Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Luxemburgo (Ratificación : 2011)

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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that the Government previously ratified 19 Conventions on maritime labour which have been denounced following the entry into force of the MLC, 2006, in the country. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force in the country on 18 January 2017 and 8 January 2019 respectively. 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.

General questions on application. Implementing measures. In its previous comment, the Committee noted the Government’s indication that the Act of 10 July 2011 approved the MLC, 2006, and that its provisions, the application of which does not require transposition, are already in force in the country. The Committee notes that maritime labour law is currently governed by the Act of 9 November 1990, and that a Bill to amend this (henceforth “the Bill”) and several other Acts was in the process of being adopted. The Committee notes that the Bill has still not been adopted, eight years following the ratification of the Convention. The Committee notes that this Bill refers to several regulatory measures whose adoption is pending. The Committee requests the Government to adopt the Bill without delay and to take into account its comments to ensure compliance with the Convention. The Committee requests the Government to provide it with information on the ongoing legislative process.

The Committee further notes that article 3.0.0-3 of the Bill provides that “the contract under which a seafarer commits to the shipowner, his or her representative or captain is a seafarers’ employment agreement governed by the law chosen by the parties, subject to the compulsory provisions of this Act applicable to all seafarers flying under the Luxembourg flag or more favourable provisions resulting from collective agreements or accords applicable to them. Irrespective of the law applicable to the employment agreement, the conditions of recruitment, employment, labour and life on board a vessel flying the Luxembourg flag may not be less favourable than those resulting from the compulsory provisions of the MLC, 2006, or from European regulations”. The Committee notes that, while several articles of the Bill indicate that the provisions applicable to wages, leave, working hours and health and safety apply to all seafarers working on board Luxembourg ships, it does not explicitly determine what “compulsory” provisions it contains. The Committee requests the Government to provide detailed explanations on the compulsory provisions of the Act of 9 November 1990, as amended by the Bill, which are applicable to all seafarers working on Luxembourg ships irrespective of the law applicable to their employment contract and place of residence.

