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

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Finlandia (Ratificación : 2013)

Otros comentarios sobre C186

Solicitud directa

2020
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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 2016 entered into force for Finland on 18 January 2017 and 8 January 2019, respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate. Right to have a further examination. In its previous comments, the Committee requested the Government to indicate how it gives effect to seafarers’ rights to have a further medical examination in cases where they have been refused a certificate or have had a limitation imposed on their ability to work. The Committee notes the Government’s indication that if a seafarer is found not to be fit for service at sea during a pre-sea examination or a periodic examination, he/she can apply for dispensation from the Finnish Transport Safety Agency (FTSA). Before taking a decision on dispensation, the FTSA shall request a second opinion from the Finnish Institute of Occupational Health on the applicant’s health status. It further notes that a dispensation may be granted for no more than two years at a time and, if necessary, limitations or conditions may be added to it. A decision on dispensation granted by the FTSA may be appealed, as provided in Administrative Judicial Procedure Act No. 586/1996. The Committee takes note of this information.

Regulation 1.4 and Standard A1.4, paragraph 7. Recruitment and placement. Investigation of complaints. The Committee noted that chapter 14, section 1, of the Act on Public Employment and Business Service (916/2012) permits a claim for rectification against a decision issued by the employment and economic development office but does not seem to provide for an investigation of complaints and requested the Government to explain how it implements this requirement of the Convention. In its reply, the Government indicates that the Chancellor of Justice and the Parliamentary Ombudsman monitors that authorities and civil servants, public employees and other persons performing a public task comply with the law and fulfil their obligations. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. In its previous comments, the Committee requested the Government to provide clarification on how it is ensured that seafarers are given the opportunity to examine and seek advice on the employment agreement before signing it, as required under Standard A2.1, paragraph 1(b), of the Convention. In its reply, the Government indicates again that, in practice, seafarers are given the opportunity to have sufficient information concerning the conditions of work on board ship. The Committee recalls that the Convention requires that each Member shall adopt laws or regulations giving the seafarer the opportunity to request again the Government to examine and seek advice on the agreement before signing it. The Committee accordingly requests the Government to adopt the necessary measures to give effect to this requirement of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 4(a). Seafarers’ date of birth or age. In its previous comments, the Committee noted that chapter 1, section 3, of the Seafarers’ Employment Contract Act (756/2011), and the Seaman’s Contract of Employment provided by the Government contain almost all of the requirements set out in Standard A2.1, paragraph 4, with the exception of the seafarer’s date of birth or age. It requested the Government to indicate the measures adopted in order to include the seafarer’s date of birth or age in the seafarers’ employment agreement. In its reply, the Committee notes the Government’s indication that chapter 1, section 3, of the Contract of Employment contains inter alia the identity number which includes six numbers referring to the date of birth of the seafarer. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraphs 5 and 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee requested the Government to explain how it is ensured that the agreed notice period shall not be shorter than seven days, as required under Standard A2.1, paragraph 5, with the exception of cases of “compassionate or other urgent reasons” as stated in paragraph 6 of this Standard. In its reply, the Government indicates that, in Finland, collective agreements include comprehensive provisions on notice periods for employment that has lasted more than seven days. For example, according to the collective agreement between the Finnish Seamen’s Union (SMU ry) and the Finnish Shipowners’ Association on passenger vessels in international traffic as well as the collective bargaining agreement for vessels in international commercial trade, the employer must comply with a minimum notice period, which is two months (if employment has continued for zero to five years), and employees must comply with a one-month notice period (if employment has continued for zero to ten years). Unorganized employers are also obligated to comply with the provisions on periods of notice in generally applicable collective agreements. The Committee notes however that neither the collective agreement nor the Seafarers’ Employment Contract Act seem to contain any indication about the circumstances in which a seafarer is authorized to terminate the employment agreement, without penalty, on shorter notice or without notice for compassionate or other urgent reasons, according to Standard A2.1, paragraph 6. The Committee requests the Government to explain how compliance with this requirement of the Convention is ensured.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee requested the Government to: (i) explain how all seafarers, including masters, chief engineers or first mates and chief officers of the catering department of passenger vessels, are covered by the protection afforded by Regulation 2.3; (ii) adopt the necessary measures ensuring that watchkeeping in port is included in the schedule of service in port, emphasizing that such task cannot be considered as an emergency situation; and (iii) provide further details on the procedures for keeping the records on board concerning seafarers’ working hours and the intervals at which the information is recorded as well as a copy of the approved standardized table for shipboard working arrangements, according to Standard A2.3, paragraphs 10 and 11. In its reply, the Government indicates that it has initiated in September 2019 a draft amendment of Seafarer’s Working Hours Act No. 296/1976 implementing Standard A2.3, paragraphs 12 and 14, of the Convention. Such legislative amendment will be examined together with shipowners’ and seafarers’ organizations. The Committee requests the Government to provide information on the progress made in this regard and to provide a copy of the text once it has been adopted.

