Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Bélgica (Ratificación : 2013)

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The Committee takes note of the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It notes that the Government previously ratified 20 Conventions and one Protocol on maritime labour, which were denounced following the entry into force of the Convention. The Committee notes the efforts made to implement the Convention through the adoption of several legislative and regulatory texts. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Paragraphs 1(f), 2 and 3 of Article II of the Convention. Scope of application. Seafarers or mariners (“marins”). The Committee notes that the national legislation organizes the protection of seafarers, within the meaning of the Convention, through a number of regimes established in laws and agreements. Accordingly, seafarers with a status other than that of employee are not covered by the Act of 3 June 2007 setting forth various provisions pertaining to labour or by its implementing orders. However, one title of the Act, on seafarers’ agreements, contains provisions on living and working conditions on board ships and these are relevant to the Convention. Among seafarers with employee status, some of those employed on dredgers appear to be covered not by the Act of 3 June 2007 but by the Labour Act of 16 March 1971. Furthermore, the collective agreements to which the Government refers in its report differ according to whether or not the seafarers are registered with the merchant navy pool or whether they work on board seagoing ships operating in the shortsea area. The Committee recalls that the Convention – which makes no distinction between “seafarers” and “mariners” – applies to all seafarers (paragraph 2 of Article II), who are defined as “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”. The Committee requests the Government to indicate the measures taken or envisaged to ensure that the protection afforded by the Convention is guaranteed to all seafarers within the meaning of the Convention.

As to the maritime authorities’ competence, in the event of doubt, to determine whether certain persons belong to the category of “mariners” or that of “seafarers”, the Committee notes that, according to the Government, section 28/1 of the Act of 3 June 2007 allows the King to establish, after consultation of the relevant joint committee, the categories of persons who are not mariners. The Committee also notes that the same section provides that, in case of doubt, on whether certain persons belong to the category of “mariners”, the issue is decided by the General Directorate of Maritime Transport, after consultation with the relevant joint committee. The Committee requests the Government to indicate whether decisions have been taken regarding the determination of categories of seafarers who are not regarded as mariners within the meaning of the national legislation.

Regulation 1.1 and Standard A1.1. Minimum age. The Committee notes that the Government indicates that the dredging sector is covered by the Labour Act of 16 March 1971, which defines the notion of “night” as the period between 8 p.m. and 6 a.m. Section 34bis of the Act provides that for “young workers over 16 years of age the limits set are 10 p.m. and 6 a.m. or 11 p.m. and 7 a.m. in the case of: (1) work the performance of which, by reason of its nature, cannot be interrupted; (2) work organized in shifts”. The Committee recalls that paragraph 2 of Standard A1.1 of the Convention requires that the term “night” “shall cover a period of at least nine hours starting no later than midnight and ending no earlier than 5 a.m.”. However, the periods referred to in section 34bis cover a period of only eight consecutive hours. The Committee requests the Government to indicate the measures ensuring that young seafarers employed on dredgers are afforded the protection required by Standard A1.1. The Committee further notes that in connection with the determination of the types of work likely to jeopardize the health or safety of seafarers under 18 years of age (paragraph 4 of Standard A1.1), the Government refers to a Royal Order of 3 May 1999 on the protection of young persons at work. The Committee observes that this order contains no provisions that deal expressly with work on board seagoing ships. The Committee requests the Government to indicate the measures taken or envisaged to adopt a list of the types of work that are liable to jeopardize the health or safety of seafarers under the age of 18 and, if appropriate, to indicate whether the joint committee for the merchant navy was consulted in this connection.

