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Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention du travail maritime, 2006 (MLC, 2006) - Espagne (Ratification: 2010)

Autre commentaire sur C186

Demande directe
  1. 2019
  2. 2015

Afficher en : Francais - EspagnolTout voir

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for Spain on 18 January 2017 and 8 January 2019, respectively. It also notes that the Government’s report was received before the entry into force of the amendments. The Committee notes the observations made by the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), received on 11 and 17 August 2017, respectively, and the observations of the Spanish Confederation of Employers’ Organizations (CEOE), transmitted by the Government, and the Government’s response to the observations of the CCOO and the UGT.
Article II, paragraphs 1(f), 2, 3 and 7, of the Convention. Definitions and scope of application. Seafarers. National determinations. In its previous request, the Committee asked the Government to provide its comments on the observations of the CCOO concerning the Resolution of 18 April 2013 of the Directorate-General for Merchant Shipping (DGMM), which includes a definition of seafarer, contains a list of workers who shall not be considered to be seafarers and determines the vessels to which the Convention does not apply, as well as on the new definitions of seafarer proposed by the DGMM.
1. Staff with short-term contracts. The Committee recalls that the Resolution of the DGMM referred to above provides that invited artists and catering staff who work on board occasionally and for short periods shall not be considered to be seafarers for the purposes of the Convention. The Committee notes the Government’s indication that catering staff with short-term contracts who work on board for short periods are generally registered with the General Social Security Scheme, as their main job is ashore. The Government indicates that replacing their current contract with a contract covered by the Special Scheme for Seafarers would involve the loss of the social rights and benefits acquired by these workers. The Committee notes that the UGT considers that certain types of workers covered by the Resolution referred to above, such as invited artists, entertainers, catering staff, waiters, kitchen staff and security guards, do not benefit from the necessary legal security to understand whether they must be considered seafarers for the purposes of the Convention, as their situation is classified as being dependent on grounds such as “… who work on board occasionally and for short periods” or “… habitually perform their occupational activity on board the ship without their principal job or workplace being ashore”, which are matters that are difficult to determine. The UGT adds that, when the period on board a ship is short, even though the activity is usually performed on board one or several vessels, the sailor will not be considered a seafarer for the purposes of the Convention. In response to the UGT’s observations, the Government indicates that the reference to working either occasionally or habitually on board a ship relates to specific circumstances that make it possible to identify whether or not the person is a seafarer in conformity with the provisions of Article II, paragraph 1(f), of the Convention. The Committee requests the Government to specify the criteria applied to determine when a contract relating to invited artists and catering staff may be considered “short-term”.
2. Cadets. With regard to the possible exclusion from the definition of seafarer of cadets engaged on board under an apprenticeship contract, the UGT indicates that the fact that their consideration as seafarers is dependent on the conclusion of an apprenticeship contract may be contrary to the provisions of the Convention. Furthermore, their presence on board is not always a result of the fact that they are employed or contracted on the ship, but of the need for them to be trained to become professionals. The Committee also notes that, in reply to its previous comments and to the observations of the UGT, the Government refers to the Resolution of the DGMM which provides that “even if cadets engaged in apprenticeship on board are seafarers in the proper sense of the term, they shall only be counted as part of the crew of the ship when they are on board under an apprenticeship contract and will then be considered to be workers covered by the Convention”. The Government specifies that those who engage in apprenticeship training on board a ship, even when they do not do so under a contract of employment, are entitled to health protection, medical care and a safe and protected workplace, but only enjoy the rights deriving from an employment relationship when they work for others.
