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

Convention du travail maritime, 2006 (MLC, 2006) - France (Ratification: 2013)

Autre commentaire sur C186

Demande directe

2019
2015

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The Committee takes note of the Government’s first report on the application of the Convention. It notes that the Government previously ratified 25 Conventions on maritime labour, which have been denounced following the entry into force of the Convention for France. The Committee notes with interest the efforts made and the measures taken to give effect to the Convention, in particular through the adoption of legislative and regulatory texts. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article II, paragraphs 1(f), 2 and 3, of the Convention. Scope of application. Seafarers or mariners (“marins”). The Committee notes that section L5511-1 of the Transport Code makes a distinction between seafarers, which it defines as “all persons, whether or not employees, who carry on an occupational activity in any capacity on board a ship”, and mariners, who are defined as “seafarers, whether or not employees, who carry on an activity directly related to the operation of the ship”. It further notes that according to section L5549-1 of the Transport Code, the following provisions likewise apply to seafarers other than mariners: Book V (“Seafarers”), Titles I (“Definitions and general provisions”), III (“The ship’s community”) and VI (“Social conditions in the host country”); and section L5521-4 (on standards of good character of group members performing the functions of master, master’s deputy, chief engineer or officer in charge of the ship’s safety). It appears therefore that the other titles of Book V – and particularly Titles IV (“Labour law”), V (“Social protection of seafarers”) and VII (“Prevention of abandonment of seafarers”) – do not apply to seafarers other than mariners (apart from the provisions of Title IV that are applicable pursuant to section L5549-2 of the Transport Code). The Committee recalls that the Convention – which makes no distinction between “seafarers” and “mariners” – applies to all seafarers (Article II, paragraph 2) who are defined as “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”. The Committee requests the Government to indicate the measures taken or envisaged to ensure that the protection afforded by the Convention is guaranteed to all seafarers within the meaning of the Convention.

As to the maritime authority’s competence, in the event of doubt, to determine whether certain persons belong to the category of “mariners” or “seafarers”, the Committee notes that, according to the Government, consultations with the social partners were held on 14 May and 8 July 2014. It also notes the information supplied by the Government to the effect that pursuant to Decree No. 2015-454 of 21 April 2015 classifying seafarers and mariners, some persons carrying on an occupational activity on board a ship are not regarded as “seafarers” and have been excluded from the scope of the Convention. The Committee observes that as well as “mariners” and “seafarers other than mariners”, Decree No. 2015-454 establishes a third category entitled “personnel other than seafarers” and that it includes performers or other entertainers, stewards, chefs, ministers of religion, or persons carrying on well-being or sports activities. The Committee requests the Government to indicate how the decision to exclude these categories takes account of the fact that, according to the Resolution concerning information on occupational groups, adopted by the International Labour Conference, “persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board”.

Regulation 1.4 and Standard A1.4. Recruitment and placement. The Committee recalls that in its previous comments on the application by France of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), it noted that the Council of State decree to establish, under the terms of section L5546-1 of the Transport Code, the conditions for applying to seafarers certain provisions of the Labour Code on the placement of workers – including the procedures for the certification of private placement agencies for seafarers, the controls to be conducted prior to placement and the conditions for keeping a register of seafarers placed through their intermediary – had not yet been published. Recalling that the Convention does not contain exactly the same provisions as Convention No. 179, particularly as regards the prescriptions of Standard A1.4, paragraph 5(b) (seafarers to bear no fees or charges), and paragraph 5(c)(vi) (system of protection to compensate seafarers), and noting that the Government provides no information on recruitment and placement, the Committee requests the Government to indicate the provisions that give effect to Standard A1.4.

Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. In its previous comments on the application by France of the Seamen’s Articles of Agreement Convention, 1926 (No. 22) – the principles of which are reproduced in the Convention – the Committee pointed out the need to take measures to enable the seafarer to examine the agreement before signing it. It notes with interest that section L5542-5 of the Transport Code, as amended by Act No. 2013-619 of 16 July 2013, now provides that the seafarer must have enough time to review the agreement and seek advice before signing it. The Committee nonetheless recalls that Standard A2.1, paragraph 1(a), of the Convention requires the agreement to be signed both by the seafarer and by the shipowner or the latter’s representative, whoever the employer may be. For example, in the case of an employee leasing contract, the employer is not the shipowner. The Committee requests the Government, as it did in its comments on Convention No. 22, to specify any provisions that require the employment agreement to be signed by the shipowner or its representative.

Regulation 2.3 and Standard A2.3, paragraphs 1 to 5 and 13. Hours of work and hours of rest. Further to its previous comments on the application by France of the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180), Article 5(1) of which is identical to Standard A2.3, paragraph 5, the Committee notes that section 4 of Decree No. 2005-305 of 31 March 2005 on the working time of seafarers allows for the calculation of average daily hours of work during a cycle not exceeding six weeks, and provides that such average may reach a maximum of 14 hours pursuant to an agreement or a collective agreement, as long as these arrangements offer adequate compensation in the form of longer periods of leave, the grouping of leave periods or the granting of additional rest. The Committee further notes that, in order to accommodate the various constraints of maritime activities, section L5544-5 of the Transport Code allows for a derogation, by way of agreements and extended collective agreements at the enterprise or institutional level, from the provisions of the decree referred to in section L5544-4 concerning working time arrangements and distribution. The Committee recalls that Standard A2.3, paragraph 13, allows the competent authority to authorize or register collective agreements permitting exceptions to the limits set, under certain conditions. Noting the collective agreement of crew officers of transport companies and maritime services attached to the Government’s report, the Committee requests the Government to indicate whether any other agreements or collective agreements allowing exemptions from the limits set have been concluded and, if so, whether they have been authorized or registered, and to provide a copy of the relevant texts.

Ship’s master. The Committee notes that section L5544-33 of the Transport Code provides that procedures for applying to the ship’s master a number of provisions of the Transport Code on working time are to be established in regulations. The Committee requests the Government to provide a copy of the relevant regulatory provisions and to specify the legal regime that applies to ships’ masters in respect of hours of work.

Regulation 2.3 and Standard A2.3, paragraphs 4, 6 to 9 and 13. Division of rest periods. The Committee notes that section 11 of Decree No. 2005-305 allows a collective agreement, a sectoral agreement or an enterprise agreement to provide, for passenger ships, that the daily rest may, under the authority of the ship’s master, be divided into more than two periods but not more than six periods in the same 24-hour period. In this case, at least one of the periods shall be not less than six consecutive hours, another at least two hours, and the others at least one hour. The Committee notes that section 5.5.2 of the collective agreement of crew officers of transport companies and maritime services provides for such an exemption in the case of activities that are difficult to plan and need continuous service, and that it requires the enterprise to provide compensation in accordance with the provisions of section L5544-16 of the Transport Code “where the daily rest period is broken more than twice a day”. Recalling that Standard A2.3, paragraph 4, requires members to take account of the danger posed by the fatigue of seafarers, the Committee requests the Government to provide more detailed information on the granting of such exemptions through collective agreements, sectoral agreements or enterprise agreements and to specify whether the exemptions are accompanied by measures to limit the dangers of fatigue such as compensatory leave for these seafarers, as provided in Standard A2.3, paragraph 13.