Regulation 1.2 and the Code. Medical certificate. The Committee notes that the Government refers to the Royal Order of 20 July 1973 issuing regulations on maritime inspection but that it has not provided a copy. The Committee requests the Government to send an up-to-date copy of the Royal Order of 20 July 1973 issuing regulations on maritime inspection.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that the Government indicates that no public or private services for the placement of seafarers operate in its territory. The Committee nonetheless notes that there are several national regulations which govern placement activities by both public institutions and private employment agencies, without excluding seafarer placement activities by these institutions or agencies. The Committee recalls that the Convention requires placement services operating in the national territory to comply with the provisions of Standard A1.4. The Committee emphasises that paragraph 5(vi) of Standard A1.4 requires private recruitment and placement agencies to establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of such services or of the shipowner to meet their obligations. The Committee requests the Government to indicate the provisions that implement Standard A1.4.

The Committee recalls that in its previous comments on the application by Belgium of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) it requested the Government to provide information on current procedures for dealing with complaints – other than on-board complaints – pertaining to the engagement of seafarers on ships registered in Belgium. It notes in this connection the adoption of a memorandum of understanding, pursuant to section 45 of the Act of 13 June 2014 to implement and monitor the application of the MLC, 2006, which determines the composition, duties and functioning of a body, the “Single Point of Contact”, which hears complaints and concerns about working conditions on ships flying the Belgian flag. The Committee requests the Government to indicate whether the abovementioned body has authority to deal with complaints concerning the activities of seafarer recruitment and placement agencies, in accordance with paragraph 7 of Standard A1.4.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee emphasizes that according to paragraph 1(e) of Standard A2.1, seafarers shall be given a document containing a record of their employment on board the ship. The Committee notes that section 52 of the Act of 3 June 2007 provides that “when the employment agreement ends, the employer shall give the seafarer all the social documents and a certificate recording only the date of the beginning and the end of the agreement, and the nature of the work. The certificate may contain no other entries, except at the express request of the seafarer.” The Committee notes that the Government has provided a document entitled “Certificate of service”, which has a field headed “Remarks” without specifying that it shall not contain any statement as to the quality of the seafarers work. The Committee draws the Governments attention to paragraph 3 of Standard A2.1, which specifies that this document “shall not contain any statement as to the quality of the seafarers’ work or as to their wages”. The Committee requests the Government to indicate the measures taken or envisaged to ensure that seafarers are given a document containing a record of their employment on board the ship, in accordance with paragraph 3 of Standard A2.1 of the Convention.

The Committee takes note of section 34 of the Act of 3 June 2007, which establishes the minimum content of the seafarer’s employment agreement in accordance with the prescriptions of paragraph 4 of Standard A2.1. It requests the Government to provide a sample of a seafarer’s employment agreement in English.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that section 10/1(2) of the Royal Order of 24 May 2006 on seafarers’ certificates of proficiency reproduces the content of paragraph 5 of Standard A2.3, by specifying that the limits on hours or work or rest shall be established in reference to maximum duration of work or in reference to minimum duration of rest. The Committee recalls that paragraph 2 of Standard A2.3, requires Members to fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time. The first option is more favourable for the seafarer than the second. The Government indicates in its report that “both options are possible. As a rule shipowners opt for minimum hours of rest”. The Committee requests the Government to take the necessary measures to establish either a maximum number of hours of work not to be exceeded in a given period, or a minimum number of hours of rest to be granted in a given period (paragraphs 2 and 5 of Standard A2.3).

In its previous comments under the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180), the Committee noted with interest that according to clause 14 of the collective labour agreement of 1 February 2006 for masters and officers registered in the Belgian pool of merchant navy seafarers employed by a Belgian company, as amended by the collective agreement of 2 September 2009, a period of actual work performed immediately before or after a safety watch, calculated on the basis of actual duration, may not exceed 14 hours in any 24-hour period, and not 16 hours in any 24-hour period as was previously the case. It further noted that under the terms of this section, “safety watches” are understood to mean a period of compulsory presence on board attaining a maximum of 12 hours and not involving any actual work with the exception, however, of surveillance and activities relating to the safety of the ship and the crew, the cargo and the protection of the environment. The Committee again requests the Government to provide further information on the performance of safety watches and in particular to indicate whether the surveillance and other activities referred to in clause 14 above are carried out on an ad hoc or a permanent basis during safety watches, and whether seafarers have rest periods during safety watches.

