Solicitud directa (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

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

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Solicitud directa

2021
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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). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Viet Nam on 8 January 2019 and 26 December 2020, respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the Inter-national Transport Workers’ Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and to its comments in the general report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article II, paragraphs 1(f) and (i), 3 and 5, of the Convention. Scope of application. Seafarer. In its previous comments, the Committee requested the Government to clarify the meaning of “seafarer” in accordance with national law, taking into account the provisions of Article II, paragraph 1(f) of the Convention. In its reply, the Government refers, as previously, to Decree No.121/2014/ND-CP dated December 24, 2014 on the implementation of a number of articles of the MLC, 2006 under which, “seafarer” “is a person who is recruited or hired to work on a seagoing vessel to meet the conditions, standards and hold the title in accordance with the law” (paragraph 3(4)). The Committee requests the Government to confirm whether, in application of this definition, any person who is employed, engaged or works in any capacity on board a ship to which the Convention applies, including those performing tasks not related to navigation, benefit from the protection provided by the Convention.

Regulation 1.2 and the Code. Medical certificate. Noting that the Government does not provide information on the provisions which give effect to the requirement of Standard A1.2, paragraph 5 (opportunity for a seafarer that has been refused a certificate or has had a limitation imposed to his/her ability to work on board ship to have a further examination by another independent medical practitioner), the Committee reiterates its previous request.

Regulation 1.3, paragraph 2. Training and qualification for personal safety on board. The Committee requested the Government to indicate the measures taken to give effect to the requirement concerning training and qualification for personal safety on board. In this regard, the Committee notes that Government’s reference to Circular No.03/2020/TT-BGTVT dated February 21, 2020 adopted by the Minister of Transport regulating professional standards, professional certificates, crew training and Minimum Safe Manning of Vietnamese seagoing vessels. The Committee notes that Article 20 refers to the certificate of basic professional training in life-saving techniques, fire prevention and fighting, basic medical first aid, life safety and social responsibility and ship security awareness in accordance with the provisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, as amended. While welcoming this information, the Committee requests the Government to indicate the national law or regulations which provide that seafarers shall not be permitted to work on a ship unless they have successfully completed such training, as required by Regulation 1.3, paragraph 2.

Regulation 1.4 and Standard A1.4. Recruitment and placement. In its previous comments, the Committee requested the Government to: (i) specify whether any private seafarer recruitment and placement services already operate in its territory, pursuant to Decree No. 52/2014/ND-CP, and; to (ii) provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers, as well as on the laws, regulations or other measures providing for the minimum requirements concerning the functioning of private seafarer recruitment and placement services pursuant to Standard A1.4, paragraph 5. The Committee notes the Government’s reference to Decree No.29/2017/ND-CP dated March 20, 2017 on conditions for seafarer’s training facilities and seafarer’s recruitment and placement service providers. It further notes that the Government indicates that 31 agencies have been issued with a certificate of endorsement for seafarer recruitment and placement service provider. The Committee notes that Chapter 3 of the above-mentioned Decree deals with the procedure for issuance and revocation of such certificate and refers in general to compliance with Regulation 1.4 of the MLC, 2006. The Decree does not however reflect the detailed requirements of Standard A1.4, paragraph 5. The Committee requests the Government to adopt without delay the necessary measures to ensure full compliance with Regulation 1.4 and in particular: (i) the adoption of a system prohibiting seafarer recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified (Standard A1.4, paragraph 5(a)); (ii) the obligation to ensure that recruitment and placement of seafarers are free of charge for seafarers (Standard A1.4, paragraph 5(b)); (iii) whether seafarers are protected against monetary loss that they may incur as result of the failure of recruitment and placement services or the shipowner (Standard A1.4, paragraph 5(c)(vi)); (iv) how national legislation ensures that all complaints concerning the activities of recruitment and placement services are investigated involving, as appropriate, representatives of shipowners and seafarers (Standard A1.4, paragraph 7); and (v) measures adopted or envisaged with regard to the use of recruitment and placement services that operate in countries that have not ratified the Convention, by shipowners of ships flying the Vietnamese flag (Standard A1.4, paragraph 9).

