Demande directe (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

Convention du travail maritime, 2006 (MLC, 2006) - Suisse (Ratification: 2011)

Autre commentaire sur C186

Demande directe

2018
2014

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General questions on application. Implementing measures. Declaration of Maritime Labour Compliance. Parts I and II. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). Switzerland has previously ratified five maritime labour Conventions, all of which were automatically denounced upon the entry into force of the Convention for Switzerland. The Committee notes that the Government provided a list of legislation implementing the Convention, copies of two applicable laws, maritime circulars and a “collective agreement of employment” (CAE) between the Swiss Shipowners Association and Nautilus International (January 2012). The Committee notes that, aside from statistical information, on most matters the Government refers to the Declaration of Maritime Labour Compliance (DMLC) Part I that it submitted as providing sufficient information on national implementation. The Committee also notes the legislation submitted by the Government, the Federal Act No. 747.30 on Navigation under the Swiss Flag of 23 September 1953 as amended (status as of 20 August 2013) (hereinafter Navigation Act), and Ordinance No. 747.301 of 20 November 1956 implementing the Navigation Act, as amended (status as of 20 August 2013) (hereinafter Navigation Ordinance) to implement the Convention. The Committee understands that the maritime circulars, which are subject to revision, are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. In that respect, the Committee notes that it was provided with two versions of the DMLC Part I with differing information in each including different information with respect to provisions adopted as substantially equivalent. The DMLC Part I (Annex 1 to Circular No. CH 43-0 Rev. 1, January 2013) mainly comprises a list of references to legislation or maritime circulars, with additional information only in connection with medical certificates and hours of rest and, indicates substantial equivalence with respect to paragraphs 3 to 6 of Standard A3.2 and Guideline B3.2.2 for ships’ cooks. The DMLC Part I (Annex 1 to Circular No. CH 43-0 dated 1 April 2012), lists substantial equivalence in relation to medical certificates and use of recruitment and placement services. The Committee assumes that the DMLC Part I dated 2012 has now been replaced by the later version. The DMLC Part II, which is to be prepared by shipowners and approved by the competent authority or an authorized organization, was an example of the form, but did not contain any information showing on-board implementation by a shipowner.

The Committee notes that the DMLC Part I does not provide enough information on national requirements, where they relate to matters for which the Convention envisages some differences in national practice. For example, the DMLC Part I, refers to “Minimum age at sea (Navigation Ordinance, section 16.2), Hazardous work (Circular No. CH 43-5), Night (Standard A1.1.2 of MLC, 2006, and Navigation Ordinance, Article 28)”, but does not actually state what the minimum age is or what period is considered as night (assuming that the minimum age set for seafarers is less than 18). Unless all the referenced documents are carried on board ship and easily accessible, it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters. 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 that substantial equivalence under paragraphs 3 and 4 of Article VI of the Convention is a decision to be taken by a Member, when it considers that it is not in a position to implement the rights and principles set out in Part A of the Code and is satisfied that the requirements in paragraph 4(a) and (b) are met. It is not clear from the information provided how many, and on what matters substantial equivalences have been adopted under Article VI. The Committee requests the Government to provide information with respect to the substantial equivalence(s) it has adopted. It also requests the Government to consider amending the DMLC Part I, to better implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements. The Committee also requests the Government to provide an example of an approved DMLC Part II.

General questions on application. Scope of application. Article II, paragraphs 1(f) and (i), 3 and 5. Seafarers and ships. The Committee notes that paragraph 2 of section 9 of the Navigation Ordinance provides that it applies equally to ships of less than 500 gross tonnage. It also provides that the Swiss Maritime Navigation Office (SMNO) may permit derogations in particular cases as long as concerns with respect to human safety and security are assured. The Committee also notes that the Government indicates that no cases of doubt have arisen with respect to whether any categories of persons would be considered seafarers or with respect to whether the Convention applies to a ship or particular category of ships. Bearing in mind that under the Convention exemptions are possible to a limited extent and only where they are expressly permitted by the Convention, the Committee requests the Government to explain what circumstances are contemplated under section 9, paragraph 2 of the Navigation Ordinance including the circumstances in which an exemption under this section would be considered not to be inconsistent with Switzerland’s obligations under the Convention.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee recalls that paragraph 1(b) of Standard A2.1 requires that seafarers be given an opportunity to examine and seek advice on the seafarers’ employment agreement before signing. It notes that Swiss legislation does not contain any provisions with respect to an opportunity to examine the agreement by the seafarer before signing as required by the Convention. The Committee therefore requests the Government to provide clarifications on how effect is given to paragraph 1(b) of Standard A2.1 of the Convention. Furthermore, the Committee notes that section 80 of the Navigation Act provides that on the request of a crew member a certificate can be issued by the master stating only the nature and duration of the service on board which, for Swiss citizens must be entered in the seamen’s book, and that on special request a seafarer can be issued a certificate showing the seafarer’s quality of work and behaviour. The Committee recalls that under paragraphs 1 and 3 of Standard A2.1 seafarers are entitled to a record of employment which must not contain any statement as to the quality of the seafarer’s work or wages. The Government is requested to provide information with respect to the content of the record of employment and the implementation of paragraph 3 of Standard A2.1. The Government is also requested to provide a copy of a standard form of seafarer employment agreement and a copy of the document which is considered to correspond to the seafarer’s record of employment referred to in Standard A2.1 and Guideline B2.1.

