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

Convention du travail maritime, 2006 (MLC, 2006) - Suède (Ratification: 2012)

Autre commentaire sur C186

Demande directe

2019
2015

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006) as well as the additional information received on 15 September 2015. It also notes that the Government has previously ratified 18 maritime labour Conventions, which have been denounced as a consequence of the entry into force of the MLC, 2006, for Sweden. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. 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.

Regulation 1.1 and Standard A1.1. Minimum age. In its previous comment under Article 12 of the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180) – which has now been incorporated in Standard A1.1(1) of the MLC, 2006 – the Committee had noted that the Seamen’s Act No. 282/1973 authorizes persons under the age of 16 to be employed on board, if it is part of training, and had requested the Government to bring its legislation in line with that Convention. The Committee notes the Government’s indication that employing any person under 16 years of age for ship-board work is a punishable offence, and that this prohibition is implemented by the Seamen’s Act No. 282/1973. Nevertheless, it also notes that to date, Act No. 282/1973 which, as indicated, authorizes persons under the age of 16 to be employed on board, if it is part of training, has not been amended. In this context, the Committee recalls that paragraph 1 of Standard A.1 prohibits the employment, engagement or work of seafarers under the age of 16 for hazardous work. The Committee requests the Government to clarify how its national legislation implements the prohibition provided for in the Convention. Furthermore, the Committee notes that, under Chapter 6, section 5 of the Swedish Transport Agency’s Regulations and General Advice (TSFS 2009:119, as amended) on the Work Environment on board Ships, seafarers between the ages of 16 and 18 years may not be engaged for or perform hazardous work on board ships. The Committee also notes that Annex 4 of the Regulations defines “hazardous work”, but permits exceptions for seafarers who have reached the age of 16 years if the work is part of an approved training programme or if the seafarer has completed vocational training for the work in question. The Committee recalls, in this respect, that paragraph 4 of Standard A1.1 of the Convention prohibits the employment, engagement or work of seafarers under the age of 18 years for hazardous work, without exception. The Committee requests the Government to clarify how its national legislation implements the absolute prohibition provided for in the Convention.

Regulation 1.4 and Standard A1.4. Recruitment and placement. The Committee notes the Government’s indication that section 3 of the Private Employment Agencies and Temporary Labour Act (1993:440) prohibits private recruitment and placement services. However, it further notes that, according to the Government, there is one private recruitment and placement service in the country. The Committee requests the Government to clarify whether there are private recruitment and placement services operating in its territory. It further requests the Government to explain how it requires, with respect to seafarers who work on ships flying its flag, that shipowners who use seafarer recruitment and placement services that are based in countries or territories in which this Convention does not apply ensure that those services conform to the requirements set out in the Code, as required by paragraph 9 of Standard A1.4.

Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. The Committee notes the standard employment agreement provided by the Government, according to which the agreement can be concluded alternatively between the seafarer and a shipowner or an employer or someone on behalf of the employer or the shipowner. It recalls its 2014 general observation, which stresses the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. In accordance with paragraph 1 of Standard A2.1, 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 notes, in this connection, that the agreement is not clear as to who is the responsible party for seafarers’ living and working conditions. The Committee requests the Government to clarify who are the parties of the seafarers’ employment agreement and to consider amending the standard form agreement to ensure that seafarers have an original agreement signed by both the seafarer and shipowner or a shipowner’s representative, as required under paragraph 1 of Standard A2.1.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. In its previous comments under Convention No. 180, the relevant provisions of which have now been incorporated into the MLC, 2006, the Committee requested the Government to indicate by what means it was ensured that the admissible maximum of 91 hours of work per week retains its exceptional character, thus ascertaining that the normal working hours’ standard for seafarers of 48 working hours per week remains meaningful. The Committee recalls that, under Standard A2.3, paragraph 3 of the MLC, 2006, the normal working hours’ standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. The Committee also noted the possible existence of uniform pay agreements under which seafarers would get overtime compensation on the basis of a standard ten- or 11 hour working day irrespective of the number of hours actually worked per day (in some cases, as many as 14 hours in a 24-hour period). The Committee requests the Government to provide information on how work is organized in practice so as to ensure the conformity with Standard A2.3 and compliance with the minimum hours of rest in order not to compromise the health and safety of seafarers as well as navigational safety. Furthermore, the Committee notes that the two-watch system (six hours on, six hours off) provided for in IMO Res. A.890 (21) (1999) represents a higher risk of fatigue than the three-watch system. The Committee requests the Government to consider measures which would allow the watchkeeping system of a ship to be fully taken into account when supervising compliance with applicable hours of rest standards.

The Committee recalls that the question of granting compensatory rest in case of call-outs to work or minimizing disturbance of rest periods during drills is left to be regulated through collective agreements and that it is only in the absence of such agreements, or if the competent authority determines that any collectively agreed provisions are inadequate, that the Government is expected to regulate these matters. The Committee requests the Government to clarify whether there are any collective agreements containing provisions on these matters, and if not, to take all necessary measures to establish such provisions, as required by paragraphs 7 to 9 of Standard A2.3.

The Committee notes the master’s right to suspend the hours of rest under section 6 of Act No. 958/1998. It recalls that the suspension of the schedule of the hours of rest is only allowed under Standard A2.3, paragraph 14, of the Convention if necessary for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ships or persons in distress at sea. The Committee accordingly requests the Government to indicate how it ensures compliance with the Convention in that regard.

