REPRESENTATION (article 24) - FRANCE, NETHERLANDS, POLAND - C027 - 1976

Report of the Committee appointed by the Governing Body to consider the representation presented by the Swedish Dockworkers' Union under article 24 of the Constitution alleging non-observance by France, the Netherlands and Poland of the Marking of Weight (Packages Transported by Vessels) Convention, 1929 (No. 27)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Submission of the representation, appointment and procedure of the Committee
2. Submission of the representation
3. 1. By letter dated 1 August 1975, the Swedish Dockworkers' Union submitted a representation under Article 24 of the Constitution of the International Labour Organisation concerning the application by France, the Netherlands and Poland of the Marking of Weight (Packages Transported by Vessels) Convention,1929 (No. 27). The Union stated succinctly that these three countries were violating the provisions of the Convention concerning the marking of weight on goods and packages weighing more than 1,000 kilograms which arrived in Sweden by ship.
4. Relevant provisions of the Convention
5. 2. The ratification of the Marking of Weight (Packages Transported by Vessels) Convention, 1929 (No. 27) by France was registered on 29 July 1935, by the Netherlands on 4 January 1933 and by Poland on 18 June 1932. In conformity with Article 3, paragraph 3 of the Convention, it entered into force for each of these countries 12 months after the registration of their respective ratifications.
6. 3. The substantive provisions of the Convention are as follows:
7. Article 1
8. 1. Any package or object of one thousand kilograms (one metric ton) or more gross weight consigned within the territory of any Member which ratifies this Convention for transport by sea or inland waterway shall have had its gross weight plainly and durably marked' upon it on the outside before it is loaded on a ship or vessel.
9. 2. In exceptional cases where it is difficult to determine the exact weight, national laws or regulations may allow an approximate weight to be marked.
10. 3. The obligation to see that this requirement is observed shall rest solely upon the government of the country from which the package or object is consigned and not on the government of a country through which it passes on the way to its destination.
11. 4. It shall be left to national laws or regulations to determine whether the obligation for having the weight marked as aforesaid shall fall on the consignor or on some other person or body.
12. Provisions of the Constitution of the International Labour Organisation concerning representations
13. 4. The procedure in regard to representations concerning the non-application of ratified Conventions is contained in the following provisions of the Constitution of the International Labour Organisation:
14. Article 24
15. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
16. Article 25
17. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
18. Standing Orders concerning the procedure for the discussion of representations
19. 5. The procedure to be followed in the discussion of a representation is detailed in the Standing Orders adopted by the Governing Body on 8 April 1932 and amended on 5 February 1938 (hereinafter called "the Standing Orders").
20. Measures taken by the Governing Body following the submission of the representation
21. 6. In conformity with Article 2, paragraph 1 of the Standing Orders, when the Director-General received the representation he transmitted the text thereof to the members of the Governing Body for consideration at its next meeting.
22. 7. The Swedish Dockworkers' Union, by letter of 30 October 1975, stated that it had been constituted on 4 March 1972 and represented 2,650 of the country's 3,500 stevedores. It indicated that its purpose is to unite all workers employed in harbour work and stevedoring as well as workers in goods terminals and allied operations, so as to constitute a general organisation for the entire country using all means at hand to further the economic and social interests of its members. The Union also communicated a copy of its statutes.
23. 8. At its 198th Session (November 1975) the Governing Body, on the recommendation of its Officers, appointed a committee in accordance with Article 2, paragraph 3 of the Standing Orders, composed of Mr. N.S. Forward (Government member) as Chairman, Mr. A. Vitaic Jakasa (Employer member), and Mr. G. Weissenberg (Worker member). Following the resignation of Mr. Weissenberg from the Governing Body, Mr. B. Fassina was appointed in his place.
24. 9. To obviate the need for the Governing Body itself to consider the various purely procedural matters arising out of the examination of the representation at successive stages, the Governing Body decided that, as in the case of two previous representations considered by the Governing Body in 1965 and 1970, the Committee should be empowered to perform all the functions entrusted by the 1932 Standing Orders to the Governing Body as a whole until it was in a position to submit to the Governing Body proposals as to the action, if any, to be taken on the representation.