The Committee notes from the Government’s statements that the provisions of the Convention are not applied to all apprentices, as only cadets engaged in apprenticeship who have a contractual relationship with the shipowner benefit from all labour rights and are protected by the Convention. The Committee recalls that, in accordance with Article II, paragraphs 1(f) and 2), of the Convention, the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. It also recalls that, except as expressly provided otherwise, the Convention applies to all seafarers, including seafarers performing work on board without being part of the seagoing crew of the ship. The Committee emphasizes that it considers that the acquisition of training on board to become a seafarer by definition involves the fact of working on board and that there can accordingly be no doubt concerning the status of apprentices or cadets as seafarers for the purposes of the Convention and the application of all of the provisions of the Convention to this category of workers. It also emphasizes that the protection envisaged in the Convention is of special importance for the most vulnerable categories of workers, such as apprentices. Finally, the Committee recalls that all seafarers covered by the Convention shall have a seafarers’ employment agreement signed by the seafarer and the shipowner or a representative of the shipowner or, where they are not employees, evidence of contractual or similar agreements (Standard A2.1, paragraph 1(a)). The Committee therefore requests the Government to take the necessary measures to ensure that all cadets are considered seafarers and benefit from the protection envisaged in the Convention.
The Committee recognizes the documented and forecast shortage of qualified officers for ships engaged in international trade to have an adequate crew and be operated effectively, as well as the difficulties encountered in ensuring that cadets complete the minimum compulsory service on board that is part of the requirements set out in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) to obtain certification. In this regard, the Committee recalls that, under the terms of Article VI, paragraph 3, of the Convention, governments, in consultation with the social partners, may, if necessary and in accordance with the Convention, agree on substantially equivalent measures applicable to cadets.
Regulation 1.4 and the Code. Recruitment and placement. In its previous comments, the Committee requested the Government to provide information on the implementation of the requirements of paragraph 5(c) of Standard A.1.4 (maintenance of registers, qualification of seafarers, protection of seafarers in foreign ports, management of complaints, establishment of a system of protection by way of insurance to compensate seafarers), and on the implementation of paragraph 9 of Standard A1.4 of the Convention (obligation to ensure that shipowners on ships flying the Spanish flag, which use seafarer recruitment and placement services based in countries in which the Convention does not apply, ensure that those services meet the requirements of Standard A1.4). The Committee observes that, although the Government indicates that there are 12 recruitment and placement agencies operating in the country, it does not provide information on the points referred to above. It therefore requests the Government to indicate the measures adopted or envisaged to give effect to these provisions of the Convention.
Regulation 2.1 and Standard A2.1, paragraphs 1 and 4. Seafarers’ employment agreements. Requirements and content. In its previous comment, the Committee requested the Government to take the necessary measures to ensure that all seafarers’ employment agreements are in compliance with the requirements of paragraph 1 of Standard A2.1 and contain the elements listed under paragraph 4 of Standard A2.1. The Committee notes the Government’s indication that these provisions of the Convention are directly applicable at the national level and that these elements are verified by inspectors in accordance with Title V. The Committee observes that these are provisions that may be considered self-executing and notes the information provided by the Government.
Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ employment agreements. Record of employment. In its previous comment, the Committee noted that section 34(2) of the Order of 18 January 2000 on the dispatch of ships, which provides that the master must enter into the seafarer’s maritime registration document (libreta de inscripción marítima) the reason for the termination of his/her employment agreement, is not consistent with paragraph 3 of Standard A2.1 and requested the Government to take the necessary measures to ensure that the reason for the termination of the seafarer’s agreement does not appear in the document containing the record of employment. The Committee notes that in its reply the Government does not refer to the Order mentioned above, but to the Statute of Workers’ Rights. The Committee therefore requests the Government to indicate whether section 34(2) of the Order of 18 January 2000 on the dispatch of ships is in force and, if so, to take the necessary measures to amend the Order so as to guarantee that it is in conformity with paragraph 3 of Standard A2.1.
Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreements. Termination. Shorter periods of notice for urgent reasons. In its previous comment, the Committee noted the Government’s reference to sections 49, 51, 52 and 55 of the Statute of Workers’ Rights and observed that these provisions are applicable to workers in general, but do not necessarily take into account the specific circumstances of seafarers. The Committee requested the Government to specify whether and how the need of the seafarer to terminate the contract without penalty on shorter notice or without notice for compassionate or other urgent reasons has been taken into account, in accordance with paragraph 6 of Standard A2.1. The Committee notes the Governments indication that under Spanish law the common rules respecting the termination of contracts of employment apply to seafarers. The Committee also notes the indication by the UGT that, under the terms of national law, there are no specific circumstances which justify the termination of an employment agreement with shorter notice or without notice that take into account compassionate or other urgent reasons (as set out in the Convention), except for the possibility of agreement between the parties, which depends on the will of the shipowner. The Committee requests the Government to indicate the measures adopted to give full effect to the requirements of paragraph 6 of Standard A2.1.
