the event of doubt as to whether a vessel is
engaged in commercial fishing, the question shall be determined by the competent authority after
consultation”. It will be important to ensure that the gap analysis reflects the laws, regulations or
other measures concerning all fishers and vessels engaged in commercial fishing vessel operations.
If there is doubt at this stage (the stage of undertaking the gap analysis) these fishers and vessels
should be included.

Article 2, paragraph 3, provides that “Any Member, after consultation, may extend, in whole or in
part, to fishers working on smaller vessels the protection provided in this Convention for fishers
working on vessels of 24 metres in length and over”. This provision has led some to believe that
Convention No. 188 is mandatory only for vessels over 24 metres in length. This is not the case.
What this provision means is that a State may, after consultation, decide to apply some of the
provisions concerning these larger vessels to smaller vessels. The Convention also includes
provisions for ALL vessels. For example, Article 29 (which concerns medical care) requires ALL
vessels to carry “instructions or other information in a language and format understood by the fisher
or fishers”. Article 30 (which also concerns medical care) requires that “fishing vessels of 24 metres
in length and over, taking into account the number of fishers on board, the area of operation and
the duration of the voyage” *...+ “shall carry a medical guide adopted or approved by the competent

2
authority, or the latest edition of the International Medical Guide for Ships”. However, through
Article 2, paragraph 3, a State may decide, after consultation, to also require the smaller vessels
(those under 24 metres in length) to carry a medical guide and not only instructions.

Implementation

Note that Article 6, paragraph 1 provides that: “Each Member shall implement and enforce laws,
regulations or other measures that it has adopted to fulfil its commitments under this Convention
with respect to fishers and fishing vessels under its jurisdiction” and that “Other measures may
include collective agreements, court decisions, arbitration awards, or other means consistent with
national law and practice”.

As noted, the length of the vessel is one of the primary means of determining whether or not certain
provisions will apply to a particular vessel. Note that, through Article 5, a State may choose to use
Length Overall (LOA) (defined in Article 1(j)) in place of Length (L) (defined in Article 1(i)) throughout
the Convention, and may also use gross tonnage (gt) (as defined in Article 1(h)) for certain
requirements concerning accommodation (See discussion below with respect to Annex III of the
Convention).

Structure of the Convention – provisions for all vessels and provisions for larger vessels and/or
those at sea for longer periods of time

It is very important when undertaking the gap analysis to be aware that for many issues covered by
the Convention (e.g. medical care, as noted above, for occupational safety and health, for
accommodation) the Convention has requirements for ALL vessels and then has higher requirements
for vessels 24 metres in length or more or vessels at sea for longer periods (e.g. more than three
days), or sometimes either or both. It is therefore important, when reviewing national laws,
regulations or other measures, to determine if these are related to vessel size or time spent at sea.

Exclusions or exemptions

 Convention No. 188 provides for two main types of exclusions/exemptions:

Article 3 provides for the possibility of exclusions “where the application of the
Convention raises special problems of a substantial nature in the light of the
particular conditions of service of the fishers or of the fishing vessels' operations
concerned”. These exclusions:
 may be made after consultation by the competent authority with the
representative organizations of employers and workers concerned, and
in particular the representative organizations of fishing vessel owners
and fishers, where they exist;
 may concern all the requirements of this Convention, or only certain of
its provisions; and
 may be made with respect to:
 fishing vessels engaged in fishing operations in rivers, lakes or
canals;

3
  limited categories of fishers or fishing vessels.
When such exclusions are permitted, the competent authority must, where
practicable, take measures, as appropriate, to extend progressively the
requirements under this Convention to the categories of fishers and fishing vessels
concerned.

Therefore, when undertaking the gap analysis, it is necessary to consider all fishers
and all commercial fishing vessels. If fishing vessels are excluded because they are
engaged in fishing operations in rivers, lakes or canals, or because they are among
the limited categories of fishers or fishing vessels excluded, it will still be necessary
to reflect, in the gap analysis document, any laws, regulations or other measures
that may provide protection with respect to the issues addressed in the
requirements of the Convention. This will be necessary in order to undertake the
obligations set out in Article 3, paragraph 3.

