CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Denmark (RATIFICATION: 2011)

Other comments on C186

Direct Request

2019
2014

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The Committee notes the observations made by the Danish Confederation of Trade Unions (LO) received on 29 September 2014 and the further observations from the LO received on 17 October 2014 concerning the implementation of the Maritime Labour Convention (MLC, 2006). The Committee also notes the Government’s observations received on 29 September and 15 November 2014 responding to the LO’s observations.

General questions on application. Implementing measures. Information in the Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes the Government’s first report on the application of the MLC, 2006. Denmark has previously ratified 13 maritime labour Conventions, all of which were automatically denounced upon the entry into force of the Convention for Denmark. The Government provided a list of laws and legislation, including acts, regulations, orders, notices and circulars implementing the Convention, as well as the Declaration of Maritime Labour Compliance (DMLC), Part I, and four examples of an approved DMLC, Part II, as containing sufficient information on national implementation. The Committee understands that these orders, notices, and circulars are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. The Committee notes that one of the approved DMLC Part IIs submitted by the Government simply contains a list of references to another document, the shipowner’s manual. Unless the referenced document is carried on board ship and easily accessible to all concerned, the Committee notes that it would be difficult for flag State inspectors or port State control officers or seafarers to understand what the national requirements are on these matters and how they are to be implemented on board ship. The Committee considers that one of the examples of the DMLC, Part II, does not appear to fulfil the purpose for which it is required under the Convention, which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ship. The Committee suggests that the Government instruct its inspectors to review DMLC Part IIs to ensure that they are more informative concerning the ways in which the national requirements are to be implemented between inspections.

General questions on application. Article II, paragraphs 1(f), 2, 3 and 6. Scope of application. Seafarers and ships. The Committee notes that section 1 of the Consolidated act on seafarers’ conditions of employment, etc. provides that “the term ‘seafarer’ shall apply to all persons, apart from the master, employed, engaged or working on board a Danish ship who does not exclusively work on board while the ship is in port. For the master, section 49 shall apply.” Section 2 of the Act states that in case of doubt whether a category of persons is to be considered a seafarer pursuant to the act, the issue shall be settled by the Danish Maritime Authority (DMA), following consultation with the shipowners’ and seafarers’ organizations concerned. The decision of the DMA may be brought before the court. The Committee also notes the Government’s indication that although it appears that masters are not considered seafarers, they are covered by a special provision giving them a special status, and that this does not prevent the master from having the same protection and rights as other seafarers; in accordance with the Convention the term “seafarer” is used for both the master and other seafarers. The Government further indicates that, after consultation, and taking into consideration the resolution concerning information on occupational groups (resolution VII), adopted by the 94th Session of the International Labour Conference, “various groups of persons not involved in the traditional operation of the ship have either been included or been excluded from the definition of a seafarer”. The Committee also notes the Government’s indication that there have been cases of doubt as to whether any categories of persons are to be regarded as seafarers and that it “has recently received a request from the shipowners’ and a number of seafarers’ organizations concerning certain groups of employees on board ships under Danish flag working in a special capacity, either on board or in connection with the ship” and that a “formal decision regarding these groups will require a change of national law”. The Committee observes that the Government has referred to the “Frequently Asked Questions” on its website on the Convention which provides more information on, inter alia, the question “Who are considered seafarers”. The Committee notes that this information indicates several examples of situations when doubt may arise as to “whether a seafarer is covered by the term seafarer”. One of these examples is seafarers “hired by others than the shipowner to work on board”.

The Committee also notes that a determination has been made by the Government that it is not reasonable or practicable to apply the Code provisions relating to the regularity of inspection in the case of certain ships of less than 200 GT (merchant ships, but not passenger ships, with a length below 15 meters) in domestic voyages with a duration of a few hours and usually manned by the shipowner or, in fewer circumstances, by a person working very few hours on board except where a complaint is received concerning a substantial breach of the Convention and national laws and regulations. The Committee requests the Government to provide information with respect to any categories of persons that have been determined, in accordance with paragraph 3 of Article II, as persons that are not regarded as seafarers for purposes of the Convention. The Committee also requests the Government to identify any national measures covering, in a different way, the question of when inspections will be carried out on ships which have been excluded from inspection in the absence of complaints.

