Maritime Labour Convention, 2006 (MLC, 2006) - Netherlands (Ratification: 2011)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It also notes that the Netherlands has indicated that it will be bound by the amendments to the Code of the Convention, approved by the International Labour Conference in 2018, only after a subsequent express notification of their acceptance pursuant to Article XV, paragraph 8(a). The Committee notes the observations of Nautilus International (Nautilus) and the Royal Association of Netherlands Shipowners (KVNR) communicated with the Government’s report.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. 1. Noting that, while the Seafarers Act defines the term “seafarer” in accordance with the Convention, the Dutch Civil Code (DCC) does not contain a definition of this term, the Committee requested the Government to re-examine this issue, in consultation with the social partners, to ensure that all the persons falling under the definition of seafarers pursuant to the MLC, 2006, are covered by its protective provisions. The Committee notes the Government’s indication that a person who is defined as a seafarer under the Seafarers Act but who does not have a seafarers’ employment agreement (SEA) is also entitled to certain protection under the DCC. For example, section 7:737 DCC provides that anyone who engages in duties on board a ship otherwise than under an employment agreement, and regardless of the applicable law, is subject to sections 7:718 (repatriation), 7:719 (compensation in case of shipwreck or other disaster) and 7:720 (compensation in case of death of a seafarer). Thus, the Government considers that all seafarers on board ships flying the Dutch flag are guaranteed the protection provided for in the MLC, 2006. The Committee notes that Nautilus and KVNR indicate that “the scope [of the DCC] is currently not sufficiently clear… Such an unclarity can be an obstacle for ensuring the protection of seafarers pursuant to MLC, 2006, especially for seafarers who wish to enforce the protection granted to them”. In this regard, they refer to the situation of personnel on special purpose ships. The Committee requests the Government to provide its comments in this regard. With regard to section 7:737 DCC, the Committee recalls that all the provisions of the Convention (and not only those implemented by sections 7:718, 7:719 and 7:720 DCC) apply to all seafarers covered by it (Article II(1)(f) and (2)), regardless of whether they work on board under a SEA or other contractual or similar arrangements (Standard A2.1, paragraph 1(a)).The Committee requests the Government to: (i) provide examples of categories of seafarers falling in practice under section 7:737 DCC; and (ii) indicate the measures taken to harmonize its legislation in order to ensure that all seafarers under the scope of the Convention, including those who do not work on board under a SEA, are effectively covered by the protection it affords.

2. The Committee notes that, in reply to its previous comments, the Government clarifies the grounds for the exclusion from the definition of seafarer of “other persons whose duties are not part of the regular duties on board within the framework of the use of the ship” (section 1.2(e) of Regulation of the Minister of Infrastructure and the Environment, of 12 October 2012, No. IENM/BSK-2012/158694 (hereafter, Seafarers Regulation)). In particular, the Government indicates that the term “regular duties on board” is intended to translate the criteria “frequency of periods of work spent on board” and the “purpose of the person’s work on board”. Moreover, in the explanatory note attached to the Seafarers Regulation it was indicated that, for example, on passenger ships, hospitality staff, entertainers and cooks should be considered to be undertaking duties, which are part of the regular duties on board within the framework of the use of the ship. The Government indicates that the relevant explanatory note indicates that in applying section 1.2(e) of the Seafarers Regulation, account should be taken of the frequency and purpose of the duties in the context of the use of the ship. The duration of the person’s stay on board was deliberately excluded from this provision so as not to inadvertently exclude the categorization as a seafarer of a person who performs frequent but short tasks on board a ship. The Committee takes note of this information.

3. Cadets. The Committee notes that, in reply to its previous comments, the Government reiterates that under Dutch law cadets enjoy the protection provided for in the Convention and that, while they are not considered employees under the DCC, the traineeship agreement provides them the full protection like any other seafarer. The Committee further notes Nautilus’s indication that: (i) while the Government bases the above-mentioned statement on section 7:737 DCC, only the regulations regarding repatriation, ship wreckage and death apply to trainees under this section; (ii) under the MLC, 2006, cadets are entitled to work under an agreement that meets all the Convention requirements, including basic minimum rights, e.g. leave; (iii) during the COVID-19 pandemic, it became clear that these rights were not always respected in relation to cadets, thus it is necessary to protect cadets, who are generally young and inexperienced and most likely to find themselves in a more vulnerable position; and (iv) cadets are not sufficiently protected under the DCC and should be further protected. The Committee further notes that KVNR observes that: (i) under the Dutch law cadets enjoy the protection provided for by the Convention; (ii) there are no known cases at the KVNR in which the rights of trainees are being violated; (iii) the examples cited by Nautilus, were due to exceptional circumstances in which force majeure could be invoked, and thus cannot be used to prove the violation of trainees’ rights under the MLC, 2006; and (iv) on the contrary, the Government and KVNR, amongst others, did their utmost to facilitate the position of seafarers, including cadets.

Recalling that cadets are to be regarded as seafarers for the purpose of the Convention, the Committee emphasizes that national provisions implementing the Convention shall apply to them, as to all other seafarers falling under the scope of the Convention. Referring to its comments above,the Committee requests the Government to take without delay the necessary measures to ensure that cadets are regarded as seafarers under the Convention, as well as under the national provisions implementing the Convention, including the Dutch Civil Code. In this regard, the Committee recalls that, as foreseen in Article VI, paragraph 3, Governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee notes that, in reply to its previous comments, the Government indicates that it has no made use of the flexibility clause pursuant to section 2(7) of the Seafarers Act and Article II, paragraph 6.The Committee takes note of this information.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that, in reply to its previous comments, the Government refers again to sections 8:211, b) and 8:216 DCC that provide protection (maritime liens) with respect to claims arising from SEAs regarding remuneration, salary or rewards, which are recoverable. According to the Government, such provisions provide an equivalent appropriate measure for seafarers with respect to the failure of the recruitment and placement service of their employer or the shipowner to meet their obligations under the SEA. The Committee further notes that in this regard, Nautilus indicates that: (i) it considers that Standard A1.4, paragraph 5 (c)(vi) is not adequately implemented in Dutch law, and the Government’s reply is not satisfactory in this respect; (ii) the purpose of this standard is to have an insurance in place, which is easily accessible to seafarers for the respective monetary loss, without having to follow legal procedures; thus, an equivalent appropriate measure should meet such obligations; (iii) in the case of recruitment services only acting as intermediaries, there is currently not sufficient protection in place; (iv) thus, also for intermediaries, Standard A1.4, paragraph 5(c)(vi) must be implemented by Dutch law; and (v) the reference to sections 8:211(b) and 8:216 DCC is not relevant as such provisions do not implement the respective standard of the MLC, 2006: the complex legal procedures involved are not comparable to an insurance for compensation of the seafarer’s monetary loss. The Committee notes that KVNR agrees with the Government’s reply and further refers to the obligations in the Act on Placement of Workers by Intermediaries, and those in section 7:693 DCC. Moreover, KNVR reiterates that if the employment service is only an intermediary and is not party to the employment agreement, it is not necessary to foresee a system of protection.

