Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Chipre (Ratificación : 2012)

Otros comentarios sobre C186

Solicitud directa

2019
2015

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The Committee notes the Government’s second and third reports on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for Cyprus, respectively, on 18 January 2017 and on 8 January 2019. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee requested the Government, in its previous comment, to explain whether consultations with shipowners’ and seafarers’ organizations have taken place in the event of doubt concerning any categories of persons regarded as seafarers, as stipulated in Article II, paragraph 3 of the Convention. The Committee notes the Government’s indication that consultations in respect of the definition of the term “seafarer” took place during the preparation of the draft bill for the ratification of the MLC, 2006 between the Department of Merchant Shipping (DMS) on behalf of the Government, the Cyprus Shipping Chamber (CSC) and the Cyprus Union of Shipowners (CUS) on behalf of the shipowners’ organizations and SEGDAMELIN PEO and SEK on behalf of the seafarers’ organizations. The Committee takes note of this information, which addresses its previous request.

The Committee also requested the Government to provide further information regarding the “non-marine personnel” referred to in section 2 of the Maritime Labour Convention 2006, (Ratification) and for Matters Connected Therewith Law of 2012 (hereinafter the MLCL). Section 2 defines the seafarer as “any person who is employed in any capacity on board a ship to which this Law applies”. This section, however, exempts the following categories of workers: (i) scientists, researchers, divers, specialist off-shore technicians etc. whose work is not part of the routine business of the ship; (ii) harbour pilots, inspectors, surveyors, auditors, superintendents etc. who although trained and qualified in maritime skills and perform key specialist functions, their work is not part of the routine business of the ship; (iii) guest entertainers, repair technicians, port workers whose work is occasional and short term with their principal place of employment being ashore; and (iv) non-marine personnel, employed under outsourced service agreements, the terms of which determine the conditions under which the service provider will supply the necessary personnel. The Committee notes the Government’s indication that the above-mentioned reference to “non-marine personnel” was introduced to cover similar categories of persons as those listed in point (i), (ii) and (iii) of subsection 2-(1) of the MLCL for carrying out specific operations of the vessel which the crew is not in a position to undertake. The Government further indicates that the duration of stay and the frequency of periods of work spent on board, as well as the location of such personnel’s principal place of work, will be defined on a case by case basis taking into account the nature of the operations needed on board in consultation with Shipowners’ and Seafarers’ organizations as per Circular DMS Circ. No. 24/2012. The Committee notes also the Government’s indication that until 30/06/2019 no case has been examined by DMS regarding the exemption of non-marine personnel. The Committee requests the Government to provide examples of any determinations made in the future in relation to “non-marine personnel”.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Method of calculation. Noting that while section 58(2) of the MLCL sets the annual paid leave at 2.5 calendar days per month of employment of the seafarer, section 13(1) of the Merchant Shipping (Organization of Working Time of Seafarers) Law (OWTL) provides for a “period of four weeks” annual paid leave, which corresponds to a total of 28 days, as opposed to the 30 days (2.5 calendar days for every month) established in the MLCL, the Committee requested the Government to clarify how it implements the requirements of Standard A2.4, paragraph 2. The Committee notes the Government’s indication that Standard A2.4 is given effect by the provisions of section 58(2) of the MLCL and that the interpretation of the provisions of section 13(1) of the OWTL clarifies the point further. The Government further explains that: (a) in accordance with the MLCL, for every month of employment the seafarer is entitled 2.5 days paid leave, therefore the ratio between employment on board and paid leave is 2.5/30=1/12; and (b) in accordance with the OWTL the annual paid leave is 4 weeks which corresponds to 48 weeks of employment on board, therefore the ratio between employment on board and paid leave is 4/48=1/12. The Committee takes note of this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee notes that, while the Government’s report was received after the entry into force of the amendments and DMS Circular No. 37/2016 referred to by the Government informs about these amendments, the Government has not provided any further information related to the laws and regulations giving effect to the new provisions of the Convention. The Committee therefore brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee requested the Government to explain whether consultations with shipowners’ and seafarers’ organizations have taken place with respect to the exemptions provided in section 79 of the MLCL for ships of less than 200 GT from specific provisions of Standard A3.1. The Committee notes the Government’s indication that no exemption has been granted under section 79 of the MLCL, therefore consultations with shipowners’ and seafarers’ organizations have not taken place. The Committee notes also the Government’s indication that if an application for exemption under section 79 of the MLCL is filed, the DMS will proceed in consultation with shipowners’ and seafarers’ organizations before the exemption is granted. The Committee duly takes note of this information, which addresses its previous request.