Solicitud directa (CEACR) - Adopción: 2014, Publicación: 104ª reunión CIT (2015)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Bosnia y Herzegovina (Ratificación : 2010)

General questions on application. Implementing measures. The Committee notes the first report provided by the Government on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee recalls that, in addition to the fundamental and governance Conventions, Bosnia and Herzegovina has previously ratified and provided article 22 reports on the application of 12 maritime labour Conventions, all of which were automatically denounced on entry into force of the MLC, 2006 for Bosnia and Herzegovina. The Committee notes that the Government indicates, as it has previously, that Bosnia and Herzegovina does not have any specialized maritime legislation implementing the Convention and that it has no “mercantile marine or naval force”, to which the requirements under the Convention would apply, even if legislation was adopted. The Government also indicates, as it has in the past, that there are “1,000 registered seafarers” in its territory, all of whom are working on ships operating under the flag of other countries and, that, there are no registered seafarers’ or shipowners’ organizations in Bosnia and Herzegovina. The Committee notes that similar information was provided by the Government in 2011 in its first report on the application of the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), although, at that time, the Government also indicated that “the establishment of a maritime administration and development at the state level were in process and that institutional arrangement and the adoption of laws would regulate the issue of the Register of Ships and the ‘state flag’ and other issues”. The Committee notes that the Government’s recent (2014) information with respect to Convention No. 185 and the MLC, 2006, does not contain the same information regarding the establishment of a maritime administration.

The Committee notes the Government’s indication that there is no applicable maritime law and that it has not taken any steps to adopt legislation to implement the Convention, although it has provided information on the Labour Law and other regulations that could be relevant to the question of application. However, the Committee notes that in 2005 the Government adopted the Internal and Maritime Navigation Act (No. 73/05) and that the Government has listed this Act as one of the implementing laws and regulations but does not refer to any specific provisions in the Act as implementing any of the requirements under this Convention.

The Committee also notes that the Government refers to a lack of access to the sea for two of its entities. However, the Committee observes that, although this information is relevant to port State responsibilities and other obligations relating to access to shore-based facilities, the Convention contains a number of important requirements that are primarily directed to Members in their role as countries with labour-supplying responsibilities. In this respect, the Committee notes that, even if Bosnia and Herzegovina does not currently have a ship registry or operate as a flag State for ships to which the Convention requirements would apply, it still has responsibilities to apply these other requirements, in accordance with the Convention. As discussed in greater detail below, the Committee notes at the outset the two most important labour-supplying responsibilities: the obligation to exercise jurisdiction and control over seafarer recruitment and placement services, if they exist in the Members’ territory; and the obligation of each Member to take steps according to its national circumstance to provide at least three branches of social security to all seafarers ordinarily resident in its territory.

The Committee recalls that in its previous comments on the application of maritime labour Conventions, the Committee has taken note of the Government’s information about the situation in the maritime sector in Bosnia and Herzegovina and has requested the Government to continue to provide information on any changes in the present situation and to report on any future developments in the maritime sector, which would have a bearing on the application of the Convention. As noted above the Government indicates that the situation in Bosnia and Herzegovina has not changed. The Committee notes the importance of the Government taking steps to move forward to implement the MLC, 2006, in its laws or regulations and other measures, particularly on the matters identified below. Accordingly the Committee strongly encourages the Government to avail itself of ILO technical assistance. The Committee also requests the Government to report on any future developments in the maritime sector, which would have a bearing on the application of the flag State requirements of the Convention.

General questions on application. Article II, paragraph 1(f) and (i). Definition of seafarers and ships. The Committee notes the Government’s information with respect to the number of registered seafarers and the information that the definition of seafarer covers any person employed in any capacity on board a ship. However, the Committee notes that it is not clear whether legislation exists that defines a seafarer for the purpose of registration. The Committee also notes the Government’s indication, in the report it submitted in 2014 on Convention No. 185, that there is an instrument described as a Rule Book on Maritime and Ship Booklets (Nos 14/01 and 31/10). The former has previously been the subject of direct requests for further information as the Committee did not, and still does not, have access to that legislation. As noted above, the Government also indicates that there is no “mercantile marine or naval forces” to which the Convention would apply; however, there is no information provided on the definition of these terms or on the kinds of ships that are regulated by the Internal and Maritime Navigation Act (No. 73/05). In that respect the Committee also notes the statistical data provided by the Government which indicates that there are 300 seafarers working on ships that are covered by the Convention. The Committee requests the Government to provide information with respect to these matters, including the extent to which the Internal and Maritime Navigation Act (No. 73/05) may be relevant to the implementation of the requirements in the Convention.