Regulation 2.2 and the Code. Wages. The Committee notes that the legislation does not provide for measures taken by shipowners to provide seafarers with a means to transmit all or part of their earnings to their families or dependants or legal beneficiaries, or for a requirement that charges for these services be reasonable in amount and, unless provided otherwise, shall, in accordance with national laws or regulations, be at the prevailing market rate or official published rate and not unfavourable to the seafarer. The Committee requests the Government to provide information on how it is implementing the requirements under Standard A2.2.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that section 38 of the Navigation Ordinance addresses the entitlement to paid annual leave and refers to the minimum paid annual leave under section 329a of Law of Obligations. This section provides that the employee is entitled, for each year of service, a minimum four weeks of paid annual leave and at least five weeks to employees under the age of 20. The Committee recalls that paragraph 2 of Standard A2.4 sets a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave. The Committee notes that the CAE provided by the Government provides for more than this minimum; however, paragraph 1 of Standard A2.4 requires that the minimum entitlement be set out in legislation. The Committee also recalls that paragraph 2 of Regulation 2.4 requires that seafarers be granted shore leave to benefit their health and well-being and consistent with the operational requirement of their positions. The Committee requests the Government to provide information with respect to the implementation of the minimum period of paid annual leave required under Standard A2.4 and with respect to the measures it has taken to ensure that shore leave is granted to seafarers.

Regulation 2.5 and the Code. Repatriation. The Committee notes that repatriation is provided for under sections 82 and 83 of the Navigation Act and also, in more detail, in Circular No. CH 43-4 (dated 1 January 2012) as well as in the CAE. The Committee notes that these do not provide for the maximum period of service before a seafarer is entitled to repatriation, although the CAE provides (in section 15) for an entitlement to repatriation after six months of continuous service in the case of contracts of unlimited duration. The Committee also notes that Circular No. CH 43-4, section 5, “Loss of the right to repatriation”, at point 5.1.2 provides for the loss of entitlement to repatriation in the case of the seafarer “entering into a new agreement with the same owner, immediately after his or her discharge”. The Committee recalls that paragraph 2(b) of Standard A2.5, refers to the maximum duration of service on board following which a seafarer is entitled to repatriation, and which must be less than 12 months. This period can be established in legislation or other measures or a collective agreement. The Committee requests the Government to provide information regarding the maximum period of service on board before a seafarer is entitled to repatriation and the basis on which the entitlement may be lost.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee understands from section 14 of the Navigation Ordinance, and Circular No. CH 43-6 (1 January 2014 Rev. 2) and the DMLC Part I that, although Switzerland has not ratified the Accommodation of Crews Convention (Revised), 1949 (No. 92), and Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), the requirements in these Conventions will be applied to ships that were constructed before the date the Convention was ratified by Switzerland (21 February 2011). For ships constructed after that date the requirements in Regulation 3.1 and the Code of the Convention apply as set out in the table entitled “Requirements for crew accommodation comparison between MLC and former ILO Conventions Nos 92 and 133”. The Committee notes that the chart refers to specific exemptions which are found either in the chart in a particular colour of ink or are to be found in the DMLC Part I. The Committee notes that the DMLC Part I states “No exemption has been granted.” The Committee requests the Government to provide further information with respect to any exemptions that have been granted to the requirements in Regulation 3.1 and the Code.

Regulation 3.2 and the Code. Food and catering. The Committee notes that the requirements relating to food and catering, including qualifications for ships’ cooks are, set out in sections 32–35 of the Navigation Ordinance and Circular No. CH 43-6 (1 January 2014, Rev. 2). In addition the DMLC Part I refers to the ILO Guidelines on the training of ships’ cooks that were adopted in September 2013 as containing necessary information and guidance, and indicates that they should be available in each shipowner’s office. The Committee recalls that paragraph 8 of Standard A3.2 provides that seafarers working as ships’ cooks must not be less than 18 years old. The Committee requests the Government to clarify how effect is given to the requirement regarding the minimum age for ships’ cooks.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee recalls that Regulation 4.1 and the Code comprise obligations directed to flag States and port States and coastal States. The last two do not apply to Switzerland. However the Committee notes that although both the Navigation Ordinance and the Navigation Act contain requirements with respect to insurance and provisions regarding the cost of medical care including a certain kind of dental care, it is not clear what is required with respect to access to health protection and medical care, set out under Standard A4.1, while on board ship. The Committee also notes that the Government has not provided a copy of the standard medical report form required under paragraph 2 of Standard A4.1.

