Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

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

Autre commentaire sur C186

Demande directe

2019
2015

Afficher en : Francais - EspagnolTout voir

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006) as well as the observations made by the German Shipowners’ Association, received on 17 October 2017. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for Germany on 18 January 2017 and 8 January 2019, respectively. It further notes that the Government’s report was received before the entry into force of these amendments. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National Determination. The Committee noted that, following consultations, under section 3(3) of the Maritime Labour Act (hereafter the “MLA”) the Government had identified certain categories of persons that are excluded from the definition of seafarers, in particular those 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 requested the Government to clarify in which specific time frame the above limits are calculated. The Committee notes the Government’s indication that: (1) the above-mentioned exclusions are project or activity-related and apply to a voyage; (2) the relevant factor is the end of the project or activity to which the exclusion applies; and (3) the time aspect of 72 or 96 hours constitutes an additional restriction on the exclusion. The Committee notes this information, which addresses the point previously raised.

Trainees. The Committee notes that according to the information provided by the Government, pupils at technical schools and students at universities or institutes of applied sciences undergoing training who in accordance with Länder legislation, must undertake practical on-board training for this purpose (compulsory traineeships), have been excluded from the definition of seafarer. In this regard, the Committee considers that obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets are to be regarded as seafarers for the purpose of the Convention. The Committee underlines that the protection afforded by the Convention is particularly important for the more vulnerable categories of persons, such as cadets and trainees. The Committee therefore requests the Government to adopt the necessary measures in order to ensure that trainees are regarded as seafarers and that they enjoy the protection provided for by the Convention. The Committee is certainly aware of the reported and anticipated shortage of qualified officers to effectively man and operate ships engaged in international trade and the difficulties encountered to ensure that cadets meet the minimum mandatory seagoing service which forms part of the requirements prescribed in the Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) for certification. In these circumstances, the Committee recalls that, as foreseen in Article VI, paragraph 3, of the Convention, governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets and trainees where needed, in accordance with the Convention.

Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of work and hours of rest. Limits. Noting that Standard A2.3, paragraph 2 should not be interpreted as to give shipowners or masters the choice of regimes, as seemed to be the case according to the model form for a table of shipboard working arrangements submitted by the Government, the Committee requested the Government to explain how it ensures that the maximum hours of work and minimum hours of rest established under section 48(1) of the MLA are fixed and not subject to selective application by shipowners or masters. The Committee notes the Government’s indication that the Ordinance on the table of shipboard working arrangements and records of hours of work in maritime shipping of 2013 stipulates that the table of shipboard working arrangements to be displayed on board must comply with the model format developed by the joint International Maritime Organization/International Labour Organization Working Group. Section 2 of the Ordinance requires the table to contain, inter alia, the maximum working hours and minimum rest periods in accordance with section 48(1) of the MLA and, as appropriate, the maximum working hours and minimum rest periods which deviate from those permissible under section 48 of the MLA. According to section 2(2)(4) of the Ordinance, the total number of scheduled working hours must be entered for every crew member. The shipowner or master has no choice in this regard. In practice, the “total working hours” must be entered in the table and the column “total hours of rest” must be crossed through. The Committee notes this information, which addresses the point previously raised.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. Abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? Taking into account that the report was received before the entry into force of the 2014 amendments, the Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee requested the Government to provide information with respect to the implementation of Standard A2.7, paragraph 3 in the determination of manning levels. The Committee notes the Government’s indication that Standard A.2.7, paragraph 3 is implemented in German law through the provisions of sections 97 and 98 of the MLA, which require the shipowner to ensure that an adequate amount, quality and type of food and beverages are available on board ship having regard to its manning level. The Committee notes however that the provisions referred to by the Government do not adequately implement the Convention, in particular as they do not ensure that the manning requirements take into account the ship’s cook or catering staff. Recalling that under Standard A2.7, paragraph 3, when determining manning levels the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering, the Committee requests the Government to indicate the measures taken to give effect to this provision of the Convention.

