Solicitud directa (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

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

Otros comentarios sobre C186

Solicitud directa

2019
2016

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It also notes that the Government has previously ratified 14 maritime labour Conventions that were denounced following the entry into force of the MLC, 2006 for Greece. After 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.

Regulation 1.1 and the Code of the Convention. Minimum age. The Committee notes Presidential Decree No. 407 of 18 December 2001, entitled “Measures to protect young people employed in relation to maritime labour in shipping and the fisheries sector with Directive 94/33/EC”, which stipulates, under section 4, that the shipowner or master must take the necessary steps to protect the health and safety of young persons, taking into particular consideration the specific risks to their safety, health and development. Those risks are further elaborated under section 5, which sets out the prohibited types of work. The Committee notes however that certain exceptions have been set out under section 5(2) of this Decree, where the Maritime Labour Directorate in the Ministry of Merchant Marine, in cooperation with other services of the same Ministry, determines that such exceptions are “necessary for professional training/education, the attainment of proof of maritime capability and on the condition that protection of health and safety is guaranteed when the work is performed under the supervision of the master or ship’s officer, and the other procedures for the safety of the ship and passengers are implemented”. The Committee recalls, in this respect, that Standard A1.1, paragraph 4, of the Convention prohibits the employment, engagement or work of seafarers under the age of 18 years for hazardous work, without exception. The Committee requests the Government to clarify how its national legislation implements the absolute prohibition provided for in the Convention.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. The Committee notes that according to section 8(13), of the MLC Regulation exceptions to the minimum hours of rest may be permitted through collective bargaining agreements. Such exceptions shall, as far as possible, follow the provisions of the respective Regulation and may take account of more frequent or longer leave periods or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ships on short voyages. In addition, according to Presidential Decree 106/2013(A), exceptions for personnel under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) (Manila amendments), including those granted under the ratification procedures of collective bargaining agreements may only be permitted according to the specific requirements provided therewith. While noting the Government’s indication that no collective agreement has been authorized or registered permitting exceptions to the minimum hours of rest, the Committee requests the Government to provide information on the development of the situation and, if applicable, to submit copies of any relevant collective agreements authorized or registered in the future.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that under section 9(1) of the MLC Regulation, “The minimum annual leave with pay cannot be forgone for a compensatory amount unless the employment relationship is terminated before the annual leave is granted”. The Committee also notes that section 9(3) of the MLC Regulation states that “Without prejudice to any specific terms set forth in an applicable collective agreement, any agreement to waive the right to annual leave with pay is prohibited and shall be null and void”. Furthermore, the Committee notes the Government’s indication that “the exercise of the right to annual leave lies on the seafarer where the shipowner cannot be considered responsible for a seafarer who has not exercised that right”. The Committee recalls that Standard A2.4, paragraph 3, stipulates that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. While noting that the Convention is silent about the nature and scope of permissible exceptions, the Committee considers that this provision needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. In this context, the Committee considers that the exception provided in section 9(3) of the MLC Regulation, which has a very broad scope, would not be compatible with the Convention. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to indicate the measures taken to ensure that any agreement to forgo the minimum annual leave is prohibited, unless in specific cases, restrictively provided for by the competent authority.

Regulation 2.5 and the Code. Repatriation. The Committee notes that, under section 10(1) of the MLC Regulation, seafarers have a right to be repatriated at no cost to themselves. It notes that section 10(5) provides exceptions to this entitlement where: the seafarer employment agreement has been “terminated due to violations of the seafarer’s obligations and duties”; when the seafarer employment agreement has been concluded for a particular voyage of the vessel; when upon the termination of an employment agreement the parties have concluded a new employment agreement; and when the employment agreement for an indefinite period of time is terminated before the completion of a year from its conclusion or before the completion of the time period provided for in any applicable collective bargaining agreement which shall be less than 12 months. The Committee recalls that Standard A2.5, paragraph 3, of the Convention prohibits shipowners from requiring that seafarers make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from the seafarer’s wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to adopt the necessary measures to ensure that any provision in the national legislation depriving seafarers from this right is limited to the circumstances allowed under the Convention (e.g. minimum periods of service). The Committee also recalls that while the shipowner may recover the cost of the repatriation, under the limited circumstances provided for under Standard A2.5, paragraph 3 (that is, where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective agreements, to be in serious default of the seafarer’s employment obligations), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. The Committee underlines that pursuant to the amendments to the Code approved by the International Labour Conference at its 103rd Session in 2014 that resulted in the inclusion of Standard A2.5.2 of the Convention, Members shall require a financial security system to assist abandoned seafarers for ships flying its flag. It notes that seafarers are deemed abandoned, among others, when the shipowner fails to cover the cost of their repatriation. In light of the above, the Committee requests the Government to provide information on how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. With regard to the possibility provided by the Convention to recover the cost of the repatriation from the seafarer, the Committee underlines that it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. Noting that section 10(5)(a) of the MLC Regulation refers to the notion of “violations of the seafarer’s employment obligations and duties” but omits to specify how such breach may be determined, 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”. Finally, the Committee notes that, under section 10(9) of the MLC Regulation, the entitlement to repatriation may lapse if the seafarers concerned do not claim it within 48 hours from the time it occurs. The Committee recalls that Guideline B2.5, paragraph 8, of the Convention stipulates that the entitlement to repatriation may lapse if the seafarer does not claim it “within a reasonable period of time”. Given the circumstances that entitle a seafarer to repatriation, however, such as shipowner termination of the agreement, or cases in which seafarers are no longer able to carry out their duties, which could presumably require a certain period of time to determine, the Committee considers that a 48 hour period may not be “reasonable”. The Committee requests the Government to explain how it ensures that seafarers are provided a reasonable period of time before which they are deemed to have waived their entitlement to repatriation.