Regulation 2.1 and the Code. Seafarers’ employment agreement. In its previous comments, the Committee requested the Government to indicate the laws and regulations giving effect to Standard A2.1, paragraph 1(b) and (d). The Committee notes the Government’s reference to: section 62 of the Maritime Code; section 23 of the Labour Code; and Decree No. 05/2015/ND-CP dated January 12, 2015 on the implementation of some provisions of the Labour Code. However, the Committee observes that these texts do not give effect to Standard A2.1, paragraph 1(b) (opportunity to examine a seafarers’ employment agreement (SEA) and to seek advice before signing) and Standard A2.1, paragraph 1(d) (right to easily obtain on board clear information on the conditions of employment). The Committee requests the Government to indicate the measures taken to ensure full compliance with these requirements of the Convention. Furthermore, the Committee previously requested the Government to indicate how it gives effect to Standard A2.1, paragraph 6. The Committee notes that section 23 of the Labour Code and Decree No. 05/2015/ND-CP dated January 12, 2015 referred to by the Government concerning the termination of a labour contract are applicable to workers in general but do not necessarily take into account the specific circumstances of seafarers. The Committee once again requests the Government to indicate the measures which exist to ensure that the need of the seafarer to terminate without penalty a SEA on shorter notice or without notice for compassionate or other urgent reasons is taken into account by provisions in relevant legislation and collective agreements. In its previous comments, while noting that the majority of the matters listed under Standard A2.1, paragraph 4, are reflected in the existing legislation, the Committee requested the Government to ensure that all matters required under this provision are included in SEAs. The Committee notes that the Government refers again to section 21 of the Labour Code, which is of general application and does address the specific request. The Committee requests the Government to indicate the measures taken to ensure that the laws and regulations, which implement the Convention, provide that the following mandatory elements are contained in SEAs: (a) the seafarer’s name, date of birth or age and birthplace; (b) the shipowner’s name and address; and (c) the place where and date when the SEA is entered into.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions.

Regulation 2.2 and Standard A2.2, paragraph 5. Wages. The Committee requested the Government to indicate the provisions ensuring that any charge for the service related to transfer of seafarer’s wages into his/her personal account or to the authorized persons is reasonable in amount and the rate of currency exchange, unless otherwise provided, is, in accordance with national laws or regulations, at the prevailing market rate or the official published rate and not unfavourable to the seafarer (Standard A2.2, paragraph 5). In its reply, the Government indicates that Decree No. 70/2014/ND-CP on the implementation of several provisions of the Ordinance on the foreign exchange, contains provisions on foreign currency payments to crew overseas that are subject to the exchange rate prescribed by the State Bank of Viet Nam at the time of payment. The Government also indicates that all transaction and money transfer fees are covered by the ship owner, and crew are not required to pay the costs. The Committee takes note of this information, which addresses its previous request.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee noted that under section 6(5) of Decree No. 121/2014/ND-CP, exceptions to the minimum hours of rest, including a reduction in the hours of rest in any seven-day period and a division of hours of rest into three periods, may be stipulated in a collective bargaining agreement or an employment contract. The Committee requested the Government to adopt the necessary measures to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6, of the Convention other than those justified under paragraph 14 of the same Standard, can be provided only under collective agreements and not under the employment contract. In the absence of a reply, the Committee once again requests the Government to adopt the necessary measures to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6, of the Convention are in full conformity with Standard A2.3, paragraph 13.

Regulation 2.3, Standard A2.3, paragraph 10. Posting of shipboard working arrangements. In its previous comment, the Committee noted the absence of information giving effect to this provision of the Convention. The Committee notes the Government’s indication that section 6 of Decree No. 121/2014/ND-CP provides that hours of work and hours of rest should be posted in a conspicuous position on board Vietnamese ships in English. The Committee takes note of this information, which addresses its previous request.

