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

Convention du travail maritime, 2006 (MLC, 2006) - Fédération de Russie (Ratification: 2012)

Autre commentaire sur C186

Demande directe

2019
2015

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006), as well as the observations made by the Federation of Maritime Transport Trade Unions (FPRMT) and the Seafarers’ Union of Russia (SUR), received on 30 October 2014. It also notes that the Government has previously ratified 11 maritime labour Conventions which were denounced following the entry into force of the MLC, 2006. Noting that, in its previous comments under these Conventions, it has been requesting the Government for many years to adopt the relevant implementing legislation, the Committee expects that the necessary measures will be adopted without delay. 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.

Regulation 1.1 and Standard A1.1. Minimum age. Concerning the prohibition of night work of seafarers under the age of 18, the Committee notes the Government’s indication that, in accordance with article 96 of the Labour Code, night “is the period from 10 p.m. to 6 a.m”. The Committee notes that, accordingly, this definition covers a period of eight hours. It recalls, in this respect, that paragraph 2 of Standard A1.1 of the Convention requires that “night” shall cover a period of at least nine hours. The Committee requests the Government to explain the measures adopted or envisaged to ensure, for the purposes of Standard A1.1, that “night” is defined to cover a period of at least nine hours. The Committee notes the Government’s reference to Resolution No. 163 of 25 February 2000 “On the Confirmation of the List of Heavy Work and Work with Harmful or Hazardous Working Conditions for Which it is Prohibited to Employ Workers Under 18 Years of Age”. It notes that this resolution sets out the list of hazardous work activities for which seafarers under the age of 18 years are prohibited to work. However, the Committee further notes that the explanatory notes, which form part of this resolution, indicate that certain exceptions may be made for training activities for up to four hours a day. The Committee recalls, in this respect, that paragraph 4 of Standard A1.1 of the Convention prohibits the employment, engagement or work of seafarers under the age of 18 for hazardous work, without exception. The Committee requests the Government to clarify how its national legislation implements the absolute prohibition provided for in the Convention.

Regulation 1.2 and Standard A1.2. Medical certificate. In its previous comments under the Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16), and the Medical Examination (Seafarers) Convention, 1946 (No. 73) – now consolidated in the MLC, 2006 – the Committee had noted the Government’s repeated assurances that implementing legislation was in process. It notes the Government’s indication that this legislation remains in draft form. It further notes that the FPRMT states that the draft legislation fails to establish the criteria for the selection of medical experts or establishments authorized to conduct physical examinations of seafarers and issue the medical certificate, or define the procedure for the creation or use of a list of medical experts or establishments (Standard A1.2, paragraph 4), and does not establish a procedure for filing an appeal where a seafarer has been refused a medical certificate (Standard A1.2, paragraph 5). Recalling that these issues have been pending for many years, the Committee requests the Government to adopt the necessary measures to implement these provisions of the Convention without delay. It also requests the Government to transmit its comments on the observations of the FPRMT.

