Solicitud directa (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Italia (Ratificación : 2013)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It notes that Italy has previously ratified 19 maritime labour Conventions that were denounced as a result of the entry into force of the MLC, 2006 for Italy. Following a first 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 II, paragraphs 1(f) and (i), 3 and 5. Scope of application. Seafarers. The Committee notes the Government’s indication that no cases of doubt have arisen as to whether any categories of persons are to be regarded as seafarers. It notes that, according to section 115 of the Navigation Code, seafarers are defined as staff in charge of: (i) deck and engine services and, in general technical services on board; (ii) complementary services on board; and (iii) local traffic and coastal fishing. The Committee notes under the Navigation Code, that the crew is composed of the master, officers, all other persons recruited for the service of the ship and the pilot when he serves on board (section 316). The Committee further notes that Legislative Decree No. 271 of 1999 “on adaptation of standards on the safety and health of seafarers on board national merchant and fishing vessels” applies to all “maritime workers” on board all ships in charge of maritime navigation and fishing, who are defined as persons who are part of the crew and carry out, in any capacity, any service or working activity on board a merchant ship or a ship engaged in fishing (sections 2 and 3(1)(n)). “Staff in charge of general and complementary services” is defined under the same Decree as the staff on board who is not part of the crew or the passengers and who is not employed for on board services (section 3(1)(o)). The Committee also notes that Legislative Decree No. 108 of 2005, which implements Council Directive 1999/63/EC of 21 June 1999 concerning the agreement on the organization of working time of seafarers, applies to “maritime workers” who work on board all merchant ships flying the Italian flag, defined as persons who are part of the crew and carry out, in any capacity, any service or working activity on board a merchant ship (sections 1(2) and 2(1)(d)). The Committee observes that an important part of the legislation implementing the provisions of the Convention only applies to seafarers who are part of the crew, and not to seafarers in charge of general and complementary services not directly linked to the navigation. It recalls that, under Article II, paragraph 1(f), of the Convention, “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies. It also 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. The Committee requests the Government to indicate the measures taken to ensure that the protection afforded by the Convention is guaranteed to all seafarers within the meaning of the Convention.

Article VI, paragraphs 3 and 4 – Substantial equivalence. The Committee notes that the Government has provided no information on the use of substantial equivalences. However, it notes that, according to the information available at the Office, some substantial equivalences are granted to ships on an ad hoc basis and are included in the Declaration of Maritime Labour Compliance (DMLC), part II. The Committee recalls that Article VI, paragraph 3 of the Convention provides that “a Member which is not in position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A”. The Committee draws the Government’s attention to its General Observation adopted in 2014, in which it indicated that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4 of the Convention, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the MLC, 2006. Ratifying Members, therefore, should assess their national provisions from the point of view of substantial equivalence, identifying the general object and purpose of the provision concerned (in accordance with Article VI, paragraph 4(a)) and determining whether or not the proposed national provision could, in good faith, be considered as giving effect to provisions of Part A of the Code as required by Article VI, paragraph 4(b). Any substantial equivalences that have been adopted must be stated in Part I of the DMLC that is to be carried on board ships that have been certified. The Committee requests the Government to indicate if it has adopted any substantial equivalences as permitted under Article VI of the Convention, through which procedure and on which issues.

Regulation 1.1 and Standard A1.1, paragraph 4. Determination of types of work, which are likely to jeopardize the health and safety of seafarers under 18 years. The Committee notes that, under section 5bis of Legislative Decree No. 271/1999, as amended by Act No. 115/2015, the Ministry of Labour and Social Policy shall adopt, within a prescribed time frame, a decree identifying the types of hazardous work prohibited for young workers under 18 years of age. The Government indicates that such types of work have not been determined yet. The Committee requests the Government to indicate the measures adopted to determine, after consultation with the shipowners’ and seafarers’ organizations concerned, the types of work likely to jeopardize the health and safety of seafarers under 18 years, as required by Standard A1.1, paragraph 4 of the Convention.