The Committee further notes that the copy of the Declaration of Maritime Labour Compliance (DCTM), Part I, containing a list of categories of persons not regarded as “seafarers”, includes cadets and interns on training courses. The Committee recalls that, in accordance with Article II, paragraph 1(f), the term “seafarers” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies. The Committee considers that obtaining on board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets are to be regarded as seafarers for the purpose of the Convention. The Committee underlines that the protection afforded by the Convention is particularly important for the most vulnerable categories of persons, such as cadets. The Committee requests the Government to indicate whether persons under the age of 18 years, including cadets and interns in training, are recruited, employed or work in any way whatsoever on board vessels sailing under the Luxembourg flag.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that section 3.1.1-20 of the Bill, provides that “to facilitate access to other employment or to meet the conditions of seagoing service required for advancement or promotion, every seafarer shall receive a document, with an English translation, mentioning his or her record of employment on board the vessel and stating the start and end dates of the contract, and the nature of the work performed. The certificate may not contain any other statement or assessment relating, for example, to the quality of work or pay unless expressly requested by the seafarer. The certificate may not contain any other indication or evaluation regarding, for example, the quality of work or the wages, except at the explicit request of the seafarer”. Recalling that Standard A2.1, paragraph 3, does not provide for any derogation regarding the prohibition against including an evaluation on the quality of the seafarer’s work or an indication of the wages in the document containing the record employment on board the vessel, the Committee requests the Government to modify the Bill to ensure compliance with this provision of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee notes that section 3.1.2-5 (1) of the Bill, after listing the elements to be included in the seafarers’ employment agreement, indicates that the “details listed in the above points may derive from a reference to legislative, regulatory or administrative provisions, or to collective agreements governing the relevant subjects therein”. The Committee recalls that, in order to inform seafarers of their rights, Standard A2.1, paragraph 4, requires that the seafarers’ employment agreement includes specific indications and not mere references to legislative, regulatory or administrative provisions, or to collective agreements. The Committee requests the Government to indicate the manner in which it is ensured that full effect is given to Standard A2.1, paragraph 4.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee notes that section 3.1.2-54 (5) of the Bill, provides for a notice period in the event of notification of termination of the fixed-term seafarers’ employment agreement, the minimum duration of which complies with the requirements of Standard A2.1, paragraph 5. The Committee notes that section 3.1.2-59 of the Bill authorizes the termination of the seafarers’ employment agreement without notice in the event of serious grounds arising from the act or fault of one of the parties. The DCTM model, Part I, indicates that if Luxembourg law is not applicable, then the circumstances that allow the termination of the contract with a notice period shorter than the minimum of seven days and without penalty are only granted compassionate or other urgent reasons. The Committee recalls that Standard A2.1, paragraph 6, provides that a notice period shorter than the minimum may be given in circumstances which are recognized under national law or regulations or applicable collective bargaining agreements as justifying termination of the employment agreement with shorter notice or without notice. In determining those circumstances, each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement with shorter notice or without notice for compassionate or other urgent reasons is taken into account. The Committee requests the Government to indicate how it ensures that the need of the seafarer to terminate, without penalty, the employment agreement with shorter notice or without notice for compassionate or other urgent reasons is taken into account.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes that section 3.2.1-11 of the Bill provides that the maximum daily working time, fixed at eight hours by article 3.2.1-3, may be exceeded without any increase in remuneration, particularly for the following activities: additional work required by customs, quarantine or other health formalities; usual and essential work carried out by officers to determine the position of the vessel and for meteorological observations; and the necessary and additional time required for the change of watches. The Committee recalls that Standard A2.3, paragraph 3, provides that the normal working hours’ standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. However, this shall not prevent the Member from having procedures to authorize or register a collective agreement which determines seafarers’ normal working hours on a basis no less favourable than this standard. The Committee requests the Government to provide an exhaustive list of the conditions in which the normal working hours enshrined in section 3.2.1-11 of the Bill can be exceeded, and whether this is only authorized pursuant to a collective agreement in accordance with Standard A2.3, paragraph 3. The Committee requests the Government to indicate whether any collective agreements have been concluded in this regard.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes that the information and example of a financial security certificate provided by the Government show that the amendments to the 2014 Code have been implemented without waiting for the adoption of the necessary legal and regulatory measures. The Committee notes that section 3.1.2-34 of the Bill provides that a Grand-Ducal Regulation shall fix, following consultation with the social partners, the form that the financial security may take and the conditions for authorizing financial security providers. The Committee requests the Government to provide information on the set of the measures adopted to give effect to Standard A2.5.2.

Regulation 3.1, paragraph 2. Accommodation and recreational facilities. Scope of application. The Committee notes that section 3.2.4-1 of Bill, sets out that its provisions relating to the construction and equipment of vessels apply only to vessels built on or after 20 August 2013. For vessels built before this date, the requirements for the construction and equipment of vessels stipulated in the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), shall continue to apply, to the extent that they were applicable prior to this date. Recalling, as it has in previous comments, that these Conventions contain provisions which cannot be directly applied by domestic law and which therefore require the adoption of the appropriate legislation or regulations, the Committee requests the Government to provide the set of measures to ensure the implementation of these Conventions for vessels built before 20 August 2013.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that the information and the example of a financial security certificate provided by the Government show that the amendments to the 2014 Code have been implemented without the adoption of the necessary legal and regulatory measures. The Committee requests the Government to provide the set of measures adopted to give effect to Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2, which includes the necessary effective arrangements in place to receive, deal with and settle impartially contractual claims for compensation in the event of a seafarer’s death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures.

