REPRESENTATION (article 24) - RUSSIAN FEDERATION - C179 - 2010

Federation of Maritime Transport Trade Unions (FPRMT)

Closed

Report of the Committee set up to consider the representation made by the Federation of Maritime Transport Trade Unions (FPRMT) under article 24 of the ILO Constitution alleging non-observance by the Russian Federation of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. A. Introduction
2. 1. By a communication dated 28 April 2007, supplemented by further information sent on 27 July 2007, the Federation of Maritime Transport Trade Unions (FPRMT) communicated to the Director-General of the ILO a representation alleging non- observance by the Russian Federation of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179). The representation was supported by the International Transport Workers' Federation (ITF) in a communication dated 6 November 2007.
3. 2. The Recruitment and Placement of Seafarers Convention, 1996 (No. 179) was ratified by the Russian Federation on 27 August 2001 and entered into force for the Russian Federation on 27 August 2002.
4. 3. The provisions of the Constitution of the International Labour Organization concerning representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. On 27 August 2007, the Director-General acknowledged receipt of this representation and informed the Government of the Russian Federation thereof, in accordance with article 1 of the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization, as revised by the Governing Body at its 291st Session (November 2004).
10. 5. At its 300th Session (November 2007), the Governing Body found the representation to be receivable (Endnote_1) and set up a committee to examine it, composed of Mr E. Lonka (Government member, Finland), Mr T.A. Suzuki (Employer member, Japan) and Ms C. Brighi (Worker member, Italy). Following elections during the 302nd Session (June 2008) of the Governing Body, membership of the Governing Body changed and at its 303rd Session (November 2008), the Governing Body replaced the Government and Worker members with the appointment of two new members, Mr C. Eriksson (Government member, Sweden), and Mr U. Edström (Worker member, Sweden). At its 307th Session, the Governing Body appointed Mr Y. Veyrier (Worker member, France) to replace Mr Edström. At its 308th Session, the Governing Body appointed Mr J. de Regil (Employer member, Mexico) to replace Mr Suzuki. The tripartite Committee submitting this report was therefore composed of Mr Eriksson (Government member, Sweden (Chairperson of the Committee), Mr de Regil (Employer member, Mexico) and Mr Veyrier (Worker member, France).
11. 6. The FPRMT was invited to supply any additional information which it might wish to furnish on the allegations contained in the representation, by 29 February 2008.
12. 7. In accordance with article 4, paragraph 1(c), of the Standing Orders, the Committee invited the Government to submit its observations on the representation by 31 March 2008. The Government made observations in a letter dated 31 March 2008. Following further information submitted by the FPRMT on 18 August 2008 alleging continuing shortcomings in the application of the Convention, the Government made further observations in March 2009. The Government subsequently submitted additional information in October 2009 and February 2010.
13. 8. The Committee met in March and June 2010 to examine the case.
14. B. Examination of the representation
15. I. Allegations made by the complainant organization
16. 9. In its communication dated 28 April 2007, the complainant stated that it was the most representative federation of unions representing seafarers in the Russian Federation and that the Seafarers' Union of Russia (RPSM), one of its members, had been one of the driving forces behind the ratification of Convention No. 179 by the Russian Federation in 2001. Since the ratification of the Convention, its representatives together with RPSM had participated in a number of interagency and tripartite meetings, organized by the Ministry of Transport and by the Russian Tripartite Commission, with representatives of shipowners, crewing organizations and other seafarer trade unions, to discuss the implementation of the Convention in the law and the practice of the Russian Federation. While these discussions continued, the RPSM repeatedly alerted all parties concerned (e.g. in a letter to the Coordinator of the Russian Tripartite Commission, dated 7 October 2004) that the failure of the Government to take action to give effect to the Convention and the absence of regulation on recruitment agencies violated Russian seafarers' rights, notably pension and social security rights.
17. 10. According to the complainant, as an outcome of these meetings a consensus emerged that the Ministry of Transport - which had prepared in late 2003 a package of legislative texts in consultation with representatives of seafarers and shipowners - was to be designated "competent authority" for the purposes of the Convention. In 2005, however, after consultations with other agencies, the Ministry of Transport received objections from the Ministries of Finance, Economic Development and Trade, as well as Agriculture (responsible for fishing). At that stage, the complainant indicated that they had made representations to the President of the Russian Federation and the Prime Minister who redirected them to the Ministry of Transport.