Regulation 3.1 and the Code. Accommodation and recreational facilities. Consultation of the social partners. The Committee notes that several provisions of section 215 of the Order of 23 November 1987, as amended, on the security of ships – which incorporates the prescriptions of Standard A3.1 into national law – refer to the need to obtain an opinion from a “competent study committee” before implementing certain provisions or granting certain exceptions, whereas the corresponding provisions of the Convention refer to consultation of the shipowners’ and seafarers’ organizations concerned. Such is the case for: paragraph 25 of section 215.28 of the abovementioned Order, which includes the prescriptions of Standard A3.1, paragraph 9(m), regarding the sitting room or day room of the master, the chief engineer and the chief navigating officer; paragraph 1 of section 215.29, which includes the prescriptions of Standard A3.1, paragraph 10(a), regarding the location of mess rooms; paragraph 2 of section 215.12, which includes the prescriptions of Standard A3.1, paragraph 11(b), regarding sanitary facilities within easy access of the navigating bridge and the machinery space; paragraph 8 of section 215.1, which includes the prescriptions of Standard A3.1, paragraph 19, on the need to take account of the interests of seafarers having differing and distinctive religious and social practices. The Committee notes that the Order of 23 November 1987 does not specify the composition of the study committee. It also notes that Decree No. 2007-1227 of 21 August 2007 regarding prevention of the occupational risks of seafaring and the well-being of seafarers at sea and in ports created, under the ministry responsible for maritime affairs, a Higher Council for Seafarers, which is to include 14 members representing maritime shipping companies and 14 members representing seafarers in active employment. It also notes that under section 4 of the Decree, each session of the Council may establish its own “committees for the study of matters relating to its area of competence”. The Committee requests the Government in this connection to specify how the requirement to consult the social partners in implementing the abovementioned provisions is met.

Regulation 3.1 and Standard A3.1, paragraph 6(c). Location of sleeping rooms. The Committee notes that the Government indicates that exemptions (other than for passenger ships and special ships) regarding the location of sleeping rooms may be allowed pursuant to paragraph 1 of section 215.27 of the Order of 23 November 1987 regarding the safety of ships (which reproduces Standard A3.1, paragraph 6(c), of the Convention). However, the Government does not specify whether any such exemptions have been granted. The Committee requests the Government to indicate whether exemptions regarding the location of sleeping rooms have been granted for ships other than passenger ships or special ships.

Regulation 3.1 and Standard A3.1, paragraphs 20 and 21. Permissible exemptions from the prescriptions on accommodation and recreational facilities. The Committee notes that according to paragraph 6 of section 215.15 of the Order of 23 November 1987 “in the case of ships of less than 500 gross tonnage, dining and mess rooms shall be so designed, furnished and appointed as to serve as a recreation space where no such space can be provided on board”. The Committee recalls that Standard A3.1, paragraphs 20 and 21, lays down strict requirements for permitting exemptions to its prescriptions. In particular, such exemptions may be allowed only for ships of less than 200 gross tonnage and for certain prescriptions of the standard which do not include paragraphs 10 (mess rooms) and 17 (recreational facilities, amenities and services) of Standard A3.1. The Committee requests the Government to indicate the measures taken or envisaged to give effect to Standard A3.1 of the Convention.

Regulation 3.2 and Standard A3.2, paragraphs 2(c), 3 and 4. Training of ships’ cooks. The Committee notes that Decree No. 2015-517 regarding ships’ cooks, adopted on 11 May 2015, provides, in section 3, that “cooks shall hold a certificate of ship’s cook where they serve on board merchant ships and recreational ships whose crew list includes at least ten persons. Exemptions from this requirement may be allowed under the conditions set in section 5 of the Decree of 25 May 1999.” The latter provides that exemptions may be granted for a period not exceeding six months. The Committee recalls that, according to Standard A3.2, paragraph 6, such exemptions may be allowed but are valid only until the next convenient port of call or for a period not exceeding one month. The Committee requests the Government to indicate the measures taken or envisaged to ensure that exemptions concerning the service on board of a qualified cook are consistent with the provisions of the Convention.

Regulation 3.2 and Standard A3.2, paragraph 7. Documented inspections. The Committee notes that the Government has provided no information on: the frequency and procedures of documented inspections carried out on board ships by or under the authority of the master with respect to supplies of food and drinking water; the spaces and equipment used for the storage and handling of food and drinking water; and the galley and other equipment for the preparation and service of meals. The Committee requests the Government to provide information upon these matters.