Regulation 2.7. Manning levels. The Committee notes the sample minimum safe manning document submitted in the Government’s report, as well as the information provided by the Government concerning its manning requirements. It notes, in this respect, that the requirements on manning composition do not take into account the ship’s cook or catering staff. It recalls that, under Standard A2.7, paragraph 3, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to explain how it implements this provision of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comments on the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), the Committee noted that certain provisions of these Conventions require the enactment of national legislation for their application and requested the Government to take the necessary measures to ensure that effect is given to them. The Committee notes that, under section 13(1) of the MLC Regulation, the accommodation and recreation requirements of that Regulation apply to “all ships built on or after January 4, 2014, with the exception of ships which are not required to recruit seafarers in accordance with special provisions” and that 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 provide information concerning its implementing legislation for vessels that continue to fall under the application of Conventions Nos 92 and 133. The Committee notes that, under section 13(1) of the MLC Regulation, the provisions of the Regulation do not apply to “ships which are not required to recruit seafarers in accordance with special provisions”. It further notes the exemptions permitted under section 16(1) for “ships under 100 gross tonnage” and under section 17(6) for “ships of more than 500 and less than 3,000 gross tonnage”. The Committee draws the Government’s attention to Regulation 3.1, paragraph 2, of the Convention, according to which the Convention’s requirements concerning seafarer accommodation and recreational facilities apply to all ships constructed on or after the date when this Convention comes into force for the Member concerned. It notes that, while certain limited exceptions are permitted under Standard A3.1, paragraph 20, for ships of less than 200 gross tonnage, paragraph 21 makes clear that any exemptions concerning the requirements of Standard A3.1 are limited to those expressly permitted under the Standard and only for certain circumstances. It notes that the exemptions set out under sections 13(1), 16(1), and 17(6) do not fall within those express circumstances. The Committee accordingly requests the Government to explain how it ensures that all ships flying the Greek flag provide and maintain decent accommodation and recreational facilities for seafarers that satisfy the requirements of Regulation 3.1 and the Code.

