Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention du travail maritime, 2006 (MLC, 2006) - Suisse (Ratification: 2011)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006) and welcomes the important steps taken by the Government and social partners towards the full implementation of the Convention. The Committee notes that the amendments to the Code, approved by the International Labour Conference in 2014, entered into force for Switzerland on 18 January 2017. It further notes that the Government’s report was received before the entry into force of the 2014 amendments. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article I. General obligations. Implementing measures. The Committee notes the Government’s indication that due to the monism of the Swiss legal system, international treaties, once ratified, are automatically applicable at the national level. It further notes that the Government transmitted, in November 2018, a copy of the collective agreement of employment (CAE) concluded on 5 December 2016 and entered into force on 1 January 2017 between the Swiss Shipowners Association and the Trade Union Nautilus International Switzerland. The Government indicated that this agreement is binding upon all Swiss shipowners.

Article II, paragraphs 1(i) and 5. Definitions and scope of application. Ships. In its previous comment, the Committee noted that section 9, paragraph 2, of the Navigation Ordinance dated 20 November 1956, as amended, applies also to ships of less than 500 gross tonnage, and that the Swiss Maritime Navigation Office (SMNO) may permit derogations in particular cases as long as concerns with respect to human safety and security are assured. The Committee recalled that under the Convention, exemptions are possible to a limited extent and only where they are expressly permitted by the Convention, and requested the Government to explain what circumstances are contemplated under section 9, paragraph 2, of the Navigation Ordinance. The Committee notes the Government’s explanation that in principle, section 9, paragraph 2, leaves the possibility open to put smaller vessels under the control of international treaties. The Government further indicates that there are no Swiss commercial vessels under 500 gross tonnage and that this rule does not apply to yachts as they are banned from commercial activities. The Government concludes by indicating that possible exemptions will be decided if the situation evolves in the future. The Committee requests the Government to ensure that any derogation adopted in the future is limited to those allowed by the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. In its previous comment, the Committee noted that Swiss legislation does not contain provisions with respect to the opportunity for the seafarer to examine the agreement before signing, as required by the Convention. In this regard, the Committee notes the Government’s indication that Swiss monistic legal system is applicable in principle to this provision of the Convention. The Committee further notes the Government’s reference to the CAE which provides, in section 2(7), that the seafarer has to be given the opportunity to examine and seek advice before signing the contract of employment.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee noted in its previous comment that section 80 of the Navigation Act provides that on the request of a crew member a certificate can be issued by the master stating only the nature and duration of the service on board which, for Swiss citizens, must be entered in the seamen’s book. On special request, a seafarer can be issued a certificate showing the seafarer’s quality of work and behaviour. The Committee recalled that under Standard A2.1, paragraphs 1 and 3, seafarers are entitled to a record of employment which must not contain any statement as to the quality of the seafarer’s work or wages and requested the Government to provide clarifications on this issue. The Committee notes the Government’s explanation that Swiss legislation distinguishes between record of employment and a certificate of employment. While the first contains no reference to the quality of the job, the latter, issued exclusively at the request of the seafarer, contains qualifying comments and is essential if a person is looking for a new job or decides to change its professional field. In these cases, a simple record of employment would be to the detriment of the seafarer.

Regulation 2.2 and Standard A2.2, paragraphs 3 and 5. Wages. Allotments. In its previous comment, the Committee noted that the legislation does not provide for measures taken by shipowners to provide seafarers with a means to transmit all or part of their earnings to their families or dependants or for a requirement that charges for these services be reasonable and requested the Government to provide information on how it implements the requirements under Standard A2.2. In its reply, the Government refers to the Swiss monistic legal system noting that Regulation 2.2 is valid in Switzerland ipso facto and indicates that it had invited the social partners to include this issue in the CAE. In this regard, the Committee notes section 3.3 of the CAE which provides that the shipowners shall take measures to provide seafarers with means to transmit all or part of their earnings to their families or dependants or legal beneficiaries. Charges for transferring allotments shall be reasonable in amount, and the rate of currency exchange, unless otherwise provided, shall, in accordance with national laws or regulations, be at the prevailing market rate or the official published rate and not unfavourable to the seafarer.