The Committee recalls that all private seafarer recruitment and placement services operating in the Dutch territory whose primary purpose is the recruitment and placement of seafarers, or which recruit and place a significant number of seafarers, regardless of whether they act as intermediaries or they directly employ seafarers and make them available to third parties, shall establish a system of protection complying with the requirements of Standard A1.4, paragraph 5(c)(vi). Referring to its previous comments, the Committee notes that the provisions of the DCC cited by the Government do not ensure compliance with this Standard of the Convention, which provides for a specific obligation falling on all private seafarer recruitment and placement services covered by Standard A1.4, paragraph 2.The Committee requests the Government to adopt without delay the necessary measures to give full effect to the obligation under Standard A1.4, paragraph 5(c)(vi) with respect to all private seafarer recruitment and placement services operating in the Dutch territory falling under the scope of Standard A1.4, paragraph 2.

Regulation 1.4 and Standard A1.4, paragraph 6. Recruitment and placement. Supervision of services. Further to its previous comments, the Committee notes the indication by Nautilus that the Netherlands is currently drafting legislation for an obligatory certification required pursuant to the Act on Placement of Workers by Intermediaries. This certification will also be required for placement of workers on board Dutch flagged vessels. The Committee further notes the KVNR’s comment that there is currently only an internet consultation for a bill that has not yet been submitted to the Parliament. Therefore, it cannot be stated at this stage that: (i) the bill will be submitted and will eventually actually enter into force; and (ii) the certification will also be required for placement of workers on board Dutch flagged ships. The KVNR indicates that it considers that the obligatory certification should not apply on board Dutch flagged ships. The Committee requests the Government to provide its comments in this regard.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative.Substantial equivalence. The Committee notes that, in reply to its previous comments, the Government reiterates that: (1) the shipowner can be liable for the obligations arising from the SEA under certain conditions; and (2) informing the prospective employee of the identity of the shipowner appears to fall within the employers’ obligation to inform. The Committee notes Nautilus’s observation that: (i) the shipowner’s signature of the SEA is not required by Dutch law in the case in which the shipowner is not the seafarer’s employer; (ii) sections 7:693 and 7:738 DCC may not be considered as appropriate equivalent measures; (iii) the Government’s indication that the shipowner is solely liable ‘under certain conditions’ means that he is liable where the temporary work agency (employer) fails to abide by its obligations (section 7:693 DCC) or when the employer has been irrevocably ordered by the court to comply with such obligations and still refrain from complying (and 7:738 DCC); and (iv) for the seafarer, especially the latter situation of a required irrevocable court order, is in practice an obstacle to enforce compliance with the shipowner’s obligations. The Committee further notes that KVNR supports the Government’s reply and considers that the measures contained in existing Dutch legislation are substantially equivalent to the provisions of the Code of the Convention.

Referring to its previous comments and to Article VI, paragraphs 3 and 4, the Committee reiterates that the provisions cited by the Government are not conducive to the full achievement of the purpose of Standard A2.1, paragraph 1(a), which is not only to ensure that seafarers do not have to deal with more than one person with respect to their working and living conditions, but also that one person, i.e. the shipowner, is the sole responsible for ensuring that the working and living conditions of all seafarers conform to the requirements of the MLC, 2006, and are respected. The Committee reminds the Government that the principle of the shipowner’s responsibility with respect to all seafarers does not prejudice the right of the shipowner to recover the costs involved from other employers responsible for particular seafarers. It also observes that the shipowner has not to renegotiate the existing agreement between the seafarer and the “outside” employer but could, for example, set out the ship-related conditions of employment and then provide that all other terms and conditions are contained in the existing agreement between the seafarer and the employer; that agreement would be annexed as a schedule to the SEA (and be subject to flag and port State inspections). The shipowner should, however, ensure that the annexed agreement is consistent with the flag State national requirements implementing the MLC, 2006. The Committee requests the Government to take all the necessary measures without delay to ensure full compliance with Standard A2.1, paragraph 1(a). It also requests the Government to supply an example of SEA, as well as the approved document for seafarers’ record of employment.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. The Committee notes that, in reply to its previous comments, the Government recalls the broad interpretation of section 7:611 DCC by the Dutch Courts, e.g. in a case in which the Court of Appeal, in the circumstance of an employer recruiting personnel abroad to work in the Netherlands, considered that the former is subject to a far reaching obligation to provide information to the prospective employee prior to the signing of the employment agreement, which goes beyond simply providing a copy of the agreement in advance. The Committee further notes Nautilus indication that the Government’s explanation regarding the open norm of “good employership” is not a sufficient and adequate protection. The Committee also notes the KVNR’s statement that while supporting the point raised previously by Platform Maritiem (in favour of the inclusion in the law of an ad hoc provision), it is not aware of any problems that arise in practice regarding this topic. While noting the Government’s information, the Committee again recalls that Standard A2.1, paragraph 1, expressly requires Members to adopt laws and regulations to comply with the requirements set out in the same paragraph. Therefore, the Committee requests the Government to take the necessary measures to ensure full compliance with Standard A2.1, paragraph 1(b).

Regulation 2.3 and Standard A2.3, paragraph 6. Division of hours of rest. The Committee requested the Government to revise the Annexes of the DMLC Part I, to make it clear that hours of rest should be divided into no more than two periods. The Committee notes that the Annex to the DMLC, Part I, still refers to the Government’s interpretation of section 6.5.2 of the Working Hours Decree in the Transport sector according to which, rest may be divided into more than two periods if one of the periods includes an uninterrupted rest for at least six hours in cases in which there is an additional period of rest granted beyond the legal minimum. The Committee takes note of this information.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee notes that, in reply to its previous comments, the Government indicates that the Maritime Strategy remains an ongoing process, and refers to available online information, including periodic updates. The Committee takes note of this information.