The Committee notes that section 18(3)(b) of the MLC Regulation requires adequate mess room accommodation for the crew, except for watchkeepers, for catering purposes. Recalling that the requirement for adequate mess rooms under Standard A3.1, paragraph 10, applies to all categories of seafarers, the Committee requests the Government to explain how it ensures that watchkeepers are equally entitled to such mess rooms. The Committee notes that, under section 20(5)(f) of the MLC Regulation, in passenger vessels of which the crew of standard size exceeds 100 persons of the same sex, one water closet shall be provided per ten persons. Recalling that the only exemption for the minimum of one toilet per six person requirement, as set out under Standard A3.1, paragraph 11(f), is for passenger ships normally engaged in voyages of not more than four hours’ duration, the Committee requests the Government to bring this provision into line with the Convention. The Committee notes that section 21(1) of the MLC Regulation exempts ships under 1,600 gross tonnage from the requirement of hospital accommodation. Recalling that the requirements concerning hospital accommodation under Standard A3.1, paragraph 12, apply to all ships carrying 15 or more seafarers and engaged in a voyage of more than three days’ duration, the Committee requests the Government to bring this provision into line with the Convention.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that section 28(2) of the MLC Regulation sets out shipowners’ liability for seafarers working on their ships in respect of sickness and injury. The Committee notes that although this section contains some of the provisions of Standard A4.2, the different situations and rights provided for in the Convention have not been incorporated into the MLC Regulation. The Committee invites the Government to provide further explanations on how it gives effect to Standard A4.2. The Committee further notes that for the purposes of calculating the abovementioned liability, “a special salary may be mutually covenanted and agreed upon under an applicable seafarers’ employment agreement or collective agreement”. The Committee recalls that Standard A4.2, paragraph 3(a), of the Convention requires the payment of full wages. The Committee requests the Government to explain how it ensures that the “special salary” referred to in section 28(2) of the MLC Regulation covers the seafarers’ full wages, as required under Standard A4.2, paragraph 3(a). The Committee also notes that section 28(2) limits the liability of shipowners for payment of wages and medical care and expenses “for a period not greater than four (4) months”. The Committee recalls that paragraphs 2 and 4 of Standard A4.2, respectively, permit the limitation of the shipowner’s obligation to defray the expenses of medical care and to pay wages for a period not less than 16 weeks from the day of the injury or commencement of the sickness. The Committee requests the Government to clarify whether, in accordance with paragraphs 2 and 4 of Standard A4.2 of the Convention, shipowners are obliged to defray the expenses of medical care and to pay wages of sick or injured seafarers for not less than 16 weeks from the day of the injury or the commencement of the sickness, unless the seafarer has recovered or the sickness or incapacity has been declared of a permanent character.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes sections 29(1)–(4) of the MLC Regulation, which reproduce many of the provisions of Regulation 4.3 and the Code concerning occupational health and safety protection and accident prevention. It notes, however, that these provisions make no mention of their regular review in consultation with shipowners and seafarers, as required under Standard A4.3, paragraph 3. Noting the Government’s indication that it would examine the framework under which processes of reviewing should be initiated in the forthcoming year, the Committee draws the Government’s attention to the importance of engaging the shipowners’ and seafarers’ organizations in that examination and requests it to provide updated information in that respect.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Greece declared that the branches for which it provides protection in accordance with paragraphs 1, 2 and 10 of Standard A4.5 are: medical care; sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit and survivors’ benefit. The Committee notes, however, that the Government has provided no references to implementing national legislation or policies aside from a general reference to the National Health System. Noting the absence of any specific information in this respect, the Committee requests the Government to provide further explanations concerning its implementing national legislation and policies with respect to the benefits that are provided to seafarers, either under the National Health System or otherwise. The Committee also notes the Government’s indication that unemployment benefits and medical care for members of the family, two of the branches for which the Government provides protection to seafarers in accordance with paragraphs 1, 2 and 10 of Standard A4.5, are less favourable than the benefits provided to shoreworkers resident in Greece. The Committee draws the Government’s attention, in this respect, to Regulation 4.5, paragraph 2, of the Convention, which calls on Members to take steps, according to national circumstances, to achieve progressively comprehensive social security protection that, under paragraph 3, is no less favourable than that enjoyed by shoreworkers. The Committee requests the Government to provide further explanations in that respect. The Committee notes the Government’s indication that shipowners’ and, if applicable, seafarers’ contributions to relevant social protection systems or schemes are monitored. It also notes, however, that the Government provides no further details concerning the manner in which this monitoring takes place. The Committee requests the Government to explain how it takes into account Guideline B4.5 when implementing Standard A4.5, paragraph 5, and ensures compliance with the required contributions to relevant social protection and social security schemes. Furthermore, the Committee notes the Government’s indication that it has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. The Committee recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, under Standard A4.5, paragraph 6, Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the nine branches of social security. The Committee requests the Government to provide information on any measures adopted under Standard A4.5, paragraph 6. Finally, the Committee notes the Government’s indication that old age pension benefits are provided by the Seafarers’ Pension Fund (NAT). In that regard, the Committee also notes that the Government has initiated a process of legislative reforms of its pension system and has enacted several laws in that context. The Committee requests the Government to provide clarifications as to the impact of the legislative reforms on the NAT and its seafarers’ beneficiaries.

Regulation 5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee notes that section 33(2) of the MLC Regulation prohibits seafarers from being subject to sanctions or any other form of penalty or unfavourable treatment for lodging a complaint “unless it is established that the complaint has been lodged with the aim to cause detriment or mischief”. The Committee recalls that Standard A5.1.5, paragraph 3, states that the on-board complaint procedures shall include the right of the seafarer to be accompanied or represented during the complaints procedure, and provides for safeguards against the possibility of victimization of seafarers for filing complaints. Recalling the importance of enabling seafarers to file a complaint and to protect seafarers against victimization and harassment, the Committee requests the Government to provide further explanations concerning how it implements Standard A5.1.5, paragraph 3, of the Convention.

[The Government is asked to reply in full to the present comments in 2018.]