Regulation 2.4 and Standard A2.4, paragraphs 1 and 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. In its previous comment, the Committee noted that section 38 of the Navigation Ordinance addresses the entitlement to paid annual leave and refers to the minimum paid annual leave under section 329a of Law of Obligations. This section provides that the employee is entitled, for each year of service, a minimum of four weeks of paid annual leave and at least five weeks to employees under the age of 20. The Committee recalled that Standard A2.4, paragraph 2, 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 CAE currently in force provides for more than this minimum (section 10.1 provides not less than, for officers, six days per month of sea service, and for ratings, five days per month of sea service); however, Standard A2.4, paragraph 1, requires that the minimum entitlement be set out in legislation. The Committee also recalled that Regulation 2.4, paragraph 2, requires that seafarers be granted shore leave to benefit their health and well-being and consistent with the operational requirement of their positions. In its reply, the Government refers to Swiss monistic legal system noting that Regulation 2.4 is applicable in Switzerland ipso facto. It further indicates that section 10.1 of the CAE covers all the provisions of Regulation 2.4 and the Code. The Committee further notes the Government’s indication that the same reasoning applies to the obligation to grant shore leave and refers to the provisions of section 10.3 of the CAE.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. In its previous comment, the Committee noted that repatriation is provided for under sections 82 and 83 of the Navigation Act and also, in more detail, in Circular No. CH 43-4 (dated 1 January 2012) as well as in the CAE. The Committee also noted that these provisions do not provide for the maximum period of service following which a seafarer is entitled to repatriation. The Committee requested further information about compliance with Standard A2.5.1, paragraph 2(b) (maximum duration of service on board following which a seafarer is entitled to repatriation, such period to be less than 12 months). In its reply, the Government refers to Swiss monistic legal system noting that Regulation 2.5 is applicable in Switzerland ipso facto. It adds that Circular No. CH 43-4 will be amended to address the issue of maximum period of service on board (less than 12 months). The Government emphasizes that social partners were invited to include a relevant article in the CAE. In this connection, the Committee notes section 15(1) of the CAE providing that the seafarer shall be entitled to repatriation at the Company’s expense, either to the place at which he entered his engagement or to his country of residence or to such other place as may be mutually agreed at the time of engagement, on the valid termination of his period of employment: (a) if the contract is of a limited period, at the end of that period; the maximum duration of continuous service on board following which a seafarer is entitled to repatriation shall be less than 12 months; and (b) if the contract is of an unlimited character, after six months continuous service on board. The Committee further noted that Circular No. CH 43-4, section 5, “Loss of the right to repatriation”, provides under point 5.1.2 for the loss of entitlement to repatriation in the case of the seafarer “entering into a new agreement with the same owner, immediately after his or her discharge”. The Committee requested further information on the basis on which the right of repatriation can be lost. While noting the Government’s reference on this point to the direct application of the Convention, the Committee observes that the situation foreseen in Circular No. CH 43-4 is not in conformity with the Convention. Indeed, the Convention does not provide for the loss of the entitlement to repatriation when the circumstances foreseen in Standard A2.5.1, paragraph 1, are met. The only case where this entitlement may lapse is where the seafarers concerned do not claim it within a reasonable period of time, in accordance with Guideline B2.5.1, paragraph 8. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to ensure that any provision in the national legislation depriving seafarers of this right is limited to the circumstances allowed under the Convention. It therefore requests the Government to review section 5 of Circular No. CH 43-4 to ensure conformity with the Convention.

Regulation 2.5. Standard A2.5.2, paragraph 1. Repatriation. Financial security. Abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. It notes that the revised version of Marine Order 11 came into effect on 1 May 2015 and gives effect to the requirements of Standard A2.5.2. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee had requested clarifications on exemptions adopted regarding accommodation and recreational facilities. The Committee notes the Government’s indication that the old Swiss Navigation Act is relevant for ships whose keel was laid before 2 February 2011 and that this Act reproduced the Accommodation of Crews Convention (Revised), 1949 (No. 92), and Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133). It adds that Regulation 3.1 is applicable for all ships whose keel was laid after 2 February 2011 and that, on delivery of every newly constructed vessel, the relevant Recognized Organization must verify the crew accommodation and deliver a statement of compliance. No Maritime Labour Certificate will be delivered in the absence of such documentation.

Regulation 3.2 and the Code. Food and catering. In its previous comment, recalling that Standard A3.2, paragraph 8, provides that seafarers working as ships’ cooks must not be less than 18 years old, the Committee requested the Government to clarify how effect is given to this requirement of the Convention. The Committee notes that the Government refers to the direct application of the Convention in this regard.

