Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention du travail maritime, 2006 (MLC, 2006) - Roumanie (Ratification: 2015)

Autre commentaire sur C186

Demande directe

2021
2020

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006), received after an urgent appeal formulated by the Committee in 2020. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, 2016 and 2018 entered into force for Romania on 18 January 2017, 8 January 2019 and 26 December 2020 respectively. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue. In this regard, the Committee further notes that according to the “Measures adopted and enforced by the Romanian authorities with respect to COVID-19”, as communicated to the European Commission and the European Maritime Safety Authority, in March 2020, the crews of the ships calling at Romanian maritime ports remain isolated on board (they do not receive shore passes), regardless of the risk area from which they come. The Committee recalls that in its 2020 general observation it requested ratifying countries with responsibilities as port States to adopt the necessary measures to fully comply with their obligations under the Convention. In particular, the Committee called upon governments with port State responsibilities to allow seafarers to enjoy their right to shore leave in accordance with Regulation 2.4, paragraph 2, subject to the strict respect of any public health measures applicable to the local population. The Committee accordingly requests the Government to adopt without delay the necessary measures to bring all relevant legislation in full compliance with the Convention and to allow seafarers of the ships calling at Romanian ports to enjoy their right to shore leave.

General questions on application. Implementing measures. The Committee notes the Government’s indications that it is currently in the process of adopting Implementing Rules intended to give effect to the requirements of the Convention.

Observing that the Convention was ratified in 2015 and that the Government has still not adopted the required legislation, the Committee requests the Government to adopt without delay the necessary measures to fully implement the requirements of the Convention taking into account the points raised below. The Committee further requests the Government to clarify whether the Draft Implementing Rules have been elaborated after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee reminds the Government that it may avail itself of the technical assistance of the Office.

Regulation 1.2 and Standard A1.2, paragraph 2. Medical certificate. The Committee notes the Government’s indication that, according to the Draft Implementing Rules, section 10(7), a Governmental Ordinance issued by the Minister of Transport and Infrastructure (MTI) shall establish the nature of the medical examination and the form and content of medical certificate, after consultations with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to adopt the necessary measures to give effect to Regulation 1.2 and Standard A1.2, paragraph 2 and to provide a copy of this Ordinance once adopted.

Regulation 1.2 and Standard A1.2, paragraph 7. Medical certificate. Period of validity. The Committee notes the Government’s reference to Order No. 1260/2013 for the approval of the Methodological Norms on the Medical and Psychological Examination of the Personnel with duties in Transport Safety and the Periodicity of the Examination. The Committee notes that section 6(2) foresees that the validity of the medical and psychological endorsements for the maritime and railway transport for vocational training shall not exceed two years. The Committee notes that this provision applies for vocational training staff only. The Committee further notes that section 2 of the same Order prescribes periodical check-ups by age group for the staff assigned to tasks with responsibilities in transport safety. The Committee recalls that periodical examination to renew the medical certificate shall be conducted for all seafarers under the meaning of the Convention and not only for the staff with responsibilities in transport safety. The Committee consequently requests the Government to adopt the necessary measures to implement the requirements of Standard A1.2, paragraph 7(a) regarding the maximum period of validity of certificates. Noting that no information has been provided regarding the validity of the colour vision certificate, the Committee accordingly requests the Government to clarify how it applies the requirement of Standard A1.2, paragraph 7(b).

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s reference to the provisions of the Decision No. 83/2003 of 23/01/2003 on the authorization of companies that provide services for the selection and placement of Romanian maritime or river navigation personnel on ships flying the Romanian or foreign flag as well as to the Draft Implementing Rules, giving effect to a large number of the requirements of the Regulation 1.4 and the Code. The Committee has not identified, however, provisions implementing the requirements of Standard A1.4, paragraph 5(a) (prohibition of seafarers’ blacklisting). The Committee accordingly requests the Government to indicate how it gives effect to this requirement of the Convention. Noting the Government’s indication that Decision No. 83/2003 will be abrogated upon entry into force of the Draft Implementing Rules, the Committee requests the Government to provide a copy of the new legislation that will be applicable to recruitment and placement services.

