Demande directe (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

Convention du travail maritime, 2006 (MLC, 2006) - Norvège (Ratification: 2009)

The Committee notes the observations made by the Norwegian Confederation of Trade Unions, the Norwegian Shipowners’ Organization, the Norwegian Maritime Officers’ Association, the Norwegian Seafarers' Union and the Norwegian Union of Marine Engineers, received on 8 September 2014.

General questions on application. Information in the Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). Norway has previously ratified 20 maritime labour Conventions, all of which were automatically denounced on the entry into force of the MLC, 2006 for Norway. The Government provided a list of legislation implementing the Convention, but on most matters it has referred to the Declaration of Maritime Labour Compliance (DMLC) Part I and two examples of an approved DMLC Part II as containing sufficient information on national implementation. The Committee notes that, in a number of cases, including with respect to one of the two cases of substantial equivalence, the detailed information and references to national legislation appears to be incorrect and refers to legislation that has been repealed. Moreover, the information in one of the two DMLC Part II, which were prepared by shipowners and approved by the competent authority or an authorized organization, refers to other documents by name or numbers and does not contain an explanation with respect to the shipowner’s implementation of the national requirements. Neither document provides adequate information on the application in law or practice, nor do they appear to fulfil the purpose for which they are required under the MLC, 2006, which is to help all persons concerned, such as flag state inspectors, authorized officers in port States and seafarers, to check that the national requirements are being properly implemented on board ship. The Committee requests the Government to provide copies of a DMLC Part I and another example of a DMLC Part II that applies paragraph 10 of Standard A5.1.3 giving due consideration to the guidance provided in Guideline B5.1.3.

General questions on application. Scope of application. Article II, paragraphs 1(f) and (i), 3 and 5. Seafarers and ships. The Committee notes the observations of the Norwegian Confederation of Trade Unions, the Norwegian Shipowners’ Organization, the Norwegian Maritime Officers’ Association, the Norwegian Seafarers' Union and the Norwegian Union of Marine Engineers according to which:

[I]t is reported that Norway has excluded six categories of workers from the definition of “seafarer” under the convention. Five of these categories are covered by general Norwegian labour standards, which basically give them the same level of protection as the Norwegian standards implementing the MLC. However, regarding the “exclusion" of offshore project personnel we do not believe the report fully reflects their legal status in Norway. The ILO conventions for land-based personnel/fixed offshore installations are not applicable for offshore project personnel on ships. Neither is the Norwegian Labour Act applicable since it explicitly excludes ships from its scope. Henceforth, the Norwegian report could be construed to be interpreted as these workers are not protected. Fortunately, that is not the case. The MLC is basically implemented in two acts in Norway; the Ship Safety Act and the Ship Labour Act. The former act covers such personnel in its entirety, whereas the latter act covers such personnel, with a couple of exceptions. Furthermore, we would like to draw the attention to the fact that on many specialized offshore ships, typically Multi-Purpose Ships, such personnel contain around 80 per cent of the total numbers of workers on board, which could give the impression that Norway has excluded the vast majority of workers on board such ships from the fundamental rights set out in the convention.

The Government indicates that the term “seafarer” is defined in the Ship Labour Act of 21 June 2013 No.102 relating to employment protection for employees on board ships (Ship Labour Act) and the Ship Safety and Security Act of 16 February 2007 No. 9 (Ship Safety and Security Act), as well as Regulation of 19 August 2013 No. 990 concerning the scope of application of the Ship Labour Act. It further indicates it will be using the guidance provided in the Resolution concerning information on occupational groups (Resolution VII) adopted by the 94th Session of the International Labour Conference in order to determine if a person engaged on board a ship to which the Convention applies is a seafarer for the purpose of MLC, 2006 compliance. The Government indicates, in connection with information on cases of doubt, that after consultation with the shipowners’ and seafarers’ organizations concerned, as required under Article II, paragraph 3, it has determined that the following persons are not seafarers for the purpose of MLC, 2006 application: (a) personnel involved in project organizations on Offshore Service Vessels; (b) port workers, including travelling stevedores; (c) pilots and port officials; (d) ship surveyors and auditors; (e) equipment repair/service technicians and riding crew whose principal place of employment is on shore; and (f) guest entertainers who work occasionally and short term on board with their principal place of employment being on shore. The Committee notes that the Norwegian Union of Marine Engineers has observed that Norway as a flag State does not practise tripartite consultation.

