Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Islas Feroe

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General questions on application. Implementing measures. Principal documents. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (hereinafter, the MLC, 2006). Six maritime labour Conventions have been declared applicable to the Faeroe Islands by the Government of Denmark. They are no longer applicable following the entry into force of the Convention, for this territory. The Government provided a list of legislation implementing the Convention, including the applicable acts, executive orders, and notices issued by the Faroese Maritime Authority (hereinafter, the FMA), a collective bargaining agreement of employment between the Faroese Merchant Shipowners Association and the Faroese Shipmasters and Navigators Association of June 2013 (hereinafter, the CBA of 2013) as well as the Faroese Class Agreement between the FMA and the recognized organizations (hereinafter, the ROs) of 2013. The Committee understands that these executive orders and notices are a form of regulatory action under the relevant legislation and are regarded as having the force of law. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

The Committee notes that the Government refers to the Declaration of Maritime Labour Compliance (hereinafter, the DMLC), Part I and Part II as providing sufficient information on national implementation. It further notes that the DMLC, Part I, contains annexes that do not clearly indicate whether any substantial equivalences have been adopted under paragraphs 3 and 4 of Article VI of the Convention, nor indicate whether any exemptions have been adopted with respect to Title 3. However, the information in the DMLC, Part I, under the items numbered 8 (accommodation), 9 (on-board recreational facilities) and 12 (on-board medical care), refer to “any exemptions or equivalent solutions” and, in the case of item 8 (accommodation), also states that “no exemptions have been made in the Faroese provisions.” The Committee draws the Government’s attention to its general observation adopted in 2014 and recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC, Part I, drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that paragraph 1 of Guideline B5.1.3 provides guidance with respect to the statement of national requirements, including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices. In these cases, the DMLC, Part I, does not appear to fulfil the purpose for which it, along with the DMLC, Part II, is required under the Convention, which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ship. The Committee also recalls, in that respect, that the DMLC does not address all the areas of the Convention which must also be implemented by Members. The Committee requests the Government to indicate any steps taken or envisaged to fully implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to include all of the elements necessary for the DMLC Parts I and II and to provide for concise information on the main content of the national requirements. It also requests the Government to provide information with respect to any substantial equivalences that have been adopted in accordance with paragraphs 3 and 4 of Article VI of the Convention and with respect to any exemptions that it may have adopted after consultation with shipowners’ and seafarers’ organizations. Finally, it requests the Government to provide information on relevant clauses of the SMS/VSMP referenced in the DMLC, Part II.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that section 8(c) of the Act on Seafarers’ Conditions of Employment provides that recruitment and placement services that operate in other countries, whether or not they have ratified the MLC, 2006, or the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), must either have a certificate or licence documenting that the requirements of these Conventions are met or be able to prove that the services concerned meet them. These requirements are also set out in the DMLC, Part I. In its 2014 general observation , the Committee noted “that a number of countries rely on certification of recruitment and placement services, and in some cases appear to equate ratification of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), with the ratification and implementation of the MLC, 2006. The Committee recalls that the MLC, 2006, does not contain exactly the same provisions as Convention No. 179, particularly with respect to the requirements in paragraph 5(b) and (c)(vi) of Standard A1.4 of the MLC, 2006”. The Committee requests the Government to consider amending the Act on Seafarers’ Conditions of Employment and the DMLC, Part I, to bring it into conformity with the requirements of the Convention.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that section 3(1) and (3) of the Act on Seafarers’ Conditions of Employment and section 2(1) of Executive Order No. 43 on the employer’s obligation to conclude a written contract with the seafarer on the conditions of employment (hereinafter, Executive Order on a Written Contract) provide that the employment contract shall be signed by both the seafarer and the shipowner or the employer. The Committee also notes the standard form agreement submitted by the Government which provides that the agreement can be between the seafarer and alternatively a shipowner or a master or an employer. It recalls its 2014 general observation, which stresses the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. In accordance with paragraph 1 of Standard A2.1, every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer). The Committee notes, in this connection, that the agreement is not clear as to who is the responsible party for seafarers’ living and working conditions. The Committee requests the Government to clarify who the parties are under Faroese law on the seafarers’ employment agreement and to consider amending the standard form agreement to ensure that seafarers have an original agreement signed by both the seafarer and shipowner or a shipowner’s representative, as required under paragraph 1 of Standard A2.1. The Committee notes that the standard form for employment agreement and the Executive Order on a Written Contract include all of the elements required in paragraph 4 of Standard A2.1, with the exception of subparagraph (i) regarding the seafarer’s entitlement to repatriation. The Government is requested to consider amending the standard form for employment agreement to ensure that the seafarers’ entitlement to repatriation is included, as required under paragraph 4(i) of Standard A2.1 of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that the Rules of Notice B (Chapter II-3) set out certain technical regulations with respect to the construction and equipment, etc., of ships (hereinafter, Notice B) of all new cargo ships with a length of 15 m or more or with a scantling of 100 or more and passenger ships engaged in international voyages. Noting the absence of information on several provisions of this Regulation, the Committee requests the Government to provide information on how it implements the following points: (i) the availability of individual sleeping rooms for each seafarer (not only adult seafarers) (Standard A3.1, paragraph 9(a)); (ii) the minimum floor area in single berth seafarers’ sleeping rooms (Standard A3.1, paragraph 9(f)); (iii) the minimum floor area on passenger ships and special purpose ships (Standard A3.1, paragraph 9(i)); (iv) the minimum floor area on ships other than passenger ships and special purpose ships (Standard A3.1, paragraph 9(k)); (v) the floor area for seafarers performing the duties of ship’s officers on passenger ships and special purpose ships (Standard A3.1, paragraph 9(l)); (vi) adjoining sitting rooms (Standard A3.1, paragraph 9(m)); (vii) the fact that the clothes locker should be a minimum of 475 litres (Standard A3.1, paragraph 9(n)); and (viii) hospital accommodation (Standard A3.1, paragraph 12).

