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

Convention du travail maritime, 2006 (MLC, 2006) - Norvège (Ratification: 2009)

Autre commentaire sur C186

Demande directe

2023
2019
2014

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The Committee notes the observations of the Norwegian Confederation of Trade Unions and the Confederation of Unions for Professionals, received with the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for Norway 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 both amendments. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. In its previous comments, the Committee requested the Government to provide clarification regarding the scope of application of the Act of 21 June 2013 No. 102 relating to employment protection etc. for employees on board ships (The Ship Labour Act). The Committee noted the detailed information provided by the Government as well as the adoption of Circular RSV 04/2013 to provide guidance to the Regulations of 19 August 2013 concerning the scope of application of the Ship Labour Act. The Circular provides clarification with respect to the categories of persons who are not to be considered as seafarers under the MLC, 2006. The Committee notes that Circular RSV 04/2013 contains an additional determination with respect to (a) workers that carry out work that is not part of the ship’s ordinary operations and (b) employees covered by the civil servant act to whom the Ship Labour Act only applies in part. With respect to workers that carry out work that is not part of the ship’s ordinary operations, the Committee notes that the Circular states that “Persons who are employed by other employers than the company, and who perform work which in its nature does not form part of the ship's ordinary operation, are not considered seafarers under the MLC, 2006. This is often the case on offshore vessels where such persons are the contractor's own employees.” The Circular contains a list of the categories of persons considered as “project personnel” (including catering personnel technicians, health personnel). The Committee considers that if these workers work more than short periods on board, what seems to be the case, they should be considered as seafarers and benefit from the protection of the Convention. The Committee further notes that the Norwegian Confederation of Trade Unions and the Confederation of Unions for Professionals raised concerns with respect to project personnel on ships in the offshore industry whose work contracts are not within the scope of the Ship Labour Act implementing the MLC, 2006, since the employer, and not the shipowner, has the liability for economic rights such as wages, entitlement to leave, etc., covered by the convention. They are also not subject to the certification process and therefore their work contract and working and living conditions are not inspected. The Committee requests the Government to re-examine the exclusion of the categories of persons defined as project personnel in light of Article II and the guidance provided by the International Labour Conference in order to ensure full compliance with the provisions of the Convention. Finally, the Committee notes the Government’s indication that, pursuant to the Regulations of 19 August 2013 concerning the scope of application of the Ship Labour Act, although the Ship Labour Act applies in part to employees working on board mobile offshore units, such units are not considered ships. Regulations of 26 June 2007 No. 706 on the scope of application of the Ship Safety and Security Act for mobile offshore units states in section 1 that Mobile offshore unit means a mobile platform, including drilling ship, equipped for drilling for subsea petroleum deposits, and a mobile platform for purposes other than drilling for subsea petroleum deposits. The Committee requests the Government to provide its comments in this respect.

Article VII. Consultations. In its previous comments, the Committee requested the Government to provide its comments in relation with the observations of the Norwegian Union of Marine Engineers that Norway as a flag State does not practice tripartite consultation. The Committee notes the Government’s indication that, throughout the process of defining the scope of application of the Ship labour Act, the social partners were consulted. Several meetings were held over several years with all social partners and Regulation of 19 August 2013 No. 990 concerning the scope of application of the Ship Labour Act was adopted after the required period of consultation with all stakeholders. The Committee takes notes of this information.