Regulation 4.1 and Standard A4.1, paragraph 1(c) and (d). Visits in ports of call and free medical or dental care on board ship or in a foreign port. The Committee notes that, according to the Government, section L5549-4 of the Transport Code provides that when seafarers other than mariners are injured or sick during the time on board or after the ship has left the port at which they embarked, the shipowner shall make sure that they have access to rapid and adequate medical care. The costs incurred in such medical care shall be borne by the employer except where the illness was not contracted during the time on board. The Committee further notes that according to section L5542-21 of the Transport Code, when seafarers are injured in the service of the ship or fall sick during their time on board or after the ship has left the port at which they boarded, the cost of care shall be borne by the employer provided that it is established that the illness was contracted in the service of the ship. The Committee emphasizes that Standard A4.1, paragraph 1(d), provides that “to the extent consistent with the Member’s national law and practice, medical care and health protection services while a seafarer is on board ship or landed in a foreign port are provided free of charge to seafarers”. Thus, Standard A4.1 draws no distinction between illnesses contracted while a seafarer is on board ship or those contracted otherwise. The Committee requests the Government to indicate the measures ensuring that medical care and health protection services are provided free of charge to all seafarers, within the meaning of the Convention, on board ship or landed in a foreign port, without any distinction between illnesses contracted on board ship and illnesses contracted otherwise.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical advice by radio or satellite communication. In its comments under the Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164), the Committee requested the Government to indicate the measures envisaged to ensure that all ships to which the Convention applies, which are equipped with radio installations or a system of satellite communication, carry a complete list of radio stations and coastal earth stations through which medical advice can be obtained. The Committee notes that the Government indicates that ships are required to have appropriate equipment on board and keep an up-to-date list of the coordinates needed to obtain during the voyage medical advice by radio or satellite from persons on land. However, it does not specify the provisions that set this requirement. The Committee requests the Government to specify the legislative or regulatory provisions that establish this requirement.

Regulation 4.2 and Standard A4.2, paragraphs 2, 4 and 6. Defrayal of the expense of medical care, board and lodging, wages and burial expenses by the public authorities. The Committee notes that the Government indicates that the shipowner is under an obligation to bear the cost of medical and other expenses incurred by the injury or illness of a seafarer on land and to pay the seafarer’s wages for one month, at the end of which the special social security scheme for seafarers pays the daily compensation and assumes the cost of care. In the event of repatriation, the one-month period is prolonged up to the date of repatriation. The Committee requests the Government to specify the legislative or regulatory provisions imposing this obligation on the shipowner. The Committee notes that Government has provided no information on the existence of circumstances in which the shipowner’s liability for defrayal of the expense of medical care and board and lodging and for burial expenses is assumed by the public authorities. The Committee requests the Government to provide information in this regard.

Regulation 4.2 and Standard A4.2, paragraph 7. Safeguarding of property left on board. The Committee notes that the Government has provided no information on the requirement for shipowners or their representatives to safeguard property left on board by sick, injured or deceased seafarers and/or to return it to them or to their next of kin. The Committee emphasizes that in its previous comments on the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), it observed that the Transport Code appeared to contain no express provisions on the subject. The Committee requests the Government to indicate the legislative or regulatory provisions that give effect to Standard A4.2, paragraph 7.

Regulation 4.3 and Standard A4.3, paragraphs 1 and 2. Health and safety protection and accident prevention. The Committee notes, that according to the Government, sections L5545-5 to L5545-8 of the Transport Code, supplemented by Decree No. 2006-534 of 10 May 2006 on the protection of young workers serving on board ships, address all the issues raised in Standard A4.3, paragraphs 1 and 2. It notes, however, that these provisions deal specifically with measures taken to protect seafarers under 18 years of age and so do not cover all the issues addressed in Standard A4.3, paragraphs 1 and 2. It further notes that Decree No. 84-810 of 30 August 1984 on the safeguarding of human life, the habitability of ships and the prevention of pollution (consolidated version) covers some of the requirements set in Standard A4.3, paragraphs 1 and 2, of the Convention. The Committee requests the Government in this connection to provide specific information on the provisions that expressly implement all the provisions of Standard A4.3, paragraphs 1 and 2, for seafarers over 18 years of age.

