CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Bulgaria (RATIFICATION: 2010)

Previous comment

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 approved by the International Labour Conference in 2018 entered into force for Bulgaria on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by Bulgaria during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II, paragraphs 1(f) and 2 of the Convention. Definitions and scope of application. Seafarers. The Committee notes that, in response to its previous request, the Government indicates that an amendment has been made to the definition of “seafarer” in paragraph 1, item 1 of the Supplementary Provisions of the Ordinance on the Conditions and Procedures for Employment Agency Activities which states, as follows: “Seafarer” shall mean ”any person who meets the conditions established by the flag State for employment in a given position on board a ship, with the exception of military ships and ships used by the State for non-commercial purposes”. The Committee observes that this new definition still coexists with the definition of article 87, paragraph 1, of the Merchant Shipping Code (MSC) and paragraph 1(а), item 9 of the Supplemental Provision of the MSC, which seem to narrow the definition of “seafarer” to persons possessing a certificate of competence or qualification under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as indicated in its previous comment. Furthermore, the Committee observes that the provisions to which the Government refers apply only to seafarers recruited through mediation services and may not necessarily encompass “any person who is employed or engaged or works in any capacity on board a ship”, as provided for under Article II, paragraph 1(f) of the Convention given that the conditions established by the flag State for employment on board a ship might be those defined by article 87 of the MSC. The Committee requests the Governmentto specify what are the “conditionsestablished by the flag State for employment in a given position on board a ship” that persons have to meet to be considered as a seafarer.The Committee further requests the Government to clarify the articulation of the relevant national legislation on the definition of “seafarer” and to indicate the measures taken to harmonize its legislation in order to ensure its full conformity with Article II, paragraph 1(f).

Cadets. Referring to its previous comments, the Committee notes the Government’s indication that article 4, paragraph 2 under section I (Conditions for hiring and concluding an employment contract) of the Ordinance on Labour and Directly Related Relations Between Crew Members and Ship’s Service Personnel and the Shipowner (hereafter Ordinance on Labour) states that “persons between 16 and 18 years of age shall be admitted on board the vessel for the purpose of sailing training”. The Government further states that article 10, item 1 of Ordinance No. 6 of 17 June 2021 on the Competence of Seafarers in the Republic of Bulgaria provides that a “trainee in maritime navigation” is “a person sailing as an understudy in the appropriate position, under the direction of the master, his designated officer, or the chief engineer officer.” While noting this information, the Committee observes that the Government has not indicated if cadets are considered seafarers and therefore benefit from the protection provided by the Convention. The Committee once again requests the Government to provide clarification on this point and to adopt the necessary measures to ensure that cadets are regarded as seafarers for the purposes of the Convention.

