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

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 second report and additional information received on 1 July 2018 on 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 in 2016 entered into force for Sweden, respectively, on 18 January 2017 and on 8 January 2019. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. In its previous comment, noting 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, the Committee requested the Government to clarify how it gives effect to Standard A1.1, paragraph 1 of the Convention. The Committee notes the Government’s indication that the Seamen’s Act No. 282/1973 does not authorize persons under the age of 16 to be employed. Maritime training is only done in upper secondary school as a part of an approved maritime training program in accordance with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). In the Swedish school system all persons are of age 16 in upper secondary school. The Committee notes this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee requested the Government to clarify how its national legislation implements the absolute prohibition of hazardous work for young seafarers in accordance with Standard A1.1, paragraph 4. The Committee notes with interest the Government’s indication that the Swedish Transport Agency has started the process for an amendment to prohibit engagement of seafarers under the age of 18 years for hazardous work without exceptions. 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 requests the Government to provide information in this regard and indicate any measures taken to ensure full compliance with Standard A1.1, paragraph 4.

Regulation 1.4 and Standard A1.4. Recruitment and placement. The Committee requested the Government to clarify whether there are private recruitment and placement services operating in its territory. The Committee notes the Government’s clarification that such services are prohibited in Sweden according to the Private Employment Agencies and Temporary Labour Act (1993:449). The Committee also requested the Government to explain how it ensures compliance with Standard A1.4, paragraph 9 related to the use of seafarer recruitment and placement service based in countries or territories in which the MLC, 2006, does not apply. The Committee notes the Government’s indication that it is not possible for Swedish shipping companies to use recruitment services based in countries which have not ratified the MLC, 2006. According to the Swedish model which authorizes employers’ and employees’ organizations to agree about employment conditions, it is only possible to hire seafarers from Russia and the Philippines outside the European Union, both countries having ratified the MLC, 2006. The Committee notes this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. Noting that, according to the standard employment agreement provided by the Government, 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, the Committee requested the Government to clarify who the parties to the seafarer’s employment agreement are. It further requested the Government to consider amending the standard employment agreement to ensure that seafarers have an original agreement signed by both the seafarer and the shipowner or a shipowner’s representative, as required under paragraph 1 of Standard A2.1. The Committee notes the Government’s indication that the example of a collective bargaining agreement for ship officers on Swedish vessels, attached to its report, states in section 2, subsection 1 that there has to be a written employment agreement drawn up between the shipping company and the ship officer. While noting this information, the Committee requests the Government to indicate the legal provisions ensuring that seafarers’ employment agreements are in all cases signed by the seafarer and the shipowner or a shipowner’s representative, as required under paragraph 1 of Standard A2.1, even when the shipowner is not the direct employer of the seafarer.

Regulation 2.3 and Standard A2.3, paragraphs 7, 8 and 9. Hours of work and hours of rest. Drills. On call work. The Committee requested the Government to clarify whether there are any collective agreements containing provisions on the matters stated in Standard A2.3, paragraphs 7 and 8 and if not, to take the necessary measures to establish such provisions. The Committee notes the Government’s indication that section 5 of the Collective Bargaining Agreement signed between the Swedish Shipowners’ Employer Association (SEA) and the Maritime Officers’ Association – within Leaders (MOA) regulates overtime compensation. The Committee notes however that the said Collective agreement does not contain provisions on the matters stated in Standard A2.3, paragraphs 7 and 8. The Committee further notes that while subsection 3 of section 6 of the Act on Periods of Rest for Seafarers (1998:958) refers to participation in safety drills and the need to compensate with a period of rest of sufficient extent, this Act does not indicate that such drills shall be conducted in a manner that minimizes the disturbance of rest periods and does not induce fatigue. The Committee also notes that this Act does not regulate the issue of on call work. The Committee therefore requests the Government to indicate the measures taken to give effect to Standard A2.3, paragraphs 7 to 9 of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 14. Hours of work and hours of rest. Immediate safety and distress at sea. The Committee requested the Government to indicate how it ensures compliance with Standard A2.3, paragraph 14 related to exceptions to the hours of work due to emergency situations. The Committee notes the Government’s reference to section 6 of the Act on Periods of Rest for Seafarers which regulates the master’s right to suspend hours of rest. The Committee notes once again that the cases foreseen in section 6 of the said Act go beyond those provided for in the Convention. Recalling that the suspension of the schedule of the hours of work 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 adopt the necessary measures to ensure full compliance with this provision of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 12. Hours of work and hours of rest. Records. The Committee requested 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. The Committee notes the sample of a record for hours of rest attached to the Government’s report as well as the Government’s indication that these documents are signed by both the master and the seafarer and are monitored when a flag state inspection is carried out. The Committee notes that these elements are included in the Declaration of Maritime Labour Compliance (DMLC), Part I. The Committee notes this information, which addresses its previous request.

