Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

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

Autre commentaire sur C186

Demande directe

2019
2016

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It further notes that the Government previously ratified 11 maritime labour Conventions, all of which were denounced following the entry into force of the Convention for Serbia. 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. The Committee notes the Government’s statement that there are 2,367 Serbian seafarers working on ships operating under the flag of other countries, that Serbia is a landlocked country, and that there are currently no ships flying the Serbian flag. It notes the amendments to the Law on Maritime Navigation, and the elaboration of several documents implementing the MLC, 2006, including Part I of the Declaration of Maritime Labour Compliance (DMLC). Moreover, the Committee notes the Government’s indication that in order to fully implement the Convention, the adoption of both technical rules for the statutory certification of ships and instructions of the Minister of Construction, Transport and Infrastructure on the execution of rules, standards and guidelines in Titles 2, 3 and 4 of the Convention are expected to be adopted soon. The Committee requests the Government to report on any future developments in the maritime sector, which would have a bearing on the application of the flag State requirements of the Convention and hopes that the technical regulations and instructions will be adopted in the near future. It requests the Government to provide a copy of them once they are adopted.

Consultations. The Committee notes the Government’s indication that there are no active seafarers’ or shipowners’ organizations in Serbia. The Committee recalls that under Article VII of the Convention, any derogation, exemption or other flexible application for which the Convention requires consultations may, in cases where representative organizations of shipowners or of seafarers do not exist within a Member, only be decided through consultation with the Special Tripartite Committee established in accordance with Article XIII of the Convention. The Committee requests the Government to have recourse to the arrangement provided for in Article VII of the Convention until seafarers’ and shipowners’ organizations are established in the country.

Standard A1.1, paragraph 4 of the Convention. Hazardous work. The Committee notes section 57, paragraph 1 of the Law on Maritime Navigation according to which employment on board of people under the age of 18 is forbidden where the work is likely to endanger their health or safety, in accordance with relevant international standards. The Committee also notes the Government’s indication that the types of work considered as likely to jeopardize the health and safety of seafarers under the age of 18, shall be stipulated by technical regulations for statutory certification of ships, whose adoption was planned for the first quarter of 2016. The Committee hopes that the technical regulations will be adopted in the near future in conformity with Standard A1.1, paragraph 4, and requests the Government to provide a copy once they are adopted.

Regulation 1.4 and the Code. Recruitment and placement. Regulation 5.3 and the Code. Labour-supplying responsibilities. Article V, paragraph 5. The Committee notes that section 67ž of the Law on Maritime Navigation provides that the mediator shall not take action in order to prevent seafarers from obtaining employment. The Committee recalls that Standard A1.4, paragraph 5(a), requires that Members prohibit seafarers’ recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified. The Committee requests the Government to indicate how it gives effect to this provision of the Convention. Moreover, the Committee notes that paragraph 2 of section 1 of the Regulation on the procedure and method of issuing approval for conducting mediation services in employment, provides that an insurance policy from professional liability for financial losses that the seafarer is subject to as a result of omission in the work of mediators, has to be submitted with the written request for the issuance of the agency’s approval. The Committee recalls that Standard A1.4, paragraph 5(c)(vi), of the Convention requires that insurance or an equivalent appropriate measure must also be in place to compensate seafarers for monetary loss they may incur as a result of the failure of a recruitment and placement service “or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them”. The Committee requests the Government to provide information with respect to the obligation under Standard A1.4, paragraph 5(c)(vi), of the Convention regarding protection in the event of a failure by a shipowner to meet its obligations to the seafarer.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes the Government’s indication that these provisions of the Convention are implemented through the Labour Code. The Committee notes that certain provisions of the Labour Code are not in conformity with the requirements of this Regulation. However, before raising them, the Committee wishes to seek clarification on the scope of application of the Labour Code. The Committee notes in this regard that paragraph 1 of section 2 of the Labour Code states that its provisions apply to all employees who work in the territory of the Republic of Serbia with a national or foreign legal entity and/or a natural person (employer), as well as to employees assigned to work abroad by an employer. The Committee requests the Government to provide clarifications concerning whether or not the Labour Code applies to national and foreign seafarers domiciled in Serbia engaged in ships not flying the Serbian flag.

The Committee notes that the standard form example of a seafarer’s employment agreement provided by the Government does not include the signature of the shipowner, as required by Standard A2.1, paragraph 1, of the Convention, nor does it contain the following particulars listed under Standard A2.1, paragraph 4, of the Convention: (b) the shipowner address; (g) the termination of agreement and the conditions thereof; (h) the health and social security protection benefits to be provided to the seafarer by the shipowner; and (i) the seafarer’s entitlement to repatriation. In this respect, the Committee observes that although the Convention does not establish a standard format for a seafarers’ employment agreement, the agreements must include the matters set out in Standard A2.1, paragraph 4, of the Convention. Accordingly the Committee requests the Government to review the Seafarers’ Employment Agreement’s standard form in order to give full application to this provision of the Convention.