Regulation 4.3 and Standard A4.3, paragraphs 5 and 6. Health and safety protection and accident prevention. Reporting, statistics and investigation. The Committee notes that section 3.3.3-6 of the Bill, provides that the shipowner shall keep a list of all occupational accidents and draw up a report on such occupational accidents which he or she shall communicate to the commissioner as promptly as possible. The Committee notes that the Government has provided a copy of the document notifying hazardous situations or occupational accidents on board. The Committee recalls that Standard A4.3, paragraph 5, provides that the competent authority must ensure that: (a) occupational accidents, injuries and diseases are adequately reported, taking into account the guidance provided by the International Labour Organization with respect to the reporting and recording of occupational accidents and diseases; (b) comprehensive statistics of such accidents and diseases are kept, analysed and published and, where appropriate, followed up by research into general trends and into the hazards identified; and (c) occupational accidents are investigated. Standard A4.3, paragraph 6, provides that reporting and investigation of occupational safety and health matters shall be designed to ensure the protection of seafarers’ personal data, and shall take account of the guidance provided by the International Labour Organization on this matter. Noting that the Government has not provided information concerning the treatment of the occupational accidents reported, the Committee requests the Government to provide detailed explanations on the implementation of Standard A4.3, paragraphs 5 and 6, and to provide copies of the applicable legislative and regulatory texts. The Committee requests the Government to provide a copy of any recent document showing full statistics of reported accidents and illnesses.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee notes that section 4.0.0-2 of the Bill specifies that “unless they are members of the Luxembourg social security scheme under section 4.0.0-1, shipowners of vessels flying the Luxembourg flag must take out and contribute to the financing of a private insurance policy, from an accredited insurance company, which guarantees for persons engaged on their vessels a minimum of protection in the following branches: survivors, old age, occupational accident and occupational diseases benefits. However, shipowners shall be exempt from taking out the private insurance referred to above where they can demonstrate that seafarers engaged on a ship flying the Luxembourg flag are affiliated to the social security scheme of their country of residence under the legislation of that country, in cases where such a State has ratified the Maritime Labour Convention, 2006”. The Committee recalls that Standard A4.5, paragraph 3, provides that “each Member shall take steps according to its national circumstances to provide the complementary social security protection referred to in paragraph 1 of this Standard to all seafarers ordinarily resident in its territory. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The resulting protection shall be no less favourable than that enjoyed by shoreworkers resident in their territory”. The Committee notes that section 4.0.0 1(2) of the Bill, sets out that where, pursuant to a bilateral social security instrument as referred to in section 1(3) of the Social Security Code, Luxembourg social security legislation is applicable, the shipowner may request from the commissioner exemption from affiliation to the Luxembourg social security scheme for seafarers not resident in Luxembourg. When making his or her request, the shipowner must provide proof of adequate private insurance that meets the same requirements as those laid down in section 4.0.0-2. The commissioner issues a decision only after consultation with the Ministry of Social Security. The Committee requests the Government to indicate whether, under these circumstances, coverage extends to all the branches of social security declared applicable at the time of ratification or only the three branches mentioned in section 4.0.0-2. Noting that the model seafarers’ employment agreement does not provide for recourse to private insurance in the circumstances mentioned in section 4.0.0-2 of the Bill, the Committee requests the Government to indicate the manner in which it ensures that the seafarer concerned is adequately informed of his or her rights as they relate to social security.