General questions. Fundamental rights and principles. Article III, paragraph (a). Article VI, paragraph 2 concerning Part B of the Code. The Committee notes the observations made by the LO, as well as the related responses of the Government, in the context of paragraph (a) of Article III, concerning the conformity of the Act on the Danish International Register of Shipping (DIS) with Articles 2 and 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee also notes the observations made by the LO, as well as the related response of the Government, concerning the obligation of Members, in accordance with paragraph 2 of Article VI, to give due consideration to implementing its responsibilities under the Convention in the manner provided for in Part B of the Code. The Committee stresses that the obligation of Members under paragraph (a) of Article III is to satisfy themselves that the provisions of their laws and regulations respect, in the context of the Convention, the fundamental right to freedom of association and the effective recognition of the right to collective bargaining. The Committee recalls that it has commented (2010–11) on the issues in connection with the application of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), and more recently (2013–14) in connection with Conventions Nos 87 and 98, where it requested the Government to:

… ensure full respect of the principles of free and voluntary collective bargaining so that Danish trade unions may freely represent in the collective bargaining process all their members – Danish or equated residents and non-residents – working on ships sailing under the Danish flag, and that collective agreements concluded by Danish trade unions may cover all their members working on ships sailing under the Danish flag regardless of residence. In this regard, noting the divergent views of the LO and the Government as to whether the DIS legislation has been sufficiently the subject of debate, the Committee invites the Government to engage in a tripartite national dialogue with the relevant workers’ and employers’ organizations on this issue so as to find a mutually satisfactory way forward, and to indicate in its next report its outcome and any contemplated measures.

The Committee notes the Government’s communication of 14 November 2014 stating that “the Government has noted the ILO Expert Committee’s invitation to engage in national tripartite dialogue with the relevant workers’ and employers’ organizations on this issue so as to find a mutually satisfactory way forward”. The Committee notes that the communication from the Government also provided information on specific steps that have been taken to begin a tripartite national dialogue.

In the context of the MLC, 2006 the Committee considers that it cannot usefully form an opinion on general questions as to whether a Member has properly satisfied itself that its laws and regulations respect freedom of association and the right to collective bargaining or as to whether, in the adoption of its legislation implementing the MLC, 2006, the Member has given due consideration to the provisions of Part B of the Code. Instead, the Committee’s review, in principle, relates to concrete requirements in Titles 1 to 5 of the Convention, and looks at national provisions implementing those requirements which indicate that insufficient account may have been taken of a fundamental right referred to in Article III, as well as at practices related to implementation of particular requirements in Titles 1 to 5 that could indicate that the relevant national laws and regulations have taken insufficient account of a fundamental right referred to in Article III.

Similarly, with regard to paragraph 2 of Article VI, the Committee will focus its review on national implementing provisions relating to concrete requirements for which due consideration does not appear to have been given to Part B of the Code. The Committee refers to its observations and direct requests with respect to the application of Conventions Nos 87 and 98 and requests that the Government provide information on the progress of tripartite national dialogue with the relevant workers’ and employers’ organizations on this issue and to provide information on the ways in which the Government has satisfied itself that the provisions of its laws and regulations respect, in the context of the Convention and in light of any observations of the seafarers’ and shipowners’ organizations concerned, the fundamental right to freedom of association and the effective recognition of the right to collective bargaining.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the observations made by the LO with respect to the increasing number of private recruitment and placement services operating in Denmark of which only a few have been certified and that there has been no consultation with respect to the system for certification of such services. The Committee notes the Government’s reply that there are few agencies that operate in Denmark and that a system for certification has been adopted as provided for in section 8(a)–(c) of the Consolidated act on seafarers’ conditions of employment, etc. The Committee notes that section 8(a)–(c) of the Act set out requirements for certification of services operating in Denmark and also provides for its flag State responsibility for shipowners that use recruitment and placement services based in countries that have ratified the MLC, 2006 or the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), or use services located in countries that have not ratified either Convention. These requirements are also set out in the DMLC, Part I. However, these provisions do not set out specific requirements for the certification of services operating in Denmark, which as required under paragraph 5 of Standard A1.4 must be in laws and regulations or other measures. The Committee recalls that the Convention does not contain exactly the same provisions as Convention No. 179, particularly with respect to the requirements in paragraph 5(b) and (c)(vi) of Standard A1.4. The Committee requests that the Government provide information on the application of paragraphs 2 and 5 of Standard A1.4 to any private recruitment and placement service that may be operating in its territory and to clarify the situation with respect to the use of services operating in countries that have not ratified the Convention. The Government is also requested to consider amending the DMLC, Part I, to the extent that it appears to equate the requirements of the Convention and Convention No. 179 on this matter. The Committee also requests the Government to provide information regarding any consultations with shipowners’ and seafarers’ organizations concerned that has taken place when establishing the system of certification.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes the observations made by the LO that the employment agreement presented by the DMA is not in line with the Convention since it distinguishes between the shipowner and the employer. The Committee notes the Government’s reply that in their view “it is not a requirement under the MLC or in Danish laws and regulations, that the shipowner must be the employer. If the shipowner or the employer does not fulfil the obligations mentioned above, the shipowner in many cases, for example, on the protection of the seafarer on board the shipowner may be sanctioned according to section 65 of the Consolidated act on seafarers’ conditions of employment, etc.”