18. 11. The complainant further stated that while in 2006 the Ministry of Transport had reached an agreement with the Ministiy of Health and Social Development (responsible for labour and labour migration) and the Ministry of Agriculture, further objections were received from the Ministry of Internal Affairs (MVD) (responsible for licensing private organizations which recruit and place Russian citizens, including seafarers, into employment outside the Russian Federation). The Ministry of Justice (responsible for legislation and for international agreements) also objected.
19. 12. The complainant stated that in November 2006, the RPSM addressed a special appeal to the Government of the Russian Federation, in which the unsatisfactory implementation of Convention No. 179 was raised. Following the appeal, the Ministry of Transport informed them that the MVD and the Ministry of Health and Social Development had been asked to consider the possibility of assuming the functions of "competent authority". The MVD would be responsible for placement of Russian seafarers with foreign shipowners and the Ministry of Health and Social Development, for placement of Russian seafarers with Russian shipowners.
20. 13. Under these circumstances, the complainant considered that the situation with regard to the application in practice of Convention No. 179 was unsatisfactory, because the "competent authority" - having power to issue regulations, orders or other instructions having the force of law in respect of the recruitment and placement of seafarers (Article l(l)(a)), to enforce the provisions of the Convention (Article 4) and to ensure that adequate machinery and procedures exist for the investigation, if necessary, of complaints concerning the activities of recruitment and placement services, involving, as appropriate, representatives of shipowners and seafarers (Article 6(1)) - was not defined. The complainant stated that as a result, the legislative framework in the Russian Federation failed to meet the requirements of the Convention in any respect.
21. 14. The complainant further held that since the relevant "Regulations concerning the licensing of activities in connection with the placement of Russian citizens in employment outside the Russian Federation", approved by Government Order No. 797 of 23 December 2006 were applicable to all workers seeking employment, they made no special distinction in respect of seafarers. They did not take account of fundamental provisions of the Convention, i.e. Article 4(2)(d) (prohibition of "black lists"), Article 4(2)(e) (employer to protect seafarers from being stranded in a foreign port), Article 4(2)(f) (insurance or equivalent, to compensate seafarers for failure of the recruitment and placement agency to meet its obligations), Article 4(l)(a) (prohibition to levy charges from seafarers for recruitment or placement). The complainant indicated that these concerns were again raised in a letter to the Prime Minister of the Russian Federation in April 2004.
22. 15. The complainant considered that these circumstances fundamentally violated labour rights of Russian seafarers on foreign vessels. Violations took the form of an absence of individual employment contracts, or of contracts that did not conform to international labour standards; refusal to allow seafarers to form unions or to apply to unions for help and protection; prohibition of participation in strikes, etc. Russian seafarers were not infrequently abandoned in foreign ports, without possibility of repatriation. The FPRMT submitted an open letter written by the crew of the "Vsevolod Timonov", stranded in Nakhodka.
23. 16. The complainant also maintained that services to place Russian seafarers on Russian ships were in general unregulated and arbitrary, e.g. crewing agencies often illegally assumed the functions of employers (shipowners). Since these crewing agencies were objectively unable to fulfil that function and did not provide insurance for seafarers, this caused seafarers to forfeit their legal rights to social insurance benefits in the event of work- related accidents or illness, and to pensions. Such services were also provided by foreign crewing firms. In a letter dated 2 June 2005 by the RPSM to the Office of the Public Prosecutor and the Federal Service for Labour and Employment, the union referred to the case of crew members of vessels of the Sakhalin Maritime Shipping Co. recruited by the Cypriot agency Cartella Shipping Co. Ltd. as an example of practices resulting in lack of social insurance and pension coverage for seafarers. The complainant provided a copy of an individual contract between the company and a seafarer as well as a copy of an investigation report on the death of the same seafarer. It also provided copies of a number of communications concerning this matter.
24. 17. The complainant therefore alleged:
25. (i) that the competent authority as provided for by the Convention had not been defined; and that it was envisaged to withdraw the competence from the Ministry of Transport and designate two competent authorities, namely the Ministry of Health and Social Development for placement of seafarers on Russian ships and the Ministry of Internal Affairs for placement of seafarers on foreign-flagged ships; and
26. (ii) that existing legislation failed to give effect to the requirements of the Convention, leading to numerous irregularities in its application.
27. 18. In this regard, the complainant concluded that the legislative framework in place at the date of its representation failed to meet the requirements of the Convention and that the sole competent body under the Convention should be the Ministry of Transport, in line with the joint discussions which took place with all the agencies concerned and the representatives of shipowners and seafarers.