Regulation 2.3 and the Code. Application to masters. In its previous comment, the Committee noted that, under section 15(2) of Royal Decree No. 1561/1995, masters are not subject to the provisions of the Royal Decree, as they are not required to keep watch. The Committee requested the Government to take measures to extend the application of the legislation on hours of work on board ship to masters. The Committee notes the UGT’s indication that masters continue to be excluded, provided that they are not required to keep watch, from the scope of application of the Royal Decree indicated above, except with regard to the weekly rest of one and one half days. The UGT therefore affirms that the legislation that is in force is not in conformity with the provisions of the Convention. Observing that the Government reiterates the information provided previously, the Committee once again requests it to take the necessary measures without delay to ensure that the legislation giving effect to Regulation 2.3 applies to masters.
Regulation 2.3 and Standard A2.3, paragraph 5. Hours of work and hours of rest. Maximum hours of work. Rest periods. In its previous comment, the Committee noted that certain provisions of Royal Decree No. 1561/1995 and the example of the seafarers’ employment agreement provide for rest periods of fewer than ten hours and it requested the Government to take the necessary measures to ensure that the exceptions to the provisions set out in paragraphs 5 and 6 of Standard A2.3 are only authorized under the conditions provided for in paragraph 13 of Standard A2.3.
The Committee notes that both the Government and the UGT refer to section 16(1)(a) of Royal Decree No. 1561/1995, under the terms of which the maximum of 14 hours in any 24-hour period and 72 hours in any seven-day period may be exceeded in cases of force majeure. The Committee observes that this provision is in conformity with paragraph 14 of Standard A2.3.
However, the Committee observes that section 17(2)(a) of Royal Decree No. 1561/1995 provides that “between the end of one working day and the beginning of another workers shall be entitled to a minimum period of rest of eight hours. This period of rest shall be twelve hours when the ship is in port, with the time that the crew is ashore or on board of their own free will being considered as that period, except in the case of the necessity to carry out loading or unloading operations during short stays in port or work for the safety and maintenance of the ship, in which case it may be reduced to a minimum, except in the event of force majeure, of eight hours …”. The Committee observes that this provision is not fully in conformity with the Convention, as the system for the maximum number of hours of work (paragraph 5(a) of Standard A2.3) implies ten hours of rest in every 24 hours (24-14=10) and 96 hours of rest in every period of seven days (7x24-72=96). The Committee requests the Government to take the necessary measures to bring the legislation into conformity with the Convention and to ensure that all seafarers benefit from the periods of rest set out in paragraph 5(a) of Standard A2.3 of the Convention.
Regulation 2.3 and Standard A2.3, paragraphs 8 and 14. Hours of work and hours of rest. Compensatory rest. In its previous comment, the Committee noted that, under the terms of the applicable legislation (section 16(1) of Royal Decree No. 1561/1995 and section 35(1) of the Statute of Workers’ Rights), the granting of compensatory rest for the overtime worked during periods of watchkeeping and periods of force majeure is not ensured in all cases. It requested the Government to take the necessary measures to ensure conformity with paragraphs 8 and 14 of Standard A2.3 in respect of the granting of compensatory rest.
The Committee notes that the Government refers to section 2 of Royal Decree No. 1561/1995. It observes that section 2(2) of the Royal Decree provides that “the benefit of the periods of compensatory rest envisaged in this Royal Decree may not be replaced by financial compensation, except in the event of the termination of the employment relationship for reasons other than the duration of the contract or the provisions of section 18(c)” (financial compensation for overtime worked during the period of weekly rest and in other cases). Recalling that the Convention does not envisage exceptions to the guarantee of compensatory rest, the Committee requests the Government to take the necessary measures without delay to bring the legislation into full conformity with the Convention.
Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2. Repatriation. Circumstances. In its previous comment, the Committee noted that the legislation regulating social and health assistance provided by the Maritime Social Institute (ISM) to seafarers who have been abandoned, shipwrecked or in other similar circumstances only partially gives effect to the requirements of Regulation 2.5 and it requested the Government to provide detailed information on the implementation of this Regulation and the Code. The Committee notes the UGT’s indication that it has noted cases, precisely due to the regulatory shortcomings in this respect, of crew members who have had to finance, or who have been informed by the shipowner that repatriation to their home would be at their expense if they renounce the contract during the trial period, which in practice denies them or makes it difficult to exercise the right set out in section 14 of the Statute of Workers’ Rights which guarantees the ending of the employment relationship at the request of either of the parties during the trial period. Observing that the Government has not provided information on this matter, the Committee refers to its previous comment and recalls that under the terms of paragraph 2 of Standard A2.5.1, each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or in collective bargaining agreements setting out the requirements in relation to repatriation. The Committee requests the Government to provide information in relation to the observations made by the UGT and to take appropriate measures to give full effect to paragraphs 1 and 2 of Standard A5.1.2 so as to regulate in detail the circumstances in which seafarers are entitled to repatriation, the maximum duration of service periods and the entitlements to be accorded by shipowners for repatriation.
Regulation 2.5 and Standard 2.5.2. Financial security system to assist seafarers in the event of abandonment. With reference to the 2014 amendments to the Code of the Convention, the Committee recalls that, under the terms of Standard A2.5.2, the Government is required to establish a financial security system to assist seafarers in the event of their abandonment. The Committee draws the Government’s attention to the following questions included in the revised version of the report form for the Convention: (a) does the national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment (if yes, please indicate the applicable national provisions, reproduce the relevant texts and specify whether the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned)?; (b) has your country received any requests to facilitate the repatriation of a seafarer (if yes, please indicate how your country responded)?; (c) under the national legislation, what are the circumstances under which a seafarer is considered abandoned?; (d) does the national legislation provide that ships to which Regulation 5.1.3 applies must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, please specify whether the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and whether a copy must be posted in a conspicuous place on board)?; (e) does the national legislation require the financial security system to be sufficient to cover outstanding wages and other entitlements, all the expenses incurred by the seafarer (including the cost of repatriation) and the essential needs of the seafarer, as set out in paragraph 9 of Standard A2.5.2?; and (f) does the national legislation provide for at least 30 days’ notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to provide answers to the above questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of the certificate or other documentary evidence of the financial guarantee containing the information required in Appendix A2-I of the Convention (paragraph 7 of Standard A2.5.2).
Regulation 2.6 and the Code. Compensation for seafarers in case of shipwreck. In its previous comments, the Committee observed that the legislation referred to by the Government does not give full effect to Regulation 2.6 and it requested the Government to provide information on the measures taken to ensure compensation in case of injury or unemployment due to the ship’s loss or foundering, in conformity with this Regulation.
The Committee notes the UGT’s indication that the Government does not refer to the method of calculation or the level of possible compensation for dismissal (for objective reasons) envisaged in the labour legislation, nor to the possible compensation for injury or death caused by the accident, covered by the collective accident insurance policy envisaged in clause 35 of the IV General Agreement for the Merchant Marine, nor the corresponding incapacity benefits to which the loss or foundering of the vessel could give rise. In reply to the UGT’s observations, the Government refers, as it did in its first report, to Royal Decree No. 869/2007 and its regulations. The Committee once again observes that this Royal Decree provides for compensation in cases of loss of property, death, loss and repatriation of the body, but does not provide for compensation in case of injury or unemployment arising from the ship’s loss or foundering, as required under Regulation 2.6. The Committee requests the Government to take the necessary measures without delay to ensure full conformity with Regulation 2.6.