Regulation 2.5, Standard A2.5, paragraph 1(b)(ii). Repatriation. The Committee requested the Government to explain how it ensures that a reasonable period of time to claim repatriation is indeed given to seafarers before they may lose this entitlement guaranteed by Standard A2.5, paragraph 1(b)(ii) of the Convention. In its reply, the Government indicates that according to chapter 3, section 2, subsection 3, of the Seafarers’ Employment Contracts Act, when terminating or voiding their employment contract, the employee must ask for the right to a paid homeward journey. Seafarers’ and shipowners’ organizations were not aware of any instances in which the provisions may have caused problems or in which the paid homeward journey requested by an employee had been denied. The Committee takes note of this information.

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. In this regard, the Committee takes note with interest that the Seafarer’s Employment Contracts Act (chapter 13, section 13) was amended in 2016 to give effect to Standard A2.5.2. The Committee requests the Government to indicate if it has received requests to facilitate repatriation of a seafarer and, if yes, how did it respond. It further requests the Government to indicate what are the circumstances under which a seafarer is considered abandoned according to national legislation.

Regulation 3.1 and Standard A3.1, paragraph 18. Accommodation and recreational facilities. Frequent inspections. The Committee requested the Government to specify the frequency of the inspections of the seafarers’ accommodation, pursuant to the requirements of Standard A3.1, paragraph 18, of the Convention. In its reply, the Government refers to section 13 of Act 395/2012, which provides that the ship’s master has the right to inspect the seafarers’ accommodation, if there is reason to suspect that the accommodation does not meet the health and safety requirements or if an inspection is necessary to ensure that the accommodation is suitable for living. The Government indicates that more specific provisions on regular inspections could not be included in national law, because such inspection would constitute a violation of the sanctity of the home guaranteed by section 10 of the Finnish Constitution which protects the facilities on board a vessel used for accommodation of a permanent nature. The Committee takes note of this information.

Regulation 3.2 and Standard A3.2, paragraphs 2(c), 3 and 4. Food and catering. Training for ship’s cook. The Committee requested the Government to provide information on the implementation of this provision of the Convention, in particular details on the requirements of a training course for obtaining a cook’s certificate. The Committee notes the Government’s reference in this regard to Decree No. 508/2018 on Manning and Certification of Seafarers, in particular, sections 9, 52, 53 and 54, which contain the requirements for receiving certification as a cook. The content of this training is specified in the Finnish National Agency for Education’s criteria for a basic qualification in the hotel, restaurant and catering industry. The Committee takes note of this information, which addresses its previous request.

Regulation 4.1, Standard A4.1, paragraph 4(d). Medical advice by radio or satellite. The Committee requested the Government to indicate whether the existing system of satellite or radio to provide medical advice is available free of charge, 24 hours a day to all ships, and how this requirement of the Convention is applied in practice. In its reply, the Government refers to the Maritime Search and Rescue Act (1145/2001). According to section 3 of the Act, the Border Guard acts as the leading maritime rescue authority, and is responsible for radio communications related to hazardous situations as well as the transmission of doctor’s services via telephone to vessels (section 3). Maritime search and rescue are on call around the clock. The Committee takes note of this information, which addresses its previous request.

