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

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

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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 Denmark on 18 January 2017 and 8 January 2019 respectively. The Committee notes with interest the numerous measures adopted by the Government since it last examined this case in 2016 in order to give full effect to the provisions of the Convention, including the 2014 and 2016 amendments. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article III, paragraph (a), and Article VI, paragraph 2. Part B of the Code. Fundamental rights and principles. In its previous comment, the Committee noted the observations submitted by the Danish Confederation of Trade Unions (LO) regarding the right of Danish trade unions to freely represent in the collective bargaining process all their members – Danish or equated residents and non-residents – working on ships sailing under the Danish flag, and that collective agreements concluded by Danish trade unions may cover all their members working on ships sailing under the Danish flag regardless of residence. The Committee requested the Government to provide information on the progress of tripartite national dialogue with the relevant workers’ and employers’ organizations on this issue and on the ways in which the Government has satisfied itself that the provisions of national laws and regulations respect, in the context of the MLC, 2006, the fundamental right to freedom of association and the effective recognition of the right to collective bargaining. In its reply, the Government refers to its reports under article 22 of the ILO Constitution submitted regarding the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee refers to its direct request on Convention No. 87 published in 2017 in which it requested the Government to clarify, whether seafarers not resident in Denmark but working on board ships registered in Danish International Ships Register (DIS), whether employed under a collective agreement according to section 10(3) of the Act on Danish International Register of Shipping (DIS Act) or individually employed, have the right to become members of a Danish trade union that is not party to the DIS Main Agreement. The Committee further refers to its observation on Convention No. 98 under which it requested the Government to continue to make every effort to ensure full respect of the principles of free and voluntary collective bargaining so that Danish trade unions may freely represent in the collective bargaining process all their members – Danish or equated residents, as well as non-residents – working on ships sailing under the Danish flag, and that collective agreements concluded by Danish trade unions may cover all their members working on ships sailing under the Danish flag regardless of residence. The Committee requested the Government to engage in a tripartite national dialogue and to take the necessary measures to enable all the relevant workers’ and employers’ organizations to participate therein, if they so wish, so as to find a mutually satisfactory way forward, and to indicate in its next report its outcome and any contemplated measures. The Committee once again requests the Government to provide information on the ways in which it has satisfied itself that the provisions of national laws and regulations respect, in the context of the MLC, 2006, the fundamental right to freedom of association and the effective recognition of the right to collective bargaining.

Regulation 1.4, paragraph 3 and Standard A1.4, paragraphs 5(b) and (c)(vi). Recruitment and placement. The Committee had requested the Government to provide information on the application of Standard A1.4, paragraphs 2 and 5 (standardized system of licensing or certification or other form of regulation) to any private recruitment and placement service that may be operating in its territory and to clarify the situation with respect to the use of services operating in countries that have not ratified the Convention. The Committee had further requested the Government to provide information regarding any consultations with shipowners’ and seafarers’ organizations concerned that has taken place when establishing the system of certification. The Committee notes the Government’s indication that all recruitment and replacement services are subject to the mandatory requirements laid down in the Order on the Activities of Recruitment and Placement Services No. 228 of 7 March 2013, which implements the requirements of Standard A1.4, paragraphs 2 and 5. In particular, under section 3 of the Order, a recruitment and placement service shall hold a valid certificate in order to carry out its activities. In addition, the Danish Maritime Authority (DMA) has developed an inquiry form, which agencies must fill before the audit required to obtain certification. In this regard, the Declaration of Maritime Labour Compliance (DMLC), Part I, states that prior to entering into business as recruitment and placement service, agencies must obtain certification from the DMA. The Government has indicated that such certification is only granted to those agencies that prove, among others, that they can provide financial security for covering the seafarer’s economic loss as a consequence of the agency’s mistakes and negligence as well as that of the shipowner’s or employer’s regarding the obligations under the seafarer’s employment agreement (SEA). The financial security may either be a bank guarantee or an insurance. Concerning consultations, the Government states that the draft Order was discussed with the shipowners’ and seafarers’ organizations before it was put to a more formal consultation. The Committee takes notes of this information which replies to its previous query.