Regulation 2.5, Standard A2.5.1, paragraph 3. Prohibition of recovering cost of repatriation from seafarers. In its previous comments, the Committee requested the Government to provide information on how it ensures conformity with Standard A2.5.1, paragraph 3. The Committee notes the Government’s reference to section 2 of Decree No. 121/2014/ND-CP, according to which the cost of repatriation of seafarers is covered by shipowners. It also notes that section 2(2)(c) provides that the pay and travel allowance shall be paid under the provisions of the signed contract. Referring to its previous comments and noting that the Government provides no new information, the Committee once again requests the Government to confirm that shipowners pay for repatriation of seafarers in all cases when seafarers are entitled to this right. Recalling the requirements of Standard A2.5.1, paragraph 3, the Committee further requests the Government to provide information on the provisions in national laws, 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 “disciplined in the form of dismissal” or can be considered in cases of “illegal and unnatural termination of the labour contract”.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Maximum period of service on board ship. In its previous comments, the Committee requested the Government to provide information regarding the maximum period of service on board before a seafarer is entitled to repatriation. The Committee notes the Government’s information that the maximum period of service on board is currently not regulated. The Government indicates that the Vietnam Maritime Administration will examine this issue in order to amend and supplement Decree No. 121/2014/ND-CP. The Committee requests the Government to provide information on any progress in ensuring that the provisions of Decree No. 121/2014/ND-CP are in line with Standard A2.5.1, paragraph 2(b) of the Convention.

Regulation 2.6 and the Code. Seafarer’s compensation for the ship’s loss or foundering. The Committee requested the Government to indicate how it ensures that seafarers are entitled to adequate compensation in the case of injury, loss or unemployment arising from the ship’s loss or foundering. In its reply, the Government refers to the provisions of the Labour Code on compensation for workers that are of a general application. The Government also indicates that there is a Protection and Indemnity (P&I) insurance to compensate seafarers in case of serious injury or loss of property when the ship sinks or goes missing. While noting this information, the Committee requests the Government to indicate how it ensures that the seafarer receives adequate compensation in the case of unemployment arising from the ship’s loss or foundering (Standard A2.6, paragraph 1 and Guideline B2.6.1).

Regulation 2.5, Standard A2.5.2. Financial security in the event of abandonment. The Committee notes the Government’s indication that the Ministry of Transport and the Ministry of Finance were in the process of drafting a joint circular guiding the payment of repatriation of seafarers. The Committee requests the Government to provide information on any developments and to indicate the measures taken to implement the 2014 amendments in relation to Standard A2.5.2. The Committee notes in this regard that the Government refers to the Circular No. 38/2017/TT-BTC dated April 28, 2017 by the Ministry of Finance regulating instructions on payment of repatriation expenses for crew which stipulates that the shipowner must have a bank guarantee covering the cost of crew repatriation. In addition, section 5 of the same Circular refers to cases of abandonment and indicates that the competent authorities in charge of arranging the crew repatriation are the Overseas Representative Offices of the Socialist Republic of Viet Nam. Funding for arranging the crew repatriation will be advanced from the Fund for the protection of overseas Vietnamese citizens after a guarantee deposit or commitment is made in writing by the shipowner or if the shipowner can present a written guarantee from the credit institution, foreign bank branch for payment of these expenses. The Government finally indicates that, in accordance with Circular No. 43/2015/TT-BGTVT on providing and revoking the declaration of maritime labour compliance (DMLC) and certificate and Circular No. 24/2017/TT-BGTVT amending and supplementing the Circular No. 43/2015/TT-BGTVT, the certificate of financial security is approved by the Registry agency together with the DMLC, Part II and must be carried on board. While welcoming this information, the Committee has not been able to identify the national provisions giving effect to the detailed requirements of Standard A2.5.2, paragraphs 2, 5, 8, 9 and 10. Accordingly, the Committee requests the Government to indicate the measures taken to implement these requirements of the Convention. The Committee further 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 4.1, Standard A4.1, paragraph 3. On-board hospital and medical facilities. In its previous comment, the Committee requested the Government to provide information concerning on-board hospital and medical care facilities and equipment and training on ships that fly the Vietnamese flag. In its reply, the Government refers to Circulars No. 32/2017/TT-BYT dated July 28, 2017 providing for medicine cabinets, medical equipment, medical instruction documents on ships and medical report forms and No. 03/2020/TT-BGTVT dated February 21, 2020 regulating professional standards, professional certificates, crew training and Minimum Safe Manning of Vietnamese seagoing vessel, in which section 22 regulates the Certificate of professional training. Noting that these Circulars, texts and documents do not appear to give effect to Standard A4.1, paragraph 3, the Committee requests the Government to indicate the provisions which implement this provision 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. In its previous comment, the Committee, noting that a circular was being drafted to ensure compliance with this provision of the Convention, requested the Government to provide a copy of the new text once adopted. The Committee notes the Government’s reference to Circular No. 32/2017/TT-BYT dated July 28, 2017 mentioned above. Noting that the text of the Circular has not been provided to, the Committee requests the Government to provide a copy of it or a summary thereof to enable it to review its compliance with the provisions of the Convention.