25. Procedure followed by the Committee
26. 10. The Committee held two meetings.
27. 11. The Committee agreed to offer to the organisation which had made the representation the opportunity to present, within a month, supplementary information on the factual grounds on which it considered that the three countries referred to in the representation had failed to apply the Convention. The organisation which had made the representation was informed of this decision by letter of 16 January 1976.
28. 12. At a meeting held in Geneva on 3 March 1976, the Committee found that the representation was receivable as regards form, since it met the requirements laid down in this respect in Article 3, paragraph 2 of the Standing Orders. (Endnote_1)
29. 13. In regard to the preliminary examination of the substance of the representation, the Committee had before it a summary prepared by the Office of information on the legislative provisions in force in France, the Netherlands and Poland which gave effect to the Convention, according to the reports submitted by these three countries under Article 22 of the ILO Constitution. The Committee noted in this respect that there were no outstanding comments by the ILO's supervisory bodies concerning the application of the Convention by these countries. The Committee also agreed that before adopting one of the courses of procedure laid down in Article A, paragraph 2 of the Standing Orders (Endnote_2), it should wait until its members had had the opportunity to examine the additional information whose despatch had been announced by the Swedish Dockworkers' Union, but which had not yet been received.
30. 14. By a communication of 3 March 1976, the Swedish Dockworkers' Union transmitted a new set of copies of communications concerning the matter, which had been exchanged between the Union and the Swedish Labour Inspectorate, and other documents such as cargo manifests, which in the judgement of the Union contained proof of the violation of the Convention. After examining this additional information, the Committee decided, in conformity with paragraph 2(d) of Article 4 of the Standing Orders, to communicate to the Governments of France, the Netherlands and Poland the text of the representation and the additional information which concerned them, and to invite each Government to make such statement as it might think fit. Taking account of the provision of Article 5 of the Standing Orders concerning the fixing of a reasonable time for this purpose, the Committee requested the Governments to communicate their respective statements within two months. The Committee suggested to the Governments concerned that they add to their own statements any comments which the competent national organisations of employers and workers of their respective countries might have made on the request of their Governments.
31. 15. In response to the invitation referred to in the previous paragraph, the Government of the Netherlands sent two communications, dated 28 May and 30 June 1976; the Government of Poland sent a communication dated 28 June 1976, and the Government of France sent a communication dated 22 July 1976.
32. 16. At a further meeting held in Geneva on 15 November 1976, the Committee considered the information provided by the complainant organisation and the Governments concerned, reached its conclusions and adopted the present report.
33. II. Allegations presented and statements made by the Governments concerned
34. 17. In this section are examined separately the allegations concerning each of the three countries concerned, as well as the contents of the statements submitted in this respect by each Government. The principal legislative provisions intended to give effect to the Convention in each country are also mentioned.
35. Allegations concerning packages shipped from France
36. 18. The Swedish Dockworkers' Union submitted a copy of a communication dated 5 August 1974 from the Safety Representative of the Oxelösund Dockworkers' Union to the Labour Inspectorate of Linkoping, referring to the arrival on 31 July 1974 aboard the ship Stevnstrader, of packages of roof panels contained in packages of varying weight, on which the weight was not marked. According to a copy of the cargo manifest submitted by the Swedish Dockworkers' Union, these packages had been consigned by a firm in Paris.