Regulation 2.4, paragraph 2, and Regulation 4.4 and the Code. Shore Leave. Access to shore-based welfare facilities. The Committee notes that, in reply to its previous comments, the Government provides information on the measures adopted in 2021 and those taken by the social partners to fund seafarers’ welfare facilities in the Dutch ports (especially during the COVID-19 pandemic). In this context, further to a motion by the Dutch Parliament, extensive consultations were held with stakeholders, including the Nederlandse Zeevarenden Centrale (NZC), the Port Welfare Committee Rotterdam and the relevant social partners, to investigate the relevant needs and ensure stable funding of seafarers’ welfare facilities. The Government also indicates that in 2022, further research will be carried out to define the current welfare needs of seafarers. The Committee notes Nautilus’s indication that: (i) the provisions on shore leave contained in Regulation 2.4, paragraph 2 and Guideline B4.4.6, paragraph 5 were not implemented in Dutch legislation, especially the DCC and the Seafarers Act (according to the relevant explanatory note of the parliamentary papers, because of the absence in practice of problems with shore leave); (ii) while recognizing the challenges faced during the COVID-19 pandemic, the fundamental right of seafarers to disembark for shore leave (irrespective of whether they visit welfare facilities) should not be denied unless there is a good reason to refuse it; (iii) however, shore leave has been denied to seafarers without a justifiable reason and the rising number of cases where shore leave has been refused in Dutch ports and upon Dutch flagged vessels is concerning; and (iv) it would be recommendable to investigate whether legislation should be implemented to enforce this seafarers’ fundamental right. The Committee further notes KVNR’s indication that: (i) Nautilus’s response falls outside the scope of the subject matter, as it concerns Regulation 4.4 and not Regulation 2.4; moreover it relates to a Guideline; (ii) it is not familiar with a rising number of cases where shore leave has been denied without justifiable reason; (iii) during the pandemic, there was an exceptional situation (force majeure), which had consequences for shore leave; (iv) cooperation between local port authorities and private terminals is key to ensure shore leave; and (v) the Government and KVNR, amongst others, did their utmost to facilitate the position of seafarers, including cadets. The Committee notes that, in reply to the social partners’ comments, the Government indicates that: (i) it disagrees that access to shore leave in Dutch ports and on board Dutch-flagged ships has been unreasonably denied; (ii) while recognizing that during the early phases of the COVID-19 pandemic shore leave was problematic and was on occasion denied by foreign shipowners during port calls in the Netherlands and to crew on Dutch-flagged ships calling to foreign ports, no restriction of shore leave in Dutch ports or on board Dutch ships was established except in the case of an active COVID-19 infection on board; and (iii) Dutch port inspection authorities did not receive any reports from seafarers regarding refusal of shore leave in the Netherlands. Recalling the importance of the right to shore leave and access to welfare facilities for the health and wellbeing of seafarers, the Committee requests the Government to continue to adopt measures to ensure that the right to shore leave is enforced in law and practice (Regulation 2.4, paragraph 2). It also requests the Government to provide information on the progress made in ensuring that adequate welfare facilities and services are provided and are accessible to seafarers in designated ports of call, in light of the results of the research carried out to identify seafarers needs (Regulation 4.4 and the Code).

Regulation 4.2 and the Code. Shipowners’ liability. In its previous comments, the Committee noted Platform Maritiem’s observation that it would like to consult with the Government on a further specification of the obligation to reimburse the medical costs of sick seafarers who return to their home country. The Committee notes the Government’s statement that it has no additional information to provide at this time and remains willing to discuss this issue with Platform Maritiem. The Committee takes note of this information.

Regulation 4.5 and the Code. Social security. In relation to the application of the Seafarers’ Pensions Convention, 1946 (No. 71), the Committee requested the Government to provide information in relation to a number of issues, including pension schemes for seafarers under the Future of Pension Act, as well as the minimum retirement age and level of pensions. In this regard, the Committee draws the Government’s attention to its comments under Convention No. 71.

Regulation 5.1.4 and Standard A5.1.4, paragraph 12. Flag State responsibilities. Reporting on inspections. The Committee notes with interest that in reply to its previous comments, the Government indicates that with effect from 1 January 2018, section 5.4 of the Seafarers Regulation has been amended to add the following paragraph: “A copy of the inspection report shall be made available on board the ship in a clearly visible place which is accessible to the crew.” The Committee takes note of this information, which addresses its previous request.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee also notes the observations of the Association of the National Maritime Platform for Labour, Income and Health Care (Platform Maritiem), communicated with the Government’s report and the Government’s reply thereto. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for the Netherlands on 22 August 2018 and 8 January 2019, respectively. The Committee welcomes the important steps taken by the Government and social partners towards the full implementation of the Convention. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. In its previous comment, noting Platform Maritiem’s observation that while the Seafarers Act defines the term “seafarers” in accordance with the Convention, the Dutch Civil Code does not contain a definition of this term, the Committee requested clarifications in this regard. The Committee notes the Government’s indication that: (i) Chapter 12 of Book 7 of the Dutch Civil Code contains special regulations concerning the Seafarers’ Employment Agreement (SEA) that were adopted to implement the relevant requirements of the MLC, 2006; (ii) while there is no definition of a seafarer in the Civil Code, article 7:694 of that Code, however, contains a definition of a SEA stating that it is an employment agreement by which the seafarer undertakes to work on board a seagoing ship. Under this definition, the seafarer has the status of employee; and (iii) the definition in the Act on Seafarers guarantees the protection of the MLC, 2006 to all seafarers working in any capacity on board ships flying the flag of the Netherlands. The Committee notes, however, that the social partners represented in Platform Maritiem reiterate their concerns with respect to the absence of a definition of the term “seafarer” in the Civil Code, which raises difficulties since discrepancies may arise between the laws and regulations by which the MLC, 2006, is implemented under civil law and public law. Platform Maritiem adds that a person who is a seafarer under public law may not be a seafarer according to the Civil Code, under which important matters concerning the Convention are implemented. The Committee requests the Government to identify possible discrepancies which may result from the absence of a definition of the term “seafarer” in the Civil Code – which provides protection regarding the majority of issues covered by the MLC, 2006 – and to further re-examine this issue, in consultation with the social partners, in order to ensure that all the persons who fall under the definition of seafarers pursuant to the MLC, 2006, are effectively covered by the protection it affords. The Committee further noted that under Regulation of the Minister of Infrastructure and the Environment, of 12 October 2012, No. IENM/BSK-2012/158694 (hereafter Seafarers Regulation), article 1.2, the following persons, among others, are not to be considered as seafarers for the purpose of the MLC, 2006: “(e) other persons whose duties are not part of the regular duties on board within the framework of the use of the ship”. The Committee observes that there is no reference to the duration of their stay on board. The Committee recalls that under the terms of the Resolution concerning information on occupational groups adopted by the 94th (Maritime) Session of the International Labour Conference in 2006, “Persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board”. The Committee requests the Government to indicate on which grounds this category of persons was excluded from the definition of “seafarer”, taking into account the above-mentioned resolution.

The Committee also requested the Government to inform on any additional determination concerning cases of doubt as to whether any specific category of persons is to be regarded as seafarers. The Committee notes that a determination has been made by the Advisory Seafarers Committee, formed by the representatives of the shipowners’ and seafarers’ organizations, regarding “client representatives” on board ships working in the offshore industry. The Committee notes this information.

