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Maritime Labour Convention, 2006 (MLC, 2006) - Belgium (RATIFICATION: 2013)

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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). The Committee notes that the amendments to the Code of the MLC, 2006, approved by the International Labour Conference in 2018, entered into force for Belgium on 26 December 2020.

Article II, paragraphs 1(f) and 2 of the Convention. Scope of application. Seafarers. The Committee notes that, in response to its previous comment on the provisions of the Royal Decree of 7 March 2016, according to which trainees “are not seafarers within the meaning of section 28(5) of the Act of 3 June 2007”, the Government indicates that these persons study at a training centre, but have not yet obtained their diplomas, and enjoy the protection accorded to pupils at school. The Government indicates however that a cadet has received a diploma, and although still without sufficient hours of sea service, enjoys the protection of the MLC, 2006. The Committee requests the Government to clarify whether trainees undergo training on board and, if so, whether they enjoy protection as seafarers.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes, in response to its previous comment on the Royal Decree of 3 May 1999 on the protection of young persons at work, the Government’s indication that it will examine the possibility of adopting regulations to establish the list of prohibited work specific to work on board seagoing ships. The Committee requests the Government to adopt without delay, after consultations with the shipowners’ and seafarers’ organizations concerned, the list of types of work considered hazardous, as required under Standard A1.1, paragraph 4, for the merchant navy and dredging sectors, and to communicate a copy of the new text following its adoption.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that, in response to its previous request, the Government states that in the Flemish region, section 5(6) of the Decree of 10 December 2010 has been amended by the Decree of 29 March 2019 to refer to the MLC, 2006, and clarifies that the agency does not undertake prohibited services, in compliance with the Convention. The Government indicates that the provisions of the MLC, 2006, therefore figure as part of the general conditions that private employment agencies must respect. Regarding the Brussels-Capital region, the Government indicates that no action was undertaken in the 2017–23 period and that all employment agencies must be registered or licensed according to the missions undertaken by the agencies, and are subject to monitoring, annual reporting and a complaints system for agencies and their workers alike. At the present time, no seafarer placement service exists in Brussels. The Government indicates that the situation will be analysed with a view to reforming the joint management in the Brussels-Capital region by 2026. Regarding the Walloon Community of Belgium, the Government states that the Walloon Decree of 3 April 2009 concerning the registering and licensing of recruitment agencies is not applicable to seafarer placement services and that there are no seafarer placement services operating in Wallonia. Noting that apart from the reference to the MLC, 2006, in the legislation of the Flemish region, national provisions are not specific to the maritime sector, the Committee observes that there appears to be no system of protection in place to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment or placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them. The Committee accordingly requests the Government to indicate the measures adopted or envisaged to give full effect to Standard A1.4, paragraph 5 (prohibition of blacklisting, maintenance of registers, qualification of seafarers, protection of seafarers in foreign ports, management of complaints and establishment of a system of mandatory insurance to compensate seafarers).

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7, and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee notes that Part I of the Declaration of Maritime Labour Compliance (DMLC) includes a reference to the requirements of Standards A2.1, paragraph 7 and A2.2, paragraph 7 and draws the Government’s attention to the following questions, contained in the report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation (Standard A2.1, paragraph 7)?; (c) Do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7).The Committee requests the Government to reply to the above questions, indicating the national provisions applicable in each case.

Regulation 2.2 and Standard A2.2, paragraph 2. Wages. Monthly account. The Committee notes that, in response to its previous comment, the Government’s indication that the headings that must be included in the statement are fixed by the Royal Order of 27 September 1966 determining, for the private sector, the information that must be included in each final statement of payment. The Committee notes this information which addresses its previous request on this matter.

Regulation 2.3 and standard A2.3, paragraphs 2 and 5. Hours of work and hours of rest. Limits. The Committee requested the Government to take the necessary steps to ensure that 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 is fixed (Standard A2.3, paragraphs 2 and 5). The Committee notes the Government’s indication that the Royal Decree of 22 August 2020 concerning seafarers no longer provides for the minimum hours of rest that must be respected in a given period. The Committee notes this information, which addresses its previous request.