37. 19. The observations of the Government of France are contained in a communication dated 22 July 1976. The Government stated that a first inquiry carried out in the principal French ports by the Central Service of Maritime Ports and Navigable Waterways had not permitted confirmation of the allegations, as the ship concerned had not called at these ports. The Government suggested, therefore, that the complaining union should specify the port of embarkation so that the French authorities could ascertain whether the provisions of the Convention had been respected. The Government stated that the inquiry had shown clearly the care existing in the ports to apply the Convention strictly. It stated that the provisions of the Convention are incorporated in section L 233.7 of the Labour Code, and that infringement can lead to the application of the sanctions provided for in section L 263.2 of the same Code; that the labour inspection services in the ports exercise supervision in order to assure the respect of these provisions; that instructions had been given to the cargo handlers not to load packages lacking an indication of weight, and that remonstrances were made to consignors who did not respect the regulations in this matter. The Government stated that it appeared that omissions in the application of these safety rules were rare and that in the event that they did occur they were corrected. In conclusion, the Government stated that if any infraction of the Convention had occurred in loading a ship at a French port, the inquiry which had been made showed that this must be considered as an isolated and fortuitous case, since the port authorities were particularly attentive to the application of the provisions of the Convention. The Government added that it proposed to alert once more the national professional organisations which, in various capacities, assured the application of these provisions (cargo handlers, despatchers and customs despatchers) in order to avoid the repetition of such an incident.
38. 20. The provisions of section L 233.7 of the Labour Code read as follows: The consignor of any package or object of one thousand kilograms or more gross weight for transport by sea or inland waterway shall cause the weight of the package or object to be plainly and durably marked upon it on the outside. In exceptional cases where it is difficult to determine the exact weight, the weight marked may be a maximum weight estimated on the basis of the volume and nature of the package. In the absence of the consignor the above obligation shall be incumbent upon the person to whom the consignor has delegated the duty of consigning the package. If necessary, public administrative regulations may be issued to prescribe the specific conditions with which the marks to be placed on packages in pursuance of the preceding section must comply. Infraction of these provisions is punishable by fine (section L 263.2 of the Code).
39. Allegations concerning packages shipped from the Netherlands
40. 21. The Swedish Dockworkers' Union submitted a copy of a complaint presented to the Labour Inspectorate on 28 June 1974 by the Oxelösund Dockworkers' Union, according to which on 24 June 1974 a cargo of 18 packages of sheet metal weighing more than 67 tons, shipped by a Dutch firm, had arrived in this port aboard the ship Bothnia proceeding from the Netherlands, without any indication of weight.
41. 22. In its first communication, dated 28 May 1976, the Government of the Netherlands indicated that the representation and additional information had been transmitted to the competent service for examination. The Government emphasised that it is deeply aware of its responsibilities concerning the protection of labour and health stemming from national legislation or accepted international obligations, and noted that the representation referred to a single alleged violation of the Convention said to have taken place two years previously. In its second communication of 30 June 1976, the Government stated that the competent service (the Port Labour Inspectorate) had examined the matter without being able to discover any factual basis for the representation. The Government stated that it had informed the Netherlands organisations of employers and workers of the representation and had received no comments from them.
42. 23. In the Netherlands, as regards maritime shipping, section 12(8) of the Stevedores Act (Act of 16 October 1914, as amended by the Act of 27 July 1931), (Endnote_3) provides as follows:
43. 12(8). If the consignor of an article or package weighing not less than 1,000 kilograms (gross weight) is aware or can reasonably assume that such article or package will be conveyed wholly or partly by a sea-going vessel, it shall be his duty to see that the weight of the article or package is plainly and durably marked upon it before it is despatched. In certain cases specified by public administrative regulations the approximate weight may be marked instead of the exact weight.
44. Section 20(a) of the Stevedores Act provides for a penalty of detention or a fine for a contravention of the provisions contained in or issued in pursuance of section 12(8) quoted above.
45. Sections 196 and 197 of the Decree on Safety (Royal Decree of 21 November 1950) issued under the Stevedores Act read as follows: 196. Where an article or object covered by section 12(8) of the Stevedores Act is despatched, the weight estimated as accurately as possible may be indicated instead of the weight if -
46. (a) the nature, composition or dimensions of the article or object are such as to make it difficult to determine the exact weight;
47. (b) the weight is subject to appreciable change as a result of climatic influences.
48. 197. In cases covered by section 196 an indication shall be given in the documents relating to the conveyance of the article or object that the weight is an estimated weight.