Cadets. In its previous comment, the Committee requested the Government to clarify the status of cadets. The Committee notes the Government’s indication that cadets work on board a ship under a so-called traineeship agreement, which is not regarded as an SEA. Article 7:737 of the Civil Code nevertheless gives cadets some protection regarding repatriation and compensation of damage in case of shipwreck and death. The Government further indicates that cadets are protected by other Acts, such as the Working Conditions Act, under which the shipowner must take all the measures necessary to make sure that the cadet works in a safe and healthy environment aboard ship, and also chapter 6 of the Decree on Working Hours in Transport containing rules for hours of work and hours of rest for seafarers. The Government further indicates that cadets can furthermore be regarded as seafarers under the Seafarers Act (article 1, paragraph 1(z)) and, therefore, all the rights of seafarers and obligations of the shipowner under this law apply to cadets, in particular concerning accommodation, recreational facilities, food and catering, complaint procedure, medical certification, etc. While noting this information, the Committee observes that the specific provisions of the Civil Code which implement many of the requirements of the MLC, 2006, do not apply to cadets. The Committee considers that obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets are to be regarded as seafarers for the purpose of the Convention. The Committee therefore requests the Government to adopt the necessary measures in order to ensure that cadets are regarded as seafarers and that they enjoy the protection provided for by the Convention.  The Committee is certainly aware of the reported and anticipated shortage of qualified officers to effectively man and operate ships engaged in international trade and the difficulties encountered to ensure that cadets meet the minimum mandatory seagoing service which forms part of the requirements prescribed in the Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) for certification. In these circumstances, the Committee recalls that, as foreseen in Article VI, paragraph 3 of the Convention, governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Personnel in special purpose ships. The Committee also requested the Government to clarify the status of personnel in special purpose ships (SPS). The Committee notes in this regard the Government’s indication that these workers work under an SEA if they fulfil the requirements of the definition of seafarers’ employment agreement in article 7:694 of the Civil Code and are in that case to be regarded as seafarers under the Civil Code. Referring to its comments in relation to the absence of a definition of the term “seafarer” under the Civil Code, the Committee notes this information.

Article II, paragraphs 1(i), 4, 5 and 7. Definitions and scope of application. Ships. National determination. The Committee requested the Government to indicate if the determination to exclude seagoing vessels serving as tugs for the period in which they serve in port had been made after consultation, as provided for under Article II, paragraph 5. The Committee understands from the Government’s report that consultations took place in this regard.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee requested the Government to provide information on the legislation that applies to ships of less than 200 gross tonnage that are not engaged on international voyages. The Government indicates that, pursuant to Article II, paragraph 6, of the Convention, article 2, paragraph 7, of the Seafarers Act provides that “after having consulted the organizations of managing owners and seafarers involved. It may be determined by Regulation of Our Minister, for categories of ships of less than 200 gross tonnage that are not engaged on international voyages, that exemption is granted from the provisions of or pursuant to this Act under conditions to be established thereby”. While noting the Government’s indication that so far there is no need to make use of this provision, the Committee requests the Government to provide information on any determination made in the future under Article II, paragraph 6.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee requested the Government to provide further information in relation to substantially equivalent measures adopted with respect to the requirements of Standard A2.1, paragraph 1(a), and certain paragraphs of Standard A3.1. Noting the information provided, the Committee draws the Government’s attention to its comments under each specific requirement of the Convention for which the Netherlands has allowed substantial equivalent provisions.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. Noting a discrepancy between the Declaration of Maritime Labour Compliance (DMLC), Part I, and the Decree on Working Hours in Transport with respect to the period that should be considered as “night”, the Committee requested clarification from the Government. The Committee notes the Government’s indication that the DMLC, Part I, has been amended to ensure conformity with the requirement of the Decree on Working Hours in Transport that young seafarers shall have a rest period of at least 12 hours in each period of 24 successive hours, of which at least nine hours are uninterrupted and in which the period between midnight and 5 a.m. has been included. The Committee notes this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee requested the Government to clarify whether the prohibition of hazardous work for young seafarers is implemented without exceptions or whether such work may be allowed under adult supervision. The Committee notes the Government’s explanation that, while the Working Conditions Decree specifically prohibits seafarers under the age of 18 from carrying out certain types of works presenting special risk of accident or of detrimental effects to their health or well-being, as determined in articles 4.105 (biological agents) and 6.27, other types of work that could potentially be dangerous or unhealthy are not strictly prohibited (e.g. Articles 3.45, 3.46 (work posts), 4.106 (dangerous goods)). These types of work are subject to a risk assessment, as provided for under article 1.36. They are also subject to expert supervision as provided for by article 1.37, paragraph 2, if it appears from the risk inventory and evaluation of risks that young employees must perform work to which specific dangers are attached, particularly for occupational accidents as a result of lack of work experience, not being able to properly assess dangers and the non-completion of the young employee’s mental or physical development. The Committee considers that the situation is in conformity with Standard A1.1 and takes into account Guideline B4.3.10. The Committee notes this information, which addresses its previous request.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee requested the Government to provide information on the measures taken to ensure compliance with Standard A1.4, paragraph 5(c)(vi). The Committee notes the Government’s indication that two situations have to be distinguished: (i) first, regarding recruitment services, given that they are only an intermediary and not a party to the employment contract, it is not necessary to foresee a system of protection because if the employment service fails to fulfil its services, no contract will be established between the seafarer and the employer. In this case, a seafarer is free to seek the services of a private employment service and if this private employment service fails to deliver, the seafarer can abandon their services without costs; (ii) the second situation concerns placement services by temporary working agencies which put a person at the disposal of a third party (intaker). In this case, national provisions were adopted, as a security, to ensure protection for seafarers who are temporary employees aboard a ship flying the Dutch flag. Therefore, the intaker (the shipowner) is responsible for various duties, if the employer, in that case the employment agency, fails to meet its obligations (article 7:693 CC); and (iii) articles 8:211, b CC and 8:216 CC provide protection with respect to claims arising from sea-employment contracts regarding remuneration, salary or rewards, which are recoverable. First, the Committee recalls that the Convention establishes the same obligations for recruitment and placements services. Both kind of agencies should therefore be required to have a system of protection to compensate seafarers for monetary loss. Second, while noting that a system of protection was established to cover cases in which seafarers incur in monetary loss as a result of the failure of a temporary working agency to meet its obligations to them, the Committee notes that there is no reference to measures put in place to compensate seafarers when the monetary loss results from the failure of the relevant shipowner. The Committee recalls that Standard A1.4, paragraph 5(c)(vi), requires that insurance or an equivalent appropriate measure must also be in place to compensate seafarers for monetary loss they may incur as a result of the failure of a recruitment and placement service “or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them”. The Committee requests the Government to adopt the necessary measures to give full effect to the obligation under Standard A1.4, paragraph 5(c)(vi), both for employment services and temporary working agencies.