Regulation 2.5, paragraph 2 and Standard A2.5.2. Repatriation. Financial security in the event of abandonment. The Committee requested 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. The Committee notes the Government’s indication that repatriation is regulated by the Seaman’s Act (1973:282) and the Ordinance (1991:1379) on administration of maritime arrangements as well as by collective agreements. The Government further indicates that in the case of the shipowner’s bankruptcy, there are national rules in the Act (1992:497) on guaranteed salary assuring that the seaman continues to get his salary during a number of months. The Committee notes that according to the DMLC Part I as revised following the entry into force of the 2014 amendments to the Convention, Sweden has adopted a substantial equivalence measure to allow ships to sail without certificate or documentary evidence stating financial security. The substantial equivalencies are stated in the following provisions: sections 19–21 of the Swedish Ordinance (1991:1379) on Foreign Missions’ Handling of Shipping Matters. In case of abandonment, a seafarer shall engage a Swedish foreign mission to obtain financial assistance in reasonable amounts and without delay. Financial assistance shall be provided for medical care, repatriation and any other reasonable costs until the seafarer’s arrival at home. The Swedish Wages Guarantee Act (1992:497) entitles seafarers to wages when a shipowner fails to pay contractual wages. Wages shall be provided in circumstances where a shipowner is bankrupt or in a process of company reorganization. While noting this information, 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 the nature of the financial security system and 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 above-mentioned questions, and to indicate in each case the applicable national provisions.

Regulation 2.6 and the Code. Seafarer compensation for the ship’s loss or foundering. The Committee requested the Government to explain how it ensures that shipowners respect the obligation established in Regulation 2.6. The Committee notes the Government’s indication that this Regulation is implemented through collective bargaining agreements and that unemployment is not the consequence if a ship is foundered or lost, since the seafarer does not lose his or her salary. The Committee notes in this regard the Collective Bargaining Agreement referred to above which refers to compensation for loss of personal property in case of shipwreck. The Committee notes this information, which addresses its previous request.

Regulation 3.1 and Standard A3.1, paragraph 9. Accommodation and recreational facilities. Sleeping rooms. Noting that the Government’s system of measurement differs from that under the Convention, the Committee requested 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. The Committee notes the information provided by the Government in this regard showing the size of Swedish MLC vessels’ crew cabins compared to the requirements of the MLC, 2006. The Committee also notes the Government’s indication that in consultation with shipowners’ and seafarers’ organizations it has been agreed to retain the more favourable conditions of the existing Swedish legislation. The Committee notes this information, which addresses its previous request.