Standard A2.2, paragraph 5. Wages. Allotment services. The Committee recalls that Standard A2.2, paragraph 5, of the Convention requires that allotment services, which provide seafarers with means to transmit all or part of their earnings to their families, dependents or legal beneficiaries, be charged at a reasonable amount and that the rate of currency exchange be at the prevailing market rate or the official published rate and not unfavourable to the seafarers. The Committee notes the Government’s indication that there are no provisions in this regard. The Committee requests the Government to provide information with respect to measures it has adopted to give effect to this provision of the Convention.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. The Committee notes the existence of both minimum hours of rest and maximum hours of work regimes. The Committee recalls that Standard A2.3, paragraph 2, of the Convention requires Members to fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time. The first option is more favourable for the seafarer than the second. Noting that Standard A2.3, paragraph 2, should not be interpreted as to give shipowners or masters the discretion of selective application, the Committee requests the Government to ensure that the selected regime (either maximum hours of work or minimum hours of rest) is fixed.

Moreover, the Committee notes that while the DMLC prescribes 77 minimum weekly hours of rest, according to article 56 of the Law on Maritime Navigation, the minimum weekly hours of rest are 72. The Committee recalls that Standard A2.3, paragraph 5(b)(ii), of the Convention requires a minimum of 77 weekly hours of rest. The Committee requests the Government to take the necessary measures to bring the relevant legislation into conformity with this provision of the Convention.

Regulation 2.5. Entitlement to repatriation. The Committee notes that paragraphs 1 and 2 of section 89 of the Law on Maritime Navigation which provides for the different circumstances in which a seafarer is entitled to repatriation, do not cover all the circumstances in which seafarers are entitled to repatriation under the Convention, in particular those provided for in Standard A2.5, paragraph 1(a) and (b)(ii). Moreover, regarding the maximum period of service on board a ship, the Committee notes that paragraph 3 of section 89 which provides that “the period of service on the ship after which the seafarer shall be entitled to repatriation shall be determined by the employment contract, but shall not be shorter than 12 months”, is not in conformity with Standard A2.5, paragraph 2(b), of the Convention which prescribes that such periods be less than 12 months. Furthermore, concerning paragraph 1 of the Law on Maritime Navigation which provides that if a seafarer disembarks in a port different from the port of embarkation, the shipowner is obliged to provide a return to the port of embarkation and if specified in the contract of employment, to provide a return to the place of permanent or temporary residence, the Committee draws the Government’s attention to Guideline B2.5.1, paragraphs 6 and 7, which provide that seafarers should have the right to choose the place to which they are to be repatriated from among the prescribed destinations which should include the place at which the seafarer agreed to enter into the engagement; the place stipulated by collective agreement; the seafarer’s country of residence or such other place as may be mutually agreed at the time of engagement. The Committee requests the Government to take the necessary measures, including by reviewing the corresponding provisions of the Law on Maritime Navigation to ensure conformity with Regulation 2.5 and the related provisions of the Code.

The Committee further notes that section 90(2) of the Law on Maritime Navigation provides that a shipowner has the right to recover the payment of all costs of a return trip by seafarers who got off the ship without permission leading to the termination of the employment contract, or who got off the ship due to injury or disease he caused to himself intentionally or through gross negligence. The Committee recalls, in this respect, that Standard A2.5, paragraph 3, of the Convention provides an exception where “the seafarer has been found in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations”. The Committee accordingly requests the Government to explain how it ensures that the exceptions under section 90(2) of the Law on Maritime Navigation are limited to those cases in which the seafarer has been found in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. The Committee further requests the Government to indicate the procedure to be followed in this regard and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarers’ employment obligations”.

Title 3. Accommodation, recreational facilities, food and catering. The Committee notes the Government’s indication that the provisions under this Title will be applied through the adoption of technical rules for statutory certification of ships. The Committee hopes that the technical regulations and instructions will be adopted in the near future and requests the Government to provide a copy of them once they are adopted.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that section 69(2)–(4) of the Law on Maritime Navigation states that shipowners shall provide, free of charge, medical care on board, including basic dental health care, and other services for health protection of seafarers working on board, in accordance with the provisions of the law governing health care. However, the Committee also notes that section 240(a) of the Law on Health Care states that foreigners shall bear themselves the cost of urgent medical assistance, as well as other kinds of health services provided to them, at their request, unless this law or international agreements provide otherwise. The Committee recalls that Standard A4.1, paragraph 1(d), of the Convention, according to which each member shall ensure that 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, applies to all seafarers on board regardless of their nationality. Moreover, the Committee notes that there seem to be no provisions regarding the shipowners’ obligation to bear the cost of medical care provided to seafarers while they are landed in a foreign port. The Committee requests the Government to provide clarifications on how it gives effect to this provision of the Convention.