Moreover, the Committee notes the information provided by the Government in reply to the observations submitted by the United Services Union (Ver.di), indicating that the Safe Manning Ordinance (Schiffsbesetzungsverordnung), as amended, affords less protection than the previous version in so far as it provides for one crew member than the previous regulation. The Government indicates that: (1) the assumption that the above-mentioned Ordinance affords less protection than the previous version can only rest on a mistaken interpretation of the new legal situation; (2) the sole change made to the previous version concerns the number of crew members who must have the nationality of a member State of the European Union; (3) there has been no reduction in the number of qualified crew members; and (4) the Ordinance does not prescribe the minimum number of crew members which are determined by the competent authority at the shipowner’s request. The Committee notes this information, which addresses the point previously raised.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee requested the Government to provide its comments in relation to 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. In this regard, the Committee notes the Government’s indication that the Maritime Alliance for Training and Employment in the German Shipping Industry (Maritime Alliance) is the entity which discusses the promotion of seafarers’ careers and vocational training, as well as the preservation and development of maritime know-how. The legislature passes the corresponding regulations as agreed with the Maritime Alliance, such as the Ordinance on Vocational Training for Seafarers in 2014. In addition, the Central Nautical Placement Agency provides seafarers with free counselling about training and arranges training positions in maritime shipping. The Committee further notes that the German Shipowners Association (VDR) indicates in this respect that both the Vocational Training Institute for the Maritime Sector (BBS) and the VDR actively provide information on vocational training and career opportunities in the maritime sector. The BBS works in close cooperation with all institutions involved in maritime training in Germany, and in so doing is highly involved in the development of regulations for the training of seafarers. Finally, the VDR runs a “summer holiday captain programme” to give pupils from general secondary schools an insight into work and life on board ship. Many VDR member companies offer places on board for ship journeys which can last from just a week of the entire summer holidays. The Committee notes this information, which addresses the point previously raised.

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions. The Committee requested 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 limits provided for under Standard A3.1, paragraph 21. The Committee notes the Government’s indication that the BG Verkehr (Occupational Accident Insurance Fund for the Transport and Traffic Sector, Ship Safety Division (BG Verwwehr)) affirms that, when checking on exemptions under sections 6(2) or 30(3) of the Ordinance on Marine Accommodation, it takes into account section 9 of the Maritime Labour Act, which permits derogations from the provisions of the Act to the disadvantage of a crew member only when laid down by law. It notes also that the minimum requirements regarding working and living conditions laid down by the Maritime Labour Convention in Articles III, IV and VI(1), first sentence, (which in turn makes the regulations and provisions of Part A of the Code mandatory) must be respected when a derogation has been made. The Government further indicates that with due regard to this requirement, the BG Verkehr has excluded the possibility of derogating from Regulation 3.1 or Standard A3.1 when checking on exemptions under sections 6(2) or 30(3) of the Ordinance on Maritime Accommodation. The Committee notes the Government’s indication that, given that the above-mentioned provisions concerning exemptions are of no practical relevance for the sake of clarity, consideration could be given to the deletion of sections 6(2) and 30(3) of the Ordinance, at the next regular revision thereof. The Committee notes this information, which addresses the point previously raised.

Regulation 4.2 and Standards A4.2.1, paragraphs 8–14, and A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. Taking into account that the report was received before the entry into force of the 2014 amendments, the Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3 and the Code. Health and safety protection and accident prevention. In relation to the protection against shipboard harassment and bullying, the Committee notes the observations made by the VDR, according to which the VDR together with the European Transport Workers’ Federation (ETF) has produced guidance on eliminating harassment and bullying in the workplace. A workbook for crew members and a training video have also been developed.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee requested the Government to indicate the manner in which the obligation under Standard A4.5, paragraph 6 (comparable benefits for seafarers in the absence of adequate coverage) is implemented in national law and practice. The Government indicates that: (1) non-German crew members of German seagoing ships whose domicile or ordinary place of residence is not in a Member State of the European Union, a State party to the Agreement on the European Economic Area or Switzerland may be exempted from compulsory insurance; (2) persons treated as Germans under supranational or international law are also counted as Germans for the purpose of this provision and that nationals of Member States of the European Union, States party to the Agreement on the European Economic Area or Switzerland, as well as nationals of States with which the Federal Republic of Germany has concluded a social insurance agreement, cannot accordingly be exempted; (3) the exemption therefore applies mainly to persons who, even if insurance were to be implemented, would not typically be able to enjoy insurance benefits, since they would not have the necessary qualifying insurance period; (4) the regulation is seen as justified since it serves to avoid imposing insurance obligations that do not lead to entitlements to benefits and that it is assumed that the persons concerned are or will be covered by the pension system of their country of origin; (5) there are no grounds for national regulations covering the group of persons concerned; and (6) further restriction of the possibility of exemption could be achieved through the conclusion of bilateral social insurance agreements. While noting this information, the Committee requests the Government to provide information on any future development on this issue.

Regulation 5.1.4 and Standard A5.1.4, paragraph 10. Flag State responsibilities. Inspection and enforcement. Confidentiality of sources of grievances or complaints. The Committee requested the Government to provide its comments to 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 notes with interest the Government’s indication that it has noted these observations and that, following an amendment to sections 128(5) and 128(6) of the MLA adopted on 25 November 2015 (Federal Law Gazette I, p. 2095), confidential treatment of complaints is now guaranteed by law. The amended paragraph 128(5) stipulates that: “(5) The bodies listed in paragraph 4(3) to 4(5), as well as their officials, shall treat as confidential the source of a complaint made under section 127. Without the consent of the complainant, they are prohibited from informing the shipowner or his/her/its officials that an investigation following a complaint is taking place. The second sentence does not apply where the information is required, in an individual case, to avert an actual danger to human life and health or to the ship or its cargo.”