Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Seafarers' Annual Leave with Pay Convention, 1976 (No. 146) - Iraq (Ratification: 1985)

The Committee notes the Government’s report on the application of the Convention, received in 2008. The Government no longer mentions Maritime Civil Service Act No. 201 of 1975 and exclusively refers to Labour Code No. 71 of 1987. The Committee therefore requests the Government to confirm: whether the Maritime Civil Service Act is still in force and, if so, whether the paid annual leave of seafarers employed on board vessels of the private, mixed or cooperative sectors is regulated by the Labour Code, while the paid annual leave of seafarers employed on board publicly owned vessels is regulated by the Maritime Civil Service Act.

Should the Labour Code be the relevant legislation applicable to the private, mixed and cooperative sectors, and in view of the present efforts to draft a new Labour Code, the Committee draws the Government’s attention to the following shortcomings.

Article 2 of the Convention. Scope of application. According to its section 8(1), the Labour Code only applies to the private, mixed and cooperative sector. Section 2 of the Labour Code guarantees the right to work under equal conditions and with equal opportunity to all “citizens” without any discrimination on the basis of sex, race, language or religion. According to section 7, Arab workers employed in Iraq shall be treated on an equal footing with Iraqi workers in regard to the rights and duties set forth in the Code. Sections 2 and 7 thus appear to leave open the possibility of different treatment of non-Arab seafarers. The Convention, however, applies to all persons employed on board seagoing ships registered in the territory of Iraq in an equal manner, regardless of nationality. The Committee requests the Government to indicate by what means it is ensured that the protection provided by the Convention equally applies to non-Arab seafarers employed on board seagoing ships registered in Iraq.

Article 3. Length of annual leave. According to section 67(1) of the Labour Code, a worker shall have a right to 20 days’ paid leave for each year of work. The Convention, however, provides that the leave shall in no case be less than 30 days for one year of service. The Committee also recalls that, pursuant to Iraq’s declaration at the time of ratification, the length of annual leave is 36 days. The Committee requests the Government to indicate the measures taken to ensure that national legislation is brought into conformity with the Convention.

Article 5. Length of service. The Committee asks the Government to indicate the manner in which the length of service is calculated for the purpose of determining the leave entitlement (paragraph 1). According to section 74 of the Labour Code, leave counts as part of the period of service. In addition, please indicate the conditions under which service off articles and absence from work to attend an approved maritime vocational training course or for reasons beyond the control of the seafarer, are counted as part of the period of service (paragraphs 2 and 3).

Article 6. Calculation of annual leave. Section 75 of the Labour Code leaves it unclear whether holidays fixed by law are counted as part of annual leave. The Committee asks the Government to indicate by what measures it is ensured that public and customary holidays shall not be counted as part of the minimum annual leave with pay (subparagraph (a)). According to section 77, the worker is entitled to 30 days’ sick leave for every year of work. Section 84 provides that every woman is entitled to 62 days’ maternity leave at full pay. Please indicate by what measures it is ensured that such periods of incapacity for work are not counted as part of the annual leave with pay (subparagraph (b)). The Committee also asks the Government to indicate the measures taken to ensure that temporary shore leave and compensatory leave are not counted in the minimum annual leave with pay (subparagraphs (c) and (d)).

Article 8. Accumulation of annual leave. Section 69 permits the division of annual leave. The Committee asks the Government to indicate whether the accumulation of annual leave due in respect of one year, together with a subsequent period of leave, is authorized by the competent authority or through the appropriate machinery.

Article 10, paragraphs 2 and 3. Place of annual leave. The Committee asks the Government to indicate by what means it is ensured that no seafarers are required without their consent to take annual leave due to them at a place other than that where they were engaged or recruited, whichever is nearer home, except under the provisions of a collective agreement or of national laws or regulations. Please further indicate the measures taken to ensure that, if a seafarer is required to take annual leave from a place other than the place of engagement or recruitment, whichever is nearer home, he or she shall be entitled to free transportation to that place; subsistence and other costs directly involved in the return shall be for the account of the employer; and the travel time shall not be deducted from the annual leave with pay due to the seafarer.

Should the Maritime Civil Service Act be the relevant legislation applicable to publicly owned vessels, the Committee notes that the Government's report contains no reply to its previous direct request of 2002. The Committee must therefore reiterate its previous comments, which were essentially drafted in the following terms:

Article 2. Scope of application. The Committee reiterates its previous request for clarification as to whether the text of section 2(3) of the Maritime Civil Service Act rather refers to seafarers listed in “Schedules Nos (2) and (3)” instead of those in “Schedules Nos (1) and (2)”, in order to confirm that the leave provisions in the Maritime Civil Service Act apply to all seafarers occupying positions listed in Schedules 1, 2 and 3.

Articles 3 and 4. Proportionate annual leave. The Committee hopes the Government will not fail to indicate the provisions of the Maritime Civil Service Act that ensure a proportionately reduced annual leave for a seafarer whose length of service for any one year is less than that required for the full entitlement, as required by Article 4 of the Convention.

Article 6. Calculation of annual leave. In reply to the previous request concerning this provision of the Convention, the Government once again states that Fridays and official holidays are not counted in the minimum annual paid leave and seafarers who work on these days are given compensatory leave. The Committee hopes the Government will not fail to indicate the relevant provisions of the Maritime Civil Service Act. The Committee reiterates the point that Article 6, paragraphs (b) and (c), of the Convention require similar treatment for periods of incapacity for work and temporary shore leave. It hopes the Government will not fail to provide full particulars in this regard.

Article 8. Uninterrupted period. The Committee notes that neither the Maritime Civil Service Act nor the Civil Service Law appear to provide for such a minimum of continuous days of leave. It recalls that Article 8(2) of the Convention provides that, subject to the division or accumulation of annual leave due in one year that may be authorized by the competent authority or through the appropriate machinery in each country under paragraph 1 of the same Article, the annual leave with pay prescribed by the Convention shall be of an uninterrupted period. The Committee requests the Government to indicate the provisions that provide for the annual leave with pay prescribed by the Convention to be of an uninterrupted period.

Article 10, paragraphs 2 and 3. Place of annual leave. The Committee notes that the Government repeats its earlier replies to its comments that, according to section 42(3) of the Maritime Civil Service Act, annual leave is granted upon a written application submitted by the seafarer and that the place and time such leave is to be taken is fixed by the seafarer. The Committee wishes to point out that the text of section 42(3) does not provide for free transportation to the place of engagement or recruitment, whichever is nearer home, for subsistence and other costs directly involved in the return to be for the account of the employer; and for travel time involved not to be deducted from the annual leave with pay, as required by paragraph 3 of this Article of the Convention. The Committee asks the Government to indicate the relevant measures taken in this regard, and to provide texts of any relevant terms of collective agreements or formal decisions on these points.

Article 11. Waiver. The Committee notes the Government’s report does not contain a reply to its previous request for an indication of the specific provisions ensuring that any agreement to relinquish the right to the minimum leave with pay of seafarers employed by publicly owned seagoing ships covered by the Maritime Civil Service Act are null and void. The Committee asks the Government to provide full details on these points.