Regulation 1.4 and Standard A1.4, Paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes the Government’s indication that, according to the Draft Implementing Rules, section 15 the crewing agencies must submit a copy of the financial security assurance concluded by the shipowner for ships which are recruiting seafarers from crewing agencies, covering repatriation and financial loss of seafarers, by fault of the shipowner not having fulfilled its obligations, by virtue of the labour contract. The Committee further notes that section 16 of the same Draft Implementing Rules foresees that financial security should be constituted as a bank deposit guarantee of at least €300,000 or an insurance of at least €300,000, concluded with an insurance company agreed by the Financial Monitoring Authority. In this respect, the Committee recalls that such system of protection shall also ensure compensation of seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement agency under the employment agreement to meet its obligations to them (and not only for the failure of the relevant shipowner). The Committee thus requests the Government to amend accordingly the Draft Implementing Rules to give full effect to the provisions of Standard A1.4, paragraph 5(c)(vi).

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. Noting that no relevant provisions or draft provisions have been identified within the available documentation, the Committee requests the Government to indicate the laws or regulations providing that seafarers shall be given a document containing a record of their employment on board the ship as required by Standard A2.1, paragraphs 1(e) and 3.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under the national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above questions, indicating in each case the applicable national provisions.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee notes the Government’s indication that, according to section 43(1) of the Draft Implementing Rules, the shipowners flying the Romanian flag shall not require seafarers to make an advance payment towards the cost of repatriation at the beginning of their employment and also from recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found, in accordance with national laws to be in serious default of the seafarer’s employment obligations. While noting this information, the Committee requests the Government to indicate the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarers’ employment obligations” (Standard A2.5.1, paragraph 3).

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes the Government’s indication that the currently applicable legislation regarding financial security in case of abandonment are Decision No. 83/2003 on the authorization of companies providing services for the selection and placement of seagoing or inland waterway personnel on ships flying Romanian or foreign flag, as well as the establishment of financial security measures in case of abandoning it outside Romania and Order of the Minister of Transport and Infrastructure No. 247/2010 setting up the procedure for the establishment of financial security and the release of amounts, the approval of the model of the financial security certificate and the procedure for issuing the financial security certificate in case of seafarers’ abandonment. The Government further indicates that these legal instruments will be abrogated upon entry into force of the Draft Implementing Rules. The Committee notes that Decision 83/2003 foresees obligation to provide financial security measures only for placement agencies and that the Draft Implementing Rules, section 34(5), foresee the obligation for the shipowners flying the Romanian flag, engaged in international voyages to prove the establishment of a financial security in the form of an insurance policy. The Committee recalls that although Standard A2.5.2, paragraph 6 requires that ships engaged in international voyages carry on board evidence of financial security, paragraph 3 of the same Standard foresees that each Member shall ensure that a financial security system is in place for ships flying its flag. This financial security system requirement therefore applies to all ships within the scope of the MLC, 2006. The Committee consequently requests the Government to indicate the measures taken or envisaged to fully comply with the requirements of Standard A2.5.2, paragraph 3.

Regulation 2.5 and Standard A2.5.2, paragraph 6. Repatriation. Financial security. Documentary evidence. The Committee notes the Government’s reference to section 35(2) and (3) of the Draft Implementing Rules transposing the requirements of Standard A2.5.2, paragraphs 6 and 7. The Committee notes, however, that financial security must be not only available on board, as provided in the section 35, but also its copy shall be posted in a conspicuous place on board where it is available to the seafarers. The Committee accordingly requests the Government to indicate the measures taken to ensure the compliance with this requirement of the Convention (Standard A2.5.2, paragraph 6).

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee notes the Government’s reference to section 51(1) of the Draft Implementing Rules foreseeing the development and maintenance of a national policy to promote employment in the maritime sector and to encourage career development and skills of the Romanian seafarers, which shall include clear targets for the development of vocational skills, education and training of seafarers, including training for the safe operation of the ship. The Committee requests the Government to provide a copy of national policy once adopted.

