CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Poland (RATIFICATION: 2012)

Other comments on C186

Direct Request

2019
2014

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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). It further notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for Poland on 18 January 2017 and 8 January 2019 respectively. The Committee notes with interest the adoption of the Maritime Labour Act (MLA) of 5 August 2015 which regulates many of the aspects covered by the Convention. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(i), 2 and 7. Scope of application. Definition of “ship”. The Committee notes that section 2(7) of the MLA provides that a non-convention ship – shall be understood as a ship to which the MLC, 2006 does not apply, including, among others, ships engaged solely in navigation in maritime areas of the Republic of Poland with the exception of an exclusive economic zone and a seagoing yacht. In this regard, the Committee recalls that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those expressly excluded under paragraph 4. The Committee also recalls that Article II, paragraph 6, provides additional flexibility, under certain conditions, with respect to the application of “certain details of the Code” to ships of less than 200 gross tonnage not engaged in international voyages. The Committee requests the Government to indicate how it ensures that the Convention is applied to commercial yachts. It further requests the Government to provide information on the definition of the notion of “maritime areas of Poland”, referred to in section 2(7) of the MLA.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes the Government’s indication that pursuant to the Labour Code, young persons must not be employed in the types of work specified in the Regulation of the Council of Ministers of 24 August 2004 on the jobs forbidden to young people. The Committee however observes that the list contained in the said Regulation is of general nature and does not seem to take into account the specificities of the maritime sector. 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 the measures taken or envisaged to adopt a new list of types of hazardous work or adapt the existing one to take into account the specific conditions of work on board ships for young seafarers under 18 years of age, after consultation with the seafarers’ and shipowners’ organizations concerned, as required under Standard A1.1, paragraph 4.

Regulation 1.4, paragraph 3. Standard A1.4, paragraphs 5(c)(vi) and 9. Recruitment and placement. Concerning the system of protection that recruitment and placement services are required to establish, the Committee notes that section 23(1) of the MLA provides that the employment agency shall have insurance or other financial guaranties with respect to liability for damages incurred by seafarers as a result of inefficiency of job agency services or the shipowner’s failure to meet obligations arising from the seafarers’ employment agreement. The same section of the MLA seems to limit the responsibility of the agency to three months’ wages specified in the seafarer employment agreement. Recalling that such limitation is not foreseen in Standard A1.4, paragraph 5(c)(vi), the Committee requests the Government to provide clarifications concerning the limitations to the liability of recruitment and placement services. Furthermore, the Committee notes that the Government has not provided information on how it ensures that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories in which this Convention does not apply, respect, as far as practicable, that those services meet the requirements of this Standard, as required by Standard A1.4, paragraph 9. The Committee requests the Government to provide information in this regard.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreements. Record of employment. The Committee notes that the MLA does not refer to the record of the employment of the seafarer (Standard A2.1, paragraph 1(e)). The Committee accordingly requests the Government to indicate the measures adopted or envisaged to ensure that the seafarers receive a document containing a record of employment on board the ship, in accordance with Standard A2.1, paragraphs 1(e) and 3.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. The Committee notes the Government’s indication that section 62(1) of the MLA provides that the State Treasury has to bear the cost of repatriation if the shipowner does not take action to cover such cost. Under paragraph 2 of the same section, the State Treasury shall claim repatriation costs by action of subrogation against the shipowner. 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 brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify 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. Decent accommodation and recreational facilities. Noting that certain provisions of the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), require the enactment of national legislation for their application, the Committee requested the Government to take the necessary measures in that regard. The Committee notes that, under section 63 of the MLA, the shipowner is obliged to ensure that work, living and recreational spaces, showers, toilets and messes on board a ship comply with the requirements set out in the MLC, 2006 in terms of surface area, lighting, air cleanliness, noise and vibration level. Moreover he/she shall provide the seafarer on the ship accommodation free of charge as well as recreation conditions, and, if possible, other amenities whose aim is to satisfy the needs of seafarers. However, there is no reference to the legislation providing that all ships, including those constructed prior to the Convention’s entry into force, maintain decent accommodation and recreational facilities for seafarers on board nor reference to ships built before that date will continue to fall under national legislation implementing Conventions Nos 92 and 133. The Committee accordingly requests the Government to indicate how it ensures that the provisions of Conventions Nos 92 and 133 are implemented for ships that continue to fall under the application of these Conventions.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s reference to section 63, paragraphs 1 and 2, of the MLA, which refers to the requirements set out by the MLC, 2006 in terms of surface area, lighting, air cleanliness, noise and vibration. The Committee observes, however, that this section gives only partial effect to the requirements set out in the Convention. Noting the absence of information on several provisions of this Standard A3.1, the Committee requests the Government to indicate how it implements the following requirements: (i) accommodation (Standard A3.1, paragraph 6(a)–(f)); (ii) the availability of individual sleeping rooms for each seafarer (Standard A3.1, paragraph 9(a)); (iii) the minimum floor area in single berth seafarers’ sleeping rooms (Standard A3.1, paragraph9(f)); (iv) the minimum floor area on passenger ships and special purpose ships (Standard A3.1, paragraph 9(i)); (v) the minimum floor area on ships other than passenger ships and special purpose ships (Standard A3.1, paragraph 9(k)); (vi) the floor area for seafarers performing the duties of ship’s officers on passenger ships and special purpose ships (Standard A3.1, paragraph 9(l)); (vii) adjoining sitting rooms (Standard A3.1, paragraph 9(m)); (viii) the fact that the clothes locker should be a minimum of 475 litres (Standard A3.1, paragraph 9(n)); and (ix) hospital accommodation (Standard A3.1, paragraph 12).