Regulation 3.2 and the Code. Food and catering. The Committee notes that the Act on Seafarers’ Conditions of Employment sets out certain provisions concerning food and drink on board ships. Noting the lack of information on some points of this Regulation, the Committee requests the Government to explain how it ensured that: (i) ships that fly its flag meet the minimum standards concerning food and drink supplies, having regard to the duration and nature of the voyage (Standard A3.2, paragraph 2(a)); (ii) in circumstances of exceptional necessity, the limitation of a dispensation permitting a non-fully qualified cook to service in a specified ship only until the next convenient port of call or for a period not exceeding one month (Standard A3.2, paragraph 6); and (iii) documented inspections are carried out in scheduled frequency, in accordance with the ongoing compliance procedure under Title 5 (Standard A3.2, paragraph 7).

Regulation 4.1 and the Code. Medical and dental care. The Committee notes that section 27 of the Act on Seafarers’ Conditions of Employment provides for medical examination and treatment, both on board and ashore, free of charge to the seafarer, but it does not specify whether or not essential dental care is included. The Committee recalls that medical care, including essential dental care, shall be provided at no cost to seafarers working on ships flying the Member’s flag, in accordance with paragraph 1 of Standard A4.1. The Committee requests the Government to provide detailed information with respect to the provision of essential dental care to seafarers working on board ships flying the flag of the Faeroe Islands.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that section 29 of the Act on Seafarers’ Conditions of Employment states that seafarers are entitled to wages during service on board, even if they are unfit to perform their duties due to illness or injury. It notes, however, that there is no mention in this Act or in the CBA of 2013 regarding the shipowners’ obligation to pay wages, in whole or in part, as described by national laws and regulations, to the seafarer from the time of their repatriation or landing until their recovery or, if earlier, until they are entitled to cash benefits under the legislation of the Member concerned, as required under paragraph 3(b) of Standard A4.2 of the Convention. The Committee also notes that sections 29(2) and 30(2) of the Act on Seafarers’ Conditions of Employment limit the liability of the shipowner for payment of wages and medical care and expenses to a period of up to 16 weeks. It recalls in this respect that paragraphs 2 and 4 of Standard A4.2 respectively permit the limitation of the shipowner’s obligation to defray the expenses of medical care and to pay wages for a period not less than 16 weeks from the day of the injury or commencement of the sickness. The Committee requests the Government to clarify whether shipowners are required to continue to pay wages to the sick or injured seafarers until their recovery after they have been repatriated or landed, as required under paragraph 3(b) of Standard A4.2 of the Convention. The Committee also requests the Government to clarify whether, in accordance with paragraphs 2 and 4 of Standard A4.2 of the Convention, shipowners are obliged to defray the expenses of medical care and to pay wages of sick or injured seafarers for not less than 16 weeks from the day of the injury or the commencement of the sickness, unless the seafarer has recovered or the sickness or incapacity has been declared of a permanent character.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that, under section 2(4) of the Act on Safety at Sea, the Faroese Maritime Authority must ensure compliance with the Convention. It recalls that, under Standard A4.3, paragraph 3, laws and regulations and other measures must be reviewed regularly, in consultation with shipowners’ and seafarers’ organizations, with a view to their revision to account for changes in technology and research and the need for continuous improvement. The Committee requests the Government to explain how it implements this provision of the Convention. Furthermore, noting the Government’s reference to various risk assessment forms regarding working conditions, chemistry, disease and safety at sea, the Committee requests the Government to transmit copies of these forms.