Regulation 2.7 and the Code. Manning levels. The Committee notes the UGT’s indication that manning levels are inadequate in many cases despite the technical progress that has been made, and that ships flying the Spanish flag are not an isolated case. In particular, the UGT indicates that it is clear that the minimum safe manning levels currently adopted are inadequate, especially in the case of ships involved in intense traffic (for example, in the Strait of Gibraltar), making it necessary to extend working hours regularly to complete the crossings required by shipowners. According to the UGT, the minimum manning levels are also inadequate in relation to the services provided to the passengers (also including for their safety in an emergency) carried on board and in relation to the administrative requirements for the entry and stay of ships in port, loading and unloading, inspections and to carry out other types of work on board, resulting in the failure to ensure sufficient rest for seafarers. The Committee notes the Government’s reference to the applicable legislation and its indication that an appeal can be lodged against the decisions concerning the minimum safe manning levels issued by the DGMM within one month to the Secretary-General for Transport, in accordance with sections 121 and 122 of Act No. 39/2005 issuing the Common Administrative Procedures for Public Administrations. The Committee requests the Government to provide information in relation to the UGT’s observations. It also requests the Government to indicate whether appeals have been lodged against the minimum safe manning decisions issued by the DGMM and, if so, their outcome.
Regulation 2.8 and the Code. Career and skill development and opportunities for seafarers’ employment. The Committee previously noted that section 4(2)(b) of the Statute of Workers’ Rights recognizes the right of workers to vocational training and advancement and requested the Government to provide information on any specific measures adopted to promote employment in the maritime sector.
The Committee notes the UGT’s indication that the right to vocational training and advancement established in section 4(2)(b) of the Statute of Workers’ Rights relates to the context of the employment relationship with the shipowner, and that there is no national policy as such for career and skill development and employment opportunities, except for an increasingly limited supply of public training for seafarers. The Committee requests the Government to provide information on this subject.
Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comments, the Committee noted that no specific legislation had been adopted to give effect to Regulation 3.1 and that the provisions of the Convention are directly applicable, as well as those of the Accommodation of Crews Convention (Revised), 1949 (No. 92), for ships built before the entry into force of the MLC, 2006. It requested the Government to provide information on the measures envisaged for the adoption of laws and regulations to give effect to Regulation 3.1 and the Code. Observing that the Government has not provided information in response to its requests, the Committee recalls that Standard A3.1 provides that each Member shall adopt laws and regulations requiring that ships that fly its flag meet minimum standards respecting accommodation and recreational facilities and are inspected to ensure initial and ongoing compliance with these standards. It requests the Government to adopt laws and regulations without delay in accordance with Regulation 3.1 and the Code and to provide information on this subject.
Regulation 3.2 and the Code. Food and catering. In its previous comment, the Committee noted that no specific legislation had been adopted to give effect to Regulation 3.2 and that the provisions of the Convention are reported to be directly applicable. It requested the Government to provide information on the laws, regulations and other measures adopted to give effect to Regulation 3.2. Observing that the Government has not provided information in response to its comment, the Committee recalls that Regulation 3.2 establishes a framework of general principles on food and catering and requires the adoption of laws, regulations or other measures establishing specific minimum standards for the quantity and quality of food and drinking water, and the catering standards that apply to meals provided to seafarers on ships that fly its flag (Standard A3.2, paragraph 1). The Committee requests the Government to indicate the measures adopted to give full effect to the requirements set out in Standards A3.2, paragraphs 1 and 2, and the requirements respecting inspections carried out by or under the authority of the master (paragraph 7 of Standard A3.2).
Regulation 3.2 and Standard A3.2, paragraphs 3 and 4. Ships cooks. In its previous comment, the Committee noted that the Resolution of 20 May 2013 of the DGMM recognizes, for the purposes of the MLC, 2006, the right of cooks to obtain a certificate as a cook based on the practical experience accumulated and provides that a person who has worked on board as a cook for at least 12 months during the last five years and has a certificate of basic safety training can be recognized as a cook and apply for the respective diploma. The Committee requested the Government to take the necessary measures to ensure that, in order to be qualified as a ships cook, the seafarer has completed a training course recognized by the competent authority (paragraphs 3 and 4 of Standard A3.2).