The Committee recalls that the provisions of the Prevention of Accidents (Seafarers) Convention, 1970 (No. 134), have for the most part been reproduced in Regulation 4.3 and under the corresponding part of the Code of the MLC, 2006. Further to its previous comments on the application of that Convention, the Committee requests the Government: (1) to provide information on the implementation of the requirement – set in section 7 of Decree No. 2007-1227 – to establish a “single document on prevention” (document unique de prévention – DUP) in the maritime sector, specifying whether the content of the document is checked during the initial survey before the ship is put into service and during subsequent periodical or unannounced surveys that are conducted pursuant to Decree No. 84-810 of 30 August 1984 on safeguarding life at sea, habitability on board and pollution prevention, and to report on any consequences arising from the absence or insufficient nature of the information included in the DUP; (2) to indicate whether one or more Council of State decrees have been adopted on the basis of section L5545-9 of the Transport Code (working and living spaces on board ships so equipped and maintained as to ensure that their use guarantees the physical and mental health and the safety of seafarers) and section L5545-11 (procedures for applying to maritime shipping companies the provisions of Book III of the fourth part of the Labour Code regarding work equipment and means of protection) and to specify any relevant texts; (3) to indicate whether any practical guidelines or other documents have been published to facilitate the application by shipowners of section 51-1(I) of Decree No. 84-810, which provides that “all ships must be designed, built and maintained in such a way as to ensure the protection of crew members against accidents that may be caused, inter alia, by machinery, anchors, chains and cables”; and (4) to send information on the prerogatives available to the Higher Council of Seafarers in the area of occupational risk prevention.

Regulation 4.3 and Standard A4.3, paragraph 2(d). Ship’s safety committee. The Committee notes that according to the Government, a decree is being prepared to establish an obligation to set up a ship’s safety committee, in which the seafarers’ safety representative will participate. The Committee requests the Government to supply a copy of the decree as soon as it has been adopted.

Regulation 4.3 and Standard A4.3, paragraphs 5 and 6. Reporting and investigation of occupational safety and health matters. The Committee notes the information provided by the Government to the effect that occupational accidents and occupational injuries and diseases are reported in accordance with ILO guidelines. It requests the Government to provide information on the legislative or regulatory measures on which the reporting is based.

Regulation 4.5 and Standard A4.5. Social security. Coverage of resident seafarers. The Committee notes the information supplied by the Government to the effect that a project is under study on the possibility of affiliation to the general scheme for French and foreign seafarers resident in France who serve on board ships flying the flag of another country that has no social security agreement with France and who are not covered by private insurance. It requests the Government to provide information on any developments in this regard and on the implementation of such affiliation.

Coverage of non-resident seafarers. The Committee refers to its previous comments on the application by France of Convention No. 55, the provisions of which have been reproduced in the MLC, 2006. It noted in those comments that following the adoption of Act No. 2005-412 of 3 May 2005 establishing the International French Register (RIF), sections L5631-3 and L5631-4 of the Transport Code introduced a separate social protection regime for seafarers who are not French residents (or citizens of a Member State of the European Union, a country party to the Agreement on the European Economic Area or of a country with which France has concluded a bilateral social security agreement) and who are employed on board RIF-registered ships. More specifically, section L5631-3 of the Transport Code provides that the social protection regime that applies to these seafarers is subject to the law chosen by the parties and that collective agreements applicable to them may provide for more favourable conditions and that such conditions may not be less favourable than those established by relevant ILO Conventions ratified by France. The Committee recalls that the objective of Regulation 4.5 and the corresponding Code includes the promotion of social security coverage for all seafarers. The Committee requests the Government to provide information on the manner in which it discharges its obligation to examine the arrangements whereby, in the absence of adequate coverage in the country of residence, comparable benefits may be ensured for seafarers who are not resident in France but who work on board French-flagged ships – including on ships registered in the International French Register (RIF).

