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Maritime Labour Convention, 2006 (MLC, 2006) - Netherlands (RATIFICATION: 2011)

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The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It also notes that the Netherlands has indicated that it will be bound by the amendments to the Code of the Convention, approved by the International Labour Conference in 2018, only after a subsequent express notification of their acceptance pursuant to Article XV, paragraph 8(a). The Committee notes the observations of Nautilus International (Nautilus) and the Royal Association of Netherlands Shipowners (KVNR) communicated with the Government’s report.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. 1. Noting that, while the Seafarers Act defines the term “seafarer” in accordance with the Convention, the Dutch Civil Code (DCC) does not contain a definition of this term, the Committee requested the Government to re-examine this issue, in consultation with the social partners, to ensure that all the persons falling under the definition of seafarers pursuant to the MLC, 2006, are covered by its protective provisions. The Committee notes the Government’s indication that a person who is defined as a seafarer under the Seafarers Act but who does not have a seafarers’ employment agreement (SEA) is also entitled to certain protection under the DCC. For example, section 7:737 DCC provides that anyone who engages in duties on board a ship otherwise than under an employment agreement, and regardless of the applicable law, is subject to sections 7:718 (repatriation), 7:719 (compensation in case of shipwreck or other disaster) and 7:720 (compensation in case of death of a seafarer). Thus, the Government considers that all seafarers on board ships flying the Dutch flag are guaranteed the protection provided for in the MLC, 2006. The Committee notes that Nautilus and KVNR indicate that “the scope [of the DCC] is currently not sufficiently clear… Such an unclarity can be an obstacle for ensuring the protection of seafarers pursuant to MLC, 2006, especially for seafarers who wish to enforce the protection granted to them”. In this regard, they refer to the situation of personnel on special purpose ships. The Committee requests the Government to provide its comments in this regard. With regard to section 7:737 DCC, the Committee recalls that all the provisions of the Convention (and not only those implemented by sections 7:718, 7:719 and 7:720 DCC) apply to all seafarers covered by it (Article II(1)(f) and (2)), regardless of whether they work on board under a SEA or other contractual or similar arrangements (Standard A2.1, paragraph 1(a)).The Committee requests the Government to: (i) provide examples of categories of seafarers falling in practice under section 7:737 DCC; and (ii) indicate the measures taken to harmonize its legislation in order to ensure that all seafarers under the scope of the Convention, including those who do not work on board under a SEA, are effectively covered by the protection it affords.

2. The Committee notes that, in reply to its previous comments, the Government clarifies the grounds for the exclusion from the definition of seafarer of “other persons whose duties are not part of the regular duties on board within the framework of the use of the ship” (section 1.2(e) of Regulation of the Minister of Infrastructure and the Environment, of 12 October 2012, No. IENM/BSK-2012/158694 (hereafter, Seafarers Regulation)). In particular, the Government indicates that the term “regular duties on board” is intended to translate the criteria “frequency of periods of work spent on board” and the “purpose of the person’s work on board”. Moreover, in the explanatory note attached to the Seafarers Regulation it was indicated that, for example, on passenger ships, hospitality staff, entertainers and cooks should be considered to be undertaking duties, which are part of the regular duties on board within the framework of the use of the ship. The Government indicates that the relevant explanatory note indicates that in applying section 1.2(e) of the Seafarers Regulation, account should be taken of the frequency and purpose of the duties in the context of the use of the ship. The duration of the person’s stay on board was deliberately excluded from this provision so as not to inadvertently exclude the categorization as a seafarer of a person who performs frequent but short tasks on board a ship. The Committee takes note of this information.

3. Cadets. The Committee notes that, in reply to its previous comments, the Government reiterates that under Dutch law cadets enjoy the protection provided for in the Convention and that, while they are not considered employees under the DCC, the traineeship agreement provides them the full protection like any other seafarer. The Committee further notes Nautilus’s indication that: (i) while the Government bases the above-mentioned statement on section 7:737 DCC, only the regulations regarding repatriation, ship wreckage and death apply to trainees under this section; (ii) under the MLC, 2006, cadets are entitled to work under an agreement that meets all the Convention requirements, including basic minimum rights, e.g. leave; (iii) during the COVID-19 pandemic, it became clear that these rights were not always respected in relation to cadets, thus it is necessary to protect cadets, who are generally young and inexperienced and most likely to find themselves in a more vulnerable position; and (iv) cadets are not sufficiently protected under the DCC and should be further protected. The Committee further notes that KVNR observes that: (i) under the Dutch law cadets enjoy the protection provided for by the Convention; (ii) there are no known cases at the KVNR in which the rights of trainees are being violated; (iii) the examples cited by Nautilus, were due to exceptional circumstances in which force majeure could be invoked, and thus cannot be used to prove the violation of trainees’ rights under the MLC, 2006; and (iv) on the contrary, the Government and KVNR, amongst others, did their utmost to facilitate the position of seafarers, including cadets.

