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

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

Autre commentaire sur C186

Demande directe

2019
2016

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The Committee notes 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 Italy on 18 January 2017 and 8 January 2019, respectively. 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) and 2, of the Convention. Definitions and scope of application. Seafarers. Personnel in charge of general and complementary services not directly linked to the navigation. In its previous comments, the Committee observed that part of the legislation implementing the provisions of the Convention only applies to seafarers who are part of the crew, and not to seafarers in charge of general and complementary services not directly linked to the navigation. It requested the Government to indicate the measures taken to ensure that the protection afforded by the Convention is guaranteed to all seafarers within the meaning of the Convention. The Committee notes the Government’s indication that the definition of seafarer contained in section 2(1)(d) of Legislative Decree No. 108 of 2005, i.e. “any person who is part of the crew who provides a service or work of any kind on board a seagoing vessel”, also covers workers in charge of general and complementary services. Therefore, although not listed in the categories of seafarers under section 115 of the Navigation Code, these categories of workers work on board ship and are afforded the same protection as seafarers covered by section 115 of the Navigation Code. While noting this information, the Committee is bound to recall that for the purpose of the Convention, “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies, including hotel and catering staff and other personnel employed by third contractors. The Committee accordingly requests the Government to take the necessary measures to ensure that seafarers in charge of general and complementary services not directly linked to the navigation are considered seafarers in the laws and regulations implementing the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee noted that, under section 5bis of Legislative Decree No. 271/1999, as amended by Act No. 115/2015, the Ministry of Labour and Social Policy shall adopt, within a prescribed time frame, a decree identifying the types of hazardous work prohibited for young workers under 18 years of age. It requested the Government to indicate the measures adopted to determine, after consultation with the shipowners’ and seafarers’ organizations concerned, the types of work likely to jeopardize the health and safety of seafarers under 18 years. The Committee notes with interest the Government’s information that section 1(1) of the Decree of the Minister of Labour and Social Policies, with the Minister of Health and the Minister of Transport of 27 April 2018, which implements section 5bis of Legislative Decree No. 271/1999, in its Annex A identifies the types of work on board ships which are prohibited for young persons under 18 years. The Committee notes that the listed activities correspond to those provided under Guideline B4.3.10, paragraph 2. It notes, however, that section 1(2) of the Ministerial Decree of 27 April 2018 establishes that as an exception to the prohibition, those activities may be carried out by young persons under 18 years for essential purposes of education or occupational training, provided they occur under the supervision of trainers with health and safety expertise and under the health and safety conditions stipulated by current legislation. 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 1.2 and the Code. Medical certificate. The Committee noted that the legislation giving effect to this Regulation, in particular the Navigation Code and Royal Law Decree No. 1773 of 1933, as amended, only applies to seafarers registered as crew members, thus not covering the staff not directly involved in the navigation of the ship, such as waiters and hotel staff. It requested the Government to indicate the manner in which it gives effect to Regulation 1.2 and Standard A1.2 with respect to seafarers who are not members of the crew. The Committee takes note of the Government’s information in reply to its comments that, with respect to seafarers who are not part of the crew, section 12(1) of Legislative Decree No. 71/2015 provides that all seafarers, i.e. not only those who have a certificate of competency issued under the STCW, hold a medical certificate issued in accordance with section A-I/9 of the Code of STCW, which certifies their aptness to work on board. The Committee takes note of this information, which addresses its previous request.

