Demande directe (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention du travail maritime, 2006 (MLC, 2006) - Bulgarie (Ratification: 2010)

Autre commentaire sur C186

Demande directe

2023
2019
2015

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General questions on application. Implementing measures. The Committee notes that this is the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006) and that the Government has previously ratified 16 maritime labour Conventions, all of which were denounced following the entry into force of the Convention for Bulgaria.

Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

The Committee notes that the Merchant Shipping Code, as amended in State Gazette No. 108/2006, and the Ordinance for labour and immediately associated relations between the crew and shipowner, as amended in State Gazette No. 32/2014 (hereinafter “Ordinance for Labour”), and several other Ordinances as well as Marine Notices appear to be the main legislation or other measures implementing the Convention. The Committee understands that the Marine Notices are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. The Committee requests the Government to provide a copy of all relevant legislation or other regulatory instruments implementing the Convention.

The Committee reviewed the three examples of Part II of a DMLC prepared by shipowners. It notes that two of the examples of the approved DMLC Part II submitted by the Government mainly contain a list of references to other documents. The Committee draws the Government’s attention to its general observation adopted in 2014 and recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC, Part I, drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that paragraph 1 of Guideline B5.1.3 provides guidance with respect to the statement of national requirements, including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices. In these cases 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, in that respect, that the DMLC does not address all the areas of the Convention, which must also be implemented by members. The Committee suggests that the Government instruct its inspectors to review the examples of DMLC Part II to ensure that they are more informative concerning the ways in which the national requirements are to be implemented between inspections. The Committee also requests the Government to provide a copy of Part I of the DMLC.

General questions on application. Article II paragraphs 1(f) and 2. Scope of application. Definition of the term “seafarer”. The Committee notes the Government’s indication that 900 seafarers currently work on board the 120 ships operating under the Bulgarian flag. The majority of ships are less than 200 GT and do not go on international voyages. Eighteen ships operate on international voyages. The Government has also indicated that there are 17,342 seafarers who are nationals or residents or otherwise domiciled in Bulgaria. Regarding the definition of a seafarer, the Committee notes the Government’s indication that the wording of section 87(1) of the Merchant Shipping Code is to be understood to include all persons employed on board a ship operating under the Bulgarian flag. The Committee recalls its previous comment on the Repatriation of Seafarers Convention, 1987 (No. 166), which stated that while the master, the other officers and the ratings enrolled in the crew list are to be considered as crew, the fact that Bulgarian ships are to be manned with the necessary number of qualified seafarers, seems to narrow the definition of “seafarer” down to persons possessing a certificate of competence or qualification under a convention adopted by the International Maritime Organization. However, the definition in paragraph 1(f) of Article II of the Convention, covers every person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. The Committee also notes the Government’s indication that no cases of doubt regarding the application of the Convention have arisen. However, in connection with minimum age and hours of rest and work, the Committee notes the Government’s indication that article 4 of the Ordinance for Labour provides that “persons under the age of 18 cannot be hired to work on a ship”. It also notes that it appears that persons between 16 and 18 years of age can be on board ship for training in navigation or sailing. The Committee notes that it is not clear whether or not these persons are considered as seafarers as per the meaning of the Convention. In this regard, the Committee reminds the Government that the Convention does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered by the Convention. Such partial application is only possible where the workers clearly do not come within the definition of “seafarer”, or if a doubt has arisen in this regard and a determination has been made that the categories of workers concerned are not seafarers, in accordance with the Convention. The Committee requests the Government to clarify whether any person employed, engaged or working in any capacity on board a ship to which the Convention applies is considered a seafarer for the purposes of implementing all the requirements of the latter.

