Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

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 Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006), as well as the observations of the Norwegian Confederation of Trade Unions (LO) communicated with the Government’s report. It also notes that the amendments to the Code of the Convention approved by the International Labour Conference (ILC) in 2018 entered into force for Norway on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by Norway during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had 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 and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II, paragraphs 1(f) and 2 of the Convention. Definitions and scope of application. Seafarers. 1. Project personnel. The Committee previously noted that Circular RSV 04/2013 on guidance to the Regulations of 19 August 2013 concerning the scope of application of Act of 21 June 2013 No. 102 relating to employment protection etc. for employees on board ships (Ship Labour Act) provides 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 and health personnel). The Committee notes that, in reply to its previous comments, the Government indicates that although project personnel are not considered as seafarers under the Convention, this does not mean that they are without rights and that their working and living conditions are not inspected. Moreover, this category is covered by the Ship Safety and Security Act without exception. The Committee further notes that LO reiterates that (1) the partial exclusion of project personnel is not in line with the MLC, 2006, as such personnel can be employed for long periods on board; (2) there is no reason to treat them differently from others; and (3) it is irrelevant whether they are employed by an employer other than the shipowner. The Committee considers that persons who work more than short periods on board a vessel to which the Convention applies should be considered as seafarers, regardless of the nature of their contract or the tasks they perform, and benefit from the protection afforded by the Convention. The Committee accordingly requests the Government totake the necessary measures to ensure that all the provisions of the Convention are fully implemented with respect to seafarers falling under its scope, including project personnel.

2. Seafarers undertaking diving operations. The Committee notes that LO indicates that: (i) on 7 May 2021, the Parliament agreed to an amendment (not in force yet) excluding from the Ship Labour Act seafarers undertaking diving operations from a ship, instead including such employees under Act no. 62 of 17 June 2005 relating to working environment, working hours, employment protection, etc. (Working Environment Act); (ii) the Working Environment Act, which applies to all other categories of workers except seafarers, does not directly implement the MLC, 2006, although providing in several areas at least the same, or better, level of protection, and (iii) such exclusion is in breach of Article II, paragraph 3 of the Convention and Resolution concerning information on occupational groups (Resolution VII), adopted in 2006 by the 94th (Maritime) Session of the ILC. The Committee requests the Government to provide its comments in this respect.

3. MODUs. The Committee notes that in reply to its previous comments, the Government indicates that: (i) mobile offshore units (MOUs) – which are not considered ships under the relevant legislation – are not part of the certification regime for cargo and passenger ships; and (ii) while Norway has not implemented the non-mandatory IMO Code for the Construction and Equipment of Mobile Offshore Drilling Units, 2009 (2009 MODU Code), these units are required to undergo a separate inspection and certification from ships that need International Convention for the Safety of Life at Sea (SOLAS) / MARPOL certificates. Considering that the MLC, 2006, applies to all ships ordinarily engaged in commercial activities, the Committee requests the Government to clarifywhether mobile offshore units, as defined by Regulation of 26 June 2007 No. 706 on the scope of application of the Ship Safety and Security Act for mobile offshore units, are engaged in navigation in areas not excluded by the scope of the MLC, 2006, and if so, to specify how the MLC, 2006, is applied to such units.

Article VI and Regulation 2.1 and Standard A2.1, paragraph 1(a). Substantial equivalence. Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that the Declaration of Maritime Labour Compliance (DMLC), part I, includes a substantial equivalence regarding the signature of the SEA. In particular, the national legislation differs from the Convention requirement that the SEA is signed by both the seafarer and the shipowner or a representative thereof. In this regard, the Ship Labour Act provides that the company (i.e. shipowner) shall see to that the seafarer has an employment agreement signed by both the seafarer and the employer. The company shall also ensure that the employment agreement is in accordance with the requirements in Standard A2.1 and that the particulars in the employment agreement are being fulfilled by the employer. The Committee observes that, for the purpose of Article VI of the Convention, the national provisions cited above: (i) are not conducive to the full achievement of the purpose of Standard A2.1, paragraph 1(a), which is to ensure that seafarers do not have to deal with more than one person or entity with respect to their working and living conditions and that that one person, i.e. the shipowner, is the sole responsible for ensuring that the working and living conditions of all seafarers conform to the MLC, 2006, requirements and are respected; and (ii) do not give effect to the same Standard, which provides that seafarers shall have a SEA signed by both the seafarer and the shipowner or a representative thereof. The Committee requests the Government to take all the necessary measures to ensure full compliance with Standard A2.1, paragraph 1(a), with regard to all seafarers covered by the Convention (see Article II). It also requests the Government to supply an example of a model seafarers’ employment agreement currently used.