Recalling that cadets are to be regarded as seafarers for the purpose of the Convention, the Committee emphasizes that national provisions implementing the Convention shall apply to them, as to all other seafarers falling under the scope of the Convention. Referring to its comments above,the Committee requests the Government to take without delay the necessary measures to ensure that cadets are regarded as seafarers under the Convention, as well as under the national provisions implementing the Convention, including the Dutch Civil Code. In this regard, the Committee recalls that, as foreseen in Article VI, paragraph 3, Governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee notes that, in reply to its previous comments, the Government indicates that it has no made use of the flexibility clause pursuant to section 2(7) of the Seafarers Act and Article II, paragraph 6.The Committee takes note of this information.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that, in reply to its previous comments, the Government refers again to sections 8:211, b) and 8:216 DCC that provide protection (maritime liens) with respect to claims arising from SEAs regarding remuneration, salary or rewards, which are recoverable. According to the Government, such provisions provide an equivalent appropriate measure for seafarers with respect to the failure of the recruitment and placement service of their employer or the shipowner to meet their obligations under the SEA. The Committee further notes that in this regard, Nautilus indicates that: (i) it considers that Standard A1.4, paragraph 5 (c)(vi) is not adequately implemented in Dutch law, and the Government’s reply is not satisfactory in this respect; (ii) the purpose of this standard is to have an insurance in place, which is easily accessible to seafarers for the respective monetary loss, without having to follow legal procedures; thus, an equivalent appropriate measure should meet such obligations; (iii) in the case of recruitment services only acting as intermediaries, there is currently not sufficient protection in place; (iv) thus, also for intermediaries, Standard A1.4, paragraph 5(c)(vi) must be implemented by Dutch law; and (v) the reference to sections 8:211(b) and 8:216 DCC is not relevant as such provisions do not implement the respective standard of the MLC, 2006: the complex legal procedures involved are not comparable to an insurance for compensation of the seafarer’s monetary loss. The Committee notes that KVNR agrees with the Government’s reply and further refers to the obligations in the Act on Placement of Workers by Intermediaries, and those in section 7:693 DCC. Moreover, KNVR reiterates that if the employment service is only an intermediary and is not party to the employment agreement, it is not necessary to foresee a system of protection.

The Committee recalls that all private seafarer recruitment and placement services operating in the Dutch territory whose primary purpose is the recruitment and placement of seafarers, or which recruit and place a significant number of seafarers, regardless of whether they act as intermediaries or they directly employ seafarers and make them available to third parties, shall establish a system of protection complying with the requirements of Standard A1.4, paragraph 5(c)(vi). Referring to its previous comments, the Committee notes that the provisions of the DCC cited by the Government do not ensure compliance with this Standard of the Convention, which provides for a specific obligation falling on all private seafarer recruitment and placement services covered by Standard A1.4, paragraph 2.The Committee requests the Government to adopt without delay the necessary measures to give full effect to the obligation under Standard A1.4, paragraph 5(c)(vi) with respect to all private seafarer recruitment and placement services operating in the Dutch territory falling under the scope of Standard A1.4, paragraph 2.