Regulation 2.4 and Standard A2.4, paragraphs 1 and 2. Entitlement to leave. Method of calculation. The Committee notes, in response to its previous comments, the Government’s indication that the clauses of the collective labour agreement of 11 January 2019 concerning employment conditions of seafarers not registered with the pool who are employed on merchant ships flying the Belgian flag, as established by section 1bis(1) of the Decree-Law of 7 February 1945, which replaces the collective agreement of 2 August 2012, must be read jointly with the remuneration scales annexed to the collective agreement concluded between the Associated Marine Officers’ and Seamen’s Union of the Philippines (AMOSUP) and the Belgian representative organization, the Royal Belgian Shipowners’ Association (RBSA), which refers to five days’ paid leave for Philippine seafarers. The Committee notes this information.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board). The Committee notes that the Government’s indication, in response to its previous request, that seafarers’ employment agreements are always fixed-term contracts and that section 68 of the Act of 3 June 2007 issuing various labour provisions provides that “the maximum duration of service periods on board following which a seafarer is entitled to repatriation shall be less than twelve months”. This provision was included in the Act of 3 June 2007 by the Act of 6 March 2017 modifying the Act of 3 June 2007 issuing various labour provisions and the Act of 13 June 2014 implementing and monitoring the application of the MLC, 2006. The Committee notes this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.2, paragraphs 6 and 7. Repatriation. Financial security. Documentary evidence. The Committee notes, in response to its previous comment, the Government’s indication that section 2.3.2, final subparagraph, of the Royal Decree of 30 July 2021 on optimizing the provisions relevant to maritime work provides as follows: “the certificate or other documentary evidence of financial security shall be established in conformity with the model contained in annex A2-I of the MLC”. The Committee also observes that this same Decree sets out the conditions for issuing a maritime labour certificate to include the information required following adoption of the 2014 amendments to the Code of the MLC, 2006, concerning financial security for repatriation. Finally, the Committee observes that the new version of the DMLC, Part I, sent by the Government also includes the requirements of Standard A2.5.2.The Committee notes this information, which addresses its previous request.

Regulation 3.1 and Standard A3.1, paragraph 9. Accommodation and recreational facilities. Sleeping rooms. Noting that under section 7(2) of Annex XIV of the Order of 1973 the size of sleeping rooms on passenger ships where more than four ratings are berthed in the same sleeping room does not fulfil the requirements of Standard A3.1, paragraph 9(i) (minimum area of 14.5 square metres in rooms accommodating four persons), the Committee asked the Government to indicate the manner in which it gives effect to this provision of the Convention. Noting the Government’s indication that the adaptation of the relevant regulations is currently under examination, the Committee requests the Government to take the necessary measures to give effect to this requirement of the Convention and to provide information on all developments in this regard.

Regulation 3.1 and Standard A3.1, paragraph 12. Accommodation and recreational facilities. Hospital. Noting that the application of the Royal Decree of 7 January 1998 concerning medical assistance on board ships is limited to ships of more than 500 gross tonnage, the Committee recalled that Standard A3.1, paragraph 12 does not apply only to ships of more than 500 gross tonnage. Noting the Government’s indication that modification of the relevant regulations is under examination, the Committee requests the Government to take the necessary measures to give effect to this requirement of the Convention and to provide information on all developments in this regard.