49. Allegations concerning packages shipped from Poland
50. 24. The Swedish Dockworkers' Union submitted copies of complaints by the Oxelösund Dockworkers' Union to the Labour Inspectorate at Linkoping, referring to the arrival by sea of shipments coming from Poland of objects weighing more than 1,000 kilograms, without any indication of weight. According to these charges, the goods consisted of ingot moulds and basement slabs, delivered by several ships on 29 and 31 May 1974 and 6 November 1974. The Swedish Dockworkers' Union also submitted a copy of a communication dated 11 June 1975 from the Labour Inspectorate of Linkoping to an Oxelösund firm, in which it was stated that in this port cargoes of ingot moulds, etc. of more than 1,000 kilograms coming from Poland had often failed to have their weight marked. After citing the provisions of the Swedish legislation and ILO Convention No. 27, the Labour Inspectorate requested that its communication be brought to the attention of persons responsible for the marking of weight. It recalled, moreover, the Labour Inspectorate's power to forbid the unloading of such cargoes on which the weight was not marked, in order to protect the safety of workers. Finally, the documentation sent by the union complainant also included the text of communications of 13 June 1975 on this matter exchanged between a Swedish firm and the Polish undertaking Hartwig, at Gdansk. According to the documentation mentioned above, the goods had been consigned by the latter firm.
51. 25. In response to the communication of 5 December 1975 informing it of the appointment of the Committee by the Governing Body, the Government of Poland sent a letter of 19 February 1976 stating that the relevant provisions in the legislation of Poland were in full conformity with the Convention. The Government referred to the Act of 31 January 1935 concerning the marking of weight of goods transported by vessel, which establishes the obligation of the shipper to mark the weight of packages, and to the Decree of the Minister of Shipping, dated 6 September 1967, concerning safety and hygiene in sea and inner harbours, paragraph 174 of which provides that any load of more than 1,000 kilograms shall be indicated in numbers or figures in a visible place. The Government added that supervision of the application of these provisions is the responsibility not only of the administrative bodies but also of the unions, by virtue of the Labour Code of 26 June 1974 (Endnote_4) and of the Decree of 10 November 1954 on the transfer to the unions of responsibility for ensuring the application of the laws dealing with protection of workers, occupational safety and hygiene and labour inspection. The Government stated that both the Central Council of Polish Trade Unions and the Ministry of Foreign Trade and Shipping had been informed of the representation; and that by letter of 14 November 1975 this Ministry had communicated to all undertakings engaged in foreign trade the need to strictly observe the provisions concerning the marking of weight on packages transported by vessels, in conformity with Convention No. 27, and ordering them to issue adequate instructions within the undertakings. The Government also emphasised that the trade unions of seamen and dockworkers had assured that they would intensify their supervision of the practical application of the provisions of the Convention.
52. 26. The statement by the Ministry of Labour, Wages and Social Affairs, transmitted by the Government of Poland with its communication of 28 June 1976, constituted the response to the representation, as regards the allegations of non-observance of the provisions of the Convention by the Polish shipping firm Hartwig. This statement reiterated the indications and information contained in the Government's communication of 19 February 1976, and said that the Federation of Seamen's and Dockworkers' Unions had informed it that they had taken the necessary steps for reinforcement by its competent bodies of supervision of the application of the Convention in order to pre vent a recurrence of similar cases in the future.
53. 27. The provisions of the Act concerning the marking of the weight in goods transported by vessels, dated 31 January 1935 (Endnote_5), to which the Government refers, read as follows:
54. 1. (1) Any partly or completely packed consignment of one thousand kilograms or more gross, weight or any other object of the said weight which is consigned within the territory of the Republic for transport by sea or inland waterway shall have had its weight marked upon it on the outside or in some other place where it can easily be seen, in figures and letters not less than 8 centimetres high, of a colour readily distinguishable from that of the packing of the goods or from that of the goods and such that it will not wash off, before the object in question is loaded on a ship or vessel.
55. (2) The obligation to mark the weight in the manner specified in subsection (l) shall fall on the consignor, unless the goods are despatched by the forwarding agent, in which case the said obligation shall fall upon the forwarding agent.
56. 2. In exceptional cases where it is difficult to determine the exact weight of the goods, the consignor or forwarding agent may mark the approximate weight.