Regulation 3.1 and Standard A3.1, paragraph 9. Accommodation and recreational facilities. Sleeping rooms. The Committee notes the Government’s reference to the Draft Implementing Rules which intend to transpose requirements of a number of provisions of the Convention, including those of the Title 3. The Committee notes that section 56(j) of these Rules foresees that “on special purpose ships sleeping rooms may accommodate more than four persons; the area occupied by these sleeping rooms is not less than 3.6 square meters”. The Committee recalls that Standard A3.1, paragraph 9(j) requires that the floor area of the sleeping rooms in such case shall not be less than 3.6 square meters per person. The Committee consequently requests the Government to amend accordingly the Draft Implementing Rules to ensure full compliance with this requirement.

Regulation 4.1 and Standard A4.1, paragraphs 3 and 4. Medical care on board and ashore. On-board hospital and medical facilities, equipment and training. The Committee notes the Government’s reference to sections 62 and 63 of the Draft Implementing Rules, foreseeing measures to ensure that seafarers have access to the medical care that is generally available to workers ashore, including prompt access to the necessary medicines, medical equipment and facilities for diagnosis and treatment and to medical information and expertise. The Committee recalls that each Member has to adopt laws and regulations establishing requirements for on-board hospital and medical care facilities and equipment and training on ships that fly its flag (Standard A4.1, paragraph 3). Noting that the Government has not provided information in this regard, the Committee requests the Government to indicate the measures taken to give effect to this requirement of the Convention.

Regulation 4.1 and Standard A4.1, paragraph 4(a). Medical care on board and ashore. Minimum requirements. Medicine chest, medical equipment and medical guide. The Committee notes the Government’s reference to section 63(1)(a) of the Draft Implementing Rules, prescribing that all ships shall carry a medicine chest, medical equipment and medical guide. The Committee recalls that the specifics of medicine chest, medical equipment and medical guide shall be prescribed and subject to regular inspection by the competent authority (Standard A4.1, paragraph 4(a)). The Committee requests accordingly the Government to explain how it gives effect to these requirements of the Convention, indicating, in particular, how due consideration has been given to Guideline B4.1.1, paragraph 4, which provides that inspections should take place at regular intervals not exceeding 12 months.

Regulation 4.1 and Standard A4.1, paragraph 4 (c). Minimum requirements. Seafarer in charge of medical care. Noting that there were no relevant provisions indicated by the Government as to the requirement for person designated to provide medical first aid to have satisfactory completed training in medical first aid meeting requirements of the STCW, the Committee requests the Government to indicate how it gives effect to these requirements of the Convention (Standard A4.1, paragraph 4 (c)).

Regulation 4.2 and Standard A4.2.2, paragraph 3. Shipowners’ liability. Financial security. Treatment of contractual claims. The Committee notes the Government’s reference to section 65(1) of the Draft Implementing Rules, stating that the term “contractual claim” means any claim relating to the death or long-term incapacity of seafarers due to an occupational injury, illness or hazard, as provided for in national legislation or the employment contract. The Committee further notes that section 65(2) of the same Rules specifies that the contractual compensation, where set out in the seafarer’s employment agreement shall be paid in full and without delay. The Committee recalls that national laws and regulations shall ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation referred to in Standard A4.2.1, paragraph 8, through expeditious and fair procedures. The Committee accordingly requests the Government to explain how it gives effect to this requirement of the Convention, indicating the relevant national laws and regulations. The Committee also requests the Government to indicate how due consideration has been given to the Guideline B4.2.2 in this respect.

Regulation 4.3 and Standard A4.3, paragraphs 1 and 2. Health and safety protection and accident prevention. Policies and programmes. The Committee notes the Government’s reference to the provisions of section 66(1) of the Draft Implementing Rules, foreseeing that to ensure on board ships flying the Romanian flag a working environment, safety and hygiene for seafarers and access to an adequate health protection system, MTI, in consultation with the representatives of the shipowners’ and seafarer’ organizations shall develop national guides for the management of the safety and health at work for seafarers and to adopt legislation on safety and health protection standards. The Committee further notes that section 66(2) of the Draft Implementing Rules specifies the objectives and purpose of the national guides and laws to be adopted to ensure the safety and health of the workers in all aspects related to the work. The Committee accordingly requests the Government to provide such guides and legislation implementing requirements of Regulation 4.3, paragraphs 1–3 and Standard A4.3, paragraphs 1 and 2 once adopted.