The Committee further notes that the Ship Labour Act, section 1–2, states that it applies to any employee working on board Norwegian ships and that certain sections also apply to “other persons working on board Norwegian ships”. That section states that the Act does not apply to employees who only work on board while the ship is in port or serve Norwegian Armed Forces vessels, except for civilian personnel on board ships chartered by the Norwegian Armed Forces. Regulation No. 990 regarding the scope of application of the Ship Labour Act states in section 1 that the Ship Labour Act does not apply to persons who only work on board while the ship or mobile offshore unit is in port, or are on armed forces vessels, or only carry out inspections on board, or serve as pilots, or are covered by the Working Environment Act, and who perform work on board for a shorter period of time. Section 2 refers to employees to whom the Ship Labour Act applies in part. That section states that for employees performing work which in its nature does not form part of the ship’s ordinary operation, the Ship Labour Act shall apply with the exception of a paragraph of section 2–4 of the Act and that the certification of a ship under the Ship Labour Act is not to include these persons. Section 3 of the Regulation addresses the application of the Ship Labour Act to persons working on board mobile offshore units and provides that, for persons working on those units who were included in the manning certificate, the Ship Labour Act does apply to a certain extent. The Committee also notes that the Government refers to a Guidance Note on Norway’s implementation of the Maritime Labour Convention, 2006 dated 9 April 2013 (hereinafter, “Guidance Note”) which explains that mobile offshore units are not included under the ships to which the MLC, 2006 applies. The same document also provides information with respect to the application of the term sheltered waters, as addressed in the Regulation of 4 November 1981 No. 3792 concerning trade areas.

The Committee recalls that the MLC, 2006 does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered by the Convention. Such partial application is only possible where: (a) the workers clearly do not come within the definition of “seafarer”; or (b) the ship concerned is clearly not a “ship” covered by the Convention; or (c) a doubt can arise in regard to (a) or (b) above and a determination has been made, in accordance with the Convention, that the categories of workers concerned are not seafarers or are not working on ships covered by the Convention; or (d) the provisions in the Ship Labour Act that do not apply to such workers relate to subjects that are not covered by the MLC, 2006. The Committee requests the Government to provide clarification as to which workers are excluded from the application of which provisions of the Ship Labour Act, with an explanation as to the reasons for such exclusions in cases where a provision implements the MLC, 2006 and the workers concerned are not clearly outside the scope of the Convention. The Committee also requests the Government to provide its comments in relation with the observations of the Norwegian Union of Marine Engineers concerning tripartite consultations.