Regulation 4.1, Standard A4.1, paragraph 4(d). System of medical advice by radio or satellite communication to ships at sea. The Committee requested the Government to provide information on the laws and regulations adopted to give effect to Standard A4.1, paragraph 4(d). The Committee notes the Government’s indication that currently, only the Viet Nam National Institute of Maritime Medicine accepts and provides free medical advice to ships while at sea for shipowners registered for crew health examination at this Institute. It further notes that the Institute also provides medical advice services to other shipowners, however this is a paid service at the shipowner’s request. The Committee recalls that Standard A4.1, paragraph 4(d) provides for the adoption of laws and regulations requiring coastal States to ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day, and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, is available free of charge to all ships irrespective of the flag that they fly. The Committee requests the Government to indicate the measures taken to ensure that Standard A4.1, paragraph 4(d) is fully implemented.

Regulation 4.2, Standards A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. The Committee requested the Government to provide information on the measures taken to ensure conformity with the 2014 amendments to the Code of the Convention. The Committee notes the Government’s information that financial security in the event of death or long-term disability is implemented through P&I Insurance contracted by shipowners with respect to seafarers while on board the ship and provided with a certificate of financial security by the insurer in compliance with the provisions of the Convention. While noting this information, the Committee observes that the Government does not indicate the national legislation implementing the requirements of the Convention, nor provides a copy of the financial security certificate. In this regard, the Committee recalls that pursuant to Standard A4.2.1, paragraphs 8-14 and Standard 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 requests the Government to indicate the national provisions which give full effect to and which implement the requirements of Standard A4.2.1, paragraphs 8-14 and Standard A4.2.2. It also requests the Government to supply a sample of an existing 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 and the Code. Health and safety protection and accident prevention. The Committee requested the Government to: (i) indicate whether the guidelines under Regulation 4.3, paragraph 2, have been adopted in consultation with the representative shipowners’ and seafarers’ organizations; (ii) provide information on how it implements Standard A4.3, paragraphs 1(c), 2(b) and 8; and (iii) to provide examples of DMLCs, Part II approved by the competent authority in order to assess shipowners’ practices regarding this issue. Noting that the Government provides no relevant information in reply to its comments, the Committee reiterates its previous request.

Regulation 4.5 and the Code. Social security. Noting the Government’s information on recent reforms adopted regarding legislation on social security, the Committee requested the Government to provide a copy of the new texts as well as further information on the implementation of Regulation 4.5. The Committee notes the Government’s reference to section 2 of the Law on Social Insurance dated 20 November, 2014 under which it is mandatory for Vietnamese workers to participate in social insurance. It also notes that foreign citizens who are working legally in Viet Nam are compulsorily covered by such social insurance. The Committee further notes the Government’s reference to: sections 5 and 6 of Circular No. 26/2017/TT-BLDTBXH dated September 20, 2017 on compulsory insurance providing benefits in case of employment injury; the 2017 Governmental Decree No. 44/2017/ND-CP dated April 14, 2017 on compulsory social insurance premium for occupational accidents; sections 38 to 48 and 69 to 76 of the Law of Health Insurance providing coverage of the labour accident and occupational disease regimes; sections 49 to 62 and 69 to 76 of Law on Health Insurance No. 71/2006/QH11 dated June 29, 2006 covering old-age pension. The Committee requests the Government to specify whether all seafarers ordinarily resident in its territory, including seafarers working on board foreign-flagged ships, are granted social security coverage in the branches specified which is no less favourable than that enjoyed by shore workers resident in Viet Nam. It also requests the Government to indicate whether it has given consideration to the various ways in which comparable benefits will be provided to non-resident seafarers working on ships that fly its flag in the absence of adequate coverage in those branches in conformity with Standard A4.5, paragraph 6.