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee noted that section 36(1) of the Merchant Shipping (Fees and Taxing Provisions) Law of 2010 (44(I)/2010) states that the crew manager must ensure that the shipowner complies with his obligations of liability regarding payment of wages in case of accident or sickness, as established in Regulation 4.2. It also noted that section 36(2) of this law further states that, in the case where the shipowner’s liability is not covered by the shipowner with financial security to meet claims of contractual compensation in the event of the death or long-term disability of the seafarers due to an occupational injury, illness or hazard, then such financial security shall be provided by the crew manager, who can act as the seafarer’s employer, and, therefore, to be also bound by the shipowner’s liability. Recalling that managers are included in the definition of “shipowner” according to paragraph 1(j) of Article II of the Convention and the fact that the crew manager may act as the seafarer’s employer, the Committee requested the Government to specify the legislative provisions and measures taken to ensure that managers provide financial security, as well as the forms this may take. The Committee notes the Government’s explanation that the Merchant Shipping (Fees and Taxing Provisions) Law of 2010 (L. 44(I)/2010) was enforced prior to entry into force of the MLCL and that the intention was to secure the implementation of important elements of the Convention. The Government further indicates that the approval of MLCL and its entry into force on 20/08/2013 enacted the provisions of sections 62, 66 and 118 regarding shipowner’s liability. Compliance with these provisions is ensured through the certification procedure carried out by the Recognized Authorizations and inspections conducted by DMS marine surveyors. The 2014 amendments to the Code of MLC, 2006, regarding financial security for shipowner’s liability have been adopted under the tacit acceptance procedure by DMS Circular No. 37/2016 which provides direct access and sufficient coverage to seafarers’ claims for compensation in the event of death or long term disability due to an occupational injury, illness or hazard. The Committee duly takes note of this information, which addresses its previous request.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee notes that while the Government’s report was received after the entry into force of the amendments and DMS Circular No. 37/2016 referred to by the Government informs about these amendments, the Government has not provided any further information related to the laws and regulations giving effect to the new provisions of the Convention. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary); (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. The Committee noted that while section 140 of the MLCL was in conformity with Standard A4.3, paragraph 2(d), section 3.6.2 of the Cyprus Code of Safe Working Practices for Seafarers (hereinafter, the Safety Code) states that a safety committee is desirable for ships with more than five workers, and mandatory when there are more than ten workers. The Committee requested the Government to consider amending the Safety Code in order to bring it into conformity with the Convention. The Committee notes the Government’s indication that although the MLCL provision supersedes the Safety Code, this uncertainty will be remedied through the appropriate amendments in the next revision of the Cyprus Code of Safe Working Practices. The Committee requests the Government to provide information on any developments in this regard.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee requested the Government to provide additional information regarding plans for further development of seafarer welfare facilities in its ports. The Committee notes the Government’s indication that seafarers on board ships calling at the ports of Cyprus are allowed to use ports’ public facilities, including the new passenger terminal recently built in Limassol port. In addition, there is an office of the “Mission to Seafarers” which is located at the premises at the Port of Limassol which also provides a range of facilities. The Committee notes that information, which addresses its previous request.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee requested the Government to provide information on how it is ensured that social security protection is provided to seafarers regardless of the length of employment on board as well as to those who are ordinarily resident in Cyprus and working on ships flying the flag of another country outside of the European Union. The Committee notes the Government’s indication that according to Article 151 of MLCL, a seaman working aboard a Cyprus ship is entitled on the basis of any state, semi-state or private insurance scheme, to social insurance protection which must at least cover medical care, sickness benefit or invalidity benefit, or employment injury benefit, as a result of an occupational accident. The Government further indicates that according to the Social Security Law 59(i)/2010 paragraph 2 of Part I of the First Schedule, employment of persons who fall within the scope of EU Regulation 883/2004, for the coordination of social security systems working aboard ships flying the Cyprus Flag, is considered as insurable employment. According to Paragraph 6 of Part II of the First Schedule of the Social Security Law, persons who fall under the above provision but who do not have the habitual residence in Cyprus and have worked for less than six months aboard a ship flying the flag of Cyprus and are insured in another State, are exempted from paying social insurance contributions in Cyprus. The Committee notes the Government’s explanation that all three of the conditions above have to apply simultaneously in order for a person to be exempted and that the above provision ensures that the persons working aboard ships flying the Cyprus flag are not left without social security insurance (even if they are insured in another country) regardless of their length of employment or habitual