The Committee recalls that, under Convention No. 180, the seafarers’ unions and the shipowners’ association had questioned the application of the Government’s regulations concerning the monitoring and enforcement of hours of rest. It further recalls the Government’s indication that, as regards annual hours of work in practice, it has no system to control the observance of the requirements of hours of rest in the case of a seafarer changing ship or employer. Noting that the Government’s regulations concerning ship-board working arrangements have not been amended since the Government ratified the Convention, the Committee requests the Government to indicate how it ensures that records of hours of rest may be monitored, as called for under Standard A2.3, paragraph 12.

Regulation 2.5 and the Code. Repatriation. The Committee notes the Government’s indication that repatriation is regulated by legislation and/or collective agreements, and that, if it is not possible for the shipowner to provide repatriation and allowances to seafarers, the Swedish national authority will cover the expenses. The Committee requests the Government to specify whether it requires ships flying its flag to provide financial security to ensure that seafarers are duly repatriated, in accordance with Regulation 2.5, paragraph 2, of the Convention and the Code.

Regulation 2.6 and the Code. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes the Government’s indication that this provision of the Convention is implemented through protection and indemnity insurance. Noting the absence of further information from the Government, the Committee requests the Government to explain how it ensures that shipowners respect the obligation established in Regulation 2.6.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the detailed information concerning ship accommodation and facilities under the Regulations (TSFS 2013:68) on Accommodation Spaces at Sea (Accommodation Regulations). It further notes that, under Chapter 3, sections 24–28 of the Accommodation Regulations, the size of the floor area for crew cabins is determined by ship length. The Committee draws the Government’s attention, in this respect, to Regulation 3.1 and the Code, which provides for the floor area to correspond to gross tonnage and not by overall length. Noting that the Government’s system of measurement differs from that under the Convention, the Committee accordingly requests the Government to provide conversions of those measurements to gross tonnage in order to facilitate the Committee’s review of the implementation of this provision.

Regulation 4.2 and Standard A4.2. Shipowners’ liability. Noting the absence of any information on this point, the Committee requests the Government to identify its national laws, the seafarers’ employment agreement or collective agreements requiring that shipowners of ships flying its flag provide financial security to ensure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, as required under Standard A4.2, paragraph (1)(b).

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that, upon ratification of the Convention, Sweden declared that the branches for which it provides protection in accordance with paragraphs 2 and 10 of Standard A4.5 are: medical care; sickness benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit; and survivors’ benefit. The Committee notes the Government’s information concerning seafarers ordinarily resident in Sweden on ships flying the flag of Sweden, as well as its information concerning seafarers resident in Sweden but working on a ship flying the flag of another Member State within the European Union/European Economic Cooperation (EU/EES). It further notes that seafarers resident in Sweden and working on a ship flying the Swedish flag are entitled to both residence-based and worked-based benefits, while seafarers resident in Sweden and working on ships flying the flag of third countries (estimated to be a limited number of persons, if any) are only covered by the Swedish resident-based benefits. The Committee accordingly requests the Government to provide further information with respect to the protection of seafarers ordinarily resident in Sweden working on board ships operating under the flag of another country that is not a member of the European Union. It further requests the Government to explain how comparable benefits are provided to seafarers resident in Sweden and working on ships that fly a foreign flag. In addition, the Committee recalls its 2014 general observation highlighting that, although the primary obligation rests with the Member in which the seafarer is ordinarily resident, under paragraph 6 of Standard A4.5, Members also have an obligation to give consideration to the various ways in which comparable benefits will be provided to seafarers in the absence of adequate coverage in the nine branches of social security. This can be provided in different ways, including laws or regulations, in private schemes, in collective bargaining agreements or a combination thereof. The Committee requests the Government to indicate the manner in which the obligation under paragraph 6 of Standard A4.5 is implemented in national law and practice.

Regulation 5.1.2 and Standard A5.1.2. Flag State responsibilities. Authorization of recognized organizations. The Committee notes that the Government has not provided any information concerning authorized organizations under the Convention. It notes, however, that the Ship Safety Act (2003:364) refers to “recognised organizations” in the context of inspections. The Regulations on Maritime Supervision (TSFS:2010-178), under section 2, expressly acknowledges that certain recognized organizations have been authorized to inspect ships, although it is unclear whether such authorization has been extended to the Convention. Noting the absence of information on this point, the Committee requests the Government to confirm if it has recognized any authorized public institutions or other organizations as competent and independent to carry out inspections or to issue certificates or to do both and, if so, to identify the national laws and regulations which implement the requirements under paragraphs 3 and 4 of Standard A5.1.2 of the Convention.

Regulation 5.1.4 and Standard A5.1.4. Flag State responsibilities. Inspection and enforcement. The Committee notes the Government’s indication that it has not adopted a document informing seafarers and others about the procedures for making a complaint regarding a breach of the requirements of the Convention, as called for under Standard A5.1.4, paragraph 5 of the Convention. The Government indicates, however, that the Swedish Transport Agency is reviewing this procedure and its associated regulations. The Committee requests the Government to provide information concerning its ongoing efforts to establish a procedure and regulations for investigations following complaints under Standard A5.1.4, paragraph 5. It also requests the Government to specify how it ensures that when a complaint is filed or evidence is obtained that a ship does not conform to national laws and regulations in respect of seafarers’ working and living conditions, the ship is inspected as soon as practicable. Furthermore, noting the Government’s indication that its requirements for flag State inspectors’ competencies are internal and only available in Swedish, the Committee requests the Government to transmit a copy of these requirements in one of the ILO working languages.

Regulation 5.2.2 and the Code. Onshore seafarer complaint-handling procedures. The Committee notes that, although the Government indicates that this issue is covered by the Regulations on Maritime Surveys and Inspections, those Regulations provide very little information concerning onshore complaint procedures. Noting the absence of detailed information on this point, the Committee requests the Government to indicate how it implements these provisions of the Convention.

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