Article VI, paragraphs 3 and 4. Concept of substantial equivalence. The Committee notes that under section 51 (1) of the Regulations of 21 April 2017 No. 515 on accommodation, recreational facilities, food and catering on ships, “the Norwegian Maritime Authority may upon written application from the company permit other solutions than those required by these Regulations, if the company documents that such solutions are equivalent to the requirements of the Regulations”. The Committee draws the Government’s attention to the fact that the concept of substantial equivalence is not a matter for administrative discretion but has to be decided by a Member on a horizontal basis – i.e. not on an ad hoc basis – following the requirements of Article VI, paragraphs 3 and 4 of the Convention. The Committee requests the Government to clarify how it ensures that the recourse to substantial equivalence measures is made in conformity with the requirements of the Convention.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum Age. Noting that Regulation of 25 April 2001 No. 423 concerning work and placement of young people on Norwegian ships applies to young people of at least 14 years of age who are placed on ships engaged on domestic voyages under work/training schemes as part of schooling or occupational orientation in practical work, the Committee requested the Government to take the necessary measures to ensure that no person under the age of 16 years is employed or work on board in any function. The Committee notes the Government’s indication that Regulation of 25 April 2001 No. 423 was adopted prior to the MLC, 2006, and that it has provided good protection for young seafarers as well as providing them with opportunities for employment at sea under supervised conditions. The Government indicates that this Regulation may continue to serve its purpose until it is possible, with regard to available resources, to develop a new Regulation. The Committee recalls that Standard A1.1, paragraph 1, provides that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited and that no exceptions are permitted in this respect. The Committee therefore requests the Government once again to adopt the necessary measures to amend its legislation to ensure full compliance with this provision of the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. Noting that section 8 of Regulation of 25 April 2001 No. 423 provides that the Norwegian Maritime Authority may grant exemptions from the provisions concerning the prohibition of hazardous work where this is necessary for the vocational training of a young person and the work is carried out under the supervision of the master, a person authorized by the master, or a safety representative, the Committee requested the Government to adopt the necessary measures to ensure compliance with Standard A1.1, paragraph 4. The Committee notes that the Government reiterates in this regard that the Regulation will continue to apply until it can be revised. The Committee recalls that the Convention, under Standard A1.1, paragraph 4, requires the absolute prohibition for young seafarers of the types of work considered hazardous but allows, under Guideline B4.3.10, the determination of types of work which young seafarers cannot undertake without adequate supervision and instruction. The Committee accordingly requests the Government to indicate how it gives effect to Standard A1.1, paragraph 4, giving due consideration to Guideline B4.3.10. Regulation 1.4 and Standard A1.4, paragraphs 2 and 5. Recruitment and placement. The Committee requested the Government to provide information on the measures taken to give effect to Standard A1.4 paragraphs 2 and 5 to any private service that may be operating in its territory. The Committee notes the Government’s indication that the recruitment and placement services of seafarers in Norway is not a specifically maritime responsibility and is covered by general Norwegian law on the subject. The Government states that the legal responsibility of the shipowner is regulated by maritime law, and the submission of the necessary documentation before a Maritime Labour Certificate is issued attests to the conformity with Standard A1.4. The Committee notes however that the Government has not provided information on the functioning of the licensing system and the operational practices of the recruitment and placement services in Norway. The Committee requests the Government once again to indicate the specific provisions of the Norwegian legislation that implement the requirements of Standard A1.4, paragraphs 2 and 5, with respect to recruitment and placement services operating in its territory.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee requested the Government to provide information on the legislation implementing this Standard as well as Standard A2.1, paragraphs 1(e) and 3 with respect to the record of employment. The Committee notes that the provisions of the Ship Labour Act, the Regulations of 19 August 2013 No. 1000 on employment agreement and pay statement, etc. and Regulations of 25 November 1988 No. 940 on supervision of maritime service give effect to the different requirements of Standard A2.1. The Committee notes that sections 5 and 6 of the Regulations of 25 November 1988 No. 940 on supervision of maritime service provide that, upon application, a sea service book shall be issued for Norwegian nationals and a record of service shall be issued for persons other than Norwegian nationals. The Committee takes note of this information, which addresses its previous request.