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. The Committee requested the Government to identify the measures 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). The Committee notes the Government’s indication that all seafarers working on ships that fly the Swedish flag are assured a financial security as required by this Standard (chapters 40–41 and 88 of the Social Security Code (2010:110)). The Committee notes that according to the DMLC Part I as revised following the entry into force of the 2014 amendments to the Convention, Sweden has adopted a substantial equivalence measure to allow ships to sail without certificate or documentary evidence stating financial security. The Swedish Social Insurance Code entitles seafarers to financial security for any claim which relates to long-term disability or death of seafarers. In case of long-term disability, the financial security shall be in the form of annuity, sick pay and compensation for care and special aids. In case of death, the financial security is in the form of annuity to next of kin as well as compensation for funeral expenses. As a complement to the Social Insurance Code, the shipowner can have collective bargaining agreements which include occupational group life insurance (TGL) and industrial injury insurance (TFA) for all seafarers on Swedish ships. While noting this information, 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 do 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.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee requested 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 or the European Economic Agreement. The Committee notes the Government’s indication that these seafarers are covered only by resident-based benefits as far as the public social security protection is concerned. The Committee also notes that the majority of these seafarers work for Swedish shipping companies which have agreed to use a collective agreement providing seafarers with social security protection which is no less favourable than the protection applicable to shoreworkers in Sweden or seafarers working on ships flying the Swedish flag. In addition, certain tax conditions apply to these seafarers and as a result their protection is implemented by a combination of laws, regulations and collective bargaining agreements. The Committee requests the Government to provide an example of such a collective agreement. Moreover, the Committee notes the Government’s indication that seafarers resident in Sweden working on board ships flying the flag of a country outside the European Union working for an employer of another nationality than Swedish and who are not using the abovementioned collective agreement (these seafarers are estimated to be of a very limited number) are covered by the Swedish resident-based benefits as far as the public social security protection is concerned. The Government states that it will initiate consultations with the social partners regarding this category of seafarers. In a communication submitted on 10 July 2018, the Government provides a copy of a letter signed by seafarers’ and shipowners’ national organizations represented at the Swedish Maritime Labour Market. They explain, in reference to this issue, that since living standards and costs are very high in Sweden, there is no reason why a seafarer would work abroad and still live in Sweden without social protection. They add that they have carefully analysed the issue and confirm that there are no seafarers residing in Sweden without any social coverage either by law or by collective bargaining. The Committee notes this information, which addresses its previous request.

Regulation 5.1.2 and Standard A5.1.2. Flag State responsibilities. Authorization of recognized organizations. The Committee requested 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 Standard A5.1.2, paragraphs 3 and 4. The Committee notes the list of recognized organizations provided by the Government as well as the specimen of the agreement governing the delegation of statutory certification and services for vessels registered in Sweden between the Swedish Transport Agency and a recognized organization. The Committee notes this information, which addresses its previous request.

Regulation 5.1.4 and Standard A5.1.4, paragraph 5. Flag State responsibilities. Inspection and enforcement. Investigation and remedy. The Committee requested the Government to provide information concerning its ongoing efforts to establish procedures and regulations for investigations following complaints under Standard A5.1.4, paragraph 5. The Committee notes the Government’s reference to section 4.3 of the Circular on Routine description for control of working and living conditions (2017-05-08) which gives effect to the provisions of the Convention concerning onshore complaints. The Committee notes this information, which addresses its previous request.

Regulation 5.1.4 and Standard A5.1.4, paragraph 6. Flag State responsibilities. Inspection and enforcement. Independence of inspectors. The Committee requested the Government to provide further information concerning the requirements for flag State inspectors’ competencies. The Committee notes the Government’s reference to section 4.4 of the Circular on Routine description for control of working and living conditions (2017-05-08) which contains very detailed information about the MLC, 2006, training of flag state inspectors. The Committee notes however that the above-mentioned Circular does not provide information as to measures to ensure the independence of these inspectors. The Committee therefore requests the Government to indicate how it implements Standard A5.1.4, paragraph 6 of the Convention.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee requested the Government to indicate how it implements Regulation 5.2.2 of the Convention. The Committee notes section 4.3 of the Circular on Routine description for control of working and living conditions (2017-05-08) which implements Regulation 5.2.2. The Committee notes this information, which addresses its previous request.