residence. The Committee also notes the Government’s indication that in the event they are notified that a seafarer who falls under Paragraph 2 of Part I of the First Schedule of the Social Security Law 59(i)/2010, working on board a ship flying the flag of Cyprus is not insured under the Cyprus Social Security Scheme, the Social Security Services request that the employer provides sufficient evidence that the conditions of the exception are met, such as a certificate of his/her insurance. Failure to provide such evidence will render the employer/ship-owner subject to the sanctions stipulated in the Ratifying law as well as of the penalties stipulated in the Social Insurance law in respect of undeclared work and unpaid contributions. The Committee finally notes the Government’s indication that the Social Security Services and the Department of Merchant Shipping work in close cooperation on this issue, in order to ensure adherence to the provisions of the MLCL. The Committee also requested the Government to transmit copies of the bilateral and multilateral agreements on social security. The Committee notes the copies of the bilateral agreements of Social Security with Australia, Canada (Quebec), Serbia and Egypt submitted by the Government. The Committee also notes the Government’s indication that it is in the final stages of concluding an agreement with New Zealand. The Government further states that no case of seafarers, ordinarily residents of Cyprus, working on board ships flying a non-EU Member State flag, has been recorded so far. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee requested the Government to provide a sample copy of an agreement between Cyprus and a recognized organization. The Committee notes the Government reference to the GISIS website of the International Maritime Organization which contains an updated list of the Recognized Organizations authorized by Cyprus together with pdf sample agreements. The Committee also notes the letter of 2012 submitted by the Government referring to a follow up to the main agreement between the Government of Cyprus and Rina Services S.p.A, authorizing specific statutory work in respect of the MLC, 2006. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee noted that the DMLC, Part I, even if it includes brief explanations, often only refers to the relevant legislation and documents without further information on the content of the identified provisions. Recalling that unless all of these referenced documents are carried on board ship and are easily accessible to all concerned, it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters, the Committee requested the Government to consider amending the DMLC. The Committee notes the Government’s explanation that all referenced documents must be carried on board and be easily accessible to all concerned. The Government further indicates that paragraphs 12 and 13 of DMS Circ. No. 24/2012 and DMS Circ. No. 27/2006 inform shipowners of their obligation to carry on board the latest version of these documents. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.4 and Standard A5.1.4, paragraphs 10 and 11(b). Flag State responsibilities. Inspection and enforcement. Confidentiality of sources of grievances or complaints. The Committee requested the Government to provide additional information as to how the confidentiality of the information obtained by the inspector is guaranteed, as required under of Standard A5.1.4, paragraphs 10 and 11(b). The Committee notes the Government’s explanation that the Department of Merchant Shipping had adopted a Declaration of Confidentiality to be completed and signed by marine duly authorized officers of the Department of Merchant Shipping for flag and/or Port State Control inspections. The declaration refers to the confidentiality obligation of the inspectors as per Regulation 5.1.4, Standard A5.1.4, paragraph 10 as well as Regulation 5.1.4, Standard A5.1.4, paragraph 11 of the Convention. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee requested the Government to explain how effect is given to the seafarer’s right to complain directly to the master (Standard A5.1.5, paragraph 2) and the seafarer’s right to be accompanied or represented during the complaints procedure (Standard A5.1.5, paragraph 3). The Committee notes the Government’s reference to the on board complaint procedure defined by DMS Circ. No. 24/2012 which gives effect to these requirements. The Committee also requested the Government to explain how effect is given to the requirements concerning the information provided to seafarers on the on-board complaint procedure (Standard A5.1.5, paragraph 4). The Committee notes that the DMS Circ. No. 24/2012, as well as the “Model for on board complaint handling procedures” contain the contact information of the relevant competent authorities and the names of persons on board the ship who may confidentially assist the seafarer regarding the complaint. The Committee takes note of this information, which addresses its previous request.

Regulation 5.2.2 and Standard A5.2.2, paragraph 7. Port State responsibilities. On-shore seafarer complaint-handling procedures. Confidentiality of the complaints. The Committee requested the Government to explain how the confidentiality of complaints made by seafarers is safeguarded (Standard A5.2.2, paragraph 7). The Committee notes that paragraph 4 of Section 21 (entitled “Procedures for complaints”) of The Merchant Shipping (Port State Control) (Amendment) Law of 2015 (Law 155(I)/2015) states that “the Competent Authority ensures that the identity of the complainant is secured and not be revealed to the master or the operator of the ship. In particular the surveyor shall take appropriate steps to safeguard the confidentiality of complaints made by seafarers, including ensuring confidentiality during any interviews of seafarers; Provided that the present subsection applies also with respect to complaints covered by the MLC, 2006.” The Committee takes note of this information, which addresses its previous request.