Regulation 4.2. Shipowners’ liability. The Committee notes that paragraph 7(2) of section 69 of the Law on Maritime Navigation provides that when illness or injury cause an inability to work, shipowners shall pay the earnings in whole or in part from the time when the seafarers are repatriated until their recovery. The Committee observes that this provision does not prescribe the percentage of the wages that shall be paid by the shipowner to the seafarer in such circumstance, as provided for in Standard A4.2, paragraph 3(b), of the Convention. Furthermore, the Committee notes that article 69a of the Law on Maritime Navigation provides that the employer shall conclude an insurance policy or other financial security in order to cover claims for death or injury at work for seafarers. The Committee observes that the insurance policy does not seem to cover long-term disability as provided for in Standard A4.2, paragraph 1(b), of the Convention. Finally, the Committee notes the Government’s indication that the shipowners’ obligation in Standard A4.2, paragraph 7, of the Convention to safeguard the personal property of sick or injured or deceased seafarers and/or to return it to them or their next of kin is currently not prescribed. The Committee requests the Government to take the necessary measures to ensure conformity with these provisions of the Convention.

Regulation 4.5 and the Code. Social security. Regulation 5.3 and the Code. Labour-supplying responsibilities. The Committee notes that upon ratification of the Convention, Serbia declared that the branches for which it provides social security protection to seafarers in accordance with Standard A4.5, paragraphs 1, 2 and 10 of the Convention, are medical care, sickness benefit, unemployment benefit and employment injury benefit. The Committee notes that sections 17 of the Law on Health Insurance, and 11 of the Law on Pension and Disability Insurance include in their scope of application nationals employed abroad by foreign employers when no foreign health insurance applies to them. The Committee also notes that section 240a of the Law on Health Care provides that foreigners shall bear themselves the cost of urgent medical assistance, as well as other kinds of health services provided to them, at their request. The Committee requests the Government to provide clarifications regarding whether foreign seafarers residing in the Serbian territory have access to social security protection, mainly regarding medical care and sickness benefit, as required by Standard A4.5, and to indicate the relevant provisions. Moreover, the Committee notes that section 64 of the Law on Employment and Unemployment Insurance, which provides that mandatory unemployment insurance is part of the citizens’ mandatory social insurance system, whereby unemployment rights are ensured on the basis of the principles of mandatory participation, reciprocity and solidarity, excludes foreign people residing in Serbia from the mandatory unemployment benefit. The Committee requests the Government to indicate by means of which provisions foreign seafarers domiciled in Serbia are entitled to the unemployment benefit.

Regulation 5.1.1. Flag State responsibilities. General principles. The Committee notes the Government’s indication that in 2016 the procedure of appointment of flag State inspectors for the implementation of the MLC, 2006 was expected to be initiated. The Committee further notes that Serbia has concluded agreements with several recognized organizations and that section 18 of the Law on Maritime Navigation provides that the ability of the ship to sail under section 17 shall be determined by a recognized organization in accordance with the provisions of the technical rules for the statutory certification of ships. Lastly, the Committee notes the Government’s indication that the technical rules, a report containing information on the objectives, standards and assessment procedures concerning its inspection and certification system, as well as all the relevant documents related to inspection and enforcement and on board complaints procedures, are being prepared. Hoping that all the abovementioned documents will be adopted in the near future, the Committee requests the Government to provide a copy of them once they are adopted.

Regulation 5.1.4. Flag State responsibilities. Inspection and enforcement. The Committee notes the Government’s indication that domestic ships engaged in international voyages with less than 500 gross tonnage are not the object of inspections according to the MLC, 2006. The Committee recalls that according to Regulation 5.1.4 each Member shall verify, through an effective and coordinated system of regular inspections, monitoring and other control measures, that ships that fly its flag comply with the requirements of this Convention as implemented in national laws and regulations. Moreover, the Committee notes the Government’s indication that it has adopted no measures to guarantee that inspectors have a status and conditions of service ensuring that they are independent of changes of government and of improper external influences, as required by Standard A5.1.4, paragraphs 3, 6, 11(a) and 17, of the Convention. The Committee requests the Government to indicate how it gives effect to these provisions of the Convention.

[The Government is asked to reply in full to the present comments in 2018.]