57. In accordance with section 4 of the same Act, if the consignor or forwarding agent has failed to mark the weight, the maritime offices (in maritime ports) or the authority responsible for supervising inland navigation, as the case may be, shall mark the weight at the expense of the consignor or forwarding agent concerned. Section 5 provides that in, cases of obstinate contravention of the provisions of this Act, the director of the maritime office or the authority responsible for supervising inland navigation may impose a fine on the consignor or forwarding agent concerned.
58. 28. Section 174 of a Decree of the Minister of Shipping concerning safety and hygiene in sea and inner harbours, dated 6 September 1967, provides as follows:
59. 174. (l) It shall not be lawful to make an estimated assessment of the weight of a load which is intended to be lifted. The management shall accurately inform the group of workers responsible for the transshipment of a load of its weight.
60. (2) The weight of an individual load which represents 1,000 kilograms or more shall be indicated in figures or letters in a visible place on the load.
61. III. Conclusions
62. 29. Having regard to Article 24 of the Constitution, the examination of the substance of the representation must aim at determining whether the Members referred to in the representation have failed to adopt measures to ensure the effective observance of the Convention in their jurisdictions. The information provided by the complaining union referred to specific instances in which packages or objects weighing more than l,000 kilograms lacked the indication of weight required by the Convention. This organisation made no allegations concerning the legislation or other general measures related to the application of the Convention by France, the Netherlands or Poland.
63. 30. Taking into account that the information submitted by the complainant organisation contained precise data on specific cases, and since, under Article 1, paragraph 3 of the Convention, the obligation to ensure the fulfilment of the requirement of marking the weight falls on the government of the country from which the goods are consigned, the Committee invited the three Governments concerned to make such statements as they saw fit with regard to the representation and the additional information. The three Governments responded to the Committee's invitation.
64. 31. On receipt of the statements of the Governments concerned, the Committee has to decide if it considers the replies satisfactory and can therefore recommend to the Governing Body to declare the procedure closed (Article 7 of the Standing Orders), (Endnote_6) or whether the statements received, or any of them, do not appear to be satisfactory (Article 8 of the Standing Orders), (Endnote_7) in which case it can ask for further information or recommend to the Governing Body that it decide to open the discussion on the application of Article 25 of the Constitution.
65. 32. For the reasons set out below, the replies of the three Governments concerned, which showed the serious manner in which they had considered the matters raised in the representation, may be regarded as satisfactory.
66. 33. As regards France and the Netherlands, the Governments have stated that in practice the necessary measures are taken to ensure the application of the obligations provided for in the Convention. Both Governments stated that they had carried out investigations of the incidents cited by the organisation which made the representation, and were not able to confirm them, and in this connection it should be taken into account that only one case of non-fulfilment has been alleged with respect to goods coming from each of these countries. The French Government indicated that it intended, as an additional measure to ensure the application of the provisions of the Convention, to make a new appeal for co-operation to the professional organisations which are directly concerned. The Government of the Netherlands also indicated that it had reported the matter about which the representation was made to the national organisations of employers and workers. As for Poland, the Government has provided information on a number of measures with a view to ensuring compliance with the requirements of the Convention. On being informed of the matter, the competent ministry immediately notified in writing all the undertakings concerned with foreign trade of the obligation to observe strictly the requirements of the Convention, and asked them to issue to their services concerned such instructions as might be necessary for this purpose. The Government also reported that the competent trade union organisation, which under Polish legislation is empowered to oversee the application of provisions concerning safety and hygiene, had taken the necessary measures to prevent in the future any omission of the requirements of the Convention.
67. 34. The legislation in France, the Netherlands and Poland contains specific provisions which establish the obligation provided for in Article 1 of the Convention, determines on whom this obligation lies and what authorities are responsible for its observance, and provides sanctions for violations. These provisions have not been the subject of comments by the Committee of Experts on the Application of Conventions and Recommendations, which is charged with the examination of the reports submitted periodically on the application of the Convention under Article 22 of the ILO Constitution.