Article VI and Regulation 3.1 and the Code. Substantial equivalence. Accommodation and recreational facilities. The Committee noted that under section 51, paragraph 1, of the Regulations of 21 April 2017, no. 515 on accommodation, recreational facilities, food and catering on ships (Regulations No. 515 of 2017), the Norwegian Maritime Authority (NMA) 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 requested the Government to clarify how it ensures that the recourse to substantial equivalence measures is made in conformity with the requirements of the Convention. The Committee notes the Government’s information that it acknowledges that substantial equivalence is not to be understood in the same way as in the International Convention for the Safety of Life at Sea (SOLAS), and that this should be respected for the parts of the Regulations implementing the MLC, 2006. While noting this information, the Committee requests the Government to ensure that recourse to substantial equivalence follows the requirements of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraphs 1–3. Minimum Age.Night work. The Committee notes that, in reply to its previous comments, the Government indicates that: (i) while sections 8 and 9 of Regulations of 25 April 2002 No. 423, allow persons under 16 years of age to work on board Norwegian ships covered by the Convention, it is clearly stated that the activities are not considered work within the meaning of section 18 of the Ship Safety and Security Act; (ii) the intention of section 18 is expressed in the preparatory work of the Act, as follows: “[...] it will not be possible to derogate from the age limit of 16 years if the work is remunerated or otherwise compensated by other means. The provision does not preclude young persons under the age of 16 years who are allowed on board as part of schooling or education. …”; (iii) hence, those provisions allow person under 16 years age to undertake activities on board Norwegian ships invariably as part of vocational training programmes; and (iv) the Regulations also cover young persons typically spending short periods on board a ship as a means of gaining work experience. While noting the Government’s explanation, the Committee observes, in addition to what previously noted, that Regulations No. 423, as amended in 2017: (1) apply to young persons between 14 and 18 (section 1); (2) include in the definition of “work”, work that forms part of apprenticeship contracts or secondary education (section 1, paragraph 2); and (3) provide for possible exemptions from the prohibition against night work for young people who have reached the age of 15 and who are not subject to compulsory schooling where this is necessary for the vocational training and the work is carried out under supervision (section 10, third paragraph). The Committee observes that Regulations No. 423 are not fully in line with the Convention. In this regard, it recalls that: (i) obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, cadets and trainees are to be regarded as seafarers for the purpose of the Convention, and are covered by all its provisions (see Article II); (ii) the minimum age to work on board ships is 16 years, without exceptions (Standard A1.1, paragraph 1); and (iii) Standard A1.1, paragraph 3 establishes specific alternative requirements for granting exception to strict compliance with the night work restriction for seafarers between 16 and 18 years, which are more stringent than those provided by section 10, third paragraph, of Regulations No. 423. The Committee requests the Government to adopt the necessary measures to ensure that trainees are regarded as seafarers and that they fully enjoy the protection provided for by the Convention. It also requests the Government to amend Regulations No. 423 to ensure that: (i) no person below 16 years is employed or engaged or works on a ship, as required by the Convention; and (ii) young persons may only be allowed to perform night work from 16 years of age subject to the alternative conditions specified under Standard A1.1, paragraph 3. Finally, the Committee requests the Government to supply statistical data and inspection reports concerning any violation of the provisions on minimum age on board Norwegian ships.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum Age.Hazardous work. The Committee notes that, in reply to its previous comments, the Government indicates that, while section 8, third paragraph, of Regulations No. 423, in practice, does not allow exemptions from the prohibition of hazardous work for young people of less than 18 years that goes beyond Standard A1.1, paragraph 4, it will be revised to be clearer in this respect. The Committee accordingly requests the Government to provide information on the revision of section 8, third paragraph, of Regulations No. 423 to give full effect to Standard A1.1, paragraph 4.