Regulation 4.1, paragraph 3 and Standard A4.1, paragraph 1(c). Medical care on board ship and ashore. Right to visit a medical doctor or dentist in ports of call. Noting that the Royal Decree of 15 December 2010 concerning first aid for workers suffering injury or illness does not specifically cover the situation of seafarers calling at a foreign port when they are working under the Belgian flag or calling at a Belgian port, whether they are working under the Belgian or a foreign flag, the Committee requested the Government to provide detailed information on the national measures giving full effect to Regulation 4.1, paragraph 3 and to Standard A4.1, paragraph 1(c). The Committee notes the Government’s indication that the Act of 13 June 2014 implementing and monitoring the application of the MLC, 2006, is currently being amended. The Government states that provision will be made to ensure that seafarers on board ships sailing in Belgian waters, who are in need of immediate medical attention, have the right to disembark immediately and have access to medical facilities on shore, to receive appropriate treatment, and that the shipowner will cover the expenses related to the medical facilities and care for the seafarer or seafarers. Noting the Government’s indication that its legislation is being amended, the Committee requests the Government to take the necessary measures to give effect to Regulation 4.1, paragraph 3 and to Standard A4.1, paragraph 1(c) and to provide a copy once it has been adopted.

Regulation 4.2 and Standard A4.2.1, paragraph 1(d). Shipowners’ liability. Burial expenses. The Committee requested the Government to indicate measures to ensure that seafarers not covered by the collective agreement of 8 May 2003 issuing provisions common to the collective labour agreement for officers and ratings registered with the Belgian pool of merchant navy seafarers employed by a Belgian company, enjoy the protection provided under Standard A4.2.1, paragraph 1(d). The Committee notes with interest the Government’s indication that the Act of 20 May 2021 on optimizing the provisions relevant to maritime work has corrected this by inserting the following new subparagraph in section 65 of the Act of 3 June 2007: “The cost of burial expenses in the case of death occurring on board or ashore during the period of engagement shall be borne by the shipowner”. The Committee notes this information, which addresses the point raised previously.

Regulation 4.2 and Standard A4.2.1, paragraph 7. Shipowners’ liability. Safeguarding of property left on board. The Committee requested the Government to indicate the manner in which it ensured that owners of ships flying the Belgian flag took measures for safeguarding property left on board by sick, injured or deceased seafarers (Standard A4.2, paragraph 7), both for seafarers registered with the pool and those not registered with the pool. The Committee notes the Government’s reference to the principle that the protection and indemnity insurance (P&I) taken out by the owner of the ship covers all aspects of “shipowner’s liability”, and also to sections 3.2 and 20 of the collective labour agreement of 11 January 2019 concerning the working conditions of seafarers not registered with the pool under section 1bis (1) of the Decree-Law of 7 February 1945 and working on board ships flying the Belgian flag. Noting however that the obligation for shipowners of ships flying the Belgian flag to take measures for safeguarding property left on board by sick, injured or deceased seafarers and for returning it to them or to their next of kin is not made explicit, as provided under Standard A4.2.1, paragraph 7, the Committee again requests the Government to adopt measures to give full effect to this provision of the Convention.

Regulation 4.2 and Standard A4.2.1, paragraphs 8 to 14 and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee asked the Government to indicate the measures giving full effect to paragraphs 11 and 14 of Standard A4.2.1, which provide that all ships, and not solely those subject to the obligation of certification established by Regulation 5.1.3, paragraph 1, shall carry on board a certificate or other documentary evidence of financial security issued by the financial security provider. The Committee notes the Government’s indication that section 3 of the Royal Decree of 30 July 2021 on optimizing the provisions relevant to maritime work does not restrict the obligation to carry documentary evidence of financial security solely to certified ships. The Committee notes this information, which addresses the point raised previously.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee requested the Government to send copies of specific instruments that deal with the prevention of occupational hazards for workers employed on ships to which the MLC, 2006, applies. The Committee notes that the Government does not provide comprehensive information in this regard and that it refers to the International Safety Management Code (ISM Code), which does not cover all the requirements of Regulation 4.3 and the Code.The Committee therefore requests the Government to provide detailed information on: (i) the adoption and effective application as well as the promotion of occupational safety and health policies and programmes on board ships, including risk evaluation as well as training and instruction of seafarers (Standard A4.3, paragraph 1(a)); and (ii) the adoption of legislation and other measures established by paragraph 3 of Regulation 4.3 dealing with all matters provided for by Standard A4.3, paragraphs 1 and 2, and in particular the obligation to establish a ship’s safety committee on which there are five or more seafarers (Standard A4.3, paragraph 2(d)).

