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

Convention du travail maritime, 2006 (MLC, 2006) - Allemagne (Ratification: 2013)

Autre commentaire sur C186

Demande directe

2019
2015

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The Committee notes the Government’s first report as well as the observations made by the Vereinte Dienstleistungsgewerkschaft – United Services Trade Union (ver.di), received on 14 August 2015. It also notes that the Government has previously ratified 16 maritime labour Conventions, which have been denounced as a consequence of the entry into force of the Maritime Labour Convention, 2006 (MLC, 2006), for Germany. 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.

Article II. Scope of application. Seafarers. The Committee notes that, following consultations, under section 33 of the Maritime Labour Act (hereafter the “MLA”), the Government has identified certain categories of crew members that are excluded from the definition of seafarers. The Committee notes, in this respect, that some of these exclusions concern persons engaged in work on board for either less than 72 hours or less than 96 hours without, however, specifying the time frame in which these limits are calculated. The Committee accordingly requests the Government to clarify in which specific time frame the above limits are calculated. Furthermore, noting that the Government indicates that, in the framework of the consultations, no consensus was reached on the classification of certain categories of persons as crew members, the Committee requests the Government to provide information on any further determination made on this matter.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. In its previous comments under the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180), the Committee noted that Articles 3 and 5 – which have been incorporated into Standard A2.3, paragraphs 2 and 5, of the MLC, 2006 – requires either a maximum number of hours of work or a minimum number of hours of rest. It had drawn the Government’s attention to the implications of such cumulative provisions for limits on hours of work and limits on hours of rest in its national legislation. The Committee notes that section 48 of the MLA has incorporated the same hours of work and hours of rest provisions that were contained in previous legislation. It notes the Government’s indication that, on the grounds of occupational safety and health protection, both maximum hours of work and minimum hours of rest must be adhered to. The Government further indicates that sections 43(1) and 44(1) of the MLA provide for the protection against seafarer fatigue, which is based on a core working time of eight hours in port and at sea. Furthermore, the Government states that, pursuant to section 45(1) of the MLA, crew members must be permitted rest periods and hours of rest that must be sufficiently long to guarantee the safety and health of the crew members. The Committee also notes, however, that according to the model form for a table of shipboard working arrangements that was annexed to the Government’s report, it is up to the master to indicate “The maximum hours of work or minimum hours of rest”. Noting that Standard A2.3, paragraph 2 should not be interpreted as to give shipowners or masters the choice of regimes, the Committee requests the Government to explain how it ensures that the maximum hours of work and minimum hours of rest under section 48(1) of the MLA are fixed and not subject to selective application by shipowners or masters.

Regulation 2.7 and Standard A2.7. Manning levels. The Committee recalls that, under paragraph 3 of Standard A2.7 of the Convention, manning determinations must take into account the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee notes, in that respect, that neither the sample safe manning document that is annexed to the Government’s report nor any of the other manning regulations appear to take into account the requirements under Regulation 3.2 and Standard A3.2. The Committee requests the Government to provide information with respect to the implementation of paragraph 3 of Standard A2.7 in the determination of manning levels.

The Committee further notes that, according to the observations submitted by ver.di, the Safe Manning Ordinance (Schiffsbesetzungsverordnung), as amended, affords less protection than the previous version in so far as it provides for one crew member less than the national regulations. The Committee requests the Government to provide its comments on this observation.

Regulation 2.8 and Standard A3.1. Career and skill development and opportunities for seafarers’ employment. The Committee notes the observations submitted by ver.di, according to which fewer seafarers are being hired owing to the economic crisis and, consequently, the retention of specialized maritime knowledge is in jeopardy. The Committee requests the Government to provide its comments in this respect.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. The Committee notes that under section 6(2) of the Regulation on the accommodation and leisure facilities of the crew members on board merchant ships, of 25 July 2013, the Occupational Accident Insurance Fund may exempt ships that have recently changed flags to the German flag during their first voyage in accordance with section 10 of the Law of the Flag Act (Flaggenrechtsgesetz), provided that health and medical care as well as the consideration of social and religious practices of the crew members are ensured for the duration of that voyage. It further notes that, under section 30(3) of the Regulation, the Occupational Accident Insurance Fund may permit additional exceptions in individual cases if the health and well-being of the crew members will not be affected. The Committee draws the Government’s attention, in this respect, to Standard A3.1, paragraph 21, of the Convention, which clearly states that “Any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety.” Given that the Regulation permits possible exceptions for ships that change from a foreign flag to a German flag, and confer wide-ranging authority on the Occupational Accident Insurance Fund, the Committee requests the Government to explain how it is ensured that any exemptions in accordance with sections 6 and 30 of the Ordinance on Maritime Accommodation may be made within the limitation provided for under Standard A3.1, paragraph 21.

Regulation 4.1 and Standard A4.1. Medical care on board ship and ashore. The Committee notes that, under section 99(2) of the MLA, seafarers are entitled to prompt and adequate medical care in the event of an illness or injury until his or her health is restored or until the illness or occupational invalidity has been graded as being permanent. If the ship is berthed in a domestic port, the seafarer shall be entitled to preventive measures which are necessary for the prevention and early diagnosis of illnesses and their progression. Under section 99(3) of the MLA, medical care must include all necessary measures providing for health protection and curative treatment, including necessary dental treatment, as well as food and accommodation for the sick or injured crew member. While noting these provisions, the Committee recalls that, under Standard A4.1, paragraph 1(e) of the Convention, the measures providing for health protection and medical care must not be limited to treatment of sick or injured seafarers, but must also include measures of a preventive character such as health promotion and health education programmes. It notes, in this respect, that the only provision for preventative care referenced above seems to be limited to treatment while the ship is berthed in a domestic port. The Committee requests the Government to explain how it ensures that seafarers receive health protection and medical care of a preventative character, such as health promotion and health education programmes, during voyages.

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that, upon ratification of the Convention, Germany 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; and employment injury benefit. The Committee notes the Government’s indication that old-age benefit is regulated under the principle of compulsory pension insurance under section 1(1)(1) of the Social Code, Book 6 (SGB VI). However, it also notes the Government’s indication that, under section 6(1)(3) of the SGB VI, German crew members of seagoing ships whose domicile or habitual place of residence is not in a Member State of the European Union, a State party to the European Economic Area (EEA) or Switzerland, may be exempted from compulsory insurance at the request of the shipowner. In addition, the Committee also recalls that its 2014 general observation highlighted 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 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 5.1.4 and the Code. Inspection and enforcement. The Committee notes that section 128(5) of the MLA requires that all complaints be treated confidentially. It further notes the Government’s indication that such confidential treatment is safeguarded through internal procedures. However, the Committee also notes the observations submitted by ver.di, according to which confidentiality is only partially assured in the case of a complaint, and that it is difficult to guarantee anonymity. The Committee requests the Government to provide its comments in this regard.

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