Regulation 4.3 and Standard A4.3, paragraphs 5 and 6. Health and safety protection and accident prevention. Reporting, statistics and investigation. The Committee notes that the Draft Implementing Rules foresee an obligation for the master of the ship to notify the shipowner and the RNA of the injury and any event as defined in section 5 Letter (f) of the Law on Safety and Health at Work No.319/2006, the latter having not been provided by the Government. The Committee further notes that the shipowner shall communicate these events in accordance with the provisions of section 26 and section 27, paragraph 1 of the Law No.319/2006 (with the subsequent modifications) and that the investigation of these events is carried out according to the legislation in the field of safety and health at work. Noting that these texts (i.e., section 5 Letter f), section 26 and section 27, paragraph 1 of the Law on Safety and Health at Work No. 319/2006 as well as the legislation in the field of safety and health at work) have not been communicated by the Government, the Committee requests the Government to produce the relevant texts. The Committee further requests the Government to indicate how it has taken into account the guidance provided by the International Labour Organization with respect to the reporting and recording of occupational accidents and diseases (Standard A4.3, paragraphs 5(a) and 6).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s reference to section 68(1) of the Draft Implementing Rules, according to which, MTI, in consultation with the shipowners’ and seafarers’ organizations, promotes the creation of welfare facilities and social services in Romanian ports, where possible and appropriate to the purpose. According to the section 68(3) of the same Rules, seafarers on ships flying a foreign flag and located in Romanian ports have the right to free access to the Romanian diplomatic missions of their state of citizenship or state of residence. The Committee recalls that each Member shall ensure that shore-based welfare facilities are easily accessible (Regulation 4.4, paragraph 1) and shall require that shore-based welfare facilities are available for the use of all seafarers, irrespective of nationality, race, colour, sex, religion, political opinion or social origin and irrespective of the flag State of the ship on which they are engaged (Standard A4.4, paragraph 1). The Committee accordingly requests the Government to indicate how it gives effect to these requirements of the Convention (Regulation 4.4, paragraph 1, Standard A4.4, paragraph 1).

Regulation 4.5 and the Code. Social security. The Committee notes that in accordance with Standard A4.5, paragraphs 2 and 10, the Government has specified the following branches of social security: unemployment benefit; old-age benefit and family benefit. The Committee further notes the Government’s indication that the Draft Implementing Rules, section 70(1), provides that the social security protection, which is granted according to national legislation, to all seafarers on board ships flying the Romanian flag, includes at least the following: medical care, sickness benefits and indemnities in the event of accidents at work or occupational disease, unemployment benefit, old-age benefit and family benefit. The protection thus guaranteed shall be no less favourable than that enjoyed by workers on land domiciled in Romania. The Committee further notes that, according to section 70(3) of the same Rules, in the absence of adequate coverage in the rest of the branches mentioned in the Code, seafarers are offered comparable benefits in accordance with national legislation and practice. The Committee also notes the Government’s reference to the Draft Implementing Rules, section 69, according to which all seafarers on vessels flying the Romanian flag, as well as persons under their responsibility, shall benefit from social security under Law No. 53/2003 – Labour Code. The Committee notes the content of these provisions, which, however, do not seem to address the situation of seafarers ordinarily resident in Romania working on board vessels flying a foreign flag. The Committee accordingly requests the Government to indicate the measures taken to give effect to these provisions of the Convention (Regulation 4.5, paragraph 1, Standard A4.5, paragraphs 1 and 3). As regards the main benefits provided under each branch concerned, the Committee notes the Government’s reference to section 72 of the Draft Implementing Rules, of which the Government, however, does not reproduce the content. The Committee accordingly requests the Government to indicate the main benefits provided in respect to each of the social security branches to seafarers ordinarily resident in Romania (Standard A4.5, paragraphs 1 and 3). In the absence of the relevant information provided, the Committee requests the Government to indicate whether shipowners’ and, if applicable, seafarers’ contributions to relevant social protection and social security systems or schemes are monitored to verify that the contributions are made in accordance with the requirements of Standard A4.5, paragraph 5, and how a due consideration has been given to Guideline B4.5, paragraphs 6 and 7 in this respect.