Furthermore, the Committee notes that the DMLC Part I refers to section 42 of the Navigation Ordinance relating to section 7 of a Specimen Contract for the insurance of the members of the ship’s crew, the CAE and to paragraph 1(d) of Standard A4.1, and states that seafarers may be required to pay up to 20 per cent of treatment in case of illness, subject to a limit of one half of one month’s basic wage and a “franchise of US$30 per case of illness”. The Committee recalls that paragraph 2 of Regulation 4.1 provides that “the protection and care under paragraph 1 of this Regulation shall, in principle, be provided at no cost to the seafarers” and that paragraph 1(d) of Standard A4.1 provides that, “to the extent consistent with the Member’s national law and practice, medical care and health protection services while a seafarer is on board ship or landed in a foreign port are provided free of charge to seafarers”. The Committee also recalls that these provisions are complementary to the provisions in Regulation 4.2 and the Code with respect to shipowners’ responsibility for, inter alia, the expense of medical care. The Committee requests that the Government provide information with respect to any circumstances in which a seafarer would be responsible for contributing to the cost of medical care when on board ship and when landed in a foreign port.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that Circular No. CH 43-7 (1 April 2012) lists a number of instruments including the MLC, 2006 and provisions in the Navigation Act and Navigation Ordinance which deal with various matters, such as minimum age, including insurance, but do not appear to address the requirements under Regulation 4.3 and the Code. The Committee notes, however, that the Circular refers to Regulation 4.3 and Standard A4.3 as applying to all ships and that the shipowner must demonstrate compliance by submitting an annual report on a list of matters, the details of which are set out in an annex to the Circular. The annex was not provided and does not appear to be publicly available. The Committee also notes Circular No. CH 43-5 (1 April 2012) which addresses the prevention of hazardous work for seafarers under the age of 18, and is relevant also to Regulation 1.2, as well as a Circular relating to general procedure for the investigation in the event of incidents. The Committee notes that Circular No. CH 43-7 seems to indicate that implementation rests with the shipowner. Since an approved DMLC Part II was not provided and the annual report as referred to in the Circular was also not provided, it is not possible to assess the extent to which Regulation 4.3 and the Code are implemented. The Committee recalls that there is extensive guidance in Part B of the Code, which must be given due consideration. In that respect the Committee also recalls that in October 2014 an ILO Meeting of Experts on maritime occupational safety adopted guidelines for implementing the occupational safety and health provisions of the Maritime Labour Convention, 2006. The Committee requests the Government to provide information on the implementation of Regulation 4.3 and the Code and to provide the requested documents.

Regulation 4.5 and the Code. Social security. The Committee recalls that the obligation under paragraphs 2 and 3 of Standard A4.5, is for each Member to take steps according to its national circumstances to provide at least three branches of social security to all seafarers ordinarily resident in its territory and notes that, on ratification, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security as being provided to seafarers ordinarily resident in Switzerland: medical care, sickness benefit, and employment injury benefit. This obligation may be implemented in a number of ways, as set out in paragraph 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. The Committee notes that the Government indicates in additional information to its report that social security benefits are based on Swiss nationality of the seafarer and, for foreigners, on his/her place of residence in Switzerland. The Government refers to a number of bilateral agreements it has and as well as regional arrangements regarding social security that would provide social security to seafarers working on Swiss-flagged ships. However, the Committee notes that the Government’s information does not appear to address the situation with respect to social security protection for seafarers ordinarily resident in Switzerland who may be working on ships flying the flag of another country. The Committee requests that the Government provide information on whether seafarers ordinarily resident in Switzerland working on ships flying the flag of another country are provided with social security protection as required under Regulation 4.5 and the Code.

Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes that Circular No. CH 43-7 (1 January 2013, Rev. 1) provides the information on the inspection and certification programme for the Convention and Circular No. CH 43-1 (1 January 2013) sets out the onboard complaints procedure as required under Regulation 5.1.5 and the Code and that both Circulars refer to the ILO Guidelines on flag State inspections, which were prepared by a tripartite meeting of experts in 2008. The Committee also notes that Circular No. CH 43-7, in paragraphs 2.2 and 2.3 provides that all ships of 200 gross tonnage and above are to be inspected for compliance with the 14 items in the DMLC Part I, even where the ship is not subject to mandatory certification and that paragraph 5.1 requires that inspections be carried out in accordance with the ILO 2008 Guidelines for flag State inspections. The Committee recalls, as reflected in the 2008 Guidelines, that all ships covered by the Convention must be inspected for all working and living conditions, even if the matter is not listed in the DMLC Part I. The Committee understands from the reference to the 2008 Guidelines that flag State inspectors review all matters not just the 14 items listed in the DMLC Part I. The Committee recalls that the MLC, 2006 applies to all ships without a limit related to minimum tonnage. The Committee also notes that a number of documents that were requested were not provided. The Government is requested to provide information clarifying the scope of flag State inspections and to provide the documentation related to the implementation of its flag State responsibilities under the Convention. The Committee notes that the Government indicates the names of recognized organizations it has authorized to carry out flag State inspections on its behalf and provides a copy of the letter that serves as credentials for these inspectors. However, the Committee notes that the Government’s report does not contain information on competence and independence review, including information on any system established for oversight and communication of relevant information to recognized organizations. The Committee requests the Government to provide information on the competency and independence of the organisations concerned as required under this provision of the Convention.

[The Government is asked to reply in detail to the present comments in 2016.]