Regulation 1.2 and the Code. Medical certificate. The Committee notes that the legislation giving effect to this Regulation, in particular the Navigation Code and Royal Law Decree No. 1773 of 1933, as amended, only applies to seafarers registered as crew members, thus not covering the staff not directly involved in the navigation of the ship, such as waiters and hotel staff. The Committee requests the Government to indicate the manner in which effect is given to Regulation 1.2 and Standard A1.2 with respect to seafarers who are not members of the crew.

Standard A1.2, paragraph 4. Qualified medical practitioner. The Committee notes that under section 23(5) of Legislative Decree No. 271 of 1999, the doctor in charge of the medical examination of seafarers may be employed by a public or private institution that has an agreement with the shipowner, or self-employed or employed by the shipowner. The Committee recalls with regard to the latter possibility that, in accordance with Standard A1.2, paragraph 4 of the Convention, duly qualified medical practitioners must enjoy full professional independence in exercising their medical judgement. The Committee considers that this independence may be compromised if the practitioner is an employee of the shipowner. The Committee requests the Government to indicate how it gives effect to this provision of the Convention.

Regulation 2.1 and the Code – Seafarers’ employment agreements (SEA). The Committee notes the Government’s reference to the provisions of the Navigation Code implementing this Regulation and observes that such provisions as well as the model of SEA supplied by the Government, only apply to seafarers registered in the crew list. The Committee requests the Government to indicate the manner in which effect is given to Regulation 2.1 and the Code with respect to seafarers who are not members of the crew, and to supply a copy of a model seafarer’s employment agreement applicable to these seafarers.

Standard A2.1, paragraph 5. Periods of notice. The Committee notes that, with regard to minimum periods of notice for termination of employment, the Government refers to the provisions of a collective agreement. The Committee recalls that Standard A2.1, paragraph 5 of the Convention requires the adoption of laws or regulations establishing minimum notice periods for early termination of a SEA. It requests the Government to provide information on any laws or regulations adopted to ensure conformity with the requirements of Standard A2.1, paragraph 5.

Regulation 2.2. Standard A2.2, paragraphs 3 to 5 – Wages. Transmission of earnings to the family. The Committee notes that the Government has provided no information on the laws or regulations requiring shipowners to take measures to provide seafarers with a means to transmit all or part of their earnings to their families or dependants or legal beneficiaries, as provided by Standard A2.2, paragraph 3. The Committee notes that while one of the collective agreements transmitted by the Government (the one applicable to non-European Union resident seafarers working in the deck or engine departments on board ships in the Italian international register) deals with some aspects of this requirement, others do not include provisions on transmission of earnings to the family. The Committee requests the Government to indicate the measures adopted to ensure that the requirements set in Standard A2.2, paragraphs 3 to 5 are implemented with respect to all seafarers.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that section 11 of Legislative Decree No. 271/1999, as amended by Legislative Decree No. 108/2005, reproduces the provisions of Standard A2.3, paragraphs 3 and 5 of the Convention, thereby providing for the alternative between maximum hours of work and minimum hours of rest. It further notes the Government’s indication that it has chosen both regimes. The Committee recalls that, under Standard A2.3, paragraph 2 of the Convention, each Member shall fix either a maximum number of hours of work or a minimum number of hours of rest. The Committee considers that this choice has to be made by the competent authority and cannot be left to collective agreements. The Committee requests the Government to take the necessary measures to fix either a maximum number of hours of work or a minimum number of hours of rest in conformity with this provision of the Convention.