Regulation 4.5 and Standard A4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee notes the Government’s reference to the Draft Implementing Rules, section 70(5), according to which each competent authority, under the responsibility area, shall establish effective and fair procedures for the settlement of disputes. The Committee accordingly requests the Government to indicate how it gives effect to the requirements of Standard A4.5, paragraph 9.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. Regarding authorization of recognized organizations, the Committee notes the Government’s indication that the criteria for the authorization of recognized organizations and requirements for inspectors, competences and qualification criteria are established by Order of the Minister of Transport No. 1225/2015 regarding the observance of Romania’s obligations as a flag state, which, however, has not been provided by the Government. The Committee accordingly requests the Government to provide a copy of this Order.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes the Government’s reference to section 72 of the Draft Implementing Rules foreseeing that inspectors shall have status and independence to enable them to carry out the inspection of ships. The Committee notes that the Government has not provided information regarding implementation of requirements of Standard A5.1.4, paragraph 6 (adequate rules provided and enforced to ensure independence of the flag state inspectors of changes of government and of improper external influences), Standard A5.1.4, paragraph 11(a) (prohibition of any direct or indirect interest in any operation) and Standard A5.1.4, paragraph 17 (adequate penalties and other corrective measures for breaches of the requirements of the Convention). The Committee accordingly requests the Government to indicate how it gives effect to these requirements of the Convention (Standard A5.1.4, paragraphs 6, 11(a) and 17). The Committee further notes the Government’s reference to section 83 of the Draft Implementing Rules transposing requirements of Standard A5.1.4, paragraph 5 as to the treatment of complaints received for non-compliance of the ship to the requirements of the Convention. Noting that no information has been provided regarding the implementation of the requirements of Standard A5.1.4, paragraph 10 (confidential treatment of any grievance or complaint) and Standard A5.1.4, paragraph 11(b) (prohibition to reveal commercial secrets or confidential working processes or information of a personal nature), the Committee requests the Government to indicate how effect has been given to these requirements of the Convention.

Regulation 5.1.5 and the Code. Flag State responsibilities. On-board complaints procedures. The Committee notes the Government’s reference to the Order No. 1388/2014 regarding the amendments to Annex to the Order of the Minister of Public Works, Transport and Housing No. 1.894/2002 for the approval of the Flag State Control Manual for vessels flying the Romanian flag which prohibits the victimization of seafarers as regards the formulation of complaints in accordance with the MLC, 2006. The Committee also notes provisions of the Draft Implementation Rules, section 86(3)(e), according to which the complaint procedure shall contain protection measures against victimization of any seafarer making a complaint. The Committee, however, has not identified in the available texts provisions regarding penalization of the victimization, in conformity with the requirement of Regulation 5.1.5, paragraph 2. The Committee therefore requests the Government to indicate how it gives effect to this requirement of the Convention. As to the Draft Implementation Rules, section 86, which refers to the requirements of the Convention regarding the on-board complaint procedures, the Committee notes that no provision seems to allow seafarers in all cases to complain directly to the master and, where they consider it necessary, to appropriate external authorities. The Committee accordingly requests the Government to indicate how it gives effect to these requirements of the Convention (Standard A.5.1.5, paragraph 2). The Committee notes that no model for on-board complaint procedures appears to have been developed so far. The Committee recalls in this respect that in addition to a copy of their seafarers’ employment agreement, all seafarers shall be provided with a copy of the on-board complaint procedures applicable on the ship (Standard A5.1.5, paragraph 4). The Committee accordingly requests the Government to indicate the measures taken to comply with Standard A5.1.5, paragraph 4.

Additional documents requested. The Committee notes that the Government has omitted to provide the large majority of documents requested in the report form. The Committee requests the Government to provide them with its next report.