Regulation 1.1 and the Code. Minimum age. The Committee notes the Government’s statement that under article 4, paragraph 3 of the Ordinance for Labour, the minimum age for seafarers is 18 and that persons under 18 are not allowed to carry out their navigation training practice at night, unless a training programme requires performance of their duties at night and provided that it will not harm their health. The Committee refers to its comments set out above regarding application of the Convention and the status of persons working on board who are under the age of 18. The Committee also notes that this provision only refers to the prohibition of night work that could harm the health of seafarers under the age of 18 but does not specifically mention the prohibition of work for seafarers under 18 that is likely to jeopardize their health or safety. Furthermore, the Committee also notes that it does not appear that a determination, after consultation with the shipowners’ and seafarers’ organizations, of the type of work likely to jeopardize the health or safety of seafarers under the age of 18 has been made, as required by the Convention. In this regard, the Committee recalls that the employment, engagement or work of seafarers under the age of 18 shall be prohibited where the work is likely to jeopardize their health or safety, and that the types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. The Committee requests the Government to provide further detailed information on this issue, especially on the types of work that have been determined to be likely to jeopardize the health or safety of seafarers under the age of 18.

Regulation 1.2 and the Code. Medical certificate. The Committee notes that articles 11(1) and 12(1) of Ordinance No. N-11 of 30 April 2014 on medical fitness requirements for seafarers in the Republic of Bulgaria establish requirements regarding the issuance of medical and vision certificates for seafarers. It notes, however, that there is no reference in this Ordinance or in the Government’s report to the requirements concerning the independence of the practitioners. The Committee recalls that practitioners recognized by the competent authority must enjoy full professional independence in exercising their medical judgement in undertaking medical examinations, as required under Standard A1.2, paragraph 4 of the Convention. The Committee requests the Government to provide information on how effect is given to this requirement of the Convention.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that there are 71 seafarer recruitment and placement services operating in its territory and that, as previously noted, there are 17,342 seafarers that are nationals, residents or otherwise domiciled, of which 900 work on ships operating under the flag of Bulgaria. With respect to a system of protection by way of insurance or an equivalent measure to compensate seafarers for monetary loss incurred as a result of a failure by the recruitment or placement services or the relevant shipowner to fulfil their obligations, the Committee notes that section 23 of Ordinance No. 107/2003 on terms and procedures for the performance of intermediary activities in employment, as amended in State Gazette No. 83/2013, merely provides that the contract between the jobseeker and the recruitment agency should contain information on the liability of the parties in case they fail to meet their contractual obligations. The Committee notes, however, that paragraph 5(c)(vi) of Standard A1.4 of the Convention, requires a system of protection, such as an insurance arrangement, to ensure that seafarers can be duly compensated for any monetary loss caused by the recruitment and placement services or the relevant shipowner. The Committee requests the Government to indicate how effect is given to the requirement under paragraph 5(c)(vi) of Standard A1.4 of the Convention.

Regulation 2.1 and the Code. Seafarers’ employment agreement. The Committee notes that section 7 of the Ordinance for Labour provides that before starting work, the employer introduces the candidates to the degree of risk and the nature and character of the work on board, as certified in writing by the persons. It also notes that this text is silent on any procedural arrangements or other facilities designed to ensure that seafarers are given an opportunity to examine and seek advice on the agreement before signing and that they enter into an agreement with a sufficient understanding of their rights and responsibilities, as provided for under paragraph 1(b) of Standard A2.1 of the Convention. The Committee notes, however, that section 37 of Ordinance No. 107/2003 requires that the recruitment and placement services shall provide such an opportunity to seafarers, but does not specify the procedure for seafarers not entering into such an agreement through recruitment and placement services, but through other means. The Committee accordingly requests the Government to clarify how the requirements set out in paragraph 1(b) of Standard A2.1 apply to all seafarers, even those entering into employment other than through recruitment and placement services.