Regulation 1.4 and Standard A1.4, paragraphs 2 and 5. Recruitment and placement.Private services. Requirements. The Committee notes that, in reply to its previous comments, the Government indicates that Regulations of 19 August 2013 No. 999 on the use of recruitment and placement services on ships, also apply to recruitment and placement services operating in Norway. The Committee observes, however, that section 3 of the above Regulations only provides that “It is sufficient that the employer can document having used a recruitment and placement service operating in: (a) Norway …”, without specifying the requirements applicable to those services. While the Government indicated that compliance with Regulation 1.4 is inspected and certified, the Committee observes that the Norwegian legislation does not fully reflect the requirements of Standard A1.4, paragraph 5 with regard to seafarer recruitment and placement services operating in the Norwegian territory whose principal purpose is the recruitment and placement of seafarers, or who recruit a significant number of seafarers. The Committee accordingly requests the Government to take the necessary measures to fully implement Standard A1.4, paragraph 5, and to indicate the relevant national provisions giving effect to those requirements.

Regulation 2.1 and Standards A2.1, paragraph 7. Seafarers’ employment agreements. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code of the Convention, the Committee notes that section 4 of Regulations of 19 August 2013 No. 1000 on employment agreement and pay statement, etc., implements Standard A2.2, paragraph 7. It also notes that, according to Circular No. RSR 16-2020 transmitted by the Government, in relation to Standard A2.1, paragraph 7, “[I]t is the wish of the NMA that this is specified in Norwegian legislation by including a new provision to the Ship Labour Act stating that the employment agreement is still valid if an employee who is working on a Norwegian ship or covered by the MLC, 2006, is held captive on or off the ship as a result of acts of piracy or armed robbery against the ship, regardless of whether the date fixed for its expiry has passed or either party has given notice to suspend or terminate it before or during the captivity”. The Committee requests the Government to indicate the national provisions implementing Standard A2.1, paragraph 7, as soon as they have been adopted.

Regulation 2.2 and Standard A2.2, paragraphs 3-5. Wages. Allotments.Noting that section 4-2, paragraph 3, of the Ship Labour Act regulates allotments, the Committee requests the Government to provide information on the implementation of Standard A2.2, paragraph 5.

Regulation 2.3 and Standard A2.3, paragraphs 8 and 9. Hours of work and hours of rest. On-call work. The Committee notes that, in reply to the concerns raised by the Confederation of Unions for Professionals on the watch system with only one engineer on board, the Government indicates that on ships that have permission to reduce manning due to an approval (issued by the NMA or a recognized classification society) regarding operation with periodically unattended machinery spaces, the company shall see to, and the master shall ensure, that the reduction of the manning level will not affect the rest hours of the remaining seafarers in order to uphold the rest hours requirements of the Ship Safety and Security Act and the relevant regulations. If the master fails to ensure an adequate compensatory rest due to the seafarer being the only qualified engineer on board, the master shall notify the company that the manning of the ship is not adequate to uphold the safety and security of the ship’s operation and the equipment on board. The Committee takes note of this information.

Regulation 2.3 and Standard A2.3, paragraphs 13 and 14. Hours of work and hours of rest. Exceptions. Immediate safety and distress at sea. 1. The Committee notes that, in reply to its previous comments, the Government indicates that no collective agreement concerning section 4, second paragraph, of Regulations of 26 June 2007 No. 705 on hours of work and rest on board passenger and cargo ships, etc., has been registered by the competent authority. To ensure that the collective agreements are in compliance with the Ship Safety and Security Act, the NMA will check them during MLC, 2006, certification and other following inspections. If the NMA has any indication, e.g. a complaint, that the minimum hours of rest are not in compliance with the relevant legislation, additional surveys on board the ship will be carried out (e.g. under section 14 of Regulations No. 705 of 2007). The Committee takes note of this information.