Regulation 1.4 and Standard A1.4, paragraph 6. Recruitment and placement. Supervision of services. The Committee requested the Government to indicate how it gives effect to Standard A1.4, paragraph 6, under which the competent authority shall closely supervise and control all seafarer recruitment and placement services operating in its territory. The Government indicates that the Act on Placement of Workers by Intermediaries stipulates, inter alia, that an employer who makes available workforce for remuneration must be registered as a lender in the Commercial Register of the Chamber of Commerce. A lender who is not registered in the Commercial Register of the Chamber of Commerce will be fined, and so are intakers who do business with a lender who is not registered. The Government further indicates that the temporary work agency sector has set up a certification system for temporary employment agencies. A certification guarantees the intaker (shipowner) that the temporary employment agency complies with its contractual agreements with the temporary agency workers. The Committee also notes, as stated in the instructions to Recognized Organizations (RO) – document ItoRO No. 22 – Maritime Labour Convention 2006 – that ROs shall verify that the recruitment and placement service/temporary employment agency has been audited with a positive result, by one of the six ROs authorized by the Dutch Administration to ensure compliance of the Recruitment and Placement services with Regulation 1.4. The Committee notes this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. Noting that the Netherlands has adopted a substantially equivalent measure allowing seafarers’ employment agreements (SEA) to be signed by the employer, including a temporary employment agency, and not by the shipowner or a representative of the shipowner as required by Standard A2.1, paragraph 1(a), the Committee requested the Government to provide further explanations in this regard, in line with Article VI, paragraph 3, of the Convention. The Committee notes the Government’s indication that: (i) in practice the shipowner is not always the employer, for instance in the case of a temporary employment agency. According to Dutch law, the employer has to sign the employment agreement because he is party to that contract. If the shipowner is the employer and party to the agreement, he has to sign the contract; (ii) according to the provisions of Dutch law on the seafarers’ employment agreement, the person who is regarded as the employer has to fulfil the duties and responsibilities under the Convention, which are set out in Chapter 12 of Book 7 of the Civil Code. The “open” definition of seafarers’ employment agreement implies that the duties and responsibilities of the Convention are applicable to any entity that is to be regarded as employer of the seafarer, whether it is the shipowner or not. The employer is responsible for honouring the obligations in the employment agreement, in particular those relating to the payment of wages and allowances and social protection obligations. The shipowner is liable for other obligations which are of concern to the shipowner rather than to the land-based outside employer as set out in the Seafarers Act (manning and decent and secure accommodation and recreational facilities), without however being part of the employment agreement; (iii) the Government has adopted substantial equivalent measures to ensure that, as a security, in case the employer who is not the shipowner fails to fulfil its obligations towards the seafarer under articles 706 to 709 (wages), 717 to 720 (leave, repatriation, seafarer compensation for the ship’s loss or foundering), 734 to 734l (financial consequences of sickness, injury or death), the shipowner shall nonetheless be liable for these obligations, as provided for in article 7:693 CC (in the case of a temporary employment agency) and article 7:738. This measure is covered by article 69d(2) of the Seafarers Act with respect to the obligations of the managing owner. Recalling the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II of the Convention and the fact that under Standard A2.1, paragraph 1 (a), every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer), the Committee considers that the measures adopted by the Government cannot be considered as substantially equivalent to these requirements of the Convention. Furthermore, seafarers might not be in a position to identify who is the shipowner at the time of signing the SEA and thereby be fully informed of all the circumstances related to the living and working conditions on board. Furthermore, the situation of temporary working agencies and managing owners has been taken into account by the Convention which establishes, under Article II(I)(j), that the shipowner has the responsibility for the operation of the ship and takes the duties and responsibilities imposed on them in accordance with the Convention. The purpose of Standard A2.1, paragraph 1(a), is therefore that seafarers do not have to deal with more than one person or entity with respect to their working and living conditions. In light of the above, the Committee requests the Government to adopt the necessary measures to amend its legislation in order to ensure full compliance with Standards A2.1, paragraph 1(a), ensuring by the signature of the contract that the shipowner takes responsibility for ensuring conformity of all conditions with the requirements of the MLC, 2006, independently of the person of “employer” from the perspective of contract law.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. The Committee requested the Government to provide further information on how effect is given to Regulation 2.1 (right of seafarers to have an opportunity to examine and seek advice on the agreement before signing). The Committee notes the Government’s indication that the principle laid down in article 7:611 of the Civil Code, that the employer is obliged to act as a good employer is also applicable in the pre-contractual phase and that, as a security, a contract can be annulled if it was performed under the influence of threat, fraud or abuse of circumstances (article 3:44 of the Civil Code). Furthermore, under article 6:228 of the Civil Code an agreement can be declared void if it was concluded under the influence of error and, if the employee would not have agreed to the contract if the presentation had been correct. Under this principle, there is an obligation of diligence for employers that requires them to duly inform their (future) employees of their rights and duties. The Committee notes Platform Maritiem’s observation that the inclusion in the law of a preventive obligation, such as one provided for under article 11(1)(a) and (b) of the Decree on Claims of Seafarers and Recruitment and Placement of Seafarers is more effective than a provision that offers seafarers protection after the fact, in the case that they did not enter freely into an agreement with sufficient understanding of their rights and responsibilities. The Committee notes that article 11(1)(a) and (b) of the Decree on Claims of Seafarers and Recruitment and Placement of Seafarers does require that the recruitment and placement services shall inform seafarers of their rights and their obligations as mentioned in the SEA before or during the process of entering into service and take the necessary steps to enable seafarers to study their employment agreement before and after signing. The Committee observes that no similar provisions exist for seafarers who do not enter into an agreement through recruitment and placement services. Recalling that Standard A2.1, paragraph 1, expressly requires Members to adopt laws and regulations to comply with the requirements set out in the same paragraph, the Committee requests the Government to indicate the measures taken to ensure full compliance with this requirement of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee requested further information with respect to the implementation of Standard A2.3, paragraph 6, related to the division of hours of rest into no more than two periods, one of which shall be at least six hours in length. The Committee notes the Government’s indication that Dutch legislation does not allow to split the ten hours of rest into more than two periods (one of which must have the minimum length of six hours). The Committee observes however that the Annexes to the DMLC, Part I, still refer to the interpretation of article 6.5.2 of the Working Hours Decree Transport according to which, rest may be divided into more than two periods if one of the periods includes an uninterrupted rest for at least six hours. The Committee observes that Platform Maritiem suggested that the DMLC, Part I should be amended in this regard. The Committee requests the Government to revise the Annexes of the DMLC Part I, so as to dissipate any misunderstanding concerning the fact that hours of rest should be divided into no more than two periods as required by Standard A2.3, paragraph 6.