Regulation 4.1 and the Code. Medical care on board ship and ashore. In its previous comment, the Committee noted that although both the Navigation Ordinance and the Navigation Act contain requirements with respect to insurance and provisions regarding the cost of medical care including a certain kind of dental care, it was not clear what is required with respect to access to health protection and medical care, set out under Standard A4.1, while seafarers are on board ship. Furthermore, the Committee noted that the DMLC, Part I, refers to section 42 of the Navigation Ordinance relating to section 7 of a Specimen Contract for the insurance of the members of the ship’s crew, the CAE and Standard A4.1, paragraph 1(d), and states that seafarers may be required to pay up to 20 per cent of treatment in case of illness, subject to a limit of one half of one month’s basic wage and a “franchise of US$30 per case of illness”. The Committee recalled that Regulation 4.1, paragraph 2 provides that “the protection and care under paragraph 1 of this Regulation shall, in principle, be provided at no cost to the seafarers” and that Standard A4.1, paragraph 1(d), provides that, “to the extent consistent with the Member’s national law and practice, medical care and health protection services while a seafarer is on board ship or landed in a foreign port are provided free of charge to seafarers”. In its reply, the Government indicates that in principle the Swiss system of Health Insurance foresees an annual franchise as well as cost sharing if the medical costs exceed the annual franchise in accordance with section 64 of the Health Insurance Act in conjunction with section 103 Health Insurance Ordinance. This principle is reflected also in the system of health insurance for seafarers under section 7 Navigation Ordinance and in the CAE, under section 11.8. The Government further points out that it has requested all shipowners to state clearly, whether they apply the 20 per cent charges on a seafarer’s account as well as the franchise of US$30 according to section 11.8 of the CAE. The replies received show that some shipowners do apply a franchise and others do not. However, the Government emphasizes that medical care in case of illness on board is free of any contribution by the seafarer as is medical care in case of injury. Finally, the Government indicates that the social partners are invited to discuss the matter during the forthcoming negotiation. The Committee recalls that under Standard A4.1, paragraph 1(d), each Member shall ensure that, to the extent consistent with the Member’s national law and practice, medical care and health protection services while a seafarer is on board ship or landed in a foreign port are provided free of charge to seafarers. The Committee requests the Government to indicate how it ensures that this requirement of the Convention is implemented in all cases regarding seafarers on board ships flying the Swiss flag or landed in a foreign port.

Regulation 4.2 and Standard A4.2.1, paragraphs 8–14 and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.5 and the Code. Social security. The Committee recalls that, upon ratification, the Government specified the following branches of social security as being provided to seafarers ordinarily resident in Switzerland: medical care, sickness benefit, and employment injury benefit. The Committee requested the Government to indicate whether seafarers ordinarily resident in Switzerland working on ships flying the flag of another country are provided with social security protection as required under Regulation 4.5 and the Code. The Committee notes the Government’s indication that all seafarers resident in Switzerland must be ensured for medical care (including maternity benefit). It further notes, however, that according to the Government, when seafarers resident in Switzerland work on board ships flying another country’s flag, and in the absence of a bilateral social security agreement, they are ensured regarding old-age benefit, maternity benefit, family benefit, invalidity benefit, survivor benefit and unemployment benefit. While noting this information, the Committee requests the Government to indicate how seafarers ordinarily resident in Switzerland working on ships flying the flag of another country are provided with social security protection regarding sickness benefit and employment injury benefit and to indicate the relevant national provisions. The Committee further requests the Government to indicate the approximate number of seafarers ordinarily resident in Switzerland and working on ships flying another country’s flag.

Regulation 5.1.2, paragraph 2; Standard A5.1.2, paragraph 1. Review the competency and the independence of recognized organizations. The Committee noted in its previous comment the names of recognized organizations that the Government had authorized to carry out flag State inspections on its behalf. It requested the Government to provide information as to how it reviewed the competency and independence of the organisations concerned as required under Standard A5.1.2, paragraph 1. The Committee notes that while the Government indicates that all admitted Recognized Organizations are members of the International Association of Classification Societies (IACS), it does not provide information as to how it implements this provision of the Convention. The Committee recalls that under Standard A5.1.2, paragraph 1, the competent authority shall review the competency and independence of recognized organizations and requests the Government to indicate how it gives effect to this requirement of the Convention.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. In its previous comment, the Committee requested that the Government consider amending the Declaration of Maritime Labour Compliance (DMLC), Part I, to implement Regulation 5.1.3, paragraph 10, giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements. The Committee notes the Government’s indication that the entry into force of the 2014 amendments would require an amendment to the DMLC, Part I, and that it would use that opportunity to consider the Committee’s request. The Committee requests the Government to submit a copy of the amended DMLC, Part I, with its next report.