Regulation 1.4 and Standard A1.4, paragraph 6. Recruitment and placement. Supervision of services. Further to its previous comments, the Committee notes the indication by Nautilus that the Netherlands is currently drafting legislation for an obligatory certification required pursuant to the Act on Placement of Workers by Intermediaries. This certification will also be required for placement of workers on board Dutch flagged vessels. The Committee further notes the KVNR’s comment that there is currently only an internet consultation for a bill that has not yet been submitted to the Parliament. Therefore, it cannot be stated at this stage that: (i) the bill will be submitted and will eventually actually enter into force; and (ii) the certification will also be required for placement of workers on board Dutch flagged ships. The KVNR indicates that it considers that the obligatory certification should not apply on board Dutch flagged ships. The Committee requests the Government to provide its comments in this regard.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative.Substantial equivalence. The Committee notes that, in reply to its previous comments, the Government reiterates that: (1) the shipowner can be liable for the obligations arising from the SEA under certain conditions; and (2) informing the prospective employee of the identity of the shipowner appears to fall within the employers’ obligation to inform. The Committee notes Nautilus’s observation that: (i) the shipowner’s signature of the SEA is not required by Dutch law in the case in which the shipowner is not the seafarer’s employer; (ii) sections 7:693 and 7:738 DCC may not be considered as appropriate equivalent measures; (iii) the Government’s indication that the shipowner is solely liable ‘under certain conditions’ means that he is liable where the temporary work agency (employer) fails to abide by its obligations (section 7:693 DCC) or when the employer has been irrevocably ordered by the court to comply with such obligations and still refrain from complying (and 7:738 DCC); and (iv) for the seafarer, especially the latter situation of a required irrevocable court order, is in practice an obstacle to enforce compliance with the shipowner’s obligations. The Committee further notes that KVNR supports the Government’s reply and considers that the measures contained in existing Dutch legislation are substantially equivalent to the provisions of the Code of the Convention.

Referring to its previous comments and to Article VI, paragraphs 3 and 4, the Committee reiterates that the provisions cited by the Government are not conducive to the full achievement of the purpose of Standard A2.1, paragraph 1(a), which is not only to ensure that seafarers do not have to deal with more than one person with respect to their working and living conditions, but also that one person, i.e. the shipowner, is the sole responsible for ensuring that the working and living conditions of all seafarers conform to the requirements of the MLC, 2006, and are respected. The Committee reminds the Government that the principle of the shipowner’s responsibility with respect to all seafarers does not prejudice the right of the shipowner to recover the costs involved from other employers responsible for particular seafarers. It also observes that the shipowner has not to renegotiate the existing agreement between the seafarer and the “outside” employer but could, for example, set out the ship-related conditions of employment and then provide that all other terms and conditions are contained in the existing agreement between the seafarer and the employer; that agreement would be annexed as a schedule to the SEA (and be subject to flag and port State inspections). The shipowner should, however, ensure that the annexed agreement is consistent with the flag State national requirements implementing the MLC, 2006. The Committee requests the Government to take all the necessary measures without delay to ensure full compliance with Standard A2.1, paragraph 1(a). It also requests the Government to supply an example of SEA, as well as the approved document for seafarers’ record of employment.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. The Committee notes that, in reply to its previous comments, the Government recalls the broad interpretation of section 7:611 DCC by the Dutch Courts, e.g. in a case in which the Court of Appeal, in the circumstance of an employer recruiting personnel abroad to work in the Netherlands, considered that the former is subject to a far reaching obligation to provide information to the prospective employee prior to the signing of the employment agreement, which goes beyond simply providing a copy of the agreement in advance. The Committee further notes Nautilus indication that the Government’s explanation regarding the open norm of “good employership” is not a sufficient and adequate protection. The Committee also notes the KVNR’s statement that while supporting the point raised previously by Platform Maritiem (in favour of the inclusion in the law of an ad hoc provision), it is not aware of any problems that arise in practice regarding this topic. While noting the Government’s information, the Committee again recalls that Standard A2.1, paragraph 1, expressly requires Members to adopt laws and regulations to comply with the requirements set out in the same paragraph. Therefore, the Committee requests the Government to take the necessary measures to ensure full compliance with Standard A2.1, paragraph 1(b).

Regulation 2.3 and Standard A2.3, paragraph 6. Division of hours of rest. The Committee requested the Government to revise the Annexes of the DMLC Part I, to make it clear that hours of rest should be divided into no more than two periods. The Committee notes that the Annex to the DMLC, Part I, still refers to the Government’s interpretation of section 6.5.2 of the Working Hours Decree in the Transport sector according to which, rest may be divided into more than two periods if one of the periods includes an uninterrupted rest for at least six hours in cases in which there is an additional period of rest granted beyond the legal minimum. The Committee takes note of this information.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee notes that, in reply to its previous comments, the Government indicates that the Maritime Strategy remains an ongoing process, and refers to available online information, including periodic updates. The Committee takes note of this information.