28. II. The Government's observations
29. 19. In its written observations presented in April 2008, the Government observed that from the coming into force of the Convention for the Russian Federation in 2002 until 2007, the activities concerning the application of the Convention were carried out by the Ministry of Transport of the Russian Federation.
30. 20. The Government indicated that in 2007, at a meeting of representatives of the Ministry of Transport, the Ministry of Health and Social Development and of the Federal Migration Service, a unanimous understanding was developed of the necessity to vest the functions of competent authority in the context of the Convention's application in two different federal bodies having power to regulate recruitment and placement of seafarers on vessels under the Russian flag, and on those under foreign flags. This decision was determined by specifics of the Russian legislation.
31. 21. In subsequent communications received in March and October 2009, the Government informed the Committee that an Order of the Government of the Russian Federation to determine the competent authority in the context of the Recruitment and Placement of Seafarers Convention had been issued under presidential signature on 24 December 2008 and had vested the Ministry of Health and Social Development with powers of the competent authority, having power to issue orders having the force of law in respect of the recruitment and placement of Russian citizens, foreign citizens and persons without citizenship to be employed on board a seagoing ship under the flag of the Russian Federation.
32. 22. In a communication dated 18 March received on 20 March 2009, the Ministry of Health and Social Development further informed the Committee that a special task group to elaborate the relevant more concrete standards and normative documents was becoming operational in the Ministry. In a communication dated 1 February 2010, the Government informed the Committee of the adoption of an Order by the Minister for Health and Social Development of 8 December 2009 entitled: "Regulations concerning procedures for the registration, in regional departments of the Federal Labour and Employment Service, of employment contracts concluded through the mediation of seafarers' employment and placement agencies with Russian citizens, foreign citizens and stateless persons, for work as crew members on seagoing ships sailing under the flag of the Russian Federation".
33. 23. The Government in its communication of 1 February 2010 also annexed Decree No. 933 signed by President Medvedev on 11 August 2009 designating the Federal Migration Service, which is part of the Ministry of the Interior, as the competent authority for recruitment and placement of Russian and other categories of seafarers on ships under foreign flag.
34. III. The Committee's conclusions
35. 24. The Committee noted that the complainant alleged that the legislative framework in the Russian Federation failed to meet the requirements of Articles 1, 4 and 6 of Convention No. 179. The complainant specifically alleged that the Government of the Russian Federation had failed to define the "competent authority" for the purposes of these provisions. It further alleged that the "Regulations concerning the licensing of activities in connection with the placement of Russian citizens in employment outside the Russian Federation" approved by Government Order No. 797 of 23 December 2006, which were applicable to all categories of workers, do not take into account the special situation of seafarers as required by Convention No. 179, leading to numerous irregularities in its application.
36. 25. The Committee considered that the issues raised in the representation relate to the application of Article 1, paragraph 1(a); Article 2, paragraph 2; Article 4, paragraph 1(a), (b), (d) and (e), and paragraph 2(a), (b), (d), (e), (f); and Article 6 of the Convention. These provisions of the Convention read as follows:
37. Article 1
38. 1. For the purpose of this Convention:
39. (a) the term competent authority means the minister, designated official, government department or other authority having power to issue regulations, orders or other instructions having the force of law in respect of the recruitment and placement of seafarers;
40. Article 2
41. 2. Where private recruitment and placement services have been or are to be established, they shall be operated within the territory of a Member only in conformity with a system of licensing or certification or other form of regulation. This system shall be established, maintained, modified or changed only after consultation with representative organizations of shipowners and seafarers. Undue proliferation of such private recruitment and placement services shall not be encouraged.
42. Article 4
43. 1. A Member shall, by means of national laws or applicable regulations:
44. (a) ensure that no fees or other charges for recruitment or for providing employment to seafarers are borne directly or indirectly, in whole or in part, by the seafarer; for this purpose, costs of the national statutory medical examination, certificates, a personal travel document and the national seafarer's book shall not be deemed to be "fees or other charges for recruitment";
45. (b) determine whether and under which conditions recruitment and placement services may place or recruit seafarers abroad;
46. (d) determine the conditions under which the licence, certificate or similar authorization of a recruitment and placement service may be suspended or withdrawn in case of violation of relevant laws and regulations; and
47. (e) specify, where a regulatory system other than a system of licensing or certification exists, the conditions under which recruitment and placement services can operate, as well as sanctions applicable in case of violation of these conditions.