Finally, the Committee noted from the annexes to the DMLC, Part I, that “Under Dutch law it is allowed to operate ships under a two-watch system, including 6-on/6-off”. It recalled that Members should take measures to avoid infringements of the work or rest hour requirements that result from additional work which officers have to perform outside their watchkeeping routine. The Committee notes the Government’s indication that article 6.5:7 of the Decree on Working Hours in Transport (Arbeidstijdenbesluit vervoer) only allows derogations from the hours of work and rest in cases of emergency situations. The Government further states that this happens only incidentally and when it happens, sufficient compensatory rest has to be given. The Committee also observes that article 4(7) of the Seafarers Act provides that the master shall organize work and the watch schedule such that the watchkeeping staff has had sufficient rest and is otherwise fit to serve at the beginning of the watch. The Committee notes this information.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. The Committee requested the Government to provide information with respect to the kind of financial security which is required from ships flying its flag. The Committee notes the Government’s indication that the costs of repatriation are covered by insurances and that, if the repatriation of a seafarer on a Dutch ship in a foreign port is necessary, the Ministry of Infrastructure and Environment shall discuss the matter with the Dutch organizations of shipowners and seafarers to find the best solution. The Government provided a certificate of insurance in respect of seafarer repatriation costs and liabilities, as an example of the kind of documentation that is accepted or issued as proof of financial security. The Committee notes that articles 737, paragraph 2, and 738a–738d of the Civil Code set the requirements for financial security in accordance with the 2014 amendments and that this has been reflected in the Annexes to the DMLC, Part I. The Committee takes note of this information with interest.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee noted that, according to section 7:718, paragraph 4, of the Civil Code, the right to repatriation lapses if the seafarer has not made his or her wish to repatriation known to the captain within two days after one of the situations provided for in section 7:718 occurred. Recalling that paragraph 8 of Guideline B2.5.1 provides that “the entitlement to repatriation may lapse if the seafarers concerned do not claim it within a reasonable period of time to be defined by national laws or regulations or collective agreements”, the Committee requested the Government to clarify the basis for its decision that exceeding the two-day period from the time when the seafarer is entitled to be repatriated could, in this regard, justify the loss of the seafarer’s right to repatriation. The Committee notes that the Government’s indication that the decision is based on the urgent character of situations calling for repatriation and that it is in the interest of both parties to know within a short time whether the seafarer will invoke his right or not. The Committee also notes the Government’s indication that article 7:718, paragraph 4, CC provides that a longer period may be agreed to by collective bargaining agreement or regulation by or on behalf of a competent authority. The Government further indicates that the period of two days was stipulated after consultation and agreement by the Dutch organizations of shipowners and seafarers and that this period of two days is not applicable in case the condition of the seafarer prevents to have him repatriated. The Committee notes this information.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee requested the Government to provide information on the measures adopted with respect to vocational guidance, education and training of seafarers in application of Standard A2.8, paragraph 3. The Committee notes the information provided by the Government that the responsibilities of the Ministry of Education, Culture and Science include Maritime Education and Training offered through senior secondary vocational education curricula and through the higher professional education curriculum. The Committee also notes that the Dutch Maritime Strategy, 2015–2025, was adopted in 2015 providing a comprehensive framework for the government-wide policy for the maritime sector. The strategy develops initiatives aiming in particular at encouraging the choice for maritime professions, as well as retaining the current personnel offering them development opportunities and career prospects. The Committee further notes Platform Maritiem’s observations that, while acknowledging the measures in place with respect to vocational guidance, education and training of seafarers, it considers that the Government should take a more supportive position towards vocational education and employment protection for Dutch professionals in the maritime sector. Noting that the Maritime strategy of the Netherlands is an ongoing process, the Committee requests the Government to inform it of the progress made in this regard.

Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee requested the Government to explain how effect is given to the provisions of Standard A3.1. The Committee notes the detailed information provided by the Government which is also included in the DMLC, Part I, and its Annexes. The Committee notes this information, which addresses its previous request.

Regulation 3.1 and the Code. Accommodation and recreational facilities. Noting that substantially equivalent provisions have been adopted with respect to certain requirements relating to sleeping rooms of Standard A3.1 (floor areas and location above the load line in passenger and special purpose ships), the Committee requested the Government to provide further information in this regard. The Committee notes the detailed information provided by the Government with respect to the compensating measures adopted to ensure that they are substantially equivalent and that they are conducive to the general purpose of Standard A3.1 to provide seafarers with decent accommodation. The Government indicates that the substantial equivalent provisions were adopted in close consultation with the social partners. The Committee notes this information, which addresses its previous request.

Regulation 4.1 and Standard A4.1, paragraph 1(c). Medical care on board and ashore. Right to visit a doctor or dentist in ports of call. The Committee noted that section 7:734(a) of the Civil Code provides that while working on board a seafarer has a right to adequate medical care at no cost for the seafarer. Noting that this provision does not however explicitly refer to the right of a seafarer to visit a qualified medical doctor or dentist without delays in ports of call, where practicable, as set out under paragraph 1(c) of Standard A4.1, the Committee requested the Government to provide clarification as to how effect is given to this provision of the Convention. The Committee notes the Government’s reference to article 4(10) of the Seafarers Act which provides that the permission of the master is not required for abandoning the ship in a port of call for consulting, if possible, a doctor or dentist. The Committee notes this information, which addresses its previous request.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee noted that section 7:734(a) and (b) of the Civil Code provide that the right to medical care and treatment, as well as the right to full payment of wages in case of illness “ends when the seafarer reaches his country of residence”. The Committee requested the Government to clarify whether shipowners are required: (a) to continue to defray the expense of medical care after the sick or injured seafarers have returned home at the termination of their employment for at least 16 weeks or until recovery or until such time as the sickness or incapacity has been declared of a permanent character; and (b) to pay wages in whole or in part as prescribed by national laws or regulations or as provided for in collective agreements from the time when the seafarers are repatriated or landed until their recovery or, if earlier, until they are entitled to cash benefits under the legislation of the Member concerned. The Committee notes the Government’s detailed explanations concerning seafarers who are resident in the Netherlands. In this regard, a seafarer who returns to the Netherlands receives medical care under the Health Insurance Act (Zvw) or under the Long-term Care Act (Wlz). Seafarers ordinarily resident in the Netherlands are also insured by the Dutch employee insurance schemes (werknemersverzekeringen), covering employees, if they work for an employer situated in the Netherlands, including the Unemployment Benefit Act (WW), Incapacity to work schemes (Sickness Act (ZW), Act for Work and Income (WIA)) and maternity scheme (Labour and Care Act (Wazo). The Committee understands that the shipowner’s liability is limited given that, once seafarers resident in the Netherlands return home, the liability of the shipowner is taken over by the legal social insurance schemes. For seafarers insured on account of a member of the European Union, Regulation (EC) 883/04 is applicable and therefore medical care is provided at the cost of the State whose legislation is applicable, by the state of residence or stay. Finally, seafarers who are not insured under the Health Insurance Act/Long-term Care Act, or the Sickness Act or under a corresponding EU Member State legislation are covered by the provisions of articles 7:734d–734k CC. The Committee notes however Platform Maritiem’s observation that it would like to consult with the Government on a further specification of the obligation to reimburse the medical costs of sick seafarers who return to their home country. The Committee notes these explanations and requests the Government to provide up-dated information with respect to any further developments.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that the Government has submitted an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard (Standard A4.2, paragraph 1(b)). The Committee notes that articles 738e CC and 738f CC set the requirements for financial security in accordance with the 2014 amendments and that this has been reflected in the Annexes to the DMLC, Part I. The Committee notes this information with interest.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. Noting Platform Maritiem’s concerns on the development of seafarer welfare facilities in the country, the Committee requested the Government to provide information on measures taken or envisaged to promote the development of seafarer welfare facilities in Dutch ports. The Government indicates that it is currently in contact with the Nederlandse zeevarendencentrale (a foundation in which a number of welfare organizations cooperate nationwide) which is studying further possible action to respond as much as possible to the welfare of seafarers in Dutch ports. The Government indicates that a study was presented in June 2017 and that parties agreed to continue exploring the possibilities to contribute primarily to the prevention of psychological problems of seafarers who are dealing with long-term absence from home, or related to bullying or undesirable behaviour towards seafarers. The Committee also notes Platform Maritiem’s observation that, as agreed during the consultation of 11 September 2017, the Government, on the basis of its responsibility under the MLC, 2006, in the field of seafarer welfare, will organize a meeting with stakeholders to initiate a dialogue on optimizing seafarers’ welfare in Dutch ports. The Committee requests the Government to provide information on the progress made towards improving seafarers’ welfare facilities in the country.