The Committee notes the UGT’s indication that it is not aware of a specific training course approved or recognized by the competent authority to work as a ships’ cook, except for the courses leading to qualifications as a cook or for catering on land. The Committee notes the Government’s indication, in response to the UGT’s observations, that professional cooks, in the same way as any crew members, need to meet the conditions for suitability for work on board, and in this case the aptitude of cooks for work on board. These conditions are not part of the knowledge required for the occupation of a cook, but relate to their personal aptitude to perform work on board. The Committee recalls that, in order to be qualified as a ship’s cook, the Convention requires the completion of a training course recognized by the competent authority (paragraph 4 of Standard A3.2) the passing of an examination prescribed by the competent authority or an equivalent examination within the context of that course (Guideline B3.2.2). The Committee requests the Government to provide information on the measures adopted to give effect to paragraph 4 of Standard A3.2.
Regulation 4.1 and Standard A4.1, paragraph 1, and Regulation 4.2 and Standard A4.2.1, paragraph 1. Medical care on board ship and ashore. Disembarkation in a foreign port. Shipowners’ liability. In its previous comment, the Committee noted that, in relation to Regulation 4.1, and particularly the cost of medical care provided to seafarers when they disembark in a foreign port, the Order of 19 November 1997 determining the maximum and minimum amounts to be reimbursed to enterprises registered with the Special Social Security Scheme for Seafarers (REM) is applicable and provides that shipowners shall cover the cost of the medical care provided, which shall subsequently be reimbursed by the administration. With regard to Regulation 4.2, the Government referred to the legislation regulating the REM, and to Royal Decree No. 869/2007 and its regulations, which envisage the provision of assistance benefits in special situations resulting from work at sea for workers and beneficiaries of the REM and establish certain services for seafarers. The Committee notes that in both cases the assistance to which the Government refers is principally related to coverage by the REM and does not appear to cover all seafarers who work on board ships flying the Spanish flag. The Committee recalls that the scope of application of Regulations 4.1 and 4.2 includes all seafarers who work on board ships flying the Spanish flag, irrespective of their place of residence. It requests the Government to specify the manner in which the provision of medical care on land is ensured in accordance with the requirements set out in Standard A4.1, paragraph 1, and the manner in which all the requirements of Standard A4.2.1 apply to all seafarers covered by the Convention, including seafarers who work on board ships flying the Spanish flag and who are not covered by the REM.
Regulation 4.2 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, under the terms of Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the system of financial security to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meets certain minimum requirements. In this regard, the Committee notes the Government’s indication that the Maritime Authority requires, as evidence and proof of the financial security required from shipowners on the basis of this Regulation, the production of a certificate of registration issued by any of the clubs that are part of the International Group. These certificates must cover all the contingencies relating to the protection of health, medical care and social protection covered by the Regulation. The Committee draws the Government’s attention to the following questions included in the revised version of the report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while the situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does the national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if so, please specify whether the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and whether a copy must be posted in a conspicuous place on board; (d) does the national legislation provide: (i) for at least 30 days’ notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated?; (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated); and (e) how does the national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the questions referred to above, with an indication in each case of the applicable national provisions. The Committee also requests the Government to provide a copy of the certificate or other documentary evidence of the financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).
Regulation 4.3 and the Code. Health and safety protection and accident prevention. In its previous comment, the Committee noted the lack of specific legislation on occupational safety and health management applicable to seafarers working on ships flying the Spanish flag and the Government’s reference to the application to seafarers of the general legislation on the prevention of occupational risks and the direct application of ratified international Conventions. The Committee also noted that the general guidance prepared by the National Institute of Occupational Safety and Health (INSHT) for the prevention of occupational risks in the commercial sector may be applied to seafarers. It requested the Government to indicate whether the national guidelines required under paragraph 2 of Regulation 4.3 have been adopted after consultation with shipowners’ and seafarers’ organizations. It also requested the Government to provide information on the implementation of paragraph 3 of Regulation 4.3. Noting that the Government has not provided information in this respect, the Committee requests the Government to indicate in detail the manner in which the applicable legislation or other measures meet the requirements of paragraphs 1 and 2 of Standard A4.3 and in which they are regularly reviewed and revised, in accordance with paragraph 3 of that Regulation. It also requests the Government to specify how it is intended to adapt the general guidance developed by the INSHT to the maritime sector and to provide information on the consultations held with the representative organizations of shipowners and seafarers on this subject.