As regards the implementation of Standard A3.1, paragraphs 10, 11, 12 and 13, the Committee notes the Government’s reference to section 63 of the MLA, which does not appear to be relevant in this context. The Committee requests the Government to provide detailed information on the measures taken to implement these requirements of the Convention. The Committee notes that, with regard to the implementation of Standard A3.1, paragraphs 14, 15 and 17, the Government refers only to section 63(2) of the MLA, which does not appear to be relevant in this context. The Committee recalls that Standard A3.1, paragraphs 14 (space on open deck) and 17 (recreational facilities), apply to all ships to which the Convention is applicable, whereas Standard A3.1, paragraph 15 (ship’s offices), only allow for the exclusion of ships of less than 3,000 gross tonnage after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to provide information on how these provisions of the Convention are implemented with regard to the other ships covered by the Convention. It further requests the Government to provide information on the implementation of Standard A3.1, paragraph 19 (variations of accommodation standards for differing religious and social practices), as well as to indicate whether any exemptions for ships of less than 200 gross tonnage have been granted pursuant to Standard A3.1, paragraphs 20 and 21, of the Convention.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. The Committee notes the Government’s indication that this issue is addressed by instructions given by Flag State Control inspectors. The Committee recalls that Standard A3.2, paragraph 2(b), requires that Members adopt laws and regulations or other measures to provide to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions. The Committee therefore requests the Government to indicate the measures taken or envisaged to comply with this requirement of the Convention.

Regulation 4.1, Standard A4.1, paragraph 4(a). Inspection and maintenance of medicine chests, medical equipment and medical guides at regular intervals. The Committee notes that under sections 71(5) and 72, paragraphs 1 and 2 of the MLA deal with medical chests on board ship. However, it contains no reference to its inspection at a regular intervals. The Committee requests the Government to explain how it gives effect to Standard A4.1, paragraph 4(a), indicating, in particular, how it has given due consideration to Guideline B4.1.1, paragraph 4, which provides that inspections should take place at regular intervals not exceeding 12 months.

Standard A4.1, paragraph 4(d). Availability of medical advice through radio stations. The Committee notes that in order to perform the tasks of the States relating to the provision of medical advice by radio at sea, the Maritime Telemedical Assistance Service has been established. The tasks of this Service shall be performed by the University Centre for Maritime and Tropical Medicine in Gdynia. To this end, the minister in charge of maritime economy, in consultation with the minister in charge of health, shall determine, by way of a regulation, the operational rules as well as the detailed scope of tasks of this Service. The Committee requests the Government to indicate if these services are already operational and to clarify if they are available 24 hours a day and provided free of charge, as requested under Standard A4.1, paragraph 4(d).