The Committee recalls that Regulation 2.1 and the Code do not require that the shipowner must also be the employer, however it does require that every seafarer has an original agreement that is signed in accordance with paragraph 1 of Standard A2.1, which provides that a seafarer’s employment agreement must be signed by the seafarer and the shipowner, or a representative of the shipowner. It appears under section 1(a) of the Consolidated act on seafarers’ conditions of employment, etc. and other instruments a shipowner may remain responsible for all matters under a seafarers’ employment agreement, even if a seafarer has a different employer. However, this is not clear in the legislation. The Committee also notes the standard form agreement provided by the Government which provides alternatively that the agreement can be between the seafarer and a shipowner or a master or an employer. The Committee notes that this agreement creates uncertainty as to who is the responsible party. The Committee recalls that, irrespective of the employment arrangements involved, the seafarer is required to have an agreement signed by both the seafarer and the shipowner or a representative of the shipowner. The Committee requests the Government to clarify who are the parties under the Danish law on the seafarers’ employment agreement and to consider amending the standard form agreement to ensure that seafarers have an original agreement signed by both the seafarer and shipowner or a shipowner’s representative, as required under paragraph 1 of Standard A2.1.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the observation of the LO that Danish seafarers are required to take paid annual leave (holidays) while foreign seafarers are paid their annual leave when signing off. The Committee notes the Government’s observation that Danish law and regulations safeguard the entitlement to paid annual leave but if the seafarer’s holiday entitlement is in connection with signing off, then the seafarer is entitled to be paid leave and also repatriation without cost. The Committee also notes the Government’s indication that seafarers are entitled to a minimum of 2.08 days paid holiday for each month of employment during a calendar year (qualification year) and that the paid leave does not include weekends and that there are no agreements allowing seafarers to forego leave with pay. The Committee requests the Government to provide information as to whether seafarers who are paid annual leave when “signing off” are also given the leave during a period when they are still covered by their employment agreement and to clarify whether seafarers are entitled to paid annual leave in accordance with paragraph 2 of Standard A2.4 during their first qualifying year.

Regulation 2.5 and the Code. Repatriation. The Committee notes the observation of the LO that section 25 of the Consolidated act on seafarers’ conditions of employment, etc. is not in line with the provisions of the Convention as it does not provide for a judicial finding with respect to the seafarer’s conduct. Section 25 provides that the “shipowner may deduct from the seafarer’s wages, etc. expenses for his journey home … only if the shipowner has found that the seafarer has substantially violated his obligations under the conditions of employment”. The Committee notes the Government’s observation that the seafarer may bring his or her case to a Danish court to settle questions about a shipowner’s decision. The Committee recalls that paragraph 3 of Standard A2.5 requires that Members prohibit shipowners from, inter alia, “recovering the cost of repatriation from the seafarers’ 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 provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out 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”, thereby entitling a shipowner, in accordance with paragraph 3 of Standard A2.5, to recover the cost of repatriation from the seafarer’s wages or other entitlements.

Regulation 3.2 and the Code. Food and catering. The Committee notes the observation of the LO with respect to collective agreements that provide for an allowance to seafarers for food on board ship and that this level has not been adjusted since 1997. The Committee also notes the LO’s observation with respect to manning levels and that paragraph 3 of Standard A2.7 requires ships’ cooks on board all ships. The Committee notes the Government’s reply that it is not a requirement that a trained cook be on board every ship. The Committee recalls that paragraph 1 of Regulation 3.2 requires that Members ensure that ships flying their flag carry on board and serve food and drinking water of appropriate quality, nutritional value and quantity that adequately covers the requirements of the ship and takes into account the differing cultural and religious backgrounds and that, in accordance with paragraph 2, is provided free of charge to seafarers during the period of engagement. The Committee requests the Government to provide information with respect to how it ensures, that the requirements under paragraph 1 of Regulation 3.2 are met, in cases where seafarers are provided with an allowance for food. The Committee also requests the Government to provide information on the relevant national requirements for ships to carry fully qualified ships’ cooks.