The Committee notes that section 16(1) of Legislative Decree No. 71/2015, which implements Directive 2008/35/EU of the European Parliament and of the Council amending Directive 2008/106/EC on the minimum level of training of seafarers, provides that officers in charge of watchkeeping and seafarers in charge of watchkeeping and safety or prevention of pollution shall enjoy a minimum period of rest of ten hours in any 24-hours, which may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive periods shall not exceed 14 hours. The Committee observes that section 16(1) does not refer to 77 hours of rest in a seven-day period which should be provided as required by Standard A2.3, paragraph 5. It further notes that, under section 16(2) of the same Decree, the minimum period of rest may be reduced to not less than six consecutive hours, provided that the reduction does not last for more than two days and that the period of rest in seven days is not less than 77 hours. The Committee observes that the exception provided under section 16(2) of Legislative Decree No. 71/2015 is not in conformity with Standard A2.3, paragraphs 5 and 6 of the Convention. The Committee recalls in this regard that the limits on hours of work or rest shall not exceed those established under Standard A2.3, paragraph 5 and that any exceptions to paragraphs 5 and 6 of this Standard which do not fall within those covered by paragraph 14 (immediate safety of the ship, persons on board or cargo, or assistance to other ships or persons in distress at sea), including those provided for in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, must follow the requirements of Standard A2.3, paragraph 13 and be provided by collective agreements. The Committee requests the Government to take the necessary measures to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6 of the Convention other than those justified under paragraph 14 of the same Standard, are only provided under the conditions fixed in Standard A2.3, paragraph 13 of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that the main law implementing this Regulation is Act No. 1045 of 1939 on hygiene and living conditions of crews on board national merchant vessels. In its 2011 observation on the Accommodation of Crews Convention (Revised), 1949 (No. 92), consolidated in the MLC, 2006, the Committee recalled that since the ratification of Convention No. 92 in 1981, the Government had failed to adopt laws or regulations giving effect to all of the detailed requirements of that Convention. For many years, the Government indicated that it intended to adopt new legislation or to revise Act No. 1045/1939. The Committee notes that no legislation has been issued in this regard and that no concrete progress has been made. The requirements of Regulation 3.1 and the Code are still dealt with by Act No. 1045/1939 that contains manifestly obsolete provisions and no longer corresponds to modern crew accommodation standards. The Committee recalls that Standard A3.1 calls on Members to adopt laws and regulations in order to ensure that ships flying its flag meet minimum standards for accommodation and recreational facilities. It requests the Government to take all the necessary measures to adopt legislation which fully implements Regulation 3.1 and the Code.

Regulation 3.2 and the Code. Food and catering. The Committee notes that, while the legislation cited by the Government as implementing this Regulation covers many of its requirements, the provisions of Act No. 1045/1939 on water, food, galleys, controls over the quantity and quality of food and water and inspections no longer correspond to modern standards on these matters. The Committee recalls that Standard A3.2, paragraph 1 of the Convention requires that Members adopt laws and regulations or other measures to provide minimum standards for the quantity and quality of food and drinking water and for the catering standards that apply to meals provided to seafarers on ships that fly their flag. Standard A3.2, paragraph 2 provides for minimum standards with respect to food and drinking water supplies, the organization and equipment of the catering department and training of catering staff. Referring also to its comments under Regulation 3.1, the Committee requests the Government to provide information on laws and regulations or other measures adopted to give effect to the requirements of Regulation 3.2 and the Code.

Standard A3.2, paragraphs 3 and 5. Ships’ cooks. The Committee notes that Circular No. 005 of 9 March 2010 provides that competent maritime authorities could allow, where there is lack of a qualified ship’s cook, to engage as ships’ cooks also seafarers who do not hold the diploma of qualification as a ship’s cook, provided that they comply with the following requirements: (a) having attended the basic training; (b) having turned 20 years of age; (c) holding the sanitary qualification to handle food; and (d) holding recognized diplomas (listed in the circular) and/or having work experience in the sector. The Circular provides that after 24 months of navigation in the kitchen service, the seafarer who wants to keep working as a ship’s cook shall pass the exam for the respective qualification. The Committee recalls that only ships operating with a manning of less than ten may not be required to have on board a fully qualified cook (Standard A3.2, paragraph 5). It requests the Government to indicate how it gives effect to Standard A3.2, paragraph 3, according to which shipowners shall ensure that seafarers who are engaged as ships’ cooks are trained, qualified and found competent for the position in accordance with national requirements.