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection of seafarers ordinarily resident in its territory. Noting that the statutory application of the Belgian social security scheme is linked to the conclusion of an employment agreement in Belgium, the Committee requested the Government to adopt the necessary measures in order to extend the protection provided under Standard A4.5, paragraph 3, to all seafarers ordinarily resident in its territory and who work on board foreign-flagged ships. The Committee notes the Government’s indication that there is currently no general legal provision that guarantees social security coverage to seafarers ordinarily resident in Belgium and employed on foreign-flagged ships. The Government indicates however that there are several social security schemes in Belgium that ensure that social protection is available or possible in almost all situations, subject to payment of social contributions. The Government identifies the following situations: (i) seafarers residing legally in Belgium and employed on board a ship flying the flag of a European Economic Area (EEA) Member State or of Switzerland are subject to the legislation of one of the Member States under Article 11.4 of Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems; (ii) seafarers residing legally in Belgium and employed on board a ship flying under the British flag are subject to the legislation of a Member State of the European Union or of the United Kingdom of Great Britain and Northern Ireland, as established by section SSC.10 of the Protocol on the coordination of social security systems within the framework of the Trade and Cooperation Agreement; (iii) without prejudice to bilateral agreements on social security between Belgium and other countries, seafarers residing legally in Belgium, who are nationals of a EEA Member State or of Switzerland and employed on a ship flying a flag other than those mentioned above are free to join the Belgian overseas social security regime. Seafarers of other nationalities may join that regime when working for a Belgian employer (section 12 of the Act of 17 July 1963 on overseas social security); and (iv) any person living legally in Belgium (included in the national register of natural persons) may become affiliated, on a voluntary basis, to the legal healthcare insurance subject to payment of contributions (section 32(15) of the Act of 14 July 1994 on obligatory health care and benefits insurance). The Committee observes that seafarers resident in Belgium and employed on board foreign ships (other than those from the European Union/EEA, Great Britain or countries having concluded bilateral agreements), figuring in situations (iii) and (iv), only have the right to voluntary affiliation and would be obliged to bear the cost of both employer and worker contributions, which violates the principle established by Regulation 4.5, paragraph 3, by which seafarers who are subject to national social security legislation are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers. The Committee therefore requests the Government to indicate the measures taken or envisaged to respect the principle of equality of treatment between seafarers and shoreworkers with regard to social security protection in the case of seafarers who work on board foreign ships (other than those of the European Union/EEA). In addition, the Commission requests the Government to provide statistical information on the number of foreign seafarers resident in Belgium and working on board foreign flagged vessels.

Rule 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee requested the Government to indicate the measures adopted to provide social benefits to seafarers who do not reside in the national territory, who work on ships flying the national flag and who do not have adequate social security coverage (Standard A4.5, paragraphs 5 and 6; Guideline B4.5, paragraph 5). The Committee notes the Government’s indication that the Royal Decree of 15 May 2003 issued under section 2 of the Decree-Law of 7 February 1945 concerning the social security of merchant navy seafarers provides that seafarers not domiciled in a European Union Member State or in a Contracting State can only be excluded from Belgian seafarers’ social security (Decree-Law of 7 February 1945) when they are employed on a ship flying the Belgian flag, if they are insured for social risks in the country of origin, under the legislation of that country, or if the shipowner has taken out an insurance contract for them that fulfils the standards established by the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), and the Sickness Insurance (Sea) Convention, 1936 (No. 56). The Committee notes this information, which addresses the point raised previously.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. The Committee requested the Government to indicate the provisions ensuring that the record of the Maritime Labour Certificate is publicly available as provided under Regulation 5.1.3, paragraph 6. The Committee notes the Government’s indication that this requirement is included on the Federal Public Service Mobility and Transport website. The Committee notes this information with addresses the point raised previously.