Regulation 1.1 and the Code. Minimum age. The Committee notes that the Ship Labour Act sets a minimum age of 16 years for working on board ship and that under section 9 of Regulation of 25 April 2001 No. 423 concerning work and placement of young people on Norwegian ships, persons under the age of 16 shall not be employed in paid work or receive any other remuneration from employment. However, the Regulation also applies to young people of at least 14 years of age who are placed on ships engaged on domestic voyages under work/training schemes as part of schooling or occupational orientation in practical work. In this regard, section 9 of the Regulation also regulates working time of persons between 14 and 16 years of age. With respect to the protection of persons under the age of 18 from potentially hazardous work, section 8 of the Regulation provides that the Norwegian Maritime Authority may grant exemptions from the provisions of this section where this is necessary for the vocational training of a young person and the work is carried out under the supervision of the master, a person authorized by the master, or a safety representative. The Committee recalls that paragraph 1 of Standard A1.1 of the MLC, 2006 prescribes that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited and does not provide for any exception. It also recalls that paragraph 4 of Standard A1.1 does not allow for any exception to the prohibition of hazardous work for persons under 18 years of age. The Committee requests the Government to take the necessary measures to ensure that no person under the age of 16 years is employed or work on board in any function. It also requests the Government to take the necessary measures to bring its legislation in line with paragraph 4 of Standard A1.1 of the MLC, 2006.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that paragraph 2 of Regulation 1.4 requires seafarer recruitment placement services operating in the Member’s territory to be operated in accordance with the provision of the Code. The Committee notes that section 3–9 of the Ship Labour Act requires employers that use recruitment and placement services to document that these services conform to the requirements of the Labour Market Act and that the Government indicates, with respect to the application of paragraph 2 of Standard A1.4 to any private services operating in its territory, that it has adopted Regulation of 19 August 2013 No. 999 on the use of recruitment and placement services on ships. The Committee notes that section 3 of the Regulation addresses flag State responsibility with respect to shipowners using recruitment and placement services operating in countries other than the Member, but that it does not provide specific information with respect to the regulation of private services that may be operating in Norway’s territory and, in particular, the obligations set out under paragraph 5 of Standard A1.4. The Committee notes that in 2010 it had requested similar information with respect to the implementation of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179). It also notes that the second paragraph of section 3 of the Regulation addresses the case of seafarer recruitment services operating in a country that has ratified either the MLC, 2006 or Convention No. 179. The Committee recalls that the MLC, 2006 does not contain exactly the same provisions as Convention No.179, particularly with respect to the requirements in paragraph 5(b) and (c)(vi) of Standard A1.4. The Government is requested to provide information on the application of paragraphs 2 and 5 of Standard A1.4 to any private service that may be operating in its territory and to clarify the situation with respect to the use of services operating in countries that have not ratified the MLC, 2006.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that the Government refers to the DMLC Part I on this matter and that the DMLC Part I contains information on legislation that has been repealed. It also notes that the Ship Labour Act and Regulation of 19 August 2013 No. 1000 on employment agreements and pay statements regulate seafarers’ employment agreements. It also notes that these do not appear to implement paragraphs 1(e) and 3 of Standard A2.1 regarding the seafarer’s record of employment, although section 16 of Regulation of 22 December 2011 No. 1523 concerning qualifications and certificates for seafarers refers to a record of service. In addition the Government did not provide a copy of the record of employment. The Committee requests the Government to provide information on the legislation implementing this Standard. It also requests the Government to supply an example of the approved document for seafarers’ records of employment, as well as a standard form example of a seafarers’ employment agreement.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that the legislation implementing the MLC, 2006 is the Ship Safety and Security Act (sections 23 and 24) and Regulation of 26 June 2007 No. 705 concerning hours of work and rest on board Norwegian passenger and cargo ships. The Committee recalls its comments under the Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180), in which it noted that, by virtue of section 6 of Regulation No. 705, the master of the ship is entitled to require a seafarer to perform any hours of work necessary for the immediate safety of the ship, persons on board or the cargo, or to render assistance to other ships or persons in distress at sea but also with a view to enforcing customs regulations, quarantine or other health-related issues. The Committee requests the Government to ensure that any suspension of the schedule of the hours of rest for reasons provided under section 6 of Regulation No. 705, only occurs when it is necessary for the immediate safety of the ship, persons on board or cargo or for the purpose of giving assistance to other ships or persons in distress at sea and therefore permissible under paragraph 14 of Standard A2.3 of the MLC, 2006. In the same comments under Convention No. 180, the Committee noted that there were ships registered in Norway operated on a two-watch system. The Committee notes section 4 of Regulation No. 705 providing that regular working hours may be exceeded on passenger ships with watch systems. It recalls that the two-watch system appears to represent a higher risk of fatigue than the three-watch system. It also recalls that paragraph 13 of Standard A2.3 of the MLC, 2006 allows for national laws or regulations or a procedure for the competent authority to authorize or register collective agreements permitting exceptions to the limits set out in the Convention. Any exception must, as far as possible, follow the provisions of the Standard but may take account of more frequent or longer leave periods or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ships on short voyages. In this connection, the Committee notes that under section 24 of the Ship Safety and Security Act, the provisions on hours of rest may be departed from in a binding collective agreement. The Committee requests the Government to provide information on the implementation of paragraph 13 of Standard A2.3 as regards watchkeeping seafarers. It further encourages the Government to consider measures which would allow the watchkeeping system of a ship to be fully taken into account when supervising compliance with applicable hours of rest standards and to transmit copies of any studies or empirical findings bearing on this matter.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that the Government did not provide any information on this matter, which must be implemented in its laws and regulations. It also notes that the Guidance Note refers to the Holiday with Pay Act, which appears to provide for 25 working days annual leave, and to Royal Decree No. 1285 of 12 December 1989 concerning entitlement to leave for seafarers. The latter does not appear to be available. Paragraph 2 of Standard A2.4 sets a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave. The Committee notes that the two sample collective agreements provided by the Government appear to provide for more than this minimum; however paragraph 1 of Standard A2.4 requires that the minimum entitlement be set out in legislation. The Committee requests the Government to provide information on legislation implementing Regulation 2.4 and the Code of the MLC, 2006.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that, in addition to the provisions in paragraph 2 of Regulation 3.1 for existing ships, paragraph 20 of Standard A3.1 provides for possible exemptions with respect to specific requirements for a particular category of ship after consultation with shipowner and seafarers organizations concerned. The Committee notes that in 2012 the Government adopted a Regulation concerning amendments to Regulation of 15 September 1992, No. 707 concerning the accommodation and catering services on ships, in order to implement the MLC, 2006. It notes that the amended Regulation No. 707, provides for possible exemptions in connection with specific matters, such as sleeping room size (e.g. section 15, subsection 3(b)) after consultation, as provided for under the Convention. It further notes that section 4 of the amended Regulation No. 707 provides that the Norwegian Maritime Authority may, in individual cases, and upon written request, grant exemptions from the requirements of the Regulation. These exemptions must be for special reasons, justifiable on the basis of safety and must not contravene international agreements that Norway has acceded to. The Committee recalls that Regulation 3.1 and Standard A3.1 do not provide for any exemptions other than those set out in the Convention, as indicated in paragraph 21 of Standard A3.1. It requests the Government to provide information with respect to any exemptions that have been granted under section 4 of Regulation No. 707 and whether the organizations of shipowners and seafarers have been consulted.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that the DMLC Part I refers to a law that has been repealed. The Committee understands that the Ship Safety and Security Act, Regulation of 1 January 2005 No. 08 concerning the working environment, health and safety of workers on board ship and Regulation of 9 March 2001 No. 439 concerning medical supplies on ships, implement Regulation 4.1 and Standard A4.1 of the MLC, 2006. The Committee recalls that paragraph 1 of Standard A4.1 includes “essential dental care” as a part of health protection and medical care. The Committee requests the Government to provide information on how it is ensured that the medical care available to seafarers on ships flying its flag includes essential dental care. Noting that the Government’s report does not contain information with regard to the standard medical report form to be adopted under paragraph 2 of Standard A4.1 of the MLC, 2006, the Government is requested to provide information on whether a standard medical report form has been adopted and, if so, to provide a copy of it.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the observations of the Norwegian Union of Marine Engineers, the Norwegian Shipowners´ Organization, the Norwegian Maritime Officers’ Association and the Norwegian Seafarers’ Union indicating that Norway has poorly developed welfare services for seafarers. The unions observe that there are currently discussions in Norway on whether the Norwegian Maritime Authority should continue its active role with regard to seafarers’ welfare and that the Government should continue to play a leading role, inter alia, in promoting the further development of seafarer welfare facilities in ports in Norway as well as other welfare services. They also observe that, regrettably, the Norwegian Maritime Authority has stated that it is not willing to take this role, and it remains to be seen what is the outcome of the discussions on this matter. The Committee refers to its comments of 2010 on Norway’s application of the Seafarers' Welfare Convention, 1987 (No. 163), in which it noted the observations of the Norwegian Seafarers’ Union, according to which the Norwegian Government Seamen’s Service (NGSS) budget had been decreased to around 10 per cent of its 1980 level, and that government officials had even suggested that welfare services should be charged to the seafarers. The Norwegian Seafarers’ Union added that the Government had become dependent on the efforts of seamen’s churches and charity organizations to distribute newspapers and books. The Committee requests the Government to provide information on measures taken to promote the development of adequate welfare facilities as required under Regulation 4.4 and Standard A4.4 of the Convention.