Regulation 1.1 and the Code. Minimum age. Regulation 1.2 and the Code. Medical certificate. The Committee notes the Government’s statement that the minimum age for seafarers is 18 years and, therefore, the provisions regarding night work and restrictions on work for seafarers under 18 years and, in connection with shorter validity periods of medical certificates for seafarers under 18 years, are not relevant. The Committee notes, in this respect, that the Government has not identified its national legislation establishing the minimum age of 18 years for seafarers. The Committee recalls that, under Convention No. 16, the Government has indicated that the Labour Law contains relevant protections for minor workers between the ages of 15 and 18 years. It also recalls that, under Convention No. 185, the Government has indicated that its “shipping or seamans’ booklet” contains information on seafarer’s employment records, identity and qualifications that, in accordance with the Rules, can be issued to a person “who is aged 16”. The Committee requests the Government to provide additional information with respect to the legislation establishing the minimum age of 18 for seafarers.

Regulation 1.4 and the Code. Recruitment and placement. Regulation 5.3 and the Code. Labour-supplying responsibilities. Article V, paragraph 5. The Committee notes the Government’s indication that there are no private or public services operating in the country to provide placement services for seafarers and that there is only a general system of public employment services for all workers. However, the Committee also notes the Government’s indication that there are about “1,000 seafarers registered in its entire territory”, engaged on foreign-flagged ships. The Committee recalls that, although Regulation 1.4 and the Code have several provisions that are flag State responsibilities, it is primarily directed to Members that have recruitment and placement services operating in their territory, which is usually the place of residence of the seafarers that are recruited. The Committee also recalls that the Convention, does not require that such services be established but, in accordance with paragraph 5 of Article V, if they exist in the Member’s territory, then “Each Member shall effectively exercise jurisdiction and control” over them. This would include the obligations set out in Regulation 1.4 and the Code, and the enforcement obligations set out in Regulation 5.3 and paragraph 1 of Standard A5.3, with due consideration given to Guideline B5.3.

The Committee notes that it is not clear from the information provided by the Government how the 1,000 registered seafarers in the territory are engaged to work on foreign-flagged ships. The Government’s reference to registration suggests that there is a system in place for registering seafarers and identifying them as seafarers. In that respect, the Committee recalls, as noted above, the reference to the “seamans’ booklet” under the Rule Book on Maritime and Ship Booklets. The Committee further notes that the Government has not indicated the extent to which the general public employment service might be providing this service to seafarers and shipowners. If it is operating as a seafarer recruitment or placement service, then the Committee draws the Government’s attention to the requirement under paragraph 1 of Standard A1.4, to ensure that it “is operated in an orderly manner that protects and promotes seafarers’ employment rights as provided for in this Convention” and that due consideration is to be given to the provisions in Guideline B1.4. The Committee requests the Government to provide information regarding the process by which seafarers obtain work on ships flying the flag of another country and to provide information regarding the extent to which the general public employment service may recruit or place seafarers.

Regulation 2.1 and the Code. Seafarers’ employment agreement. The Committee notes that Government’s indication that, since it does not have a lex specialis regulation for seafarers, the provisions of the Convention, are implemented through the general Labour Law. The Committee recalls that although the requirements in Regulation 2.1 and the Code are primarily directed to flag States (see paragraph 1 of Standard A2.1), to the extent that seafarers may be entering into employment agreements in the Member’s territory, that are possibly governed by its national law, then the requirements in Regulation 2.1 and the Code would need to be implemented in legislation. Although the Convention does not establish a standard format for a seafarers’ employment agreement, the agreements must include the matters set out in paragraph 4 of Standard A2.1. The Committee notes that, since an example of an employment agreement was not provided by the Government, it is not possible to assess the extent to which agreements regulated by the Labour Law are consistent with Regulation 2.1 and the Code.