Regulation 4.5 and Standard A4.5, paragraphs 1 and 2. Social security. Branches. The Committee noted that, in the declaration made at the time of ratification (in accordance with Standard A4.5, paragraph 10), the Government had not indicated employment injury benefit as one of the branches of social security provided to seafarers. Noting the Government’s indication that all branches of social security are covered, the Committee requested the Government to provide clarifications as to whether, and under which framework, employment injury benefits are provided to seafarers. The Committee notes the extensive information provided by the Government in this regard.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee requested the Government to provide information on whether seafarers ordinarily resident in the Netherlands working on ships flying the flag of another country are provided with social security protection, as required under Regulation 4.5 and the Code, both in the presence and absence of bilateral or multilateral agreements. The Committee notes the Government’s indication that if seafarers are working on board a ship flying the flag of another country and fall under Dutch social security law, they will have the same social security rights as any other citizen falling under Dutch social security. The Government further explains that, in the absence of a bilateral or multilateral agreement, a seafarer ordinarily resident in the Netherlands is in principle insured by the national insurance schemes (volksverzekeringen), covering all residents of the Netherlands. Seafarers ordinarily resident in the Netherlands are also insured by the Dutch employee insurance schemes (werknemersverzekeringen), covering employees, if they work for an employer situated in the Netherlands. This means that they are insured under the Unemployment Benefit Act (WW), incapacity to work schemes (Sickness Act (ZW), Act for Work and Income (WIA)) and maternity scheme (Labour and Care Act (Wazo)). Finally, seafarers who are not insured under the Health Insurance Act/Long-term Care Act, or the Sickness Act or under corresponding EU Member State legislation are covered by the provisions of articles 7:734d–734k CC. The Committee notes this information.

Regulation 5.1.2 and the Code. Recognized organizations. The Committee requested the Government to clarify the legal status of the instructions given to recognized organizations. The Committee notes the Government’s indication that the recognized organizations (seven in total) have a specific agreement with the Netherlands Shipping Inspectorate (Agreement of 3 April 2014) between the Administration of the Netherlands and Recognized Organization governing the authorization of statutory survey and certification services of ships registered in the Netherlands. Recognized organizations are formally mandated to inspect and certify on the MLC, 2006, aspects. The Committee notes this information, which addresses its previous request.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee requested clarifications on the measures giving effect to Standard A5.1.4, paragraph 12. The Committee notes the Government’s indication that article 5.4 of the Seafarers Regulation gives effect to this requirement of the Convention with respect to the obligation that a copy of the inspection report, in the working language of the ship and in English, when the working language is not English and the ship is engaged on international voyages, is given to the master. Upon request, the master gives a copy of the inspection report, as well as of the maritime labour certificate and the DMLC, in English or in the working language of the ship, to officials designated to carry out surveys, inspectors of a port State or representatives of shipowners or seafarers. With respect to the requirement that a copy of the inspection report be posted on the ship’s noticeboard and that a copy be sent to seafarers’ representatives upon their request, the Committee notes the Government’s indication that, in the next review of the Seafarers Regulation, a sentence will be added to ensure that a copy of the inspection report shall also be posted on the ship’s noticeboard. The Committee requests the Government to provide information on any progress made in this respect.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee takes note of the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It notes that the Government has previously ratified 17 maritime labour Conventions, which have been denounced following the entry into force of the Convention. The Committee notes the efforts achieved and measures taken, particularly through the adoption of legislation and regulations, for the implementation of the Convention. 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.

The Committee notes the joint comments made on a draft version of the Government’s report by the platform representing the social partners in the Dutch maritime sector (“Platform Maritiem”) and communicated by the Netherlands Trade Union Confederation (FNV) to the Office on 29 August 2014. These comments were also transmitted to the Government before the finalization of the report and its communication to the ILO.

General questions on application. Implementing measures. The Committee notes that the Government provided two examples of Declarations of Maritime Labour Compliance (DMLC), Part I: one for existing ships and one for ships, the keel of which was laid on or after 20 August 2013, date of entry into force of the Convention for the Netherlands. The Committee notes that the Netherlands MLC, 2006, website contains three different DMLC, Part I (for three categories of ships), each of which includes a lengthy Annex 1 providing detailed explanations with respect to applicable law. The three categories of ships are: “existing ships” that had a keel laid before 20 August 2013, with the Annex “Version 2. Valid from 1 March, 2014”; “new ships”, the keels of which were laid on or after 20 August 2013 with the Annex “Version 1. Valid from 1 February 2013”; and, “traditional sailing vessels” with the Annex “Version 1. Valid from 1 August 2013”. Importantly, the DMLC, Part I indicates that the Netherlands has made use of the potential flexibility under paragraphs 3 and 4 of Article VI of the MLC, 2006, and implemented requirements under the Code of the MLC, 2006, through national legal provisions that it regards as substantially equivalent. In addition, a number of exemptions are also stated to be available with respect to the requirements on accommodation set out in Title 3 of the MLC, 2006. The DMLC indicates that substantial equivalences and “derogations” to the extent they relate to matters listed in the DMLC, are set out under the relevant item of the DMLC. They are also listed at the end of the DMLC and allow for an indication of the particular substantial equivalence applicable to the specific ship seeking certification.

The substantial equivalences mentioned in the DMLC, Part I (for “new ships”) are not however reported in the corresponding sections of the Government’s report, as explicitly requested in the report form. These equivalences mentioned in the DMLC, Part I, with some further information in an annex to that part, are the subject of comments or requests below in the context of the Convention provisions concerned. These are: Standard A2.1, paragraph 1(a) and certain paragraphs of Standard A3.1.