Regulation 4.5 and the Code. Social security. The Committee notes that, on ratification, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specified the following branches of social security as being provided to seafarers ordinarily resident in the Faeroe Islands: medical care, sickness benefit, employment injury benefit and maternity benefit. The Committee recalls that this obligation may be implemented in a number of ways, as set out in paragraphs 3 and 7 of Standard A4.5, and the attribution of responsibility may also be the subject of bilateral and multilateral agreements adopted within the framework of a regional economic integration organization, as provided under paragraph 4 of Standard A4.5. In this connection, the Committee notes that, while no copies of national legislation on social security have been provided, the Government has indicated that it is part of two Nordic Conventions, a bilateral agreement with the United Kingdom and, as a territory of Denmark, also has arrangements in place with other members of the European Union regarding social security. However, the information on social security protection for seafarers ordinarily resident in the Faeroe Islands working on ships flying the flag of another country that is not a Member of the European Union or part the agreements is not provided in the Government’s report. The Committee requests that the Government provide information on whether seafarers ordinarily resident in the Faeroe Islands working on ships operating under the flag of another country are provided with social security protection as required under Regulation 4.5 and the Code.

Regulation 5.1.4 and the Code. Inspections. The Committee notes that Circular to RO – 01/2013, which covers all ships of 500 GT or over, engaged in international voyages, or operating from a port or between ports in another country, states that intermediate inspections regarding certification are mandatory and must be carried out every two to three years from the issuance of the maritime labour certificate. This Circular, however, does not provide for inspections on ships not subject to certification under the abovementioned scope of application. The Committee requests the Government to provide additional information including laws, regulations or administrative issuances regulating inspections of ships outside of the scope of Circular to RO – 01/2013.

Regulation 5.2.2 and the Code. Onshore complaint-handling procedures. The Committee notes that section 1 of Executive Order No. 89 on confidentiality in connection with the FMA’s handling of complaints about working and living conditions on board ships provides that complaints on these matters shall remain confidential, without providing any further procedural information. It recalls that Regulation 5.2.2 provides that seafarers on ships calling at port may report a complaint about a breach of the requirements of the Convention. The Committee requests the Government to provide additional information on the onshore complaint procedure, as prescribed by Regulation 5.2.2 of the Convention.

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: the Act on the Maritime Education Programmes (Regulation 1.3); the Act on Compulsory Insurance Against Accidents at Work (Standard A4.2); the Notice on Young People’s Work on Board Ships (Standard A1.1, paragraph 4); a copy of the insurance policy (Regulation 2.5, paragraph 2); the Risk Assessment Form (Standard A4.3, paragraph 8); a copy of legislation regulating social security for seafarers (Regulation 4.5); the conventions and bilateral agreements on social security benefits (Standard A4.5, paragraphs 3, 4 and 8); a copy of Chapter XIII of Notice D regarding technical regulation on the construction and equipment, etc., of passenger ships engaged in domestic voyages (Regulation 5.1); a copy of the guidelines provided to inspectors for flag state inspections under the MLC, 2006 (Standard A5.1.4, paragraph 7); and the written procedure for on board complaints (Standard A5.1.5).