Regulation 4.2 and Standard A4.2.1, paragraph 1(c). Shipowners’ liability. Minimum standards. Expenses of medical care and board and lodging away from home. The Committee requested the Government to clarify the duration of the shipowner’s liability with respect to the seafarer’s medical care and wages, in accordance with Standard A4.2, paragraphs 1(c) and 3. In its reply, the Government refers to chapter 2, section 13, of the Seafarer’s Employment Contracts Act which provides that the employer shall be responsible for the costs of medical treatment, up to a maximum of 112 days. As regards the application of paragraph 3 of Standard A4.2.1, the Government indicates that chapter 2, section 10, of the said Act provides that “employees who are prevented from performing their work by an illness or accident are entitled to pay during illness, shipmasters up to a maximum of 90 days, other employees up to a maximum of 60 days in foreign traffic and up to a maximum of 30 days in domestic traffic”. The Committee recalls that Standard A4.2, paragraph 3, requires that the shipowner shall be liable to pay full wages to the sick or injured seafarers, regardless of their position on board, as long as they remain on board or until the seafarers have been repatriated and from the time when they are repatriated or landed until recovery or, if earlier, until they are entitled to cash benefits under the national legislation. The liability of the shipowner to pay wages in whole or in part shall not be less than 16 weeks. The Committee observes that the legislation referred to by the Government does not give full effect to the provision of the Convention. The Committee therefore requests the Government to indicate the measures taken or envisaged to give full effect to the requirements of Standard A4.2, paragraph 3, of the Convention.

Regulation 4.2 and Standards 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 recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. In this regard, the Committee takes note with interest that the Seafarer’s Employment Contracts Act (chapter 13, section 13) was amended in 2016 to give effect to Standard A4.2.2. The Committee draws the Government’s attention to the following questions: (1) how do 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 the 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)?; (2) does national legislation provide that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (3) 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.

Regulation 4.3 and the Code. Legislation on health and safety protection and accident prevention. The Committee requested the Government to specify whether and how the legislation implementing Regulation 4.3 and the Code takes into account the relevant international instruments dealing with occupational safety and health protection, particularly with respect to maritime employment, as required by Standard A4.3, paragraph 2(a). In its reply, the Government refers to the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces which also applies to ships. The Committee observes however that this law does not contain any reference to the particularities of the work of seafarers. The Committee again requests the Government to indicate how effect is given to Standard A4.3, paragraph 2(a), of the Convention.

Standard A4.3, paragraph 2(d). Ship’s safety committee. The Committee requested the Government to indicate the measures taken to implement this requirement of the Convention. In its reply, the Government refers to the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces. Section 38 of the Act provides that an occupational safety and health committee shall be established at workplaces of at least 20 employees. Recalling that Standard A4.3, paragraph 2(d), specifies that a safety committee shall be established on board ships on which there are five or more seafarers, the Committee requests the Government to indicate the measures taken or envisaged to implement this requirement of the Convention.

Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime labour compliance (DMLC). The Committee requested the Government to consider amending the DMLC, Part I, so as to ensure that it not only provides a reference to the national requirements embodying the relevant provisions of the Convention, but also, to the extent necessary, concise information on the main content of these requirements. In its reply, the Government indicates that it will take the necessary measures to amend the DMLC, Part I. The Committee accordingly requests the Government to provide a copy of the amended DMLC, Part I, once available. Noting the absence of explicit provisions in the legislation, the Committee requested the Government to indicate how it ensures that a valid maritime labour certificate and the DMLC are carried on board the ship in accordance with Standard A5.1.3, paragraph 12. The Committee notes with interest that chapter 13, section 15 of the Seafarers’ Employment Contracts Act, as amended in 2016, gives effect to this provision of the Convention. The Committee further notes with interest the adoption of the Act on Amendments to the Code of the Maritime Labour Convention (447/2018) and the Government Decree on the Entry into Force of the Act on Amendments to the Code of the Maritime Labour Convention (1029/2018), as well as of the amendment to section 8 of the Act on the Working and Living Environment and Catering for Seafarers on Board Ships (395/2012), which give effect to Standard A5.1.3, paragraph 4, of the Convention, as amended in 2016.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee requested the Government to clarify whether the inspection report is, in fact, submitted to the competent authority, as required by the Convention. In its reply, the Government indicates that an inspector from the competent authority enters the inspection report into the VERA system, which will automatically notify the competent authority that the report has been completed. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.5, paragraph 2. On-board complaint procedures. The Committee requested the Government to explain how it is ensured that any kind of victimization of a seafarer for filing a complaint is prohibited and penalized, as required under Regulation 5.1.5, paragraph 2. In its reply, the Government refers to chapter 47, section 3, of the Criminal Code penalizing discrimination when advertising for a job vacancy or when selecting a candidate for such job. In the absence of relevant information on the implementation of this provision, the Committee requests the Government to indicate the measures taken or envisaged to prohibit and penalize any kind of victimization of a seafarer for filing a complaint.