Solicitud directa (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Luxemburgo (Ratificación : 2011)

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Observación

2023

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2023
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The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code of the MLC, 2006, approved by the International Labour Conference in 2018, entered into force in the country on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by Luxembourg during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II of the Convention. Definitions and scope of application. The Committee notes that, in response to its previous comment on the provisions considered to be “mandatory” of the Act of 9 November 1990, as amended by Bill No. 7329, the Government indicates that all the provisions of the Act are mandatory and are applicable to all seafarers working on ships flying the Luxembourg flag, unless an exemption is explicitly provided for. The Government specifies in particular that section 3.0.0-3 provides for the possibility for the parties to select the law applicable to the seafarers’ employment agreement, but that the choice of a foreign law does not allow the protection afforded by the law of Luxembourg, the MLC, 2006, or European regulations to be avoided, as they constitute the minimum guarantees to which exemptions can always be applied, but only where they are to the benefit of the seafarers (3.0.0-3(1ter)). While noting this information, the Committee requests the Government to indicate how it ensures compliance, on ships flying the Luxembourg flag, with the mandatory requirements of the Act of 9 November 1990 or with exemptions for conditions that are more favourable to the seafarers where the employment agreement is governed by a foreign law.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application, Seafarers. Determination at the national level. With reference to its previous comment concerning cadets and interns on training courses, the Committee notes the Government’s indication that the law in force in Luxembourg has never allowed work by any persons under 18 years of age, in any capacity whatsoever, on board ships flying the national flag. There are no exceptions to this principle, including with regard to cadets, trainees undergoing training and cooks. The Government indicates that section 3.1.1-1 of Bill No. 7329 amending the Act of 9 November 1990 reinforces this prohibition by providing that in the event of any violation of this rule, the Commissioner is required to order the immediate cessation of the work of the seafarer concerned, with the shipowner being liable to imprisonment of from eight days to six months and a fine of between euros 251 and 25,000, under the terms of section 3.1.1-2. Furthermore, work performed on board by a minor is a ground for prohibiting the ship to leave the port, as provided in section 3.4.4-6(2)(2). The Government adds that this prohibition has been added in the Declaration of Maritime Labour Compliance (DMLC), so that there can be no ambiguity. The Committee notes this information and requests the Government to provide a copy of the DMLC, as so modified.

Regulation 1.2 and the Code. Medical certificate. The Committee notes the Government’s indication that no model medical certificate has been adopted. The “Commissariat aux affaires maritimes” accepts a priori certificates from foreign practitioners issued in compliance with the MLC and/or STCW. The Committee recalls that any Member must adopt a model medical certificate and provide it with its report. The Committee requests the Government to indicate how this provision of the Convention is implemented.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that, in reply to its previous comment on this subject, the Government indicates that section 3.1.2-3(5) of Bill No. 7329 to amend the Act of 9 November 1990, as amended by the Parliamentary Commission, has now been amended to remove the derogation concerning the prohibition on including an evaluation of the quality of the seafarer’s work or an indication of the wages in the document containing the record of employment on board the vessel. The Committee notes this information, which responds to its previous request.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee previously requested the Government to indicate the manner in which it is ensured that the seafarer’s employment agreement contains the required particulars. The Committee notes the Government’s indication that section 3.1.2-5 of Bill No. 7329 to amend the Act of 9 November 1990 sets out the particulars that shall be indicated in the seafarer’s employment agreement and will be amended by a preliminary draft Bill to transpose Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union in order to provide more specifications for the employment agreement. The Committee notes this information.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarer’s employment agreement. Termination, Shorter notice period for urgent reasons. The Committee notes that, in reply to its previous comment on this subject, the Government considers that the circumstances in which the seafarers’ employment agreement may be terminated automatically, as envisaged in section 3.1.2-66 of Bill No. 7329 to amend the Act of 9 November 1990, take into consideration the requirements of Standard A2.1, paragraph 6. The Government also refers to the provisions of section 3.1.2-23 requiring the shipowner to repatriate the seafarer under all the circumstances set out in subsection 5, including in the event of the cessation or suspension of the seafarer’s employment agreement in accordance with the present Act, a collective agreement or in the event of the cessation of the contract for any other similar reason, which it considers as giving effect to the requirements of Standard A2.1, paragraph 6.The Committee notes this information.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Standard for normal working hours. The Committee notes that, in response to its previous comment, the Government indicates that section 3.2.1-11 of Bill No. 7329 to amend the Act of 9 November 1990 has reduced the number of reasons for which the normal hours of work of eight hours may be exceeded without any increase in remuneration, in accordance with Standard A2.3, paragraph 14. The Government adds that the only exception to the established limits with an increase in remuneration is authorized by the Grand Ducal Regulation of 15 December 2021 declaring the general application of the inter-occupational agreement for seafarers (for the period from 1 November 2021 to 31 October 2022) concluded between FEDIL Shipping and the OGBL and LCGB unions, which have national representative status. Under clause 5 of the agreement, the parties agree that in the interests of seafarers and the effective organization of the enterprise, seafarers may be employed above the daily limits (a minimum of ten hours of rest in every period of 24 hours, and a minimum of 77 hours of rest in every period of seven days). The Committee observes that the agreement does not appear to set maximum limits for the exceptions that are possible. The Committee therefore requests the Government to indicate the manner in which it ensures that any exception to the established limits for hours of work is, as far as possible, in accordance with the provisions of Standard A2.3, as required by paragraph 13.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes, in reply to its previous comment on this subject, the Government’s indication that under section 3.1.2-34 of Bill No. 7329 to amend the Act of 9 November 1990, the Grand Ducal Regulation of 15 December 2021 declaring the general application of the inter-occupational agreement for seafarers (for the period from 1 November 2021 to 31 October 2022) concluded between FEDIL Shipping and the OGBL and LCGB unions, which have national representative status, provides in clause 14 that the financial guarantee shall take the form of an insurance policy taken out with one or more providers. The Committee notes that sections 3.1.2-34 to 3.1.2-42 give effect to the requirements of Standard A2.5.2 and that the Government has provided a certificate or documentary proof of the financial guarantee. The Committee notes this information, which responds to its previous request.