2. The Committee notes that, in reply to its previous comments, the Government indicates that extra work according to section 6, first paragraph, of Regulations of 26 June 2007 No. 705 (suspension of schedule of working hours or hours of rest) should be read to exclusively cover work for reasons of safety due to extraordinary situations and occurrences, which could not reasonably have been predicted. Planned or foreseen situations before the start of the ship’s journey are not included in this exemption. While noting this explanation, the Committee requests the Government to amend Regulations No. 705 accordingly to ensure harmonized implementation at the national level and full conformity with Standard A2.3, paragraph 14.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee notes LO’s comment that while the Labour Act provides for shore leave, this does not apply “if the circumstances or conditions of the ship make it necessary for the person concerned to stay on board.” In LO’s view this provision has narrowed the scope of the MLC, 2006. Furthermore, during the COVID-19 pandemic seafarers were refused shore leave, not only by the port authorities, but also by shipowners when there were no restrictions by the port authorities. LO indicates that, in a letter from the NMA of 18 October 2021, the Authority addressed this issue and established that the shipowner can deny shore leave if the latter has undertaken a risk assessment demonstrating that it is not advisable to go ashore. In LO’s view, that further narrows the fundamental right to shore leave protected by the Convention. Moreover, the Ministry of Health, for a long period required foreign seafarers to provide a European vaccination certificate to get shore leave, thus neglecting the fact that on board ships entering Norwegian ports, many seafarers did not have such a certificate and were denied shore leave. The Committee requests the Government to provide its comments in this respect.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Method of calculation. The Committee notes that, in reply to its previous comments, the Government indicates that: (i) section 5, first paragraph, of the Holidays Act, No. 21 of 29 April 1988, stipulates that employers are obliged to ensure that employees have 25 working days’ leave in connection with holidays each holiday year; (ii) employees are obliged to take holidays each year; (iii) such provision cannot be derogated through collective agreement; (iv) section 2, first paragraph, of Regulations No. 1285 of 12 December 1989 concerning entitlement to leave for seafarers does not mean that employees working on Norwegian ships only have 18 working days’ leave, as it merely stipulates that for employees on ships engaged on foreign voyages, a main holiday comprising 18 working days may be granted outside the main holiday period between 1 June and 30 September; and (v) in conclusion, employers are obliged to ensure that employees working on Norwegian ships have 25 working days’ leave in connection with holidays each holiday year. The Committee recalls that Standard A2.4, paragraph 2, provides that – subject to any collective agreement or laws or regulations providing for an appropriate method of calculation that takes account of the special needs of seafarers in this respect – the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment, which would amount to 30 days annual leave. The Committee requests the Government to take the necessary measures to bring its legislation in compliance with Standard A2.4, paragraph 2.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition to forgo paid annual leave. Exceptions.The Committee requests the Government to provide information on the implementation of Standard A2.4, paragraph 3.

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 information under this Standard that, pursuant to section 5-14(1) of the Ship Labour Act, the employer may summarily dismiss an employee if the latter is guilty of a “gross breach of duty or other serious breach of the contract of employment”. The Committee recalls that under Standard A2.5.1, paragraph 3, each Member shall prohibit shipowners from requiring that seafarers 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 seafarer’s wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in “serious default of the seafarer’s employment obligations”. The Committee requests the Government to indicate what is considered to be “gross breach of duty or other serious breach of the contract of employment” under the relevant legislation, as well as to provide information on 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 seafarer’s employment obligations” for the purpose of Standard A2.5.1, paragraph 3.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. The Committee notes that, in reply to its previous comments, the Committee refers to the provisions of Regulations of 19 December 2017, No. 2293 on financial security related to the entitlements of abandoned employees on Norwegian ships, which give effect to the requirements of Standard A2.5.2.The Committee takes note of this information.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee noted that section 51, paragraph 2, of the Regulations of 21 April 2017, No. 515 provides that the NMA 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 noted that this provision is not in conformity with the Convention, as it does not limit the scope of exemptions. The Committee notes the Government’s indication that, in addition to this general provision, the Regulations have special conditions for exemptions concerning Standard A3.1.The Committee requests the Government to ensure that any exemptions authorized under section 51, paragraph 2, of the Regulations of 21 April 2017, No. 515 are limited to those provided by Standard A3.1, paragraphs 20 and 21.