The Committee also notes that the Government has not provided an example of the document that contains the record of employment as required under paragraphs 1(c) and 3 of Standard A2.1. However, it notes that the Government’s information on Convention No. 185 refers to the Rule Book on Maritime and Shipping Booklets (Nos 14/01 and 31/10). Nevertheless it is not clear whether this booklet would be considered as the document that implements the requirements in Standard A2.1 regarding the record of employment.

The Committee notes the Government’s statement that seafarers are not obliged to sign agreements. However, as noted above, the Government has not provided information as to whether seafarers enter into employment agreements in Bosnia and Herzegovina, and if they do, whether, in accordance with paragraph 2 of Regulation 2.1, a law or regulation requires that they are given an opportunity to review and seek advice on the terms and conditions before signing.

The Committee also notes that the Government’s indication that the Labour Law allows for shorter notice periods and termination without notice in some specific circumstances. However, the Government has not indicated whether this would also take account of seafarers’ need for shorter notice periods for compassionate or other urgent needs, as required under paragraph 6 of Standard A2.1. The Committee requests the Government to provide further information on these matters and to provide an example of the approved document for the seafarers’ record of employment.

Regulation 2.8 and the Code. Career and skill development and opportunities for seafarers’ employment. The Committee notes that the Government’s report provides no information concerning career and skill development and opportunities for seafarers’ employment. The Committee draws the Government’s attention, in this respect, to Regulation 2.8 and the Code, which require the adoption, by all Members who have seafarers domiciled in their territories, of policies to encourage career and skill development and employment opportunities for seafarers. The Committee requests the Government to provide information with respect to any policies that it has adopted to encourage career and skill development and employment opportunities for seafarers domiciled in its territory.

Regulation 4.5 and the Code. Social security. The Committee notes that the Government indicates that it does not provide any of the branches of social security to seafarers ordinarily resident in its territory. The Committee also notes that the Government indicates that social security is linked to the employer’s headquarters and if the employer’s headquarters are located in Bosnia and Herzegovina then the national social security applies, irrespective of the employee’s residence, and that family members are also covered, if they are eligible under the national law. The Government explains, however, that “social security is not linked to the residence of seafarers or workers in general but to the seat of employers and, in accordance with international agreements, the social security is linked to the country whose flag the ship flies. Consequently it is not even theoretically possible for the said person not to have adequate social security.” In that respect the Committee notes that Government’s information that there are 1,000 registered seafarers in its territory engaged to work on foreign-flagged ships and that there is no “mercantile marine or naval force” to which the Convention would apply.

The Committee notes that if there are no employers’ (shipowners’) headquarters located in Bosnia and Herzegovina, then it would seem that the seafarers working on foreign-flagged ships may not be covered under the national social security system. Moreover, the Committee notes that, while the Government refers to 21 bilateral agreements relating to social security, it is not clear whether they apply to the 1,000 registered seafarers ordinarily resident in its territory. It does not appear, therefore, that the Government is implementing the requirements under paragraphs 2 and 3 of Standard A4.5 which require each Member to take steps according to its national circumstances to provide at least three branches of social security to all seafarers ordinarily resident in its territory.

The Committee recalls that, upon depositing its instrument of ratification of the Convention in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specified the following branches of social security: medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, maternity benefit, and survivors’ benefit. The Committee also recalls that this obligation may be implemented in a number of ways, as set out in paragraphs 3 and 7 of Standard A4.5, and that the attribution of responsibility may also be the subject of bilateral and multilateral agreements adopted within the framework of a regional economic integration organization, as provided under paragraph 4 of Standard A4.5. The Committee requests the Government to provide information on how it is implementing its obligations under paragraphs 2 and 3 of Standard A4.5 to provide social security protection in at least three branches to seafarers ordinarily resident in its territory, and in particular, whether the bilateral agreements it has adopted address this matter and ensure that seafarers ordinarily resident in Bosnia and Herzegovina who are working on ships that the fly the flag of another country, are provided with social security in the six branches specified by the Government when it ratified the Convention.

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