Regulation 2.2 and the Code. Wages. Recalling that each Member shall require that shipowners take measures to provide seafarers with a means to transmit all or part of their earnings to their families or dependants or legal beneficiaries, as required under Standard A2.2, paragraphs 3 and 4 of the Convention, the Committee notes the Government’s indication that this requirement is taken into account by means of a clause in the seafarer’s employment agreement and a seafarer’s declaration in which he or she specifies the bank account to be remitted. It also notes the Government’s statement that shipowners do not collect a charge for this service. The Committee notes, however, that although the Government did not provide the relevant legislation or regulation related to this issue, one of the examples (dated 11 April 2014) of the DMLC Part II clearly provides for these measures. The Committee requests the Government to provide a copy of the relevant documentation requiring shipowners to take measures with respect to transmitting wages as required under the MLC, 2006.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s indication that the Labour Code does not prohibit appropriate shore leave, but does not provide any other information with respect to the implementation of the requirement, under paragraph 2 of Regulation 2.4 of the Convention, that seafarers are to be granted shore leave to benefit their health and well-being and consistent with the operational requirement of their positions.

The Committee also notes the Government’s indication that “under the Labour Code it is prohibited to conclude agreements to forgo annual leave” while article 34 of the Ordinance for Labour provides that, by mutual consent between the parties under the employment relations, principal and additional paid annual leave and compensatory rests can be replaced fully or partially with payment of a cash compensation calculated on the basis of the basic salary and the additional employment pay of permanent nature. The Committee recalls that paragraph 3 of Standard A2.4 provides that any agreement to forgo the minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee requests the Government to provide information with respect to any provisions it has adopted for ships flying its flag requiring that seafarers be granted shore leave in accordance with paragraph 2 of Regulation 2.4 of the Convention and to clarify whether agreements to forgo taking the minimum annual leave with pay are permitted.

Regulation 2.6 and the Code. Seafarer’s compensation for the ship’s loss or foundering. The Committee notes the Government’s indication that article 54(a) of the Ordinance for Labour provides that the employer shall take out appropriate insurance for full coverage of possible unforeseen costs of medical treatment and indemnities ensuing from articles 46, 49, 52 and 54 of this Ordinance regarding the employer’s obligations for sickness and accident. The Committee notes, however, that these provisions do not specifically cover the indemnity provided to seafarers against loss or unemployment in the case of a ship’s loss or foundering, as required under paragraph 1 of Standard A2.6 of the Convention. It further notes that section 35(3-4) of Ordinance No. 107/2003 expressly refers to this requirement, but it is not clear whether all seafarers are entitled to this indemnity, including those who entered into employment other than through recruitment and placement services, as previously mentioned under Regulation 2.1. Finally, the Committee notes that the Government did not give any indication on how this indemnity is calculated, and recalls that Guideline B2.6.1 provides guidance on this matter. The Committee requests the Government to clarify how the requirements set out in Regulation 2.6 and the Code apply to all seafarers and to provide further information on how the indemnity is calculated in the case of the ship’s loss or foundering.

Regulation 2.7 and the Code. Manning levels. The Committee notes that the manning levels of Bulgarian ships are set pursuant to section 13 of Ordinance No. 6 of 5 April 2012 on Seafarers’ Competence in the Republic of Bulgaria, with detailed criteria for setting levels as described in Annex 8. The Committee also notes the examples of manning documents that were provided by the Government. It recalls that paragraph 3 of Standard A2.7 provides that, when determining manning levels, the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering are to be taken into account. The Committee notes that only one of the examples of the DMLC Part II, dated 11 April 2014, expressly includes food and catering requirements. The Committee requests the Government to clarify whether determinations of manning levels of ships take into account Regulation 3.2 and Standard A3.2, and to include this requirement in the list of criteria to be applied in determining manning levels.

Regulation 2.8 and the Code. Career and skill development and opportunities for seafarers’ employment. The Committee notes the general information provided by the Government on the national policies adopted to encourage the career and skill development for seafarers that are domiciled in Bulgaria. It notes, however, that no specific information was provided regarding the vocational guidance, education and training of seafarers, nor any mention made of consultations with shipowners’ and seafarers’ organizations, as required under Standard A2.8, paragraph 3 of the Convention. The Committee requests the Government to provide further information on the labour policy measures implementing the Convention as well as to indicate if the shipowners’ and seafarers’ organizations concerned have been consulted in the establishment of such national policies, as set out in paragraph 3 of Standard A2.8 of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that the provisions set out in the Ordinance for Labour are of a general nature and, while addressing several matters, do not address all the requirements under this Regulation and the corresponding Code. The Committee accordingly requests the Government to provide further detailed information on how effect is given to the requirements of the Convention regarding the accommodation of seafarers on board ships flying the Bulgarian flag.