Regulation 3.1, paragraph 2. Accommodation and recreational facilities. Scope of application. The Committee notes that, in response to its previous comment, the Government indicates that section 3.2.4-1(1)(2) of the Bill to amend the Act of 9 November 1990 provides that ships constructed before 20 August 2013 shall be subject to the requirements relating to ship construction and equipment that are set out in the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), which shall continue to apply to the extent that they were applicable prior to that date. The Government specifies that, pending the adoption of the Bill, this requirement is set out in the applicable DMLC. The Government adds that the legal system in Luxembourg is monistic and does not necessarily require the transposition into national law of Conventions that have been ratified and duly published in the Official Journal. Finally, the Government indicates that the application of these Conventions is nevertheless controlled within the framework of the Grand Ducal Regulation of 31 May 2015 respecting certain responsibilities of the flag State in relation to compliance with and the enforcement of the MLC, 2006, through inspections by authorized bodies. The Committee notes this information.

Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee notes that section 3.2.4-3 of Bill No. 7329 to amend the Act of 9 November 1990 provides a very general framework for the implementation of Regulation 3.1 and Standard A3.1, which needs to be supplemented by regulations to set out the detailed requirements. Noting that the draft Grand Ducal Regulation envisaged in section 3.2.4-3 is still being drawn up to accompany the entry into force of the Bill with a view to modernizing the applicable legislation, the Committee requests the Government to take the necessary measures to give effect to this requirement of the Convention and to provide information on any developments in this regard.

Regulation 4.2 and Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowner’s liability. Financial security. With reference to the 2014 amendments to the Code of the Convention, the Committee notes the Government’s indication that the requirements of Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2 will be imposed by sections 3.3.2-2 et seq. of Bill No. 7329 to amend the Act of 9 November 1990 and that a Grand Ducal Regulation will specify, in parallel to the entry into force of the Bill, the conditions governing this financial security. The Government indicates that the preliminary draft of the Regulation currently establishes that the financial security must provide for the direct payment of all contractual claims during the period of coverage, without the issue of the shipowner’s liability being taken into account. The Government indicates that the legislator considered, after consulting the social partners, that the most appropriate solution appeared to be liability insurance of the P&I type, as the coverage offered by P&I Clubs already includes most of the compensation related to the shipowner’s health protection and medical care obligations. It adds that this mechanism is already in operation on ships flying the Luxembourg flag. The Committee notes this information.