Article 4 provides for the possibility of “progressive implementation” of certain

specified provisions of the Convention “where it is not immediately possible for a
Member to implement all of the measures provided for in this Convention owing to
special problems of a substantial nature in the light of insufficiently developed
infrastructure or institutions”. The provisions concerned are:

 Article 10, paragraph 1 (which concerns medical examination)

 Article 10, paragraph 3, in so far as it applies to vessels remaining at sea for
more than three days (which also concerns medical examination)
 Article 15 (which concerns the crew list)
 Article 20 (which concerns the fisher’s work agreement)
 Article 33 (which concerns risk evaluation with respect to occupational
safety and health and accident prevention)
 Article 38 (which concerns protection in the case of work-related sickness,
injury or death)

“Progressive implementation” can only be used in accordance with a plan drawn up

in consultation with the representative organizations of employers and workers
concerned, and in particular the representative organizations of fishing vessel
owners and fishers, where they exist. It cannot be used with respect to fishing
vessels which:
 are 24 metres in length and over; or
 remain at sea for more than seven days; or
 normally navigate at a distance exceeding 200 nautical miles from the
coastline of the flag State or navigate beyond the outer edge of its
continental shelf, whichever distance from the coastline is greater; or

4
  are subject to port State control as provided for in Article 43 of this
Convention, except where port State control arises through a situation of
force majeure.

It will therefore be important to obtain information on the fishing vessels in the

country concerned, particularly as concerns vessels over 24 metres in length, those
navigating long distances from the coastline of the State, and those undertaking
voyages to foreign ports. It may be helpful to include a chart or matrix containing
such information as an introduction or annex to the gap analysis.

Other exemptions may be possible in specific Articles of the Convention. For

example, in Article 10 (which concerns medical examination), paragraph 1 provides
that “No fishers shall work on board a fishing vessel without a valid medical
certificate attesting to fitness to perform their duties” however paragraph 2 provides
that “ The competent authority, after consultation, may grant exemptions from the
application of paragraph 1 of this Article, taking into account the safety and health of
fishers, size of the vessel, availability of medical assistance and evacuation, duration
of the voyage, area of operation, and type of fishing operation”.

Other types of flexibility in the Convention

Substantial equivalence (provided for in Article 14(3) and Article 28(2))

o With respect to manning and hours of rest, Article 14, paragraph 3 provides
that: “The competent authority, after consultation, may establish alternative
requirements to those in paragraphs 1 and 2 of this Article. However, such
alternative requirements shall be substantially equivalent and shall not
jeopardize the safety and health of the fishers.”

o With respect to accommodation, Article 28, paragraph 2, provides that: “A

Member which is not in a position to implement the provisions of Annex III
may, after consultation, adopt provisions in its laws and regulations or other
measures which are substantially equivalent to the provisions set out in
Annex III, with the exception of provisions related to Article 27.”

o “Substantial equivalence” means that there may be differences or deviations

in detail as between the requisite national laws, regulations or other
measures and the prescriptions of the Convention, but that the States
should engage themselves to assure that the general goals intended by the
provisions of the Convention are respected. Thus, where there is not full
conformity with the detailed prescriptions of the Convention, the test to be
applied involves first determining what the general goal or goals of the
Convention is or are, i.e. its object or objects and purpose or purposes.
These may present themselves as one main general goal and several
subordinate goals. The test for substantial equivalence may then be, first,
5
 whether the State has demonstrated its respect for or acceptance of the
main general goal of the Convention and enacted laws or regulations which
conduce to its realisation; and if so, secondly, whether the effect of such
laws or regulations is to ensure that in all material respects the subordinate
goals of the Convention are achieved.

Flexibility in Annex III concerning Accommodation

 Flexibility with respect to existing and undecked vessels – Note that,

in accordance with paragraph 2, Annex III “shall apply to all new,
decked fishing vessels, subject to any exclusions provided for in
accordance with Article 3 of the Convention. The competent
authority may, after consultation, also apply the requirements of
this Annex to existing vessels, when and in so far as it determines
that this is reasonable and practicable.”