Regulation 3.2 and the Code. Food and catering. The Committee notes that article 37(2) of the Ordinance for Labour requires that food and drinking water on board ship is of appropriate quality, nutritional value and quantity, and refers to the specific requirements set out in Ordinance No. 23 of 2005 on Physiological Rates for Nutrition of the Population (State Gazette No. 63/2005). However, the Committee notes that the provisions in these Ordinances do not mention the obligation to take into account the differing cultural and religious background of seafarers, as required by paragraph 1 of Regulation 3.2 of the Convention. The Committee requests the Government to provide information as to how differing cultural and religious backgrounds of seafarers are taken into account regarding food and catering on board.

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee notes that section 16, paragraph 12, of Ordinance No. 9 of 11 February 2003 on Medical Services on Ships, as amended by State Gazette No. 26/2006, implements many of the requirements set out in paragraph 4(d) of Standard A4.1 of the Convention, namely that the competent authority ensures, by a prearranged system, that medical advice by radio or satellite communication to ships at sea, including specialist advice, is provided, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice. This article, however, does not state that this service is available free of charge to all ships irrespective of the flag they fly and there is no indication that this service is available 24 hours a day, as required under this provision of the Convention. The Committee requests the Government to provide further information on the implementation of paragraph 4(d) of Standard A4.1 of the Convention.

Regulation 4.2 and the Code. Shipowner’s liability. The Committee notes that section 52 of the Ordinance for Labour provides for a period of four months during which the shipowner bears the costs for urgent medical care and treatment, including hospitalization of a crew member at a foreign port, until the seafarer’s condition allows a return to work or repatriation. It also notes that, pursuant to this provision, the employment agreement may stipulate more favourable conditions for the injured person. The Committee notes, however, that this article does not take into account the payment of wages in whole or in part to a seafarer no longer on board ship, for a period which may be limited in national laws or regulations to 16 weeks from the day of the injury or commencement of the sickness, as set out under paragraph 3 of Standard A4.2 of the Convention. The Committee requests the Government to indicate how effect is given to paragraph 3 of Standard A4.2 of the Convention.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that article 67(2) of the Ordinance for Labour requires a safety committee to be established on board ships of ten seafarers or more. The Committee recalls that paragraph 2(d) of Standard A4.3 provides that such a committee shall be established on board a ship on which there are five or more seafarers. The Committee requests the Government to indicate how this requirement of the Convention is given effect.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Bulgaria specified that the branches for which it provides social security protection to seafarers in accordance with paragraphs 2 and 10 of Standard A4.5 are medical care, sickness benefit, old-age benefit, employment injury benefit, maternity benefit and invalidity benefit. The Committee notes from section 20 of Section III of the Ordinance on Social Security of Self-Insured Persons, Bulgarian Citizens Working Abroad and Seafarers, as amended in State Gazette No. 17/2014, that seafarers must insure themselves for general sickness and maternity, disability due to general sickness, old age, death, labour accident and occupational disease and unemployment on the basis of selected monthly insurable earnings between the minimum and maximum rate of the insurable earnings for self-insured persons. The Committee recalls that paragraph 3 of Regulation 4.5 of the Convention provides that each Member shall ensure that seafarers that are subject to its social security legislation and, to the extent provided for in its national law, their dependants are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers. The Committee observes, however, that the legislation in force in Bulgaria appears to create a difference between shoreworkers and seafarers, as the social insurance contributions for the latter is completely at their expense. The Committee requests the Government to indicate the measures taken to provide seafarers who are ordinarily resident in Bulgaria, with social security coverage no less favourable than that enjoyed by shoreworkers, in accordance with paragraphs 2 and 3 of Standard A4.5.