Regulation 4.5 and the Code. Social security. 1. Application to residents working on ships flying a foreign flag. In its previous comment, the Committee noted that Act No. 47/2015 regulating social protection for workers in the maritime fishing sector and observed that the REM does not cover all seafarers who are ordinarily resident in Spain. The Committee requested to the Government to provide information on: (a) the social security protection of seafarers ordinarily resident in Spain and who are not covered by the REM; and (b) the social security coverage of seafarers covered by the bilateral and multilateral agreements referred to by the Government.
The Committee notes the indication by the CCOO that in 1982 the merchant fleet registered in Spain consisted of around 700 ships and a total of 7 million gross registered tonnes. The proliferation of flags of convenience and the liberalization of shipping engaged in coastal trade in the European Union resulted in the fleets of countries on the old continent with a great maritime tradition, including Spain, opting to change the registration of their fleets to fly flags of convenience which offered legislation that was more lax, and even inexistent in certain respects, such as on social and labour matters. This resulted in the loss of many jobs. Moreover, for those flying under flags of convenience it involved the loss of the social coverage of their countries of origin. Spain currently has a fleet of around 115 ships and some 2 million gross registered tonnes. The CCOO adds that the scope of application of the REM is set out in sections 2 to 4 and 6 of Act No. 47/2015 and covers workers employed by others or working on their own account engaged in maritime fishing work on board ships, including those of the merchant navy (sections 3 and 4) who are resident in or legally present in Spain and exercise their activity in the national territory, with the exceptions set out in section 6, which also includes the coverage by the REM of workers resident in Spain who: (a) even though they are engaged in an activity for another party on a ship flying the flag of a Member State of the European Union or the flag of a State with which Spain has signed a bilateral or multilateral social security agreement recognizing the exception to the principle of territorial coverage, are paid by an enterprise or a person with the headquarters or domicile in Spain; and (b) work in joint companies or enterprises registered on the official register, without prejudice to the provisions of international bilateral or multilateral treaties concluded by Spain.
The CCOO indicates that, with regard to the social security of seafarers who are resident in Spain but are not covered by Act No. 47/2015 and who have to seek employment on ships or vessels flying a foreign flag, they are covered by Order No. TAS/2865/2003, of 13 October, regulating the Special Social Security Scheme for Seafarers. It adds that this is a scheme under which seafarers can only be covered who have previously sailed on ships flying the Spanish flag or who have worked on land, and who have completed a period of 1,080 days of contributions. Moreover, the benefits provided by this system are not the same as those set out in Act No. 47/2015. Other seafarers who wish to be covered by social security and who have not completed 1,080 days of contribution, or who are entering the labour force for the first time on ships flying a foreign flag, may seek coverage by the special scheme for Spanish emigrants and their children who work abroad, the scope of application of which is set out in section 15 of the Order referred to above. The CCOO indicates that this scheme provides coverage that is of an even lower level than that of the social security schemes referred to above. The CCOO concludes that the various types of social security coverage for seafarers resident in Spain are completely different in terms of the benefits provided and the system of contributions, depending on whether the seafarer works on ships flying the Spanish flag or ships flying foreign flags which are not covered by section 6 of Act No. 47/2015. There are also great differences in the benefits available for seafarers working on ships flying foreign flags if they have not completed at least 1,080 days of contributions over the past twelve years. Accordingly, for the many seafarers who are forced to sail on ships flying foreign flags, the social security conditions differ greatly from those of their compatriots who work on land. The CCOO observes that there is no special unified and specific scheme for all seafarers sailing on ships flying foreign flags which provides them with the same coverage irrespective of whether or not they have previously paid contributions and which provides the same benefits as for workers on land.