 Flexibility with respect to vessels at sea less than 24 hours where

fishers do not live on board – Note that, in accordance with
paragraph 2 of Annex III: “The competent authority, after
consultation, may permit variations to the provisions of this Annex
for fishing vessels normally remaining at sea for less than 24 hours
where the fishers do not live on board the vessel in port. In the
case of such vessels, the competent authority shall ensure that the
fishers concerned have adequate facilities for resting, eating and
sanitation purposes.” Also note, in paragraph 4, that such variations
must be reported to the ILO.

 Flexibility with respect to using gross tonnage instead of Length (L)

or Length Overall (LOA) for certain provisions of Annex III. These
provisions are cited in Annex III, paragraph 8, and concern the
following paragraphs of this Annex:
 paragraph 14 (headroom)
 paragraphs 37, 38 (floor area in sleeping rooms)
 paragraph 41 and 43 (persons in sleeping rooms)
 paragraph 46 (minimum inside dimensions of the berths)
 paragraph 49 (desk suitable for writing, with a chair, in
sleeping rooms)
 paragraph 53 (mess-room accommodation shall be separate
from sleeping quarters)
 paragraph 55 (a refrigerator of sufficient capacity and
facilities for making hot and cold drinks shall be available
and accessible to fishers at all times)
 paragraph 61 (number of tubs or showers or both, number
of toilets, and number of washbasins for fishers)
6
  paragraph 64 (facilities for washing, drying and ironing
clothes)
 paragraph 65 (facilities for washing, drying and ironing
clothes with respect to vessels 45 metres in length and over)
 paragraph 67 (separate sick bay with respect to vessels 45
metres in length and over)

 Flexibility with respect to differing and distinctive religious and

social practices concerning accommodation - Paragraph 84 of
Annex III provides that: “ The competent authority, after
consultation, may permit derogations from the provisions in this
Annex to take into account, without discrimination, the interests of
fishers having differing and distinctive religious and social practices,
on condition that such derogations do not result in overall
conditions less favourable than those which would result from the
application of this Annex.”

Bearing in mind this flexibility in Annex III, it will be important when

undertaking the gap analysis to consider what national laws, regulations or
other measures are applicable (or not applicable) to:

o undecked vessels, and

o vessels at sea less than 24 hours where fishers do not live on board.

It will also be important to know whether or not the country concerned,

whether at the national or local level, uses gross tonnage as the basis for
regulating requirements for accommodation of fishing vessels.

Finally, it will be important to determine whether there are any differences

in national requirements for fishers on the basis of religious or social
practices.

Social dialogue

The Convention calls, frequently, for “consultation”, defined as “consultation by the

competent authority with the representative organizations of employers and workers
concerned, and in particular the representative organizations of fishing vessel owners and
fishers, where they exist”. The possibility of taking advantage of exclusions, exemptions or
flexibility will be considerably diminished if there are no “representative organizations of
employers and workers concerned, and in particular the representative organizations of
fishing vessel owners and fishers” to be consulted or to conclude collective bargaining
agreements relating to permitted variations from the requirements of the Convention.

It is therefore important for arrangements to be made to ensure that all aspects of the living
and working conditions of all fishers come within the responsibility of one or more

7
representative organizations of employers and workers, in particular representative
organizations of fishing vessel owners and fishers.

Administrative structure

It will be important for the country, either at the national or local level, to have in place, or
put in place, the means to enforce national requirements implementing Convention No. 188.
To assist in reviewing what administrative structure already exists and what will be needed,
a matrix concerning Analysis of administrative capacity for implementation of the provisions
of Convention No. 188 has been provided in Appendix III.