Article II, paragraphs 1(i), 4, 5 and 7. Definitions and scope of application. Ships. National determination. The Committee notes that article 2, paragraph 1, items 2 and 3 of the Ordinance on Labour provides that the said ordinance does not apply to ships used for sports, tourism and entertainment nor to sea vessels with a size of up to 40 gross tons and a crew of up to four people including. The Committee recalls that Article II, paragraph 1(i) and 4, provides that the Convention applies to all ships, regardless of tonnage, whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks. The Committee requests the Government to provide information on the types of ships that fall under these categories of ships. The Committee requests the Government to indicate how it ensures that the protection afforded by the Convention is guaranteed to all ships within the meaning of the Convention, including ships used for sports, tourism and entertainment that are ordinarily engaged in commercial activities as well as ships of 40 gross tonnage and below.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that, in response to its previous request, the Government indicates that article 35, paragraph 4 of the Ordinance on the Conditions and Procedures for Employment Agency Activities provides that “[t]he intermediary shall keep with the concluded intermediary contract a declaration of the shipowner that it has a system for the protection of seafarers from abandonment in foreign ports. The declaration shall be kept in a certified copy and, in cases where it is not in Bulgarian, in an official translation into Bulgarian”. The Committee observes that this provision does not comply with the requirement of Standard A1.4, paragraph 5(c)(vi), given that the system of protection only seems to cover abandonment in foreign ports, and that the obligation to establish such system of protection seems to be under the responsibility of the shipowner and not the recruitment and placement services. The Committee recalls that Standard A1.4, paragraph 5(c)(vi) provides for the establishment of a system of protection to compensate seafarers not only in case of abandonment but “for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them”. Furthermore, the Committee recalls that under Standard A1.4, paragraph 5(c)(vi) such system of protection, by way of insurance or an equivalent appropriate measure, should be established by the seafarer recruitment and placement services, in addition to any insurances provided by the shipowner. The Committee requests the Government to indicate the measures adopted to give full effect to Standard 1.4, paragraph 5(c)(vi) of the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee observes that article 6, paragraph 7 of the Ordinance on Labour provides that “before starting work between the applicant and the employer or his representative, an employment contract is concluded” and that article 6, paragraph 2, item 2 stipulates that the employment contract shall be concluded in writing and shall contain details of the employer. Article 6, paragraph 7 of that same Ordinance further states that “[t]he employment contract shall be signed in three copies, one of which is kept on board the ship by the master and the other two are for the parties to the employment relationship.” The Committee recalls that, in accordance with Standard A2.1, paragraph 1(a), the seafarers’ employment agreement (SEA) is to be signed by or on behalf of the shipowner who is responsible for ensuring compliance with all the requirements of the Convention relating to the working and living conditions of the seafarers and who, by such signature, becomes legally responsible vis-à-vis the seafarer for compliance with all those requirements, whether or not the shipowner is considered to be the employer of the seafarer. The Committee stresses the importance of the basic legal relationship that the MLC, 2006, establishes between the seafarer and the person defined as ‘shipowner’ under Article II. The Committee requests the Government to clarify who are the parties of the seafarers’ employment agreement and to take the necessary measures to ensure that the shipowner remains legally responsible vis-à-vis the seafarer for all the requirements of the Convention relating to the working and living conditions of the seafarers, as required under Standard A2.1, paragraph 1.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreements. Examination and advice before signing. The Committee notes that, in response to its previous request, the Government indicates that article 7 of the Ordinance on Labour provides that “before commencing employment, the employer shall acquaint the applicant with the degree of risk and the nature and character of the work on board ship, and this shall be certified in writing by the persons”. While noting this information, the Committee observes that this provision does not entail informing seafarers of their rights and their obligations as mentioned in the SEA before the process of entering into service and giving them the opportunity to examine and seek advice on the agreement before signing it, as provided for under Standard A2.1,paragraph 1(b) of the Convention. Noting that the Government refers to the same article of the aforementioned Ordinance, which remains unchanged in this respect, the Committee reiterates its previous request to provide information on any development on this possible amendment to the existing legislation to ensure full compliance with this provision of the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that the Government supplied a copy of an example of a seaman’s discharge book. It observes, however, that the document contains a space for “Master’s remarks on duties discharge” and that the instructions specify that “the ship’s Master may make brief evaluation of seafarer’s work, namely: – performance of seafarer’s official duties – poor, good, very good; – discipline – poor, good, very good; – alcohol and drug abuse – yes/no; – promotion during the voyage – yes/no, to what capacity.” The Committee recalls that under Standard A2.1, paragraph 3, the document containing a record of employment shall not contain any statement as to the quality of the seafarers’ work or as to their wages. It requests the Government to take the necessary measures to ensure conformity with this provision of the Convention.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and Standard 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 draws the Government’s attention to the following questions included in the revised 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); and (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-mentioned questions, indicating in each case the applicable national provisions.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee notes that, in response to its previous request, the Government refers to article 23(d), paragraph 4 of the Ordinance on Labour which provides that the breaks in the working day shall be taken on board while the ship is afloat or at anchor or at berth, or ashore when the ship is in port. The Committee, however, observes that this provision only applies to seafarers sailing on inland waterways. Recalling that, in accordance with Regulation 2.4, paragraph 2 of the Convention, seafarers shall be granted shore leave to benefit their health and well-being, consistent with the operational requirements of their positions, the Committee accordingly requests the Government to adopt the necessary measures to give effect to this provision of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition to forgo paid annual leave. Exceptions. Referring to its previous comments, the Committee notes the Government’s indication that article 34, paragraph 1 of the Ordinance on Labour was amended in 2018 and now provides that “the parties to the employment relationship cannot agree on compensation of the basic paid annual leave or part of it with monetary compensation, except in the cases of early termination of the employment relationship”. The Committee observes that article 34, paragraph 2 further provides that “the parties to the employment relationship may agree on the use of additional paid annual leave or compensatory holidays to be replaced in whole or in part with the payment of monetary compensation”. The Committee concludes that the basic paid annual leave, calculated on the basis of a minimum of 2.5 calendar days per month of employment, cannot be forgone, and that the payment of monetary compensation can only apply to additional paid annual leave. The Committee takes note of this information.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes with interest that the provisions of article 13a of the Ordinance on Labour give effect to the requirements of Standard A2.5.2 and that the Government has provided a copy of a certificate of insurance or other financial security in respect of seafarer financial repatriation costs and liabilities, as required under Regulation 2.5 and Standard A2.5.2. The Committee takes note of this information, which addresses its previous request.