Regulation 2.1 and the Code. Seafarers’ employment agreements. Recalling that irrespective of the employment arrangements involved, seafarers are required to have an agreement signed by both the seafarer and the shipowner or a representative of the shipowner, the Committee requested the Government to clarify who are the parties under the Danish law on the SEA and to consider amending the standard form agreement to ensure compliance with Standard A2.1, paragraph 1. In its reply, the Government indicates that the parties to a SEA are the seafarer and the shipowner/employer or a representative. It further indicates that section 2, subsection 2 of Order No. 238 of 7 March 2013 provides that the employee shall be provided with a copy of the employment contract signed by the employer. Even though the provision does not determine that the seafarer shall be furnished with a copy signed by both the employer and employee, there is nothing preventing the seafarer to sign the copy of the employment contract signed by the employer. The Government further states that for the situations where the employer is not the shipowner, section 1(a) of the Consolidated Act on the seafarers’ conditions of employment, etc. (No. 73 of 25 January 2014), provides that the obligations rest with the shipowner irrespective of whether other organizations, companies or persons perform some of these tasks or obligations on behalf of the shipowner. While noting this information, the Committee observes that the existing legislation is not fully in compliance with the Convention as it does not require the shipowner to sign the SEA. The Committee stresses the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. It recalls that, in accordance with Standard A2.1, paragraph 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 therefore requests the Government to indicate the measures taken or envisaged to ensure full compliance with this provision of the Convention.

Regulation 2.4 and the Code. Entitlement to leave. In its previous comment, noting the Government’s indication that seafarers are entitled to a minimum of 2.08 days paid holiday for each month of employment during a calendar year (qualification year), the Committee requested the Government to provide information as to whether seafarers who are paid annual leave when “signing off” are given leave during a period when they are still covered by their employment agreement, and also to clarify whether seafarers are entitled to paid annual leave in accordance with Standard A2.4, paragraph 2, during their first qualifying year. In its reply, the Government indicates that seafarers who are still covered by their employment agreement or signing off, are free to take leave either during the employment period or afterwards. Nonetheless, in accordance with the Order No. 285 of 27 March 2015 on seafarers’ holidays, the employer shall determine, in negotiations with the employee, when the holiday is to be held. Unless otherwise agreed, the holiday shall be considered to be initiated from the day after the seafarer’s arrival in his or her country of residence. Moreover, according to section 5 of this Order, it may by collective agreement be agreed that the holiday is held in the calendar year following the qualifying year. The Government further states that the order was re-issued in 2015 due to changes in the reporting of holidays for land-based personnel, and currently, the Danish Leave (Consolidation) Act No. 167 of 24 February 1997, which provides for leave entitlement is undergoing a revision. The Committee notes however that the Government does not provide information concerning the minimum entitlement of 2.08 days paid holiday per month. The Committee recalls that Standard A2.4, paragraph 2, requires that seafarers are entitled to minimum 2.5 calendar days leave with pay per month of employment. The Committee requests the Government to indicate the measures taken or envisaged to give effect to the requirements of Standard A2.4, paragraph 2 of the Convention.

Regulation 2.5. Standard A2.5.1, paragraph 3. Repatriation. In its previous comment, the Committee noted that section 25(3) of the Consolidated Act on seafarers’ conditions of employment, etc., permits shipowners to deduct from the seafarer’s wages the cost of his/her journey home if the shipowner has found that the seafarer has substantially violated his/her obligations under the conditions of employment. It further noted the observations transmitted by the LO in this regard indicating that section 25 of the said Act is not in compliance with the provisions of the Convention as it does not provide for a judicial finding with respect to the seafarer’s conduct. The Committee requested the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarers employment obligations”. In its reply, the Government indicates that the deduction from the seafarer’s wages for expenses for his or her repatriation can only be done if the shipowner has found that the seafarer has substantially violated his or her obligations under the conditions of employment. This decision will require one or more warnings issued to the seafarer except when the situation requires immediate action. The situation is similar to the one off shore workers being expelled from their place of work, and thus, will only appear in cases of gross negligence or similar substantial violation of the conditions of employment. When the parties do not agree that there has been a substantial violation of the conditions of employment, the case may be decided upon by the courts. While noting this information, the Committee recalls that the possibility provided by Standard A2.5.1, paragraph 3, to recover the cost of the repatriation from the seafarer, it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. In this regard, the Committee draws the Government’s attention to the fact that, while the shipowner may recover the cost of the repatriation under the limited circumstances mentioned above, this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. In light of the above, the Committee requests the Government to indicate the measures taken to give full effect to this provision of the Convention ensuring that the shipowner can only recover the cost of the repatriation when the seafarer has been found to be in serious default of the employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements.