Regulation 4.3 – Health and safety protection and accident prevention. The Committee notes that Legislative Decree No. 271/1999 aims, inter alia, at ensuring the protection of safety and health of seafarers and the prevention of accidents and occupational diseases. The Committee further notes that, while Legislative Decree No. 81/2008 (single legal text on occupational safety and health (OSH)) provides that regulations will be adopted within a set timeframe to coordinate its provisions with those of Legislative Decree No. 271/1999 on OSH on board, no such regulations have been adopted so far. The Committee recalls that under Regulation 4.3, paragraph 3, each Member shall adopt laws and regulations and other measures addressing the matters specified in the Code, taking into account relevant international instruments, and set standards for OSH protection and accident prevention on ships that fly its flag. The Committee requests the Government to provide information on any regulations adopted pursuant to Decree 81/2008 as well as on any other measures taken to give effect to Regulation 4.3, paragraph 3, and Standard A4.3, paragraphs 1 to 3.

National guidelines. The Committee notes the Government’s reference to Circular No. 09/SM of the Ministry of Infrastructures and Transport which, in relation to the establishment of a homogeneous safety plan for shipowners, refers to the ILO code of practice on accident prevention on board ships at sea and in port, which provides guidance on the implementation of Convention No. 134, and the International Maritime Organization Guidelines on the basic elements of a shipboard OSH programme. The Committee notes, however, that the Government provides no information on the development of national guidelines on OSH as required under Regulation 4.3, paragraph 2 of the Convention. The Committee draws the Government’s attention in this regard to the Guidelines for implementing the OSH provisions of the MLC, 2006, adopted in 2014. It requests the Government to provide information on the development, after consultation with representative shipowners’ and seafarers’ organizations, of national guidelines for the management of OSH, to protect seafarers that live, work and train on board ships flying its flag, and to provide a copy of them when available.

Safety committee. The Committee notes that section 12 of Legislative Decree No. 271/1999 provides for the establishment of a service of prevention and protection composed of seafarers. The service should represent the different categories of seafarers on board and be of sufficient number in relation with the typology of the ship and the type of navigation. Section 12(5) provides that for some ships, including those of less than 200 gross tonnage, the service can be established ashore and the responsible for the service and the staff can be nominated among shipowners’ bodies ashore. The Committee recalls that Standard A4.3, paragraph 2(d) of the Convention provides that a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. It requests the Government to provide information on the measures taken to give full application to this provision of the Convention.

Regulation 4.5 and the Code. Social security. Protection of residents working on ships flying a foreign flag. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10 of the Convention, the Government has specified the following branches of social security: sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit; and survivors’ benefit. It notes the Government’s indication that seafarers benefit, as all workers, from social security coverage provided under the Italian legislation. The Government provides information on the additional or ad hoc social security coverage for seafarers supplementary to the basic coverage for the nine branches specified. Noting that most of the legislation regulating social security for seafarers only applies to seafarers working on board ships flying the Italian flag, the Committee recalls that under Standard A4.5 paragraph 3, each Member shall take steps to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory, regardless of the flag of the ships they work on. The Committee requests the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in Italy, including those who work on board ships flying a foreign flag, are granted social security coverage in the branches specified, which is no less favourable than that enjoyed by shore workers resident in Italy, in conformity with Regulation 4.5 of the Convention. The Committee notes that the Government refers to the existence of bilateral and multilateral agreements on social security, but provides no information on whether and how these agreements ensure that the provisions of the Convention on social security are complied with. It requests the Government to provide further details on social security coverage of seafarers under these bilateral and multilateral agreements.

[The Government is asked to reply in full to the present comments in 2018.]