Regulation 2.6 and the Code. Seafarer compensation for the ship’s loss or foundering. The Committee notes that, in response to its previous request, that the Government indicates that the combined reading of article 10, paragraph 1 of the Ordinance on Labour with respect to circumstances under which a seafarer is entitled to repatriation (which includes illness, accident or medical emergency and structural loss of the ship) and article 13a of that same Ordinance regarding the financial security to be provided for compensation in the event of abandonment of a seafarer, gives effect to the requirement of Regulation 2.6 and the Code. The Committee observes that these provisions do not relate specifically to unemployment arising from the ship’s loss or foundering. The Committee requests the Government to indicate how it ensures that the seafarer receives adequate compensation in the case of unemployment arising from the ship’s loss or foundering (Standard A2.6, paragraph 1 and Guideline B2.6.1).

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. Referring to its previous comments, the Committee notes the Government’s indication that Standard A.2.7, paragraph 3 is implemented through the provisions of articles 37, 38 and 42 of the Ordinance on Labour, which require the provision of food and water on board according to the composition of the crew and service personnel, the duration and nature of the voyage and that meals on board shall be prepared by suitably qualified persons. The Committee, however, notes that the provisions referred to by the Government still do not adequately implement the Convention, in particular as they do not ensure that the manning requirements take into account the ship’s cook or catering staff. Recalling that under Standard A2.7, paragraph 3, when determining manning levels the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering, the Committee requests the Government to indicate how the maritime administration takes into account the requirement related to the need to have a fully qualified cook or a person trained in the area of food as well as adequately trained catering staff.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that, in response to its previous request, the Government indicates that the provisions of articles 43–45 of the Ordinance on Labour, as amended in 2018, give effect to the requirements of Regulation 3.1 and the Code. The Committee observes that article 45 provides that shipowners and branch organizations shall periodically carry out joint inspections to ensure compliance with the conditions referred to in article 43 for the satisfaction of the needs of crew members and service personnel in accordance with the requirement of Standard A3.1, paragraph 18. The Committee, however, observes that the provisions of the Ordinance on Labour remain of general nature without giving effect to the detailed requirements of Regulation 3.1 and the Code. The Committee recalls that Standard A3.1 calls on Members to adopt laws and regulations in order to ensure that ships flying its flag meet minimum standards for accommodation and recreational facilities. The Committee requests, once again, the Government to adopt the necessary measures to ensure that full effect is given to Regulation 3.1 and the Code, and to provide updated information on the progress made in this regard.

Regulation 3.1 and Standard A3.1, paragraph 12. Accommodation and recreational facilities. Hospital accommodation. The Committee notes that article 6 of Ordinance No. 9 on the Medical Care on Ships provides that a seagoing ship with 500 GT and above, with 15 or more crew members, if the voyage time exceeds three days, shall provide a suitably furnished room for rendering medical assistance and storage of medicinal and medical products. Noting that hospital accommodation is required only for vessels with a gross tonnage of 500 or more, the Committee recalls that Standard A3.1, paragraph 12, does not contain such limitation. Recalling that the obligation to provide separate hospital accommodation applies to all vessels carrying 15 or more seafarers and engaged in a voyage of more than three days’ duration, the Committee accordingly requests the Government to adopt the necessary measures to give full effect to Standard A3.1, paragraph 12.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Medical advice by radio or satellite. The Committee observes that Ordinance No. 9 on the Medical Care on Ships, as amended in 2022, provides for remote medical advice to be provided by radio consultation in case of medical assistance needed. Noting however that article 1 of this Ordinance regulates the conditions and procedure for providing medical care to ships sailing under the Bulgarian flag, the Committee reiterates its request to the Government to specify if this service is provided free of charge to all ships irrespective of the flag they fly.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee notes with interest that the Government refers to article 54(a) of the Ordinance on Labour, as amended in 2018, which complies with the new requirements of the Convention. The Committee takes note of this information.

Regulation 4.4 and Standard A4.4, paragraph 2. Development of shore-based welfare facilities in appropriate ports.Noting that the Government does not provide information on this point, the Committee reiterates its request to the Government to provide up-to-date information on any measures taken to promote the development of shore-based welfare facilities in appropriate ports in its country.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. Referring to its previous comments, the Committee notes the Government’s indication that the list of existing bilateral international social security treaties with countries other than European Union is available on the Website of the Ministry of Labour and Social Policy and that it has prioritized a number of countries for the period 2022–23 for the negotiation and development of new social security treaties, also listed on the Website. The Committee takes note of this information and requests the Government to provide information on any developments in this regard.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance (DMLC). Content.Noting that the Government has not submitted new examples of DMLC Part II, the Committee reiterates its previous request.

Regulation 5.1.5 and the Code. Flag State responsibilities. On-board complaints procedures. Referring to its previous comments, the Committee notes the Government’s indication that articles 54(b) and 54(c) of the Ordinance on Labour, as amended in 2018, give effect to the various requirements of the on-board complaint procedures, as provided for under Regulation 5.1.5 and the Code. The Committee takes note of this information, which addresses its previous request.