Standard A1.2, paragraph 4. Qualified medical practitioner. In its previous comments, the Committee noted that under section 23(5) of Legislative Decree No. 271/1999, the doctor in charge of the medical examination of seafarers may be employed by a public or private institution that has an agreement with the shipowner, or self-employed or employed by the shipowner. Recalling with regard to the latter possibility that, in accordance with Standard A1.2, paragraph 4, duly qualified medical practitioners must enjoy full professional independence in exercising their medical judgment, the Committee requested the Government to indicate how it gives effect to this provision of the Convention. The Committee notes the Government’s information that – irrespective of the assessments and duties of doctors charged with supervising seafarers’ health under sections 23 of Legislative Decree No. 271/1999 and 41 of Legislative Decree No. 81/2008 – section 12(2) of Legislative Decree No. 71/2015 expressly tasks the Ministry of Health with ascertaining fitness for working at sea. Medical certificates attesting to mental and physical fitness to work at sea are issued by medical practitioners at Health Services for Seafarers (SASN) clinics operated by the Maritime, Aviation and Border Health Offices (USMAF). Following the reorganization of the Ministry of Health implemented by the Ministerial Decree of 8 April 2015, the SASN clinics were merged with the USMAF. The Government clarifies that health oversight for seafarers, stipulated by section 23 of Legislative Decree No. 271/1999 and Legislative Decree No. 81/2008, acts alongside but does not replace the verification of mental and physical fitness to work at sea required for those listed under the categories of seafarers and other maritime workers. This verification is the purview of medical practitioners at Ministry of Health local offices who issue certificates of fitness for the initial registration of seafarers, health check certificates required prior to embarkation and two-year periodic health check certificates. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and the Code – Seafarers’ employment agreements. The Committee requested the Government to: (i) indicate the manner in which effect is given to Regulation 2.1 and the Code with respect to seafarers who are not members of the crew; and (ii) supply a copy of a model seafarer’s employment agreement (SEA) applicable to these seafarers. The Government indicates that section 17(1) of Act No. 856/1986, as amended, authorizes shipowners to contract out to national or foreign companies having an agent or representative in Italy, catering or general services on board cruise ships, as well as any other commercial activity contributing, accessory or relating to running cruises. Section 17(2) provides that those services are carried out by the contractor under its own management and organization and the associated personnel do not form part of the crew, although subject to on-board hierarchy pursuant to section 321 of the Navigation Code. The Government clarifies that such personnel, not being part of the crew and employed by a legal entity (the company “ashore”) other than the shipowner, may only be employed on board a ship flying the Italian flag with prior permission from the competent authority. The request for permission submitted by the shipowner to the competent authority attests that the contractor Company will guarantee that its employees on board receive the full protection of the MLC, 2006. Personnel assigned to general and additional services, who are not part of the crew, sign an appropriate employment contract with the contractor Company that guarantees full compliance with the MLC, 2006. Moreover, section 10 of Legislative Decree No. 271/99 imposes on contractors various obligations with regard to the protection of those workers. The Government further indicates that collective agreements regarding those categories of workers are kept on board and are available to inspectors monitoring the application of the MLC, 2006. In case of non-compliance with the provisions of the Convention, all workers on board ships flying the Italian flag have the right to bring complaints. The Committee takes note of the collective agreement supplied by the Government for seafarers who are neither citizens nor resident in a Member State of the European Union embarked in the name and on behalf of a third contractor on board cruise ships, in force until 31 December 2018, and of the model SEA which shall be signed by both the third contractor and the shipowner and by the seafarer. While taking note of this information, the Committee recalls its comments under Article II, paragraph 1(f). It observes that since hotel and catering staff are considered seafarers for the purpose of the Convention, the Government is required to adopt laws and regulations giving effect to Standard A2.1 in respect of this category of seafarers who work on board ships flying the Italian flag. The Committee requests the Government to provide information on any measures adopted in this regard.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee requests the Government to provide information on any provision requiring that seafarers shall be given a document containing a record of their employment on board the ship, which shall not contain any statement as to the quality of the seafarers’ work or as to their wages.

Regulation 2.1 and Standard A2.1, paragraph 5. Seafarers’ employment agreement. Minimum notice period for termination. In its previous comments, the Committee noted that, with regard to minimum periods of notice for termination of employment, the Government refers to the provisions of a collective agreement. Recalling that Standard A2.1, paragraph 5, of the Convention requires the adoption of laws or regulations establishing minimum notice periods for early termination of a SEA, the Committee requested the Government to provide information on any laws or regulations adopted to ensure conformity with the requirements of Standard A2.1, paragraph 5. The Committee takes note of the Government’s explanation that section 342 of the Navigation Code establishes that the termination of a SEA made for an indefinite period shall be preceded by a notice given in accordance with corporative norms or usages. The Government indicates that, due to the suppression of the corporative regime, it is intended that section 342 refers to clauses of collective agreements, in particular to article 54 of the section of the collective bargaining of 1 July 2015 applicable to EU seafarers on cargo and passenger ships of over 151 GT (collective agreement applicable to EU seafarers). This Committee notes that article 54 of the collective agreement regulates the period of notice. The Committee takes note of this information, which addresses its previous request.

Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of work and hours of rest. Limits. In its previous comments, the Committee noted that section 11 of Legislative Decree No. 271/1999, as amended, reproduced the provisions of Standard A2.3, paragraphs 3 and 5, of the Convention, thereby providing for the alternative between maximum hours of work and minimum hours of rest. It further noted the Government’s indication that it had chosen both regimes. The Committee requested the Government to take the necessary measures to fix either a maximum number of hours of work or a minimum number of hours of rest in conformity with the Convention. The Committee takes note of the Government’s indication that the national legislation, more specifically Legislative Decree No. 271/1999, has adopted both possibilities provided by the Convention, i.e. maximum hours of work and minimum hours of rest, leaving to the social partners the choice between the two options, also in view of the different characteristics of voyages and their duration. The Committee notes that the collective agreement of 1 July 2015 provides for various categories of seafarers minimum hours of rest in conformity with the Convention. The Government clarifies that according to national legislation, in compliance with EU legislation, the source of regulations on working hours, with due regard to the mandatory limits set by the law, must result from collective bargaining, without establishing regulations to the disadvantage of seafarers. Noting that Standard A2.3, paragraph 2, should not be read as giving shipowners 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 are not subject to selective application by shipowners.

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. The Committee draws 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 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 3.1 and the Code. Accommodation and recreational facilities. In its previous comments, the Committee noted that the main law implementing this Regulation is Act No. 1045 of 1939 on hygiene and living conditions of crews on board national merchant vessels, which contains manifestly obsolete provisions and no longer corresponds to modern crew accommodation standards. The Committee also noted that, while the Government had indicated for many years that it intended to adopt new legislation or to revise Act No. 1045/1939, no legislation had been issued in this regard. The Committee requested the Government to take all the necessary measures to adopt legislation, which fully implements Regulation 3.1 and the Code. The Committee notes the Government’s indication that through Act No. 113/2013 of ratification of the MLC, 2006, all provisions of the Convention are fully in force under national legislation. Moreover, at the Ministry of Infrastructures and Transport the preparation of a Consolidated Act regulating all provisions on accommodation and recreational facilities, food and catering is under study. The Committee takes note of this information and requests the Government to provide information on the progress made towards the development of a Consolidated Act regulating accommodation and recreational facilities.

Regulation 3.2 and the Code. Food and catering. The Committee previously noted that the provisions of Act No. 1045/1939 on water, food, galleys, controls over the quantity and quality of food and water and inspections no longer correspond to modern standards. It requested the Government to provide information on the measures adopted to give effect to Regulation 3.2 and the Code. The Committee notes the Government’s indication that through Act No. 113/2013 of ratification of the MLC, 2006, all provisions of the Convention are fully in force under national legislation. It also notes that the Government refers to article 37 of the collective agreement applicable to EU seafarers, which establishes that the provision of food shall be in line with national standards and international ILO standards with regard to quantity, nutritional value and variety and shall take into consideration the duration and nature of the voyage as well as the number of seafarers on board. The Committee notes that similar provisions are contained in other sections of the collective agreement in relation to other categories of seafarers. While taking note of the Government’s information, the Committee recalls that Regulation 3.2 constitutes a framework of general principles on food and catering and requires the adoption of legislation or other measures providing for minimum standards for the quantity and quality of food and drinking water and for the catering standards that apply to meals provided to seafarers on ships that fly its flag (Standard A3.2, paragraph 1). In this regard, the reference to ILO standards is not sufficient and the Member shall adopt specific legislation or other measures to define minimum standards. The Committee requests the Government to adopt the measures or envisaged to give full effect to Standard A3.2, paragraphs 1 and 2.

Regulation 3.2 and Standard A3.2, paragraphs 5 and 6. Food and catering. Dispensation of a fully qualified cook. The Committee noted that Circular No. 005 of 9 March 2010 provides that competent maritime authorities could allow, where there is lack of a qualified ship’s cook, to engage as ships’ cooks also seafarers who do not hold the diploma of qualification as a ship’s cook, provided that they comply with certain requirements. It noted that, under the Circular, after 24 months of navigation in the kitchen service, the seafarer who wants to keep working as a ship’s cook shall pass the exam for the respective qualification. Recalling that only ships operating with a manning of less than ten may not be required to have on board a fully qualified cook (Standard A3.2, paragraph 5), it requested the Government to indicate how it gives effect to Standard A3.2, paragraph 3, according to which shipowners shall ensure that seafarers who are engaged as ships’ cooks are trained, qualified and found competent for the position in accordance with national requirements. The Committee notes the Government’s information that the above-mentioned Circular is in line with the Certification of Ships’ Cooks Convention, 1946 (No. 69), whose Article 3(2) provides that the competent authority may grant exemptions from the requirements for employing a ship’s cook on board, which is subject to a certificate of qualification, in case of inadequate supply of certificated ships’ cooks. The Committee recalls that Article 3(2) of Convention No. 69 has not been retained in the text of the MLC, 2006, and that Convention No. 69 has been automatically denounced by Italy upon the ratification of the MLC, 2006. The Committee accordingly requests the Government to take the necessary measures to ensure full conformity with Standard A3.2, paragraph 3.