The Committee further noted in its comments on Convention No. 180 that under the terms of clause 6 of the collective labour agreement of 14 December 2005, in the case of seafarers registered in the pool of seafarers and employed on board shortsea ships flying the Belgian flag, the master retains the right to order at any time work relating to, inter alia, fire drills, lifeboat drills and any similar exercise prescribed by international agreements. The Committee draws the Government’s attention to the fact that paragraph 7 of Standard A2.3 requires such exercises to be conducted in a manner that minimizes the disturbance of rest periods and does not induce fatigue. The Committee requests the Government to indicate the measures taken to ensure observance of this provision.

The Committee also noted previously that clauses 14 and 15 of the collective agreement of 1 February 2006 do not establish the requirement of compensatory rest prescribed by paragraph 8 of Standard A2.3 in the event of actual work during an on-call period. The Committee again requests the Government to take appropriate measures to ensure compensatory rest for seafarers who are on call when the normal period of rest is disturbed by call-outs.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that, according to the Government, leave entitlement for seafarers not registered in the pool is 18 days of leave in a 30-day period of work. The Committee notes that the applicable collective agreement of 3 August 2012 defines entitlement to leave in reference to a scale set out in an appendix. However, there is no indication as to whether the figures in this table refer to the number of days’ leave for each month worked or for each year worked, cadets having 18 days whereas the ship’s master has 171 days. The Committee requests the Government to indicate exactly how entitlement to leave is determined for seafarers who are not registered in the pool and who sail on ships flying the Belgian flag.

The Committee notes that, on the matter of shore leave granted to seafarers (paragraph 2 of Regulation 2.4), the Government refers to the entitlement to time off granted to seafarers in certain circumstances (marriage, death …). The Committee recalls that shore leave is granted to seafarers in order to benefit their health and well-being and in particular so that they can take advantage of recreational services and facilities in ports of call. If shore leave is subject to authorization from the ship’s master, the latter may not be restricted to the circumstances referred to by the Government. The Committee requests the Government to indicate the arrangements taken or envisaged to ensure that seafarers are granted shore leave in accordance with paragraph 2 of Regulation 2.4.

Regulation 2.5 and the Code. Repatriation. The Committee recalls that paragraph 2 of Regulation 2.5 requires that ships flying the national flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code. The Committee notes that, according to the Government, the Royal Belgian Shipowners’ Association ensures that its members guarantee the repatriation of seafarers in accordance with the conditions prescribed by law and collective agreements. The Committee requests the Government to indicate the provisions that require the provision of financial security.

Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comments on the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), the Committee noted that, following the ratification of the Protocol of 1996 to Convention No. 147, the Government is required to ensure that the provisions of its national legislation are substantially equivalent to those of the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), which it has not ratified. The Committee points out that for ships built before the entry into force of the MLC, 2006, the prescriptions for the construction and equipment of ships set forth in the Accommodation of Crews Convention (Revised), 1949 (No. 92) and Convention No. 133 shall continue to apply to the extent that they were applicable prior to that date, under the law or practice of the Member concerned (paragraph 2 of Regulation 3.1). The Committee notes that under the Act of 13 June 2014 to implement and monitor the application of the MLC, 2006, ships built before the entry into force of the Convention in Belgium are subject only to the prescriptions on the construction and equipment of ships set forth in Convention No. 92. The Committee requests the Government to indicate the measures taken to ensure compliance with the prescriptions of the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), in respect of ships built before the entry into force of the MLC, 2006.

The Committee notes that on 30 September 2014 Belgium adopted a Royal Order amending several orders to implement the Convention and give effect to an agreement concerning the Convention concluded on 19 March 2008 by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF). It amends the Royal Order of 20 July 1973 regulating maritime inspection, particularly its Appendix XIV, which deals with issues relating to accommodation on board and to which the Government refers in its report. The Committee requests the Government to provide an up-to-date copy of Appendix XIV of the Royal Order of 20 July 1973.