Regulation 2.3 and Standard A2.3, paragraphs 13 and 14. Hours of work and hours of rest. Noting that section 4 of Regulation No. 705 on hours of work and rest on board Norwegian passenger and cargo ships, etc. provides that regular working hours may be exceeded on passenger ships with watch systems, without however referring to collective agreements authorized or registered by the competent authority permitting exceptions to the established limits, the Committee requested the Government to provide information on the implementation of Standard A2.3, paragraph 13. The Committee notes the Government’s indication that, with regard to watchkeeping on ships, the hours of rest are determined in compliance with IMO and ILO standards and in particular Resolution A 1047(27) on the Principles of Safe Manning which ensures that when shipowners submit their requests for a Safe Manning Document, they must document how their planned level of manning is conducive to compliance with hours of rest. The Committee notes however that the Government does not indicate if any collective agreement has been authorized or registered permitting exceptions to the minimum hours of rest. The Committee therefore requests the Government to indicate if any exceptions to the minimum hours of rest for watchkeepers have been permitted by collective agreements authorized by the competent authority in accordance with Standard A2.3, paragraph 14. Noting that pursuant to section 6 of Regulation No. 705, the master of the ship is entitled to require a seafarer to perform any hours of work necessary not only for the immediate safety of the ship, persons on board or the cargo, or to render assistance to other ships or persons in distress at sea but also with a view to enforcing customs regulations, quarantine or other health-related issues, the Committee requested the Government to indicate how it ensures compliance with Standard A2.3, paragraph 14. The Committee notes the Government’s indication that the suspension of the schedule of the hours of work in situations justified by the enforcement of customs laws, as well as quarantine and other health related provisions tend to occur in ports or in the vicinity of ports. The Government also states that, in such situations, the safety of the population in the port and surrounding areas are of more immediate concern than the safety of the ship, providing of course that it has been safely moored. While noting this information, the Committee considers that the work related to enforcing customs regulations, quarantine or other health-related issues should be performed respecting the minimum hours of rest given that these situations go beyond the exceptions contemplated in the Convention. Recalling that the suspension of the schedule of the hours of rest is only allowed under Standard A2.3, paragraph 14, 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 requests the Government to take the necessary measures to ensure full compliance with this requirement of the Convention. The Committee notes that the Confederation of Unions for Professionals raise concerns regarding the watch system with only one engineer aboard the ship which it considers contrary to Standard A2.3, paragraph 8. The Committee recalls that under this provision, when a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work. The Committee requests the Government to provide its comments in this respect.

Regulation 2.4 and Standard A2.4, paragraphs 1 and 2. Entitlement to leave. The Committee noted that while seafarers seems to be granted, in practice, the minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave, this minimum entitlement is not implemented in national laws and regulations. The Committee requested the Government to provide information on the legislation giving effect to Standard A2.4, paragraphs 1 and 2. The Committee notes the Government’s indication that the entitlement to leave has been adequately provided for in both legislation and collective agreements and that further legislation is therefore not needed at this time. The Committee notes that under section 5 of the Holidays Act, No. 21 of 29 April 1988, employees are entitled to 25 working days’ annual leave. Section 2(2) provides that in respect of employees on ships, the King issues Regulations concerning more detailed rules required by the conditions of service at sea. The Committee further notes that section 2 of Regulation No. 1285 of 12 December 1989 concerning entitlement to leave for seafarers said – whose text in not available in English - provides that employees on ships in international shipping are entitled to a “main holiday including 18 working days”. The Committee observes that, based on the information available, it is not clear what is the duration of the paid annual leave for seafarers. As the said Regulation refers to “international shipping”, it is also not clear whether it applies to all seafarers covered under the Convention. The Committee accordingly requests the Government to clarify these points and to explain in detail how the relevant legislation gives application to Standard A2.4, paragraphs 1 and 2 of the Convention.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of 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. It notes that Regulations of 19 December 2017 No. 2293 on financial security related to the entitlements of abandoned employees on Norwegian ships was adopted to give effect to the requirements of Standard A2.5.2. 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? The Committee requests the Government to reply to the abovementioned 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 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that section 51(2) of the Regulations of 21 April 2017 No. 515 on accommodation, recreational facilities, food and catering on ships provides that the Norwegian Maritime Authority may exempt a ship from one or more of the requirements of the Regulations when the company applies for an exemption in writing. The Committee notes that this provision does not limit the scope of exemptions. The Committee recalls that Standard A3.1, paragraph 21, of the Convention 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 seafarer’s health and safety”. The Committee requests the Government to indicate how it ensures that all exemptions to the application of the Regulation are made within the limitations provided for under Standard A3.1, paragraph 21.