8
 Appendix I - Example of a matrix used for a gap analysis

References to the References to the Existing Gaps identified Suggested

Work in Fishing Work in Fishing implementing solutions
Convention, 2007 Recommendation, measures
(No. 188) 2007 (No. 199) –
(guidance, not
binding)

PART I: DEFINITIONS AND SCOPE

Definitions and Scope

Definitions – Article
1

Definitions and scope

of application

Scope- Article 2, 3, 4
and 5

and Annex I

PART II: GENERAL PRINCIPLES

Implementation

- Article 6

Competent
authority and
coordination-
Article 7

Responsibilities of
fishing vessel
owners, skippers
and fishers – Article
8

9
 PART III. MINIMUM REQUIREMENTS FOR WORK ON BOARD FISHING VESSELS

Minimum age – Protection of young

Article 9 persons . Paras. 1-5

Medical examination Medical

– Articles 10 - 12 examination -
Paras. 6-10

PART IV. CONDITIONS OF SERVICE

Manning and hours Competency and

of rest – Articles 13- training.- Para. 11
14

Crew list – Article 15

Fisher’s Work Record of service –

Agreement – Article para. 12, Special
16-20, Annex II measures- para. 13

Repatriation – Article
21

Recruitment and
placement – Article
22 (Recruitment &
placement of fishers;
Private employment
agencies)

Payment of fishers – Payment of fishers

Articles 23-24 – paras. 14-15

PART V. ACCOMMODATION AND FOOD

Accommodation and Paras. 16-34

Food – Articles 25-28;
Annex III

PART VI. MEDICAL CARE, HEALTH PROTECTION AND SOCIAL SECURITY

Medical care – Paras. 35- 39

Articles 29-30

Occupational safety Paras. 40-49

and health and
accident prevention

Articles 31-33

10
Social security – Paras. 50-52
Articles 34 -37

Protection in the case

of work-related
sickness, injury or
death – Article 38-39

PART VII. COMPLIANCE AND ENFORCEMENT

Compliance and
enforcement –
Articles 40-44 Paras. 23-55

11
 Appendix II – Excerpts from an Office informal opinion on the meaning of “subsistence
fishing” with respect to Convention No. 188.

[...]

In your second question, you asked whether Article 2(2) of Convention No. 188 gives
discretion to national authorities for determining, after consultation, what constitutes
subsistence fishing.

Article 2(2) of the Convention reads as follows:

“In the event of doubt as to whether a vessel is engaged in commercial fishing, the
question shall be determined by the competent authority after consultation.”

This provision of the Convention confers certain latitude to the competent authorities
to determine, in the event of doubt, whether a vessel is engaged in commercial fishing. In so
doing, they may have in certain cases to determine whether a vessel is in fact engaged in
subsistence fishing. In this regard, it should be recalled that the definition of commercial
fishing gave rise to very little debate during the Conference discussions that preceded the
adoption of Convention No. 188 (see International Labour Conference, 92nd Session, 2004,
Report V(2), p. 24, and Record of Proceedings, p. 21/15). As the preparatory work shows, the
intention of the drafters of the Convention was to adopt a comprehensive set of standards on
the living and working conditions of fishers and to limit to the extent possible exclusions
from their scope of application. Therefore, it is only in the event of doubt that the competent
national authorities are called upon to determine whether a vessel is engaged in commercial
fishing, it being understood that the conformity of any such determination with the
Convention would eventually be examined by the supervisory bodies of the ILO. Moreover,
the Office is of the view that any approach which would tend to read in Article 2(2) of the
Convention an exemption or exclusion possibility would not be consistent with either the
letter or the spirit of the Convention.