Regulation 4.1 and Standard A4.1, paragraph 1. Medical care on boardand ashore.Dental care. The Committee notes that, in reply to its previous comments, the Government reiterates that section 8-1 of the Ship Labour Act, paragraph 1, covers the dental care, although not explicitly mentioned, and that collective agreements incorporate the right to dental care. No explicit regulation in subordinate legislation has been adopted. The Committee further notes LO’s observation that, contrary to the MLC, 2006, Norwegian legislation does not contain a right for seafarers to dental care. While in the original proposal of the Ship Labour Act it was indicated that dental care would be considered implemented in regulations, this has so far not been done. In this regard, LO considers that the right to dental care must be provided in regulations laid down under the Ship Labour Act. The Committee requests the Government to provide its comments in this respect, including any example on how the right to dental care for seafarers has been implemented in practice. The Committee further requests the Government to adopt the necessary measures to amend the relevant legislation to ensure that seafarers have the right to visit a dentist without delay in ports of call.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security. The Committee notes that, in reply to its previous comments, the Government provides information on the provisions of Regulations of 18 February 2005, No. 145 on guarantees for social security entitlements for employees on Norwegian ships, as amended, and the Ship Labour Act, which implement Standards A4.2.1, paragraphs 8–14, and A4.2.2. The Committee takes note of this information.

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines.The Committee requests the Government to provide detailed information on the development, after consultation with representative shipowners’ and seafarers’ organizations, of national guidelines for the management of occupational safety and health to protect seafarers that live, work and train on board ships flying its flag, and to provide a copy thereof when available.

Regulation 4.4 and Standard A4.4. Access to shore-based welfare facilities. The Committee notes that, in reply to its previous comments, the Government provides information on seafarers’ centres in Norwegian ports. The centres are operated by the Norway Seamen’s Mission and Seaman’s Church International; the welfare centre in Narvik is operated in cooperation with the NMA. The Committee takes note of this information.

Regulation 4.5 and the Code.Social security. In relation to the application of the Seafarers’ Pensions Convention, 1946 (No. 71), the Committee requested the Government to provide information in relation to a number of issues, including: the supervision by the NMA of compensation to seafarers working as hotel and restaurant personnel on board tourist ships; the minimum retirement age; and the level of pensions of seafarers. In this regard, the Committee draws the Government’s attention to its comments under Convention No. 71.

Regulations 5.1 and the Code. Flag State responsibilities. The Committee notes that, in reply to its previous comments, the Government indicates that it appointed a tripartite working group to investigate the issues with regard to inspections on multipurpose vessels. However, the report (delivered in 2019) does not make any specific conclusions, and there is disagreement between the social partners regarding multi-purpose vessels. The Committee requests the Government to provide information on any developments regarding the inspection system for working conditions of seafarers on multi-purpose vessels.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee notes that, in reply to its previous comments, the Government indicates that, when the NMA carries out inspections, it checks the procedures referenced in DMLC, Part II, and assesses whether they contain measures adopted to ensure ongoing compliance with the national requirements. The procedures are often a part of the vessel’s Safety Management System, which is constructed to ensure ongoing compliance with the national requirements and continuous improvement. The Committee also notes that the Government has supplied four new examples of DMLC, Part II. The Committee takes note of this information.

Regulation 5.1.4 and Standard A5.1.4, paragraph 3. Flag State responsibilities. Qualified inspectors. The Committee requests the Government to indicate the qualifications and training required for flag and port State inspectors carrying out inspections under the Convention.

Regulation 5.1.4 and Standard A5.1.4, paragraph 12. Flag State responsibilities. Reporting on inspections. The Committee requests the Government to indicate how it gives effect to this provision of the Convention, ensuring that inspectors submit a report of each inspection to the competent authority, that a copy is furnished to the master and another posted on the ship’s notice board.

Regulation 5.2 and the Code. Port State responsibilities. The Committee notes that, in reply to its previous comments, the Government indicates that when a vessel is detained by Port State control officers, and the detainable deficiency is related to the MLC, 2006, the ILO and shipowners’ and seafarers’ organizations in Norway are informed by a copy of the detention notice and the inspection report. When the deficiencies are solved and the vessel is released, the same are informed with a copy of the release notice and the final inspection report. The Committee takes note of this information.