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 draws 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. 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. The Committee noted that, while Legislative Decree No. 81/2008 (Consolidated Text on occupational safety and health (OSH)) provides for regulations to be adopted within a set time frame to coordinate its provisions with those of Legislative Decree No. 271/1999 on OSH on board, no such regulations had been adopted so far. The Committee requested the Government to provide information on any regulations adopted pursuant to Legislative Decree 81/2008 as well as on any other measures taken to give effect to Regulation 4.3, paragraph 3, and Standard A4.3, paragraphs 1 to 3. The Committee notes the Government’s indication that no regulations have been adopted to coordinate the provisions of Legislative Decree No. 81/2008 with those of Legislative Decree No. 271/1999. It also indicates that, in application of section 8(4) of Legislative Decree No. 81/2008, as from 12 October 2017 employers, including shipowners, have the obligation to transmit electronically the accident report for statistical and information purposes. The Committee requests the Government to provide updated information on the development of legislation and other measures addressing the matters specified in Standard A4.3, paragraphs 1 and 2.

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. The Committee requested the Government to provide information on the development, after consultation with representative shipowners’ and seafarers’ organizations, of national guidelines for the management of OSH, to protect seafarers that live, work and train on board ships flying its flag, and to provide a copy of them when available. The Committee notes the Government’s reference to the Guide of “good practices in case of accidents on board ships” of April 2014, developed by the Ministry of Infrastructures and Transport in collaboration with the International Radio Medical Centre (CIRM) Foundation. The Committee requests the Government to specify how it ensures that the mentioned document is used in practice on board ships and whether shipowners’ and seafarers’ organizations were consulted during its elaboration.

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. In its previous comments, the Committee noted that section 12(5) of Legislative Decree No. 271/1999 provides that for some ships, including those of less than 200 gross tonnage, the service of prevention and protection can be established ashore and the person responsible for the service and the staff can be nominated among shipowners’ bodies ashore. The Committee requested the Government to provide information on the measures taken to give full application to this provision of the Convention. Noting that the Government reiterates the same information provided in its previous report, the Committee recalls that Standard A4.3, paragraph 2(d), of the Convention provides that a ship’s safety committee shall be established on board all ships on which there are five or more seafarers, with no exceptions. The Committee requests the Government to take the necessary measures to ensure full compliance with this provision of the Convention.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee previously noted that most of the legislation regulating social security for seafarers only applies to seafarers working on board ships flying the Italian flag. It requested the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in Italy, including those who work on board ships flying a foreign flag, are granted social security coverage in the branches specified, which is no less favourable than that enjoyed by shore workers resident in Italy, in conformity with Regulation 4.5. The Committee also requested the Government to provide further details on social security coverage of seafarers under the bilateral and multilateral agreements mentioned by the Government. The Committee notes the Government’s information that foreign seafarers benefit from both the maintenance of social security coverage in their country of origin and from social security benefits in application of the Community Regulations (for EU countries) and the social security bilateral agreements stipulated with a number of countries. It further notes the Government’s information that Act No. 413/1984 regulates not only statutory benefits for seafarers working on ships flying the Italian flag, but also optional benefits for seafarers who are ordinarily resident in Italy and work on board ships flying foreign flags. Those seafarers may request the affiliation to the general statutory insurance system managed by the National Institute for Social Security (INPS), as well as the optional system insurance cover for disability, old age and survivors (IVS), and for Tuberculosis (Tbc). The request of preregistration may be presented by the seafarer or by the shipowner. In the first case, only the seafarer has the obligation to pay the contribution, while in the second case the obligation is on the shipowner. Moreover, seafarers who are ordinarily resident in Italy and work on board ships flying a foreign flag are subject to social security legislation of the flag State. Therefore, the social security coverage under the Italian legislation would be additional to that provided by the flag State. Noting this information, the Committee encourages the Government to explore mechanisms to ensure that the employer’s social security contributions for seafarers who are resident in Italy and work on board ships flying a foreign flag are always paid by the shipowner and to provide information on any developments in this regard.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee recalls that, although the primary obligation concerning social security rests with the Member in which the seafarer is ordinarily resident, under Standard A4.5, paragraph 6, Members have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers working on board ships flying their flag in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to indicate any steps taken to provide benefits to seafarers working on board ships flying the Italian flag comparable to those provided to seafarers resident in the country.