Finally, you asked whether it would be consistent with the Convention to define the
term “subsistence fishing” by reference to criteria such as the number of fishers on board, the
average income arising from fishing operations or the existence of an employment
relationship. The Office has already provided its views on the exact meaning of subsistence
fishing for the purposes of Convention No. 188 following a request made by the International
12
Transport Federation (ITF). You will find enclosed a copy of this document for your
information. As noted therein, the issue of the definition of “subsistence fishing” was raised
on certain occasions during the Conference discussions that preceded the adoption of the
Convention. The Office indicated that the FAO Fisheries Glossary defines “subsistence
fishery” as “a fishery where the fish caught are shared and consumed directly by the families
and kins of the fishers rather than being bought by middle-(wo)men and sold at the next
larger market” (see International Labour Conference, 93rd session, 2005, Report V(2A), p.
77). The FAO Glossary adds that pure subsistence fisheries are rare as part of the products
are often sold or exchanged for other goods or services. As noted in the document attached,
this question was not raised by constituents following these explanations, and it may
therefore be concluded that for the drafters of the Work in Fishing Convention, 2007
(No.188), the FAO Fisheries Glossary provided sufficient guidance on the ordinary meaning
of the term “subsistence fishing” so that no separate definition was warranted. Accordingly,
by the term “subsistence fishing” – as opposed to “commercial fishing” – in Article 1 of the
Convention is to be understood any fishing operations aiming at satisfying the subsistence
needs of the fisher and his/her family and not at obtaining economic gain.
Therefore, to respond to your specific questions, the sole criterion for determining
what constitutes subsistence fishing should be a functional one, i.e. the use and purpose of the
catch (direct consumption by the fisher and his/her family). Elements such as the number of
fishers on board, the average amount of income arising from fishing operations, or the
existence of an employment relationship would appear to bear limited relevance to the
concept of subsistence fishing as understood for the purposes of Convention No. 188.
Therefore, any provision in national law using such criteria to define subsistence fishing
could lead to results that would not be compatible with the Convention.

This is, of course, without prejudice to the possibility offered by Article 3(1) of the
Convention to exclude, under some well-defined conditions, limited categories of fishers or
fishing vessels from all or certain of its provisions.

[...]

13
 Appendix III - Analysis of administrative capacity for implementation of the
provisions of Convention No. 188

References to the References to the Related existing How existing national Ministry/Department
Work in Fishing Work in Fishing national law, law, regulation or /Agency that would
Convention, 2007 Recommendation, regulation or other other measure related be tasked to enforce
(No. 188) 2007 (No. 199) – measure concerning to this issue is this provision of the
(guidance, not this issue enforced. Identify Convention, and what
binding) enforcing agency, additional resources
means of action (e.g. would be needed.
inspection), penalties,
etc. Include any
statistics on
inspections and/or
sample copies of
inspection reports.

PART I: DEFINITIONS AND SCOPE

Definitions and
Scope

Definitions –
Article 1

Definitions and
scope of
application

Scope- Article 2, 3,
4 and 5

and Annex I

PART II: GENERAL PRINCIPLES

Implementation

- Article 6

Competent
authority and
coordination-
Article 7

14
Responsibilities of
fishing vessel
owners, skippers
and fishers – Article
8

PART III. MINIMUM REQUIREMENTS FOR WORK ON BOARD FISHING VESSELS

Minimum age – Protection of

Article 9 young persons .
Paras. 1-5

Medical Medical
examination – examination -
Articles 10 - 12 Paras. 6-10

PART IV. CONDITIONS OF SERVICE

Manning and hours Competency and

of rest – Articles training.- Paras. 11
13-14

Crew list – Article

15

Fisher’ Work Record of service –

Agreement – para. 12, Special
Article 16-20, measures- para.
Annex II 13

Repatriation –
Article 21

Recruitment and
placement – Article
22 (Recruitment &
placement of
fishers; Private
employment
agencies)

Payment of fishers Payment of fishers

– Articles 23-24 – paras. 14-15

PART V. ACCOMMODATION AND FOOD

Accommodation Paras. 16-34

and Food – Articles
25-28; Annex III

PART VI. MEDICAL CARE, HEALTH PROTECTION AND SOCIAL SECURITY

15
Medical care – Paras. 35- 39
Articles 29-30

Occupational safety Paras. 40-49

and health and
accident
prevention

Articles 31-33

Social security – Paras. 50-52

Articles 34 -37

Protection in the
case of work-
related sickness,
injury or death –
Article 38-39

PART VII. COMPLIANCE AND ENFORCEMENT

Compliance and
enforcement –
Articles 40-44 Paras. 23-55

16