Regulation 1.4 and Standard A1.4. Recruitment and placement. In its previous comment under the Recruitment and Placement of Seafarers Convention, 1996 (No. 179) – now consolidated in the MLC, 2006 – the Committee requested the Government to indicate how it prohibits blacklisting or ensures a system of protection, such as a compulsory insurance scheme, offering greater certainty of payment. The Committee notes that the FPRMT and the SUR indicate that the Government has still not adopted any laws or regulations which: (i) impose any material liability towards seafarers for monetary damage; (ii) prohibit blacklisting; or (iii) establish an autonomous system for the regulation and control of recruitment and placement services for Russian seafarers that are engaged on ships that fly the flag of the Russian Federation. The FPRMT and the SUR further state that the two regulating legislative texts, that is, Order No. 939n of 2 December 2009 establishing a model form of employment contract and Order No. 962n of 8 December 2009 establishing a procedure for registering, with the regional officer of the recruitment and placement services for Russian citizens, foreign citizens and stateless persons, do not comply with the requirement of the Convention. In addition, the SUR states that the assessment of the Russian recruitment and placement system is limited by the lack of federal labour and employment services bodies authorized to inspect those entities and legal liability of those entities in case of infringement of the procedures in question. The Committee further notes the Government’s reference to Regulation No. 1022 of October 2012, which requires compliance with Articles 5 and 6 of Convention No. 179 concerning the duties of recruitment and placement services to ensure certain rights and duties with respect to the contracts of employment and documents and to maintain an adequate machinery and procedures for complaints. It notes the Government’s reference to the Act on Licensing Different Kinds of Activity (Federal Act No. 99-FZ of 4 May 2011), which sets out certain licensing and certification requirements. Finally, the Committee notes the Government’s reference to section 19(10) of the Federal Act No. 99-FZ, which requires unscheduled on-site inspections of recruitment and placement services concerning allegations of cases of gross violation of licensing requirements. The Committee notes, however, that the existing legislation does not seem to contain prohibitions against blacklisting or requirements for a compulsory insurance scheme. The Committee accordingly requests the Government to identify the national laws and regulations which implement the requirements of Regulation 1.4 and the Code, including the prohibition of blacklists (Standard A1.4, paragraph 5(a)) and the requirement of a compulsory insurance scheme (Standard A1.4, paragraph 5(c)(vi)). Furthermore, noting that Regulation No. 1022 refers only to penalties for “gross violations” of the licensing requirements, the Committee requests the Government to indicate how it is ensured that all complaints concerning the activities of recruitment and placement services are investigated, involving, as appropriate, representatives of shipowners and seafarers, as required under Standard A1.4, paragraph 7.

Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. The Committee had noted in its previous comments under the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), that section 66 of the Labour Code, as last amended in 2006, provides that the work record book will specify, among other things, the grounds for termination of the employment agreement. The Committee had drawn the Government’s attention, in that respect, to Articles 14 and 5 of the Seamen’s Articles of Agreement Convention, 1926 (No. 22) – now incorporated in the MLC, 2006 – which provide that an entry made in the document issued to the seafarer and the list of the crew in case of the termination or rescission of the agreement should merely state the fact that the seafarer had been discharged and not the grounds for such discharge. The Committee notes the Government’s indication that this provision is still implemented through the Labour Code. It also notes the Government’s indication that the particulars, as required under Standard A2.1, paragraph 4, are contained in the Ministry of Health and Social Development Order No. 939n of 2 December 2009. The Committee notes, however, that although Order No. 939n provides for many of those particulars, it does not seem to require that the employment agreement include certain provisions in English, as required under Standard A2.1, paragraph 2, or that the shipowners and seafarers each receive a signed original of the seafarers’ employment agreement, as required under Standard A2.1, paragraph 1(c). The Committee requests the Government to clarify how it ensures the respect of these provisions of the Convention. The Committee also notes that, under section 67 of the Labour Code “An employment agreement shall be concluded in writing and shall be drawn up in two copies, each of which will be signed by the parties. One copy of the employment agreement shall be handed to the employee, and the other shall be retained by the employer”. The Committee recalls that, under paragraph 1 of Standard A2.1, irrespective of the employment arrangements involved, the agreement must be signed by both the seafarer and the shipowner or a representative of the shipowner. The Committee requests the Government to clarify how the legislation ensures the implementation of this provision of the Convention.

Regulation 2.2 and the Code. Wages. The Committee notes that, according to the observations of the SUR, the Russian Federation lacks a regulatory basis for ensuring the implementation of Regulation 2.2 as regards the full payment of wages and that, consequently, shipowners are declaring that they pay crew members in roubles while actually paying through foreign currency. The Committee requests the Government to provide its comments concerning the observations of the SUR in this respect.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. The Committee notes the Government’s reference to the Order of the Russian Federation Ministry of Health and Social Development dated 13 August 2009, No. 588n, which stipulates under section 2.2 that normal working hours of work for crew will be eight hours, Monday through Friday, that is, 40 hours per week. The Committee notes that, under section 4 of the same Order, emergency services work performed by crew in excess to normal hours of work must be recorded and taken into account, and that such work should be minimized. The Committee requests the Government to indicate how it implements Standard A2.3, paragraph 14 of the Convention according to which, as soon as practicable after the normal situation has been restored, the master shall ensure that seafarers are provided with an adequate period of compensatory rest.