Regulation 4.2 and Standards A4.2.1, paragraphs 9, 10, 11, 12 and 14, and A4.2.2, paragraph 3. Shipowners’ liability. 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 notes the Government’s indication that insurance is provided by an insurance policy issued by a private insurer. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how 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, paragraph 4, Standard A4.3, paragraph 3. National guidelines. The Committee notes that the Government has not provided 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 (Regulation 4.3, paragraph 2). The Committee requests the Government to provide information in this regard.

Regulation 4.5 and the Code. Social security. The Committee requested the Government to clarify whether seafarers ordinarily resident in Poland who work on ships flying the flag of another country are also protected under Poland’s social security law. The Committee notes the Government’s reply that the social insurance system in Poland is regulated by the Act of 13 October 1998 on the Social Insurance System. Pursuant to sections 6(1), 11(1) and 12(1) of the Act, all persons who are employees in Poland, shall be subject to mandatory pension, disability pension, sick leave and accident insurance. The Government further indicates that, pursuant to the Act of 13 October 1998 on Social Insurance System – seafarers are entitled to benefits from the social security system on equal rights with the insured employed on shore, if they are subject to compulsory social insurance or are voluntarily covered (retirement and disability pension insurance). In order to be covered by the said Act, seafarers must be in an employment relationship with a Polish entity and perform work in the territory of Poland. Consequently, seafarers subject to Polish legislation have access to benefits in case of old age, disability, employment injury as well as sickness or maternity on identical principles as other insured persons, irrespective of whether the place of their permanent residence shall be Poland or any other country.

The Committee further notes the Government’s indication that Polish seafarers employed by foreign shipowners and working on ships flying flags other than Polish, shall not be subject to mandatory social insurance but may be covered by old age and disability insurance at their own request, pursuant to section 7 of the Act of 13 October 1998 on Social Insurance System. However, they shall not be subject to sickness, accident and health insurance. Seafarers permanently residing in Poland and working on ships flying a flag of a country not member of the EU, may take out voluntary health insurance in Poland. Coverage by voluntary health insurance depends on payment of a fee to the National Health Fund (NFZ), the amount of which depends on the period in which the seafarer has not been covered by health insurance in Poland. In 2015, a new provision was introduced to the Act on health care services financed from public funds (section 68(8)(a), pursuant to which this period (insurance interruption) shall not include the period in which the seafarer has been employed on a seagoing ship with foreign registration. Therefore, the fee in question may be substantially lower or not required at all. The Committee observes that, contrary to shoreworkers, seafarers residing in Poland and employed on board foreign ships (other than EU) would only be entitled to voluntary affiliation and would need to bear alone the financial burden of both employer’s and employee’s contributions, in breach of the principle established by Regulation 4.5, paragraph 3, according to which seafarers who are subject to the national social security legislation are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers. The Committee therefore requests the Government to indicate measures taken or envisaged to comply with the principle of equality of treatment between seafarers and shoreworkers as regards social security protection in the case of seafarers serving on board foreign ships (other than EU), in particular by way of actively seeking to conclude bilateral or multilateral social security agreements, for example, with the most important flag States with a view to giving effect to the above principle.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee notes that the Government does not specify the national provisions that set the requirement ensuring that the inspectors shall have the status and the independence necessary to enable them to carry out the verification of the application of the Convention. The Committee accordingly requests the Government to specify the legislative or regulatory provisions giving effect to Standard A5.1.4, paragraphs 3, 6, 11(a) and 17. It further requests the Government to indicate how it ensures that the inspector is empowered to require that any deficiency is remedied and, where relevant, to prohibit a ship from leaving port until necessary actions are taken as required under Standard A5.1.4, paragraph 7(c).

Additional documents requested. The Committee requests the Government to provide the following documents and information: an example of the approved document for a seafarer’s record of employment (Standard A2.1, paragraphs 1 and 3); an example of a seafarer’s employment agreement (Standard A2.1, paragraph 2(a)); the relevant portion of any applicable collective bargaining agreements that are subject to a port State inspection under Regulation 5.2 (Standard A2.1, paragraph 2(b)); a copy of any authorized or registered collective agreement provisions that establish seafarers’ normal working hours or permit exceptions to the established limits (Standard A2.3, paragraphs 3 and 13); for each type of ship (passenger, cargo, etc.), a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5).