The Committee notes that, according to the Government, no exemptions or derogations have been granted with respect to the implementation of Standard A3.1 on the basis of paragraphs 20 and 21. The Committee notes, however, that sections 13 and 15 of the Royal Order of 30 September 2014 refer to permissible exemptions and derogations. It further notes that in its report the Government states that a follow-up committee has been established at national level, whose mandate includes issuing an opinion on the feasibility of derogations from the prescriptions of Standard A3.1. The Committee requests the Government to indicate the decisions, either adopted or under preparation, which would constitute exemptions or derogations from the application of Standard A3.1.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee recalls that under the Convention, ships which do not carry a medical doctor shall be required to have a seafarer on board who is in charge of medical care and administering medication as part of their regular duties or at least one seafarer competent to provide medical first aid. The Convention specifies that seafarers in charge of medical care on board who are not medical doctors shall have satisfactorily completed training in medical care that meets the requirements of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW). The same applies to seafarers in charge of providing medical first aid (paragraph 4(c) of Standard A4.1). The Committee notes that the two royal orders referred to by the Government in its report – the Royal Order of 7 January 1998 on medical assistance on board (section 5 and Appendix V) and the Royal Order of 15 December 2010 on first aid provided to workers who suffer an accident or who are unwell (section 9 et seq., and Appendix) – do not specify the level of training required for seafarers who are not medical doctors and who are in charge of providing medical care or medical first aid, nor do they establish the conformity of such training with the provisions of the STCW. The Committee requests the Government to indicate relevant measures that have been adopted to meet the requirements of paragraph 4(c) of Standard A4.1.

The Committee notes that section 6 of the Royal Order of 7 January 1998 on medical assistance on board ships provides that the Minister designates the medical centres and doctors authorized to provide workers with radio medical assistance free of charge. At least two of the doctors called on to provide their services as part of the radio medical assistance afforded by these centres must have received instruction on the special conditions prevailing on board ships. The Committee recalls that such assistance must be provided for all ships irrespective of the flag they fly (paragraph 4(d) of Standard A4.1). The Committee requests the Government to indicate whether such assistance is actually provided free of charge to all ships irrespective of the flag they fly, and whether special conditions have been set for recourse to such assistance by ships that do not fly the Belgian flag.

Regulation 4.2 and the Code. Shipowners’ liability. In its earlier comments on the application of the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), the Committee noted that under section 65 of the Act of 3 June 2007, the assistance due from shipowners in the event of illness or accident covers only medical treatment and the provision of medicines and other therapeutical appliances, and that board and lodging expenses appear to be borne by the shipowner only in the event of repatriation. The Committee recalls in this connection that paragraph 1(c) of Standard A4.2 of the MLC, 2006, provides that shipowners shall be liable for the expense of board and lodging away from home until the sick or injured seafarer has recovered or until the sickness or incapacity has been declared of a permanent character. It further noted that these costs too appeared not to be covered by the social security scheme applying to merchant navy seafarers. The Committee again asks the Government to provide information on the measures taken to ensure that shipowners bear the costs of board and lodging for seafarers suffering accident or illness when they are not repatriated, if it is indeed the case that such costs are not covered by the applicable social security scheme.

The Committee also recalls that in the same previous comments, it noted that the Act of 3 June 2007 does not provide for the shipowner to bear the cost of burial expenses. The Committee emphasizes that paragraph 1(d) of Standard A4.2 makes the shipowner liable to pay the cost of burial expenses as well in the case of death occurring on board or ashore during the period of engagement, while paragraph 6 of Standard A4.2 allows an exemption for the shipowner if such liability is assumed by the public authorities. Consequently, the Committee again asks the Government to indicate the measures adopted or envisaged to give effect to the requirements of paragraphs 1(d) and 6 of Standard A4.2.