In addition, the Committee notes the comments of the FPRMT and the SUR, according to which the legislation does not appear to require that: (i) musters, fire-fighting and lifeboat drills, and drills shall be conducted in a manner that minimizes the disturbance of rest periods and does not induce fatigue (Standard A2.3, paragraph 7); or (ii) records of seafarers’ daily hours of work or of their daily hours of rest be maintained, in a standardized format, in English as well as in the working language, and that seafarers shall receive a copy of those records pertaining to them which shall be endorsed by the master, or a person authorized by the master, and by the seafarers (Standard A2.3, paragraph 12). Noting that the Government has not provided information in this regard, the Committee requests the Government to identify the implementing legislation concerning the minimization of disturbances during rest periods and the records of hours of work, as set out above.

Regulation 2.4 and Standard A2.4. Entitlement to leave. The Committee notes the Government’s references to the Labour Code, which provides generally for paid annual leave for 28 days per year, as well as to section 427 of the Merchant Shipping Act as implementing legislation. However, it notes that neither of these legislative texts provide for annual paid leave for seafarers. The Committee further notes that, while the Government states in its report that “it is prohibited not to provide paid annual leave in two consecutive years”, the Government provides no information concerning how it ensures that seafarers, who are employed on vessels for less than two consecutive years, are protected against foregoing annual leave with pay, as required under Standard A2.4, paragraph 3. The Committee accordingly requests the Government to indicate the laws and regulations that implement Regulation 2.4 and the Code to ensure the minimum standards for annual leave for seafarers serving on ships flying its flag, taking into account the special needs of this category of workers.

Regulation 2.5 and Standard A2.5. Repatriation. The Committee notes that section 58 of the Merchant Shipping Act sets out certain repatriation entitlements for seafarers to be repatriated, and that the costs of this repatriation must be borne by the shipowner. Noting the absence of further information on this point, the Committee requests the Government to describe how it implements the requirements of Standard A2.5, paragraph 1(b)(ii).

Regulation 2.6 and the Code. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes the Government’s indication that this Regulation is implemented by section 30 of the Act on Employment in the Russian Federation (Act No. 1032-1 of 19 April 1991) that requires that all Russian citizens receive unemployment benefit. The Committee also notes, however, that according to the FPRMT, this provision does not specify that the shipowner is required to pay adequate compensation to each seafarer in the case of unemployment arising from the ship’s loss or foundering. The Committee observes that indeed section 30 of the said Act does not include this specific obligation and subjects unemployment benefits to the payment of contributions for a minimum qualifying period. The Committee recalls that, according to paragraph 1 of Standard A2.6, each Member shall make rules ensuring that, in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from that loss or foundering, taking due account of Guideline B2.6.1 regarding the calculation of this indemnity. In addition, the Committee notes that the Government provides no information regarding seafarers’ compensation in case of injury or loss arising from the ship’s loss or foundering. The Committee requests the Government to provide information on the measures taken or envisaged to implement the requirements of Regulation 2.6.

Regulation 2.7 and the Code. Manning levels. The Committee notes the Government’s indication that the minimum safe manning levels take into account the requirements of the Convention, and that, under the Merchant Shipping Code, the minimum safe manning must ensure safe navigation and must prevent seafarer fatigue. It also notes, however, the comments of the FPRMT and the SUR, according to which: (i) the general minimum crew regulations, that is, Order No. 199 of 9 December 1969, are outdated; and (ii) section 53 of the Merchant Shipping Code does not sufficiently regulate the minimum crew. The Committee requests the Government to transmit its comments concerning the observations of the FPRMT and the SUR in this respect.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. The Committee recalls its previous comments under the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), in which it noted the Government’s indication that it was in the process of adopting new legislation to implement the requirements of those Conventions. It further notes, however, the Government’s indication that its implementing legislation remains the same. The Committee notes, in this respect, that while the Sanitary Regulations provide specific requirements for vessel accommodation, many of those provisions do not reflect the requirements of the Conmvention, such as those concerning headroom and occupancy. The Committee accordingly requests the Government to take concrete steps to adopt new laws or regulations that implement the requirements of Regulation 3.1 and Standard A3.1.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes the Government’s indication that the Ministry of Health has drafted implementing legislation which is awaiting approval. The Committee requests the Government to submit its implementing legislation once it has been approved.