Regulation 4.3 and Standard A4.3, paragraphs 5 and 6. Health and safety protection and accident prevention. Reporting, statistics and investigation. With reference to its previous comment on the procedures for dealing with reported occupational accidents, the Committee notes the Government’s detailed information concerning the legislation that is in force respecting maritime accidents and the required investigations, which are supplemented by the requirements set out in section 3.3.3-6 of the Bill to amend the Act of 9 November 1990. The Government adds that the website of the Technical Surveys Administration can be used for the public consultation of accident investigations and provides access to the report form for employment or maritime accidents. It also indicates that in the case of reported accidents and diseases, there is not as yet a document that compiles this data due to difficulties related to European law on the protection of the personal data of seafarers. A consultation has been launched with a view to resolving the problem and envisaging a compilation of anonymous data in coordination with the relevant parties (the Luxembourg administration, shipowners and foreign and private social security registration systems). The Committee requests the Government to take the necessary measures to give effect to this requirement of the Convention concerning full statistics of reported accidents and diseases and to provide information on any developments in this regard.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in the territory of Luxembourg. The Committee notes that, in response to its previous comment, the Government indicates that Bill No. 7329 to amend the Act of 9 November 1990 takes into account the following situations: (i) seafarers affiliated to the Luxembourg social security scheme (seafarers resident in Luxembourg or with Luxembourg nationality) have compulsory coverage for the nine contingencies indicated in the declaration made to the ILO on 20 September 2011; and (ii) in the circumstances covered by sections 4.0.0-1(2) and 4.0.0-2, for which shipowners of ships flying the Luxembourg flag are required to take out and contribute to the financing through an approved insurance establishment of a private insurance policy for seafarers who are not resident in Luxembourg, the private insurance coverage must as a minimum provide protection in the following branches: survivors’, old-age, employment accident and occupational disease benefit. In the last instance set out in section 4.0.0-2(2), shipowners’ are dispensed with the requirement to take out the private insurance in question where they demonstrate that the seafarers engaged on a ship flying the Luxembourg flag are affiliated to the social security scheme of their country of residence under the terms of the law of that country in the event that it is a State that has ratified the MLC, 2006. While awaiting the adoption of the Bill, the Government indicates that the requirement to inform seafarers of their social security rights is set out in the applicable DMLC in Annex 1 “Social security: Applicable rules”. The Committee encourages the Government to extend to other branches the minimum coverage envisaged for seafarers who are not covered by the Luxembourg scheme, but by a private insurance scheme, and requests it to keep it informed of any developments in this regard.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee notes that, in response to its previous comment, the Government indicates that its system of quality management has been certified since 2000 in accordance with the ISO 9001 Standard and covers, among other areas, the public administration of crews, the approval and control of maritime enterprises and the directors of maritime enterprises, and general administration, and particularly compliance with the obligations deriving from national, European and international provisions (United Nations, International Maritime Organization and ILO). The Government adds that its inspection and evaluation system is based on delegation to classification societies (statutory inspections and issuing international certificates), supplemented by the inspection of ships by the administration through its own inspection network. The Committee notes this information, which responds to its previous request.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 3 and 4. Flag State responsibilities. Renewal of the Maritime Labour Certificate. The Committee notes that, in response to its previous comment, the Government indicates that section 25 of the Grand Ducal Regulation of 31 May 2015 has been amended by the Grand Ducal Regulation of 25 March 2020 to bring it into conformity with the Code of the MLC, 2006, as amended in 2016, concerning the renewal of the Maritime Labour Certificate. The Committee notes this information, which responds to the point raised previously.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. With reference to its previous comment, the Committee notes that the Government has provided all the documents requested in relation to the inspection system. The Committee notes this information.

Regulation 5.1.5 and Standard A5.1.5, paragraph 4. Flag State responsibilities. Information on on-board complaint procedures. The Committee notes that, in response to its previous comment, the Government indicates that section 44 of the Grand Ducal Regulation of 31 May 2015 respecting certain responsibilities of the flag State with regard to compliance with and enforcement of the MLC, 2006, is given effect through a model document describing the on-board complain procedures which is available on the website of the administration and can be provided to the seafarer by the shipowner. The Government adds that the other information to be provided by the shipowner, including the name of a person or persons on board the ship who can, on a confidential basis, provide seafarers with impartial advice on their complaint, is to be supplied directly by the shipowner, as it is liable to change for each voyage. The Committee notes this information, which responds to the point raised previously.

[The Government is asked to reply in full to the present comments in 2025 .]