48. 2. A Member shall ensure that the competent authority:
49. (a) closely supervise all recruitment and placement services;
50. (b) grant or renew the licence, certificate, or similar authorization only after having verified that the recruitment and placement service concerned meets the requirements of national laws and regulations;
51. (d) prohibit recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment;
52. (e) require that recruitment and placement services adopt measures to ensure, as far as practicable, that the employer has the means to protect seafarers from being stranded in a foreign port; and
53. (f) ensure that a system of protection, by way of insurance or an equivalent appropriate measure, is established to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service to meet its obligations to them.
54. Article 6
55. 1. The competent authority shall ensure that adequate machinery and procedures exist for the investigation, if necessary, of complaints concerning the activities of recruitment and placement services, involving, as appropriate, representatives of shipowners and seafarers.
56. 2. All recruitment and placement services shall examine and respond to any complaint concerning their activities and shall advise the competent authority of any unresolved complaint.
57. 3. Where complaints concerning working or living conditions on board ships are brought to the attention of the recruitment and placement services, they shall forward such complaints to the appropriate authority.
58. 4. Nothing in this Convention shall prevent the seafarer from bringing any complaint directly to the appropriate authority.
59. 26. The Committee noted that the Government had primarily addressed in its observations the issue of the competent authority and had not addressed the other questions raised concerning the effectiveness of the legislative provisions as regards the special situation of seafarers and the irregularities in the application of the Convention.
60. 27. Concerning the question of the designation of a competent authority, the Government stated that until 2007 this function had been carried out by the Ministry of Transport. The Committee noted that the evidence provided by the complainant included communications with the Ministry of Transport which referred to ongoing consultations on the matter during the period 2002 to 2007. From the information submitted by both parties, the Committee notes that the Ministry of Transport's powers and functions with respect to recruitment and placement of seafarers had not been clearly defined and had constantly been under discussion. Designation of two new State entities to carry out these functions had only occurred late in 2008 and in 2009, while the Convention had been ratified by the Russian Federation on 27 August 2001 and had entered into force for it on 27 August 2002.
61. 28. Since that date, at the latest, it would have been necessary for the Government to clearly designate a competent authority having power to issue regulations, orders or other instructions having the force of law in respect of the recruitment and placement of seafarers. The Government only designated the competent authorities on 24 December 2008 and 11 August 2009. The Ministry of Health and Social Development (competent authority for seafarers on Russian-flagged ships) issued procedural regulations in December 2009. The Government had not provided any information concerning the issuance of procedural regulations by the Federal Migration Service (competent authority for seafarers on foreign-flagged ships).
62. 29. As from 27 August 2002, the date when Convention No. 179 entered into force for the Russian Federation, the Government had failed to clearly designate a competent authority having the power to issue regulations, orders or other instructions having the force of law in respect of the recruitment and placement of seafarers. The Committee therefore concluded that on 27 July 2007, when the representation was lodged with the ILO, the Government had not fulfilled its obligation to designate a competent authority within the meaning of Article 1, paragraph 1(a), of the Convention to meet the requirements set out in Article 4, paragraph 2 of the Convention with regard to seafarers on Russian-flagged ships. It further considers that the Government had not fulfilled the same obligation with regard to seafarers on foreign-flagged ships.
63. 30. The Committee noted, however, that the Presidential Orders of 24 December 2008 and 11 August 2009 designated the competent authorities respectively as the Ministry of Health and Social Development for seafarers serving on Russian-flagged ships and the Federal Migration Service for seafarers serving on board foreign-flagged ships. The Committee therefore noted with interest that the obligation referred to above appears to be complied with at least as far as Russian-flagged ships are concerned. This decision, while it may have resolved the issue as of the date of these Orders, did not affect the legal situation prevailing until then.
64. 31. Concerning the question as to whether a single competent authority is to be designated, or whether several State entities could share the functions of competent authority, the Committee noted that the definition of "competent authority" in Article 1 of the Convention does not exclude the designation of more than one governmental agency as a competent authority for the purposes of the Convention. The Committee noted that the Government of the Russian Federation had undertaken consultations on the matter before taking a final decision on it.