The Committee also notes that section 30(3-4) of Ordinance No. 107/2003 provides that shipowners shall conclude, at their own expense, insurance to cover risks of illness, accident, death, hospitalization, medical expenses, and disability for seafarers employed abroad who entered into employment with recruitment and placement services. The Committee recalls that paragraphs 2 and 3 of Standard A4.5 of the Convention require 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. The Committee requests the Government to clarify the manner in which social security protection is extended to all seafarers ordinarily resident in Bulgaria who are working on ships flying the flag of a country other than Bulgaria, even those entering into employment other than through recruitment and placement services.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee notes the Government’s statement that Ordinance No. 11 of 26 April 2004 on the Inspections of Ships and Shipowners (State Gazette No. 52/2004) implements these requirements of the Convention. The Committee notes, however, that the Government did not provide any information regarding the specific measures taken to assure the effectiveness of the system in place for the inspection and certification of maritime labour conditions on ships. Recalling that paragraph 5 of Regulation 5.1.1, and paragraph 1 of Standard A5.1.1, require each Member to establish overall procedures for the assessment of the system in place for the inspection and certification of maritime labour conditions, and to include such information in its report pursuant to article 22 of the Constitution of the ILO, the Committee requests the Government to provide further information in this respect.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee recalls that paragraph 4 of Standard A5.1.2 of the Convention requires each Member to provide a current list of any recognized organizations authorized to act on its behalf, including the functions that they have been authorized to carry out, and each Member shall keep this list up to date. The Committee notes that although the Government has stated that such information is attached to the report, the list has not been supplied in this respect. The Committee requests the Government to provide the list required under paragraph 4 of Standard A5.1.2 of the Convention.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes the Government’s statement that sections 54(b) and 54(c) of the Ordinance for Labour discuss complaint handling on board ship and take into account the requirements of the Convention. It also notes, however, that there is no provision requiring that inspectors keep the source of the complaint confidential, as required under paragraph 10 of Standard A5.1.4. It further notes that there is no reference on confidentiality regarding commercial processes which may come to the knowledge of inspectors in the course of their duties. The Committee recalls that paragraph 11(b) of this Standard requires inspectors not to reveal, even after leaving service, any commercial secrets or confidential working processes or information of a personal nature which may come to their knowledge in the course of their duties. The Committee requests the Government to clarify how it ensures confidentiality with respect to any complaints that may be received regarding working and living conditions or commercial matters on ships flying its flag.

Additional documents requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee requests the Government to provide the following documents and information: a copy of the standard Maritime Labour Certificate, including Part I of the Declaration of Maritime Labour Compliance; an example in English of the approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); a standard form example of a seafarer’s employment agreement (Standard A2.1, paragraph 2(a)); the relevant portion of any applicable collective bargaining agreement in English (Standard A2.1, paragraph 2(b)); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided and a copy of the provisions on seafarers’ entitlement to repatriation in any applicable collective bargaining agreements (Standard A2.5, paragraph 2); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2, paragraph 1(b)); a copy of the relevant national guidelines on occupational safety and health protection and accident prevention (Regulation 4.3, paragraph 2); a copy of the document used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a report or other document containing information on the objectives and standards established for Bulgaria’s inspection and certification system, including the procedures for its assessment and information on its budgetary allocation and the total income received on account of inspection and certification services during the reporting period (Standard A5.1.1); an example in English of authorizations given to recognized organizations (Regulation 5.1.1, paragraph 5; Regulation 5.1.2, paragraph 2); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5, and Guidelines B5.1.4, paragraph 3); a copy of Bulgaria’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag (Regulation 5.1.5); a copy of the report in connection with the Port State Control arrangements (Regulation 5.2.1) and a copy in English of a document that describes the onshore-handling procedures (Regulation 5.2.2).

[The Government is asked to reply in detail to the present comments in 2017.]