Demande directe (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention du travail maritime, 2006 (MLC, 2006) - Chypre (Ratification: 2012)

Autre commentaire sur C186

Demande directe

2019
2015

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General questions on application of the Maritime Labour Convention. Implementing measures. Information in the Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (hereinafter, the MLC, 2006). Cyprus has previously ratified five maritime labour Conventions that were denounced following the entry into force of the Convention, for Cyprus. 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. Scope of application. Article II, paragraphs 1(f) and 3. Definition of the term “seafarer”. The Committee notes that section 2 of the Maritime Labour Convention 2006, (Ratification) and for Matters Connected Therewith Law of 2012 (hereinafter the MLCL) defines the seafarer as “any person who is employed in any capacity on board a ship to which this Law applies”. This section, however, exempts the following categories of workers: (i) scientists, researchers, divers, specialist off-shore technicians etc. whose work is not part of the routine business of the ship; (ii) harbour pilots, inspectors, surveyors, auditors, superintendents etc. who although trained and qualified in maritime skills and perform key specialist functions, their work is not part of the routine business of the ship; (iii) guest entertainers, repair technicians, port workers whose work is occasional and short term with their principal place of employment being ashore; (iv) non-marine personnel, employed under outsourced service agreements, the terms of which determine the conditions under which the service provider will supply the necessary personnel.

The Committee recalls that “seafarer” is defined under paragraph 1(f) of Article II of the Convention, as “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies” and that, under paragraph 3 of Article II of the Convention, in the event of doubt concerning any categories of persons regarded as seafarers this shall be determined by the Member’s competent authority after consultation with the shipowners’ and seafarers’ organizations. The Committee accordingly requests the Government to explain whether consultations with shipowners’ and seafarers’ organizations have taken place, as is required under these provisions of the Convention. The Committee also requests the Government to provide information regarding the “non-marine personnel” referred to in point (iv) of section 2 of the Maritime Labour Convention 2006 (Ratification) and for Matters Connected Therewith Law of 2012, mainly the purpose of work on board, the duration of stay and the frequency of periods of work spent on board, as well as the location of such personnel’s principal place of work.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that section 58(2) of the MLCL sets the annual paid leave at 2.5 calendar days per month of employment of the seafarer, and is presumed to be the overriding provision. It also notes, however, that section 13(1) of the Merchant Shipping (Organization of Working Time of Seafarers) Law provides for a “period of four weeks” annual paid leave. In this law, “week” is defined as a period of seven days beginning on Monday and ending on Sunday. The MLCL refers to this law which may cause confusion as it indicates that seafarers are entitled to a total of 28 days, as opposed to the 30 days (2.5 calendar days for every month) established in the MLCL and required by paragraph 2 of Standard A2.4 of the Convention. The Committee requests the Government to indicate how the requirements of paragraph 2 of Standard A2.4. of the Convention, are given effect.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that section 79 of the MLCL provides for exemptions for ships of less than 200 GT from specific provisions of Standard A3.1. The Committee recalls that paragraphs 20 and 21 of Standard A3.1 permit such exemptions, but also require consultation with shipowners’ and seafarers’ organizations. The Committee accordingly requests the Government to explain whether consultations with shipowners’ and seafarers’ organizations have taken place, as is required under these provisions of the Convention.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that section 36(1) of the Merchant Shipping (Fees and Taxing Provisions) Law of 2010 (44(I)/2010) states that the crew manager must ensure that the shipowner complies with his obligations of liability regarding payment of wages in case of accident or sickness, as established in Regulation 4.2. Section 36(2) of this law further states that, in the case where the shipowner’s liability is not covered by the shipowner with financial security to meet claims of contractual compensation in the event of the death or long-term disability of the seafarers due to an occupational injury, illness or hazard, then such financial security shall be provided by the crew manager. This section permits the crew manager to act as the seafarer’s employer, and, therefore, to be also bound by the shipowner’s liability. Recalling that managers are included in the definition of “shipowner” according to paragraph 1(j) of Article II of the Convention and the fact that the crew manager may act as the seafarer’s employer, the Committee requests the Government to specify the legislative provisions and measures taken to ensure that managers provide financial security, as well as the forms this may take.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that section 140 of the MLCL states that safety committees shall be established on board ships of at least five seafarers and that sections 3.3.2, 3.4, 3.5 and 3.6 of the Cyprus Code of Safe Working Practices for Seafarers (hereinafter, the Safety Code) also refer to the appointment of safety officers, the election of safety representatives and the creation of a safety committee under the same circumstances as set out in paragraph 2(d) of Standard A4.3, of the Convention. However, section 3.6.2 of the Safety Code states that a safety committee is desirable for ships with more than five workers, and mandatory when there are more than ten workers, while paragraph 2(d) of Standard A4.3 requires that such a committee shall be established on board a ship with five or more seafarers. This may cause uncertainty. The Committee requests the Government to consider amending the Safety Code in order to bring it into conformity with section 140 of the MLCL, thereby giving full effect to paragraph 2 of Standard A4.3 of the Convention.

Regulation 4.4 and the Code. Access to shore-based facilities. The Committee notes that section 146 of the MLCL states that the competent authority shall consult with the shipowners’ and seafarers’ organizations to promote further development of seafarer welfare facilities, however, the Government has not provided any information regarding these consultations. The Committee requests the Government to provide additional information regarding plans for further development of seafarer welfare facilities in its ports.