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee notes that the DMLC, Part I, indicates that a state subsidy is provided in some cases for dental care. The Committee recalls that, in accordance with paragraph 2 of Regulation 4.1, medical care is, in principle, provided at no cost to seafarers working on ships flying the Member’s flag and that, in accordance with paragraph 1 of Standard A4.1, medical care includes essential dental care. The Committee requests the Government to provide detailed information with respect to the provision of essential dental care to seafarers working on board ships flying the flag of Denmark.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that section 30(2) of the Consolidated act on seafarers’ conditions of employment, etc. provides that seafarers who are suffering illness or injury at the termination of employment “shall be entitled to care and attendance for the account of the shipowner for up to 16 weeks, not exceeding, however, 2 weeks after arrival in the country in which he is domiciled”. The Committee recalls that, under paragraph 1(c) of Standard A4.2 of the MLC, 2006, shipowners are liable to defray the expense of medical care, as well as those of board and lodging away from home, until recovery or a declaration that the sickness or incapacity is permanent, but that paragraph 2 of Standard A4.2 provides that: “National laws or regulations may limit the liability of the shipowner to defray the expense of medical care and board and lodging to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness.” The Committee requests the Government to clarify whether shipowners are required to continue to defray the expense of medical care after the sick or injured seafarers have returned home at the termination of their employment for at least 16 weeks from the day of the injury or the commencement of the sickness, or until recovery or the sickness or incapacity has been declared of a permanent character.

Regulation 4.5 and the Code. Social security. The Committee recalls that the obligation under paragraphs 2 and 3 of Standard A4.5 of the MLC, 2006, is for each Member to take steps according to its national circumstances to provide at least three branches of social security to all seafarers ordinarily resident in its territory. The Committee notes that, on ratification, in accordance with paragraph 10 of Standard A4.5, the Government specified the following branches of social security as being provided to seafarers ordinarily resident in Denmark: medical care, sickness benefit, employment injury benefit and maternity benefit. The Committee recalls that this obligation may be implemented in a number of ways, as set out in paragraphs 3 and 7 of Standard A4.5 and the attribution of responsibility may also be the subject of bilateral and multilateral agreements adopted within the framework of a regional economic integration organization, as provided under paragraph 4 of Standard A4.5. In this connection, the Committee notes the Governments indication that it is a member of the European Union and has arrangements in place with respect to other members of the European Union. The Committee notes that the Government’s indication does not appear to address the situation with respect to social security protection for seafarers ordinarily resident in Denmark who may be working on ships operating under the flag of another country that is not a member of the European Union. The Committee requests that the Government provide information on whether seafarers ordinarily resident in Denmark working on ships operating under the flag of another country are provided with social security protection as required under Regulation 4.5 and the Code.

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1(d) and 3; the relevant portion of any applicable collective bargaining agreement (Standard A2.1, paragraph 2(b)); copy of the provisions in collective bargaining agreements on the calculation of the minimum paid annual leave on a basis that differs from a minimum 2.5 days per month (Standard A2.4, paragraph 2); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners, indicating that it covers repatriation (Regulation 2.5, paragraph 2); compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard (Standard A4.2, paragraph 1(b)); a copy of the relevant national guidelines for the management of occupational safety and health on board ships (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ships (Standard A4.3, paragraph 1(d)); a copy of a report or review prepared by a welfare board, if any, on the welfare services (Standard A4.4); a document on the objectives and standards established for flag State inspection and certification system, including the procedures for its assessment on the attainment of objectives and the application of standards. (Regulation 5.1.1); a copy of the form used for flag State inspector’s reports (Standard A5.1.4, paragraph 12); a copy of any documentation available informing seafarers and interested others about the procedures for making a complaint (including that on seafarers’ rights) (A5.1.4, paragraph 5); and a copy of a document on the onshore complaint-handling procedures (Regulation 5.2.2).

[The Government is asked to reply in detail to the present comments in 2016.]