68. 35. The representation raises a question concerning the practical application of the Convention. In this regard, given the large number of packages and objects weighing 1,000 kilograms or more transported daily by sea or internal waterways, it would be difficult to conclude on the basis of the information concerning a single case or a small number of cases of violation, that the Member concerned had failed to take adequate measures to fully apply the requirements of the Convention. It would therefore appear that since no other elements have been presented in this case, the information submitted by the Governments concerned on the measures taken following the representation and the assurances which have been given, by them concerning the supervision they exercise to ensure the application of the Convention should be considered as satisfactory responses to the allegations which have been made.
69. 36. In these circumstances, it would not appear necessary to continue the examination of the case under the procedure provided for in Articles 24 and 25 of the Constitution. On the other hand, it would be appropriate if the Governments concerned would include in their future reports under Article 22 of the Constitution on the application of the Convention, detailed information on the measures which have been taken to ensure the observance of the national provisions on this subject, including the texts of any relevant instructions or circulars, in order that the Committee of Experts on the Application of Conventions and Recommendations may be aware of them.
70. 37. The Committee accordingly recommends the Governing Body:
71. (a) to take note of the present report;
72. (b) to declare the closure of the procedure initiated in the Governing Body following the representation submitted by the Swedish Dockworkers' Union concerning the observance by France, the Netherlands and Poland of the Marking of Weight (Packages Transported by Vessels) Convention, 1929 (No. 27);
73. (c) to communicate the present report to the Committee of Experts on the Application of Conventions and Recommendations;
74. (d) to request the Governments of France, the Netherlands and Poland to be good enough to include, in their future reports under Article 22 of the Constitution on the application of the Convention, detailed information on the measures which have been taken to ensure the observance of the national provisions on this subject, including the texts of any relevant instructions or circulars;
75. (e) to request the Director-General to inform the Governments of France, the Netherlands and Poland, as well as the organisation which made the representation, of the decisions taken.
76. Geneva, 17 November 1976.
77. (Signed) N.S. Forward, Chairman.
78. A. Vitaic Jakasa
79. B. Fassina
80. Endnote 1
81. Article 3, paragraph 2 reads as follows: 2. The receivability of a representation as regards form is subject to the following conditions: (a) it must be communicated to the International Labour Office in writing; (b) it must emanate from an industrial association of employers or workers; (c) it must make specific reference to Article 24 of the Constitution of the Organisation; (d) it must concern a Member of the International Labour Organisation; (e) it must refer to a Convention ratified by the Member against which it is made; and (f) it must allege that the Member against which it is made has failed to secure in some respect the effective observance within its jurisdiction of the said Convention.
82. Endnote 2
83. Paragraphs 1 and 2 of Article 4 read as follows: 1. If it is declared to be receivable as regards form, the Governing Body shall, after hearing the views of the Committee provided for in paragraph 3 of Article 2 above, make a preliminary examination of the representation as regards substance. 2. During that examination the Governing Body shall decide: (a) to declare that the representation is not well founded; or (b) to communicate the representation to the government against which it is made without inviting that government to make any statement in reply; or (c) to obtain further information; or (d) to communicate the representation to the government against which it is made and to invite the latter to make such statement on the subject as it may think fit.
84. Endnote 3
85. ILO: Legislative Series, 1931 - Neth. 3.
86. Endnote 4
87. ILO: Legislative Series, 1974 - Pol. 1 and 1975 - Pol. 2.
88. Endnote 5
89. ILO: Legislative Series, 1935 - Pol. 1.
90. Endnote 6
91. Article 7 reads as follows: 1. If the Governing Body receives a statement which, after considering the report of the Committee provided for in paragraph 3 of Article 2 above, it considers to be satisfactory it shall declare the whole procedure closed. 2. The International Labour Office shall, in writing, inform the government against which the representation was made and the industrial association which made the representation of the decision taken.
92. Endnote 7
93. Article 8 reads as follows: If the Governing Body receives a statement which, after considering the report of the Committee provided for in paragraph 3 of Article 2 above, it does not consider satisfactory, it may: (a) ask for further information, in which case the decision shall be adjourned until such information shall have been received; or (b) decide to open the discussion on the application of Article 25 of the Constitution.