Regulation 5.1.3. and Standard A5.1.3 Maritime labour certificate and declaration of maritime labour compliance. The Committee notes that according to section L5514-1 of the Transport Code, certification is compulsory for any ship of 500 gross tonnage or over engaged in international voyages, as required by Regulation 5.1.3, paragraph 1(a). However, this provision appears not to apply to ships of 500 gross tonnage or over “flying the flag of a Member and operating from a port, or between ports, in another country”, as prescribed by Regulation 5.1.3, paragraph 1(b). The Committee requests the Government to provide information on the legislative or regulatory provisions that implement this obligation.

Regulation 5.1.4 and Standard A5.1.4, paragraph 12. Obligation to post inspection reports. The Committee notes that, according to the Government, the inspection report is sent to the competent authority and that a copy is addressed to the ship’s master, who posts it on the ship’s noticeboard. It notes in this connection that section 30 of Decree No. 84-810 of 30 August 1984 sets out requirements pertaining to inspection reports. Point III of this section reads as follows: “All inspection reports are kept on board French ships in a special register. The latter must be presented at the request of one of the persons listed at sections L5243-1 to L5243-3 of the Transport Code or at the request of the consular authority where the ship is abroad.” Point IV adds: “The register may be consulted by the ship’s representatives, personnel representatives or personnel members of the committee on safety, health and working conditions.” The Committee notes, however, that this provision does not require the ship’s master to post a copy of the inspection report on the ship’s noticeboard for the information of seafarers. The Committee requests the Government to indicate under which legislative or regulatory provision the ship’s master is required to post a copy of the inspection report on the noticeboard.

Regulation 5.1.4 and Standard A5.1.4, paragraph 4. Frequency of inspections. The Committee recalls that Standard A5.1.4, paragraph 4, establishes that inspections of ships covered by the Convention shall take place at intervals not exceeding three years. It notes the Government’s reply on this matter, to the effect that there is no requirement for systematic inspection to verify the compliance of French registered ships with the prescriptions of the Convention. The Committee requests the Government to provide information on the frequency of inspections in practice, and on the measures taken or envisaged to bring French legislation into conformity with Standard A5.1.4, paragraph 4.

Regulation 5.1.4 and Standard A5.1.4, paragraph 14. Inspections pursuant to a major incident. The Committee emphasizes that Standard A5.1.4, paragraph 14, of the Convention reproduces the prescriptions of Article 9(2) of the Labour Inspection (Seafarers) Convention, 1996 (No. 178). It provides that in the case of an investigation pursuant to a major incident, the report shall be submitted to the competent authority as soon as practicable, but not later than one month following the conclusion of the investigation. In its previous direct request on the application of Convention No. 178, the Committee noted that the Government referred to Circular No. DRT 11/83 of 4 August 1983, under which any fatal or very serious occupational accident is followed by a thorough investigation by labour inspectors and the investigation report is to be sent to the central authority within 30 days of the occurrence of the accident. The Committee again asks the Government to indicate the procedure followed when a major incident has not amounted to an occupational accident but has an impact on the living and working conditions of seafarers (for example, a fire destroying part or all of the crew accommodation, or a water leak leading to the deterioration of food products).

Regulation 5.1.5 and Standard A5.1.5. On-board complaint procedures. The Committee notes that the Government indicates that there is no standard procedure for dealing with complaints on ships flying the French flag but that the principle of law whereby all seafarers may file a complaint is laid down in section L5534-1 of the Transport Code. The Government adds that this provision will be supplemented by a decree that will establish guarantees pertaining to the complaints procedure. The Committee requests the Government to provide a copy of the decree establishing conditions for the application of section L5534-1 of the Transport Code as soon as it has been adopted.

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