The Committee notes that under the Convention, it is permissible to limit to 16 weeks from the day of the injury or the commencement of the sickness, the shipowner’s liability to defray the expense of medical care and other expenses incurred by injury or sickness and to pay wages, in respect of a seafarer no longer on board (paragraphs 2 and 4 of Standard A4.2). The Committee notes, however, that sections 65 and 66 of the Act of 3 June 2007 continue to include the end of the voyage or the actual repatriation of the seafarer as limitations to the shipowner’s liability. The Committee requests the Government to indicate the measures adopted or envisaged to provide seafarers working on board Belgian-flagged ships with protection that meets the requirements of paragraphs 2 and 4 of Standard A4.2.

The Committee recalls that the Convention allows national laws or regulations to exempt the shipowner from all liability where the injury or sickness is due to the wilful misconduct of the sick, injured or deceased seafarer (paragraph 5(b) of Standard A4.2). The Committee notes that in its report, the Government indicates that an employer that has paid the requisite remuneration or a share in medical or travel expenses may recover these costs from the seafarer or the seafarer’s dependants if it demonstrates that the illness or accident is due solely to serious misconduct on the part of the seafarer. The Committee requests the Government to indicate whether this serious misconduct must also be wilful, as provided in the Convention.

As regards the financial security that shipowners are required to provide in order to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard (paragraph 1(b) of Standard A4.2), the Committee notes that, for the merchant navy sector, the Government refers to the Royal Order of 24 October 1936 amending and coordinating the regulations of the Seafarers’ Relief and Provident Fund and, for the dredging sector, to the Act of 17 July 1963 on overseas social security. The Committee notes that these texts organize coverage in the event of death or long-term incapacity in the form of a contributory social security scheme, but do not establish that the cover provides all seafarers, within the meaning of the Convention, with the protection required by paragraph 1(b) of Standard A4.2. The Committee request the Government to provide detailed information on the type of financial security that shipowners are required to provide pursuant to the applicable provisions and to specify whether these provisions cover all seafarers within the meaning of the Convention.

As regards the safeguarding of property left on board by sick, injured or deceased seafarers, the Committee notes that neither the Act of 3 June 2007 nor the applicable collective agreements establish an obligation to return the property to the seafarers or to their next of kin (paragraph 7 of Standard A4.2). The Committee requests the Government to indicate the provisions adopted or envisaged to ensure compliance with paragraph 7 of Standard A4.2.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government indicates that implementation of the prescriptions of Regulation 4.3 is ensured mainly through the provisions of the Act of 3 June 2007, the Act of 4 August 1996 on the welfare of workers in the performance of their work and the International Safety Management Code (ISM Code), pursuant to Regulation (EC) No. 336/2006 of 15 February 2006 on the implementation of the International Safety Management Code within the Community. The Committee notes that the Act of 4 August 1996 applies to employers and workers and to categories of persons treated as workers (section 2(1) and (2)), and that the King may order that all or part of the provisions of the Act and its implementing orders shall apply to other persons in the workplaces covered by the Act and its implementing orders (section 2(3)). The Committee emphasizes that this Act does not expressly provide that seafarers and mariners fall within its scope. The Committee requests the Government to specify the categories of seafarers that fall within the scope of the Act of 4 August 1996. The Committee also requests the Government to provide detailed information on national guidelines pertaining to the management of occupational safety and health on board ships flying the Belgian flag that have been promulgated or that are being developed (paragraph 2 of Regulation 4.3) and on policies and programmes on occupational safety and health on board ships that have been adopted and are being effectively implemented at national level (paragraph 1(a) of Standard A4.3).