The Committee recalls that, under the terms of paragraph 3 of Standard A4.5, each Member shall take steps according to its national circumstances to provide the social security protection in the branches specified at the time of ratification to all seafarers ordinarily resident in its territory. This requirement could be satisfied, for example, through the conclusion of 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 requests the Government to provide information relating to the CCOO’s observations. The Committee also requests the Government to provide information on the social security coverage of seafarers covered by the bilateral and multilateral agreements referred to by the Government in its first report.
2. Special register of ships and shipping companies in the Canary Islands. The Committee noted in its previous comment that section 7 of Supplementary Provision Sixteen of Royal Legislative Decree No. 2/2011 issuing the amended text of the of the State Ports and Merchant Marine Act provides that “The conditions of work and social security of foreign workers employed on board vessels registered on the Special Register [in the Canary Islands] shall be subject to the law agreed upon freely by the parties, on condition that such law is in compliance with the standards of the International Labour Organization or, failing such agreement, to Spanish labour and social security law, all without prejudice to the application of European Community law and the international Conventions ratified by Spain.” The Committee requested the Government to indicate: (a) how, in cases in which the parties have agreed in the employment agreement on the application of a specific law, it ensures that the provisions of the Convention apply to foreign seafarers who work on board ships registered in the Special Register of the Canary Islands, and that they benefit from conditions of employment not less favourable than those enjoyed by seafarers working on board ships to which the Convention applies; and (b) the measures adopted to ensure that foreign workers who are resident in Spain and work on board ships registered in the Special Register of the Canary Islands benefit from social security coverage not less favourable than that enjoyed by other seafarers resident in Spain.
The Committee notes the Government’s indication that the freedom of the parties to determine the law applicable to contracts is limited, on the one hand, by Community legislation and, on the other, by the reference, in Supplementary Provision Sixteen, referred to above, to compliance with ILO standards. The Committee requests the Government to provide updated statistical information on seafarers who are not Spanish nationals who work on board ships registered in the Special Register of the Canary Islands, including on the conditions of work and of social security applicable to them.
Regulation 5.1.2. Authorization of recognized organizations. The Committee notes that, in reply to its previous comment, the Government reiterates that recognized organizations are authorized in Spain to act on behalf of the Spanish maritime authority for other Conventions, but not for the MLC, 2006. The authorization of these organizations requires an amendment to the national legislation involving the intervention of other ministries. The matter is currently at the consultation stage to make the necessary legislative amendment and grant authorization to these organizations to carry out inspections under the Convention on behalf of the maritime authority. The Committee notes this information and requests the Government to provide information on the progress achieved in this respect.
Regulation 5.1.3. Declaration of Maritime Labour Compliance. The Committee notes that the Declaration of Maritime Labour Compliance (DMLC), Part I, provided by the Government, only refers to a list of relevant laws, without giving details of the content of the relevant provisions. The Committee recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC, Part I, shall be drawn up by the competent authority which shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions”, but also, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that paragraph 1 of Guideline B5.1.3 contains guidance on the statement of national requirements, and recommends that “Where national legislation precisely follows the requirements stated in this Convention, a reference may be all that is necessary.” The Committee requests the Government to consider amending the DMLC, Part I, with a view to ensuring that it not only contains a reference to the national requirements embodying the relevant provisions of the Convention, but also, to the extent necessary, concise information on the main content of the national requirements.
Regulation 5.1.6. Marine casualties. The Committee notes that, in accordance with section 4(1) of Royal Decree No. 800/2011, of 10 June, issuing regulations on the investigation of marine accidents and incidents and the Standing Commission for the Investigation of Marine Accidents and Incidents, the Standing Commission shall conduct a marine safety inquiry in the event of the occurrence of “very serious marine accidents” affecting the vessels indicated in the same subsection, defined as marine accidents which result in the total loss of the vessel, the loss of human lives or serious damage to the environment (section 3(2)(b)). The Committee observes that in the case of other accidents the Standing Commission shall decide whether or not to conduct a marine safety inquiry (section 4(2)). The Committee recalls that Regulation 5.1.6 provides that each Member shall hold an official inquiry into any serious marine casualty, leading to injury or loss of life, that involves a ship that flies its flag. It requests the Government to take the necessary measures to ensure that an official inquiry is held into any serious marine casualty leading to injury.
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