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee notes that section 36(1) of the Grand-Ducal Regulation of 31 May 2015, on certain responsibilities of the flag State concerning compliance with and enforcement of the MLC, 2006, provides that the quality management system for the operational aspects of activities related to flag State status guarantees the implementation of an appropriate procedure according to which the commissioner sets a standards reference framework for determining the objectives and standards governing the MLC inspection and social certification system. The reference framework also provides advice and recommendations to assist and guide MLC, 2006, inspectors in the performance of their duties, and to ensure monitoring of their activities. It takes into account current policies to ensure consistency in the various MLC inspection and social certification operations. The reference framework is an indicative document that is subject to change in accordance with regulatory developments under way. Recalling that the Government did not provide, in its first and second reports, information on the objectives and standards defined for the inspection and certification system, and on the methods in place for its assessment (Regulation 5.1.1, paragraph 5), the Committee requests the Government to provide an updated copy of the standards reference framework provided for in section 36(1) of the Grand-Ducal Regulation of 31 May 2015.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 3 and 4. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. Maritime Labour Certificate. Renewal and extension. The Committee notes that section 25 of the Grand-Ducal Regulation of 31 May 2015 on certain responsibilities of the flag State with regard to compliance with and enforcement of the MLC, 2006, gives effect to Standard A5.1.3, paragraphs 3, and 4 concerning the renewal of the maritime labour certificate. The Committee recalls that the amendments to the MLC Code, 2006, which were adopted by the International Labour Conference in 2016, allow member States to extend the maritime labour certificate for a period not exceeding five months when a renewal inspection shows that the ship meets requirements under national laws but that a new certificate cannot immediately be issued. Recalling that these amendments entered into force in Luxembourg on 8 January 2019, the Committee requests the Government to indicate the manner in which effect is given to Standard A5.1.3, paragraph 4, as amended.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that section 3.4.0-2 of the Bill, provides that any vessel to which this text applies is subject to MLC inspection under the conditions laid down in the Grand-Ducal Regulation. The Committee notes that the provisions of Regulation 5.1.4 and Standard A5.1.4 are implemented primarily through sections 9 to 19, 35 to 41 and Annex I of the Grand-Ducal Regulation of 31 May 2015 on certain flag State responsibilities regarding compliance with and enforcement of the MLC, 2006. The Committee notes, however, that section 2 of the Regulation stipulates that ships flying the Luxembourg flag, of less than 200 gross tonnage and which do not carry out international voyages, are excluded from its scope of application. The Committee requests the Government to provide, on all inspections conducted either by public servants and employees or the recognized organizations: a sample of the annual reports on the inspection activities published in conformity with Standard A5.1.4, paragraph 13; the model document setting out the tasks and competences of the inspectors transmitted to the persons concerned or signed by them (Standard A5.1.4, paragraph 7; see also Guideline B5.1.4, paragraphs 7 and 8); a sample of the national guidelines issued to inspectors in accordance with Standard A5.1.4, paragraph 7; a sample of the model used by inspectors to draw up their reports (Standard A5.1.4, paragraph 12); a sample of any document to inform seafarers and other interested parties of the procedures enabling them to file a complaint (in full confidentiality) regarding a violation of the requirements of the Convention (including the rights of seafarers) (Standard A5.1.4, paragraph 5; see also Guideline B5.1.4, paragraph 3).

Regulation 5.1.5 and Standard A5.1.5, paragraph 4. Flag State responsibilities. On-board complaint procedures. Document describing complaint procedures. The Committee notes that section 44 of the Grand-Ducal Regulation of 31 May 2015 on certain flag-State responsibilities with regard to compliance with and enforcement of the MLC, 2006, gives effect to Standard A5.1.5, paragraph 4, concerning the document describing the on-board complaint procedures, by setting out that all seafarers shall receive from the shipowner, at the same time as their employment agreement, a document indicating the on-board complaint procedure, the contact information of the Office of the Commissioner for Maritime Affairs and the contact information of the maritime authorities of the seafarer’s country of residence. This document shall also mention the name of one or several persons on board who shall provide seafarers with confidential and impartial advice and who has the necessary skills to assist them with an on-board complaint procedure. The Committee notes that the Government does not provide the model for the procedures but refers to the DCTM, Part I. The Committee notes that, while the DCTM contains relevant provisions, it is not issued to all ships nor given to each seafarer at the same time as the employment agreement. The Committee requests the Government to provide detailed information on the manner in which section 44 of the Grand-Ducal Regulation of 31 May 2015 is implemented in practice, and to provide an example of the document transmitted to the seafarer pursuant to this section.