Regulation 5.1.1 and the Code. Flag State responsibilities. System of inspectors. Copy of the MLC, 2006 on board. The Committee requested the Government to provide information on the system of inspection as well as on the obligation to have a copy of the Convention available on board ship. In relation to the first point, the Committee notes that Government refers to: chapters 3 and 4 of Decree No. 121/2014/ND-CP, which deals with the Inspection system; Circular No. 51/2017/TT-BGTVT dated December 29, 2017 providing for the registry of ship inspectors and professional personnel; and Circular No. 07/2018/BTT-BGTVT dated February 7, 2018 of the Ministry of Transport, providing for inspection of ships. The Committee takes notes of this information. As it relates to the obligation to have a copy of the Convention available on board, the Government refers to section 10 of Circular No. 43/2015/TT-BGTVT dated August 20, 2015 of the Ministry of Transport on issuance and revocation of the DMLC and certificate. The Committee notes however that this Circular does not refer to the obligation under Standard A5.1.1, paragraph 2. The Committee requests the Government to indicate the measures taken to ensure compliance with this requirement of the Convention.

Regulation 5.1.3, paragraph 6, and Standard A5.1.3. Maritime labour certificate and declaration of maritime labour compliance. The Committee notes that the DMLC, Part I, contained in Circular No. 43/2015/TT-BGTVT dated August 20, 2015 of the Ministry of Transport on issuance and revocation of the DMLC and certificate, does not contain reference to the sections of the applicable legislation nor any details on the content of the relevant provisions and it is therefore not in compliance with Standard A5.1.3, paragraph 10. The Committee accordingly requests the Government to adopt the necessary measures to amend the DMLC, Part I in order to fully comply with this requirement of the Convention. The Committee further requests the Government to provide examples of the DMLC, Part II compiled by a shipowner and approved by the competent authority.

Regulation 5.1.4 and Standard A5.1.4, paragraphs 3 and 7(c). Inspection and enforcement. The Committee previously requested the Government to: (i) specify the legislative or regulatory provisions giving effect to Standard A5.1.4, paragraphs 3, 6, 11(a) and 17; and (ii) to indicate how it ensures compliance with Standard A5.1.4, paragraph 7(c). The Committee notes the Government’s reference to Chapter 3 of Decree No. 121/2014/ND-CP dealing with inspection and issuance of maritime labour certificates. It also notes sections 15 and 17 of the Decree that provide for inspection and examination of working and living conditions on board ships in compliance with the national laws and the provisions of the MLC, 2006. While noting this information, the Committee notes that the Government does not specify the provisions ensuring that 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 provisions giving effect to Standard A5.1.4, paragraph 3.

Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee requested the Government to: (i) indicate the measures taken to give effect to Standard A5.1.5, paragraphs 1–3; and (ii) indicate the provisions prohibiting and penalizing any kind of victimization of a seafarer for filing a complaint (Regulation 5.1.5, paragraph 2). The Committee notes the Government’s indication that seafarers who fill complaints must satisfy the provisions of the procedures stipulated in the Law on complaints dated 2011. The Committee observes however that this Law, which deals with administrative complaints, does not appear to be relevant in this context. The Committee further notes the Government’s reference to section 16 of Decree No. 121/2014/ND-CP, which does not give effect to the above-mentioned provisions of the Convention. The Committee therefore requests the Government to indicate the provisions giving effect to Regulation 5.1.5, paragraph 2 and Standard A5.1.5, paragraphs 1–3.

Regulation 5.2.2 and the Code. Onshore seafarer complaint-handling procedures. The Committee requested the Government to provide information on the mechanism established to receive and deal with complaints in Vietnamese ports, and particularly the steps taken to safeguard the confidentiality of complaints made by seafarers. The Committee notes the Government’s indication that under section 18 of Decree No. 121/2014/ND-CP seafarers working on foreign seagoing vessels calling at Vietnamese seaports have the right to bring complaints for the breach of the requirements of the Convention. It also notes, however, the Government’s indication that the appropriate mechanisms required under Standard A5.2.2, paragraph 6 are yet to be adopted in national legislation. The Committee requests the Government to adopt the necessary measures to implement this requirement of the Convention.