Regulation 2.5. Standard A2.5.2. Repatriation. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee notes the Government’s reference to Order No. 1346 of 21 November 2016 on insurance or other security for covering shipowners’ liability towards the seafarers and the master in case of breach of the employment relationship. The Committee notes with interest that the said Order gives effect to the new provisions concerning financial security in the event of abandonment.

Regulation 3.2 and the Code. Food and catering. In its previous comment, the Committee requested the Government to provide information with respect to how it ensures, in cases where seafarers are provided with an allowance for food, that the requirements under Regulation 3.2, paragraph 1, are met and to provide information on the relevant national requirements for ships to carry fully qualified ships’ cooks. In its reply, the Government indicates that when seafarers are provided with an allowance for food, inspectors are responsible for verifying if such situation may affect the security or the health of seafarers on board the ship. With regard to religious requirements and cultural practices concerning food supplies on board ship, the Government indicates that seafarers bring their own food on board in respect of their religion and culture. As regards ship cooks, the Government refers to section 4 of the Consolidated act of manning of ships. This section refers to safe manning document specifying the safe manning required. The Committee notes however that there is no indication on ships’ cooks. The Committee recalls that Regulation 3.2, paragraph 1, requires that Members ensure that ships flying their flag carry on board and serve food and drinking water of appropriate quality, nutritional value and quantity that adequately covers the requirements of the ship and takes into account the differing cultural and religious backgrounds and that, in accordance with paragraph 2 of this Regulation, food is provided free of charge to seafarers during the period of engagement. Accordingly, the Committee requests the Government to indicate the measures taken to ensure that the requirements under Regulation 3.2, paragraph 1, are met in cases where seafarers are provided with an allowance for food. It also requests the Government to indicate the relevant national requirements for ships to carry fully qualified ships’ cooks.

Regulation 4.1. Standard A4.1, paragraph 1(a) and (b). Medical care on board and ashore. In its previous comment, the Committee requested the Government to provide information with respect to the provision of essential dental care to seafarers working on board ships flying the flag of Denmark. In its reply, the Government indicates that a seafarer is always ensured access to essential dental care. It further refers to Order No. 11331 of 5 December 2005 according to which seafarers on board Danish ships are covered by a special health insurance scheme, administered by the Danish Maritime Authority. The scheme pays subsidies for health services abroad, including the Faeroe Islands and Greenland. These subsidies shall be granted with any limitations applying for corresponding services in Denmark pursuant to health legislation or collective agreements issued pursuant to the Danish Health Act. This includes 50 per cent of the cost of dental treatment. In this connection, the Committee notes that section 3(1) of the said Order provides that “… the special health insurance scheme shall include dental treatment, 50 per cent of the cost if the treatment is equivalent to services qualifying for subsidies in Denmark” (paragraph 2); full cover of costs of drugs purchased in connection with treatment by a medical practitioner, in a hospital, or dental treatment. Consumption from the ship’s medicine chest shall not be covered (paragraph 6). The Committee takes note of this information which replies to 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. In its previous comment, the Committee noted the Government’s indication that, according to subsection 2 of section 30 of the Consolidated Act on seafarers’ conditions of employment, etc., seafarers who are suffering illness or injury at the termination of employment “shall be entitled to care and attendance for the account of the shipowner for up to 16 weeks, not exceeding, however, two weeks after arrival in the country in which he is domiciled”. In this regard, the Committee requested the Government to clarify whether shipowners are required to continue to defray the expense of medical care after the sick or injured seafarers have returned home at the termination of their employment for at least 16 weeks, until recovery or until the sickness or incapacity has been declared of a permanent character. In its reply, the Government indicates that during the course of the service, the shipowner shall defray all expenses incidental to the care and attendance of a seafarer, subject to derogations. When seafarers are suffering from illness or injury, they will be given their normal pay, while they are sick on board the ship. Where the illness continues after the termination of the employment, seafarers are entitled to care and attendance for the account of the shipowner for up to 16 weeks, not exceeding, however two weeks after the arrival in the country in which they are domiciled. This period shall be reckoned from the date of discharge or, if they are not discharged, from the date on which the ship departs. The Government indicates that in the case that an illness is caused by an occupational hazard or injury, the period of two weeks after arriving at the place of domicile does not apply. In that case, the obligation to pay sickness benefits will be transferred to the Danish Maritime Authority, which will continue to pay sickness benefits up to the time when the National Board of Industrial Injuries in Denmark has made a decision on the seafarers’ ability to work, unless that, prior to this decision, the seafarer is declared fit for work. The Government also indicates that, for seafarers resident in Denmark, the obligation to ensure a wages subsidy is transferred to the local governments based on the seafarer’s residence, as in the case with all other Danish residents. The Committee takes notes of this information which responds to the point previously raised.