The Committee notes that the collective agreement of 8 May 2003 for junior seafarers registered with the Belgian pool of merchant navy seafarers employed by a Belgian company refers in clause 29(5) to an “advisory committee on safety and health”, which has authority to examine the nature and gravity of occupational accidents on board ships, to explore possible preventive measures and to provide advice and present proposals to competent bodies, organizations and institutions and shipowners in connection with the health and safety of crews. The Committee recalls that paragraph 3 of Standard A4.3 requires member States regularly to review the laws and regulations and other measures referred to, in consultation with the representatives of the shipowners’ and seafarers’ organizations and, if necessary, revise them to take account of changes in technology and research and of the need to improve them continuously. The Committee requests the Government to indicate whether the safety and hygiene advisory committee has actually been instituted and, if not, to specify the framework in which such regular review takes place.

Regulation 4.5 of the Code. Social security. The Committee notes that, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specifies the following branches of social security: medical care; unemployment benefit; old-age benefit; occupational accident or disease benefit; family benefit; maternity benefit; invalidity benefit; and survivors’ benefit. The Committee notes the information supplied by the Government on the benefits provided to seafarers residing in Belgium, in respect of social security protection supplementary to that specified in Regulations 4.1 and 4.2 of the MLC, 2006. It notes that access to such benefits is ensured through membership of the national social security scheme, pursuant to sections 2, 2bis and 2ter of the Legislative Order of 7 February 1945 on the social security of merchant navy seafarers. The Committee requests the Government to provide specific information on the different categories of seafarers who are effectively allowed to join this social security scheme.

The Committee notes that the collective agreement of 3 August 2012 on the working conditions of seafarers who are not registered on the pool list and who work on board merchant ships flying the Belgian flag, which, according to its preamble, concerns seafarers residing outside the European Union, addresses certain social security benefits such as widow’s or survivor’s benefits (clause 17) or invalidity benefit (clause 19). The Committee notes that, according to the Government, the shipowner must notify to the Seafarers’ Relief and Provident Fund, at the same time as the declaration, the name of the ship and the names of the crew members who are insured in their country of origin, and must also provide all the particulars and data needed to enable the Fund to satisfy itself that the seafarers in question are duly insured. The Committee notes that clause 20 of the collective agreement requires the employer to take out adequate insurance to cover in full any unforeseen circumstances arising under the clauses of the collective agreement. The Committee requests the Government to indicate the specific risks that must be covered by this insurance and any applicable penalties for non-compliance with this requirement.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee notes the information supplied by the Government in its report to the effect that three bodies have been established with competence to implement the prescriptions of Title 5 of the Convention, by means of a memorandum of understanding concluded pursuant to section 45 of the Act of 13 June 2014 to implement and monitor application of the Convention. The Committee requests the Government to specify the composition of the three bodies – the follow-up committee, the coordination task force and the single contact point – and to provide a copy of the memorandum of understanding.

The Committee notes that section 5 of the Act of 13 June 2014 states that “in the case of ships flying the Belgian flag, this Act applies only to the seafarers specified in the Act of 3 June 2007 setting forth various provisions on labour and in its implementing orders, and to seafarers holding a status other than that of employee. The shipowner shall ensure that seafarers with a status other than that of employee enjoy decent working and living conditions equivalent to those established for seafarers with employee status in the national laws and regulations giving effect to the prescriptions of the MLC, 2006.” The Committee recalls that Regulation 5.1 of the Convention, in that it determines the responsibilities of the flag State, applies to all seafarers working in any capacity on board ships flying the flag of the State concerned, irrespective of their State of residence or their nationality. The Committee requests the Government to indicate the categories of seafarers that are excluded from the scope of application of the Act of 13 June 2014 to implement and monitor application of the Convention.

Regulation 5.1.2 and the Code. Responsibilities of the flag State. Authorization of recognized organizations. The Committee notes that according to section 3(4) of the Royal Order of 13 March 2011 setting common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations, inspection and certification activities may be delegated to bodies approved by a decision of the competent Minister. The Committee requests the Government to indicate whether there has been any such delegation.

[The Government is asked to reply in detail to the present comments in 2017.]