Regulation 2.4, paragraph 2, and Regulation 4.4 and the Code. Shore Leave. Access to shore-based welfare facilities. The Committee notes that, in reply to its previous comments, the Government provides information on the measures adopted in 2021 and those taken by the social partners to fund seafarers’ welfare facilities in the Dutch ports (especially during the COVID-19 pandemic). In this context, further to a motion by the Dutch Parliament, extensive consultations were held with stakeholders, including the Nederlandse Zeevarenden Centrale (NZC), the Port Welfare Committee Rotterdam and the relevant social partners, to investigate the relevant needs and ensure stable funding of seafarers’ welfare facilities. The Government also indicates that in 2022, further research will be carried out to define the current welfare needs of seafarers. The Committee notes Nautilus’s indication that: (i) the provisions on shore leave contained in Regulation 2.4, paragraph 2 and Guideline B4.4.6, paragraph 5 were not implemented in Dutch legislation, especially the DCC and the Seafarers Act (according to the relevant explanatory note of the parliamentary papers, because of the absence in practice of problems with shore leave); (ii) while recognizing the challenges faced during the COVID-19 pandemic, the fundamental right of seafarers to disembark for shore leave (irrespective of whether they visit welfare facilities) should not be denied unless there is a good reason to refuse it; (iii) however, shore leave has been denied to seafarers without a justifiable reason and the rising number of cases where shore leave has been refused in Dutch ports and upon Dutch flagged vessels is concerning; and (iv) it would be recommendable to investigate whether legislation should be implemented to enforce this seafarers’ fundamental right. The Committee further notes KVNR’s indication that: (i) Nautilus’s response falls outside the scope of the subject matter, as it concerns Regulation 4.4 and not Regulation 2.4; moreover it relates to a Guideline; (ii) it is not familiar with a rising number of cases where shore leave has been denied without justifiable reason; (iii) during the pandemic, there was an exceptional situation (force majeure), which had consequences for shore leave; (iv) cooperation between local port authorities and private terminals is key to ensure shore leave; and (v) the Government and KVNR, amongst others, did their utmost to facilitate the position of seafarers, including cadets. The Committee notes that, in reply to the social partners’ comments, the Government indicates that: (i) it disagrees that access to shore leave in Dutch ports and on board Dutch-flagged ships has been unreasonably denied; (ii) while recognizing that during the early phases of the COVID-19 pandemic shore leave was problematic and was on occasion denied by foreign shipowners during port calls in the Netherlands and to crew on Dutch-flagged ships calling to foreign ports, no restriction of shore leave in Dutch ports or on board Dutch ships was established except in the case of an active COVID-19 infection on board; and (iii) Dutch port inspection authorities did not receive any reports from seafarers regarding refusal of shore leave in the Netherlands. Recalling the importance of the right to shore leave and access to welfare facilities for the health and wellbeing of seafarers, the Committee requests the Government to continue to adopt measures to ensure that the right to shore leave is enforced in law and practice (Regulation 2.4, paragraph 2). It also requests the Government to provide information on the progress made in ensuring that adequate welfare facilities and services are provided and are accessible to seafarers in designated ports of call, in light of the results of the research carried out to identify seafarers needs (Regulation 4.4 and the Code).

Regulation 4.2 and the Code. Shipowners’ liability. In its previous comments, the Committee noted Platform Maritiem’s observation that it would like to consult with the Government on a further specification of the obligation to reimburse the medical costs of sick seafarers who return to their home country. The Committee notes the Government’s statement that it has no additional information to provide at this time and remains willing to discuss this issue with Platform Maritiem. The Committee takes note of this information.

Regulation 4.5 and the Code. Social security. In relation to the application of the Seafarers’ Pensions Convention, 1946 (No. 71), the Committee requested the Government to provide information in relation to a number of issues, including pension schemes for seafarers under the Future of Pension Act, as well as the minimum retirement age and level of pensions. In this regard, the Committee draws the Government’s attention to its comments under Convention No. 71.

Regulation 5.1.4 and Standard A5.1.4, paragraph 12. Flag State responsibilities. Reporting on inspections. The Committee notes with interest that in reply to its previous comments, the Government indicates that with effect from 1 January 2018, section 5.4 of the Seafarers Regulation has been amended to add the following paragraph: “A copy of the inspection report shall be made available on board the ship in a clearly visible place which is accessible to the crew.” The Committee takes note of this information, which addresses its previous request.