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. The Committee notes the provisions of Annex 2 of Order No. 1339 of 21 November 2016 on the posting of a declaration on protection of seafarers and the master under the Act on industrial injury insurance (Declaration under Maritime Labour Convention᾽s Standard A4.2.2 on Workers’ Compensation Act). It observes that, by virtue of the said Annex 2, the owner of a vessel is liable to take out insurance covering all persons engaged to work on board Danish flagged vessels under the instruction of the master of the ship with an insurance company meeting the requirements of the Workers’ Compensation Act for the consequences of work accidents and to contribute to labour market insurance to cover the risk of occupational diseases. The Declaration covers any work accident or occupational disease. Where an accident at work or occupational disease occurs on a vessel under Danish flag and the employer has not taken out insurance, the labour market insurance shall pay out any compensation to the injured person or his/her surviving dependants. The employer shall reimburse the labour market insurance for the outlays. The benefits under the Act comprise: (i) compensation for loss of earning capacity; (ii) compensation for permanent injury; (iii) cover of expenses to medicine, healthcare treatment, etc. which is not covered by the Danish national health insurance; (iv) transitional allowance to dependants at death; and (v) compensation for loss of breadwinner. While noting this information with interest, the Committee requests the Government to indicate how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) no pressure is exercised on the seafarer to accept payment less than the contractual amount; (ii)interim payments are made while the situation is being assessed to avoid undue hardship; and (iii) the seafarer receives payment without prejudice to other legal rights (Standard A4.2.1, paragraph 8).

Regulation 4.5 and the Code. Social security. In its previous comment, the Committee requested the Government to provide information on whether seafarers ordinarily resident in Denmark 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. In its reply, the Government indicates that seafarers working on ships operating under the flag of another country who ordinarily reside in Denmark will, when the person is in Denmark be provided with social security protection equivalent to any other citizen residing in Denmark and working on land. The Committee wishes to draw the Government’s attention to the requirements of Regulation 4.5 of the Convention that social protection shall be provided to seafarers who are ordinarily resident in Denmark not only when they are in Denmark, but also when they are on board ship or abroad. The Committee takes note of this information which replies to its previous request.

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 relevant portion of any applicable collective bargaining agreement (Standard A2.1, paragraph 2(b)); copy of the provisions in CBAs on the calculation of the minimum paid annual leave on a basis that differs from a minimum 2.5 days/month (Standard A2.4, paragraph 2); a copy of the relevant national guidelines for the management of occupational safety and health on board ships (Regulation 4.3, paragraph 2); a copy of a report or review prepared by a welfare board, if any, on the welfare services (Standard A4.4); and a copy of the form used for flag State inspector’s reports (Standard A5.1.4, paragraph 12).