Regulation 4.1 and Standard A4.1, paragraph 1. Medical care on board, including essential dental care. Noting that the existing laws and regulation did not include essential dental care as a part of health protection and medical care, the Committee requested the Government to indicate how it ensures compliance with this requirement of the Convention. The Committee notes the Government’s indication that Section 8-1 of the Ship Labour Act, paragraph 1 covers the issue of dental care, although not explicitly mentioned and that collective agreements incorporate the right to dental care. The Government further states that it is considering whether explicit regulation in subordinate legislation is needed. The Committee notes in this regard that the Norwegian Confederation of Trade Unions and the Confederation of Unions for Professionals in their observations underline the lack of provisions for dental care and the need to regulate this right. Recalling that under Standard A4.1 paragraph 1, each Member shall ensure that measures providing for health protection and medical care, including essential dental care, for seafarers working on board a ship that flies its flag are adopted, the Committee requests the Government to indicate the measures taken to give full effect to this provision of the Convention.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. 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. 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 abovementioned 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 4.4 and Standard A4.4. Access to shore-based welfare facilities. The Committee noted the observations of the Norwegian Union of Marine Engineers, the Norwegian Shipowners’ Organization, the Norwegian Maritime Officers’ Association and the Norwegian Seafarers’ Union indicating that Norway has poorly developed welfare services for seafarers and that the Norwegian Maritime Authority has stated that it is not willing to continue its active role with regard to seafarers’ welfare facilities. The Committee requested the Government to provide information on measures taken to promote the development of adequate welfare facilities as required under Regulation 4.4 and Standard A4.4. In the absence of specific information from the Government in this regard, the Committee reiterates its request.

Regulations 5.1 and the Code. Flag State responsibilities. The Committee requested the Government to provide detailed information on the Regulations to be adopted and the new system for inspection. The Committee notes with interest that Regulations of 22 December 2014 No. 1893 on supervision and certificates for Norwegian ships and mobile offshore units was adopted since the last report, aimed at giving effect to the provisions of the MLC, 2006. The Committee notes that the Norwegian Confederation of Trade Unions raise concerns regarding the inspection system for working conditions of workers on multi-purpose vessels. The Committee requests the Government to provide its comments in this respect.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. With respect to examples of DMLC Part II provided by the Government, the Committee noted that under certain items, they referred to other documents by name or numbers and did not contain an explanation with respect to the shipowner’s implementation of the national requirements. The Committee notes that the situation is the same in the three examples of DMLC Part II recently provided by the Government. The Committee recalls that the DMLC Part II shall identify the measures adopted to ensure ongoing compliance with the national requirements between inspections and the measures proposed to ensure that there is continuous improvement. The Committee requests the Government, once again, to ensure that the DMLC Part II fully implements the requirements of Standard A5.1.3, paragraph 10.

Regulations 5.2, 5.2.1 and 5.2.2 and the Code. Port State responsibilities. The Committee requested the Government to provide detailed information on port State inspection activities and in relation to the implementation of Standard A5.2.2, paragraph 6. The Committee notes with interest that since its last report, the Government adopted Regulations of 24 November 2014 No. 1458 on port State control which gives effect to the requirements of the MLC, 2006. The Committee notes however that the national provisions do not specify the procedure with respect to complaints which have not been resolved and recalls that in accordance with Standard A5.2.2, paragraph 6, a copy of the authorized officer’s report is to be transmitted to the Director-General (together with any flag State reply) and that the shipowners’ and seafarers’ organizations in the port must similarly be informed. The Committee requests the Government to indicate how it gives effect to this provision of the Convention.