Regulations 5.1.1, 5.1.2, 5.1.3, 5.1.4, and the Code. Flag State responsibilities. The Committee notes the Government’s information that new legislation has been implemented and a new system for inspection has been set up. The Government also refers to a Regulation on certification to be adopted in September 2014. The Committee notes the Government’s reference to the Guidance Note, which to some extent explains the process envisaged. It notes that the Government has not provided copies of requested material or information on a significant number of matters with respect to the inspection system. The Committee refers, in connection with the application of paragraph 10 of Standard A5.1.3 and the guidance provided for in Guideline B5.1.3, to its comments above regarding the DMLC Part I and one of the two examples of an approved DMLC Part II. It notes that the MLC, 2006 has been in force for Norway since 20 August 2013 and that ships have been inspected and certified since that time. The Committee therefore requests the Government to provide more detailed information on the legislation and the inspection system mentioned in its report and to provide the requested documentation for flag State inspection activities.

Regulations 5.2, 5.2.1 and 5.2.2 and the Code. Port State responsibilities. The Government indicates that it is a member of the Paris Memorandum of Understanding on Port State Control (PMoU), and that port State control is governed by the PMoU Instructions which are made binding through EU directive 2009/16/EC, and Norwegian Regulation of 30 December 2010 No. 1849 on port State control. It further indicates that it has 56 authorized officers. However, it has not provided the requested copy of the inspection guidelines or statistics (or alternatively a copy of the report to the PMoU). In connection with Regulation 5.2.2 and the Code, the Government refers to Regulation No. 1849, sections 34–36, and indicates that four complaints have been received and reported through the PMoU database and that the Government does not keep separate records. The Committee recalls that, in accordance with paragraph 6 of Standard A5.2.2, in the case of unresolved complaints, a copy of the authorized officer’s report is to be transmitted to the Director-General (together with any flag State reply) and that the shipowners’ and seafarers’ organizations in the port must similarly be informed. It requests the Government to provide the requested documentation for port State inspection activities and to indicate whether information concerning any unsolved complaints was also provided to the appropriate shipowners’ and seafarers’ organizations in accordance with paragraph 6 of Standard A5.2.2 of the MLC, 2006.

Regulation 5.3 and the Code. Labour-supplying responsibilities. The Committee refers to its request with respect to the implementation, including enforcement, of Regulation 1.4 and the Code, for any services operating in Norway’s territory.

[The Government is asked to reply in detail to the present comments in 2016.]