Regulation 4.2 and Standard A4.2. Shipowner’s liability. The Committee notes the Government’s reference to the Merchant Shipping Act, which requires that the shipowner safeguard seafarers’ property in the event of ship accidents or acts of war. The Committee requests the Government to indicate the national laws and regulations which require that shipowners of ships that fly its flag take measures to safeguard property on board by sick, injured or deceased seafarers, as required by Standard A4.2, paragraph 7.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s indication that the Order on the Approval of the Regulations on Occupational Safety in Vessels of the Maritime and River Fleet (Order No. 367n of 5 June 2014) has been signed and sent to the Ministry of Justice for state registration. The Committee requests the Government to submit a copy of this Order.

Regulation 4.5 and Standard A4.5. Social security. Resident seafarers. The Committee notes that, upon ratification, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specified the following branches of social security protection: medical care; sickness benefit; old-age benefit; employment injury benefit; invalidity benefit; and survivors’ benefit. It further notes the comments of the SUR, however, which state that sickness and employment injury benefits are not afforded to Russian citizen seafarers who work on ships flying a foreign flag. The Committee requests the Government to provide information on the manner in which the national legislation ensures that all seafarers ordinarily resident in the Russian Federation (and not only Russian nationals) who work on board ships flying the flag of another country are provided with social security protection for the branches of social security specified by the Russian Federation upon ratifying the Convention. In cases in which social security coverage of such seafarers is provided by way of bilateral or multilateral social security agreements, the Committee requests the Government to provide a list of such agreements as well as explanations regarding the model clauses with respect to coverage of persons residing in the other State party.

Non-resident seafarers. The Committee notes that, under paragraphs 1 and 2 of section 5 of the Federal Act No. 125-FZ, Russian citizens, foreigners and stateless persons that are performing a contract of employment are eligible for compulsory social insurance in case of workplace accidents and occupational diseases. The Committee understands that seafarers working on board Russian flagged ships but not resident in the Russian Federation would, in accordance with this provision, be covered against employment injuries occurring in the course of their employment. The Committee requests the Government to confirm whether such is indeed the case and to indicate any measure taken in order to periodically review the branches of social security protection so as to identify any additional branches to be extended to this category of seafarers in case of inadequate coverage.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee notes that the FPMRT and the SUR indicate that the Government lacks a legal and regulatory mechanism to ensure compliance with the basic requirements of the Convention through the effective exercise of the State’s jurisdiction and control over Russian-flagged ships. According to them, in the absence of any accountability for such failure, there have been flagrant violations of seafarers’ rights on board Russian seagoing vessels. The Committee requests the Government to provide its comments on these observations.

The Committee also notes the Government’s indication that a vessel may be detained if defects are discovered which pose a direct threat to individuals’ life and health. It recalls that paragraph 7(c) of Standard A5.1.4 provides that inspectors, issued with clear guidelines as to the tasks to be performed and provided with proper credentials, shall be empowered to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken. The Committee notes, however, that the Government has not indicated whether inspectors may detain a ship for deficiencies in cases where they have grounds to believe that deficiencies constitute a serious breach of the requirements (including seafarers’ rights) of the Convention. Consequently, it is not clear whether Russian inspectors are empowered to detain vessels for deficiencies related to the Convention. It is also unclear whether the remaining requirements of the Code are implemented. The Committee accordingly requests the Government to provide detailed information on the measures taken to implement these requirements of the Convention.

Regulation 5.1.5. On board complaint procedures. Noting the Government’s reference to the draft order on the approval of complaint review procedures on board vessels, the Committee requests the Government to submit the order once it has been finalized.

Regulations 5.2, 5.2.1 and 5.2.2 and the Code. Port State responsibilities. Noting the Government’s indication that an effective port State inspection and monitoring system is under preparation, the Committee requests that it provide updated information concerning any developments in this respect.

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