Regulation 4.5 and the Code. Social security. The Committee notes that the Government’s declaration made at the time of ratification pursuant to paragraphs 2 and 10 of Standard A4.5 specified that medical care, sickness benefit, employment injury benefit and invalidity benefit compose the social security protection provided to seafarers ordinarily resident in Cyprus. These branches are also expressed in section 151 of the MLCL and cover all seafarers employed on ships flying the flag of Cyprus. It also notes that section 14 of the Social Security Act of 2010 (59(I)/2010) extends social security to residents of Cyprus or non-residents having a Cypriot employer. With this in mind, section 21(1) of the Act provides for social security benefits for maternity allowance, sickness benefit, unemployment benefits, retirement pension, disability pension, as well as widow, orphan and missing person’s allowance. It also notes, however, that section 6 of Part I of the First Table of the Annex excludes certain categories of workers from social security such as those employed on board a ship flying the flag of Cyprus for a period not exceeding six months, non-residents of Cyprus, or insured in another country. The Committee recalls that the Convention does not provide for a minimum qualifying period of work in order to be covered by social security, and therefore this exception puts seafarers in a disadvantaged position in comparison to shoreworkers, contrary to paragraph 3 of Standard A4.5. The Committee notes that Cyprus is part of bilateral and multilateral agreements made with several countries, and as a member of the European Union, is also part of arrangements with the other members. It also notes that the situation with respect to social security protection for seafarers ordinarily resident in Cyprus who may be working on ships operating under the flag of another country that is not a Member of the European Union or the agreements is not addressed. The Committee requests the Government to provide information on how it is ensured that social security protection is provided to seafarers regardless of the length of employment on board as well as to those who are ordinarily resident in Cyprus and working on ships flying the flag of another country outside of the European Union. It also requests the Government to transmit copies of the bilateral and multilateral agreements on social security.

Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee notes that section 8 of the Merchant Shipping (Recognition and Authorization of Organizations) Law of 2011 (128(I)/2011) stipulates that the State and the organizations shall conclude an agreement which must include certain required elements, but no sample copy of an agreement is attached to the Government’s report. The Committee requests the Government to provide a sample copy of an agreement between Cyprus and a recognized organization.

Regulation 5.1.3 and the Code. Declaration of Maritime Labour Compliance. The Committee notes that the Government supplied a copy of the Declaration of Maritime Labour Compliance (DMLC), Part I, and an example of a DMLC, Part II. It also notes that, on many matters, the Government refers in its report to the DMLC, Parts I and II, as providing sufficient information on national implementation, yet the DMLC, Part I, often only refers to the relevant legislation without further information on the content of the identified provisions. Similarly, the Committee noted that many of the examples of a DMLC, Part II, certified by the competent authority to a recognized organization duly authorized for this purpose (a document which is intended to identify the measures adopted by shipowners to implement the national requirements), also often contain only references to other documents. For example, in connection with hours of work or rest, it states that the “Master’s Handbook Personnel Chapter 2.12 is in compliance with applicable MLC hours of work or rest requirements. Ref to Forms & Checklist Register – Chapter 6, PERS #05, Record of Working Hours form”. The Committee recalls its 2014 general observation which states that “in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices. … Unless all of these referenced documents are carried on board ship and are easily accessible to all concerned, it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters”. Therefore, the Committee requests the Government to consider amending the DMLC, Part I, in line with paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention but that it also provides, to the extent necessary, concise information on the main content of the national requirements.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee notes that the MLCL does not include provisions implementing paragraphs 10 and 11(b) of Standard A5.1.4 which provide that inspectors shall treat as confidential the source of any grievance or complaint and must not reveal any commercial secrets or confidential working processes or information which may come to them in the course of their duties. It also notes that the documents issued by the Department of Merchant Shipping, namely “P882 for on-board complaints” (hereinafter, P882), mentioned in the Government’s report, do not specify this point either. The Committee requests the Government to provide additional information as to how the confidentiality of the information obtained by the inspector is guaranteed, as required under paragraphs 10 and 11(b) of Standard A5.1.4 of the Convention.

Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee notes that, with respect to on-board complaint procedures, section 16(2) of the MLCL states that seafarers are not to be penalized for filing a complaint, but does not elaborate on the arrangements to guarantee protection against victimization or penalty. It also notes that the MLCL and the P882 are silent regarding the seafarer’s right to complain as well as their right to be accompanied or represented during the complaints procedure. The Committee therefore requests the Government to explain how effect is given to the following paragraphs of Standard A5.1.5:

-The seafarer’s right to complain directly to the master (paragraph 2);
-The seafarer’s right to be accompanied or represented during the complaints procedure (paragraph 3).

The Committee notes that section 16(4) of the MLCL stipulates that all seafarers shall be provided with a copy of the on-board complaint procedure, but this provision does not require the inclusion of practical details that will be of help to the seafarer who filed the complaint. The P882 is silent on this point. The Committee recalls that paragraph 4 of Standard A5.1.5 of the Convention requires that this document contain the contact information of the relevant competent authority and the names of persons on board the ship who may confidentially assist the seafarer with impartial advice regarding the complaint as well as the procedure. The Committee requests the Government to explain how effect is given to the requirements concerning the information provided to seafarers on the on-board complaint procedure, as set out in paragraph 4 of Standard A5.1.5 of the Convention.

Regulation 5.2.2 and the Code. Onshore seafarer complaint-handling procedures. The Committee notes that the document issued by the Department of Merchant Shipping “P883 for onshore complaint procedures”, the MLCL and other legislative texts are silent on the arrangements ensuring the confidentiality of the complaints made by the seafarers, as required under paragraph 7 of Standard A5.2.2. The Committee requests the Government to explain how the confidentiality of complaints made by seafarers is safeguarded, in accordance with this provision of the Convention.

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