65. 32. Concerning the allegations of non-compliance with the Convention of Order No. 797 of 23 December 2006, which approved the "Regulations concerning the licensing of activities related to the placement of the citizens of the Russian Federation outside the Russian Federation" of the same date, the Committee noted that they are applicable to all recruitment and placement agencies, without taking into account certain requirements of the Convention related to specificities of maritime employment when placing or recruiting seafarers abroad. The Committee noted that under Article 4 of Convention No. 179, national laws or regulations must cover the measures provided for. The Committee noted that the 2006 Regulations do not specifically address the issues covered by Article 4 of the Convention. They do not prohibit recruitment agencies from charging seafarers fees or other charges for recruitment or for providing employment. The Committee, therefore, concluded that the Government has not fulfilled its obligations under Article 4, paragraph 1(a) and (b), of the Convention.
66. 33. The complainant organization pointed to a number of shortcomings in the application of the Convention by recruitment and placement services. The Government submitted no information on this point. It appeared from the undisputed allegations of the complainant organization that supervision of recruitment and placement services by the competent authority had been lacking. The Committee, therefore, concluded that the Government has not fulfilled its obligations under Article 4, paragraph 2(a) and (b), of the Convention.
67. 34. The applicable "Regulations concerning the licensing of activities related to the placement of the citizens of the Russian Federation outside the Russian Federation" do not contain any provision prohibiting blacklisting. The Committee, therefore, concluded that the Government has not fulfilled its obligations under Article 4, paragraph 2(d), of the Convention.
68. 35. The applicable "Regulations concerning the licensing of activities related to the placement of the citizens of the Russian Federation outside the Russian Federation" do not require that recruitment and placement services adopt measures to ensure, as far as practicable, that the employer has the means to protect seafarers from being stranded in a foreign port, nor do they establish a system of protection, by way of insurance or an equivalent measure to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service to meet its obligations to them. The Government did not indicate any measures taken to ensure application of these requirements of the Convention. On the other hand, the complainant organization described several cases in which seafarers were stranded in a foreign port, without measures being taken by the employer, or means being provided to compensate them for the failure of recruitment and placement services to meet their obligations. The Committee, therefore, concluded that the Government had not fulfilled its obligations under Article 4, paragraph 2(e) and (f), of the Convention.
69. 36. The complainant organization described several cases in which complaints concerning activities of recruitment and placement services had been brought forward. It alleged that no machinery or procedures involving representatives of shipowners and seafarers existed for the examination of complaints, neither at the level of the recruitment and placement agencies, nor at the level of the competent authority. The complaints submitted did not lead to a satisfactory solution of the problem. The Government did not describe any existing machinery and procedures for the investigation of complaints, nor did it point to any cases in which a solution had been found. The Committee considered that the Government had not fulfilled its obligation under Article 6 of the Convention.
70. 37. Based on the above considerations, the Committee concluded that the Government should: (a) review the "Regulations concerning the licensing of activities in connection with the placement of Russian citizens in employment outside the Russian Federation" with respect to its application to seafarers, especially as regards the placing of Russian seafarers on ships under foreign flags; (b) take the necessary measures to implement the Regulations; and (c) hold bona fide consultations on the issue with the shipowners' and seafarers' organizations concerned as required by the Convention. The Committee noted that the provisions of Convention No. 179 have to a large extent been included in Title 1.4 of the Maritime Labour Convention, 2006, and thus that any review of the Regulations would also enable the Government to meet its equivalent obligations under the latter Convention, if the Government were to ratify it.
71. IV. The Committee's recommendations
72. 38. In the light of the conclusions set out above concerning the issues raised in the representation, the Committee recommends that the Governing Body:
73. (a) approve the present report;
74. (b) invite the Government to take, in consultation with the social partners, such measures as may be necessary to put in place effective measures through regulations or otherwise to ensure full compliance with the relevant provisions of Convention No. 179 as set out in paragraphs 32 to 37 above;
75. (c) entrust the Committee of Experts on the Application of Conventions and Recommendations (CEACR) with following up on the questions in this report and request the Government of the Russian Federation to submit a report to the forthcoming session of the CEACR in time to enable it to review progress made;
76. (d) make the present report publicly available and close the procedure initiated as a result of the representation of the Federation of Maritime Transport Trade Unions of the Russian Federation alleging non-observance of Convention No. 179.
77. Geneva, 18 June 2010.
78. (Signed) Mr C. Eriksson
79. (Chairperson)
80. Mr J. de Regil
81. Mr Y. Veyrier
82. Point for decision: Paragraph 38
83. Endnote 1
84. GB.300/21/3.