With respect to the general question of resort to substantial equivalences, the Committee recalls its 2014 general observation in which it commented 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 paragraphs 3 and 4 of Article VI, 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 Convention. Unless expressly provided otherwise in the Convention, the Member may implement the Standards in Part A of the Code in laws and regulations or other measures if it satisfies itself that the relevant legislation or other implementing measures “is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned” and “gives effect to the provision or provisions of Part A of the Code concerned”. The Member’s obligation is principally to “satisfy itself”, which nevertheless does not imply total autonomy, since it is incumbent on the authorities responsible for monitoring implementation at the national and international levels to determine not only whether the necessary procedure of “satisfying themselves” has been carried out, but also whether it has been carried out in good faith in such a way as to ensure that the objective of implementing the principles and rights set out in the Regulations is adequately achieved in some way other than that indicated in Part A of the Code.” The Committee therefore requests the Government to provide information on the reason why it was not in a position to implement the requirements in Part A of the Code, as well as (unless obvious) on the reason why it was satisfied that the substantial equivalence met the criteria set out in paragraph 4 of Article VI.

General questions on application. Article II, paragraphs 1(f) and (i), 3, 5 and 6. Scope of application. The Committee notes that the Seafarers Act defines the term “seafarer” as meaning any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. This corresponds to the definition of “seafarer” in the Convention. However, the Committee notes the observations submitted by Platform Maritiem that the Dutch Civil Code – in which many of the Convention provisions have been implemented, especially concerning the seafarer’s employment agreement – does not contain any definition of a seafarer in its provisions. The Committee notes the Government’s indication that, relative to the possible doubts as to whether any categories of person are to be regarded as seafarers, an Advisory Committee has been instituted to advise the competent authority on persons on board which may not qualify as seafarers and that the Government stated that a number of such cases of doubt have been presented to the Advisory Committee, but that no conclusions have been reached so far. However, the Committee also notes that the DMLC, Part I for existing ships, (Annex Version 2, dated 1 March 2014) states that:

In the Seafarers Act “seafarer” has been defined in accordance with the MLC, 2006 and the Annex to Resolution VII, adopted by the General Conference of the International Labour Organization on February 22nd, 2006.

Essentially everybody working on board shall be deemed to be a seafarer, except for:

• (a) passengers;
• (b) family of seafarers, who shall not perform any work within the regular scope of activities on board;
• (c) pilots, inspectors, military men;
• (d) longshoremen;
• (e) other persons whose activities are not part of the regular activities on board, within the use of the ship.

An Advisory Committee has been instituted to advise the Minister on other persons on board which may not qualify as seafarers. These persons may be included in the Regulation Seafarers and they will be added here. If a different category of persons on board is not designated as seafarer, or in case of doubt, the inspector of the Recognized Organization shall seek the advice of the Dutch Authorities for verification.

A cadet does not have a seafarer’s employment agreement, but an agreement between the Maritime Institute and the shipowner. Apart from this, all relevant legislation applies to cadets.

Please be aware that the accommodation requirements of the Seamen’s Decree do not apply to cadets or to SPS-personnel. It has been agreed that not more than two cadets will be accommodated in one cabin. This also applies to the requirement for a hospital on board of ships with a crew of 15 seamen or more, which undertakes a voyage during which it stays at sea for more than three days.

The Committee requests the Government to clarify how the term of “seafarer” is interpreted and applied in the context of the Dutch Civil Code. It also requests the Government to clarify the status of cadets and personnel in special purpose ships (SPS) in the context of the term “seafarer” and to provide information on the conclusions reached concerning cases of doubt as to whether any specific category of persons is to be regarded as seafarers when these become available.

The Committee also notes the indication by the Government that a determination has been made that seagoing ships which serve as harbour tugs are not regarded as seagoing vessels for the period in which they serve in port. The Committee recalls however, that, according to Article II, paragraph 5, this type of determination must be made after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to indicate if such consultations have taken place before making a determination on seagoing vessels serving as tugs, and to provide information on the legislation that applies to ships of less than 200 gross tonnage that do not voyage internationally.

Regulation 1.1 and the Code. Minimum Age. Concerning the hours of work of young seafarers, the Committee notes that the two DMLC, Part I provided by the Government state that “no person younger than 18 years shall work during night-time, in accordance with the Convention” and that “‘night’ has been specified as the period between 00.00 and 05.00 hours”. The Committee recalls that paragraph 2 of Standard A1.1 provides that, “night” shall cover a period of at least nine hours starting no later than midnight and ending no earlier than 5 a.m. The Committee also notes that paragraph 1(b) of Article 6.4:3 of the Decree on Working Hours in Transport reproduces Standard A1.1 in that it requires the young seafarer to have “a rest period of at least 12 hours in each period of 24 successive hours, of which at least nine are uninterrupted and in which the period between 00.00 and 05.00 hours has been included”. The Committee requests the Government to clarify the apparent discrepancy between the Decree on Working Hours in Transport and the DMLC, Part I, regarding this requirement of the Convention.

The Committee 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 clarify whether the prohibition of hazardous work for young seafarers is implemented without exceptions or whether such work may be allowed under adult supervision.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement and labour-supplying responsibilities. The Committee notes that, under Article 3, paragraph 1, of the Act on Placement of Workers by Intermediaries (“Wet allocatie arbeidskrachten door intermediairs, Waadi”), no compensation shall be requested from the jobseeker for recruitment services. The Committee notes, however, that it does not appear from the Government’s report, nor the two DMLC, Part I and their annexes, that any laws or regulations or other measures have been adopted to ensure that private seafarers’ recruitment and placement services operating in the country establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligation to them, as requested under Standard A1.4, paragraph 5(c)(vi). The Committee also recalls that, under Standard A1.4, paragraph 6, the competent authority shall closely supervise and control all seafarer recruitment and placement services operating in its territory. The Committee requests the Government to indicate the measures taken or envisaged to give effect to these requirements of the Convention.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that, subsequent to its report and in response to a letter of 3 March 2015 requesting supplementary information, the Government has indicated that the Netherlands does not use a standard form of seafarer’s employment agreement, and neither do the social partners. The Committee accordingly requests the Government to provide an example or examples of a seafarers’ employment agreement in English with relevant identifying information removed. The Committee notes that the two DMLC, Part I and their annexes provided by the Government state that “in derogation of Standard A2.1, paragraph 1(a), of the Convention, the Netherlands allows seafarers’ employment agreements to be signed not only by the shipowner or a representative of the shipowner, but also by an employer other than the shipowner or his representative”. Three specific groups of employers are identified in this context:

• (1) temporary employment agencies;
• (2) an employer that has employees working on a part of the ship that is rented by this employer from the shipowner; and
• (3) an employer that has employees working on a ship that has been chartered by the employer for specified work.

The Committee refers to its comments above with respect to implementation and recalls that Article VI, paragraph 3, of the MLC, 2006, permits a Member “which is not in a position to implement the rights and principles in the manner set out in Part A of the Code” to implement Part A through legislative provisions or other measures which are substantially equivalent. The Committee requests the Government to explain why the Netherlands is not in a position to require, in its laws and regulations, that all seafarers’ employment agreements be signed by the shipowner or a representative of the shipowner.

The Committee also recalls that, in accordance with the definition in paragraph 4 of Article VI, the national provision concerned must be “conducive to the full achievement of the general object and purpose” of the Part A provision and give effect to the latter provision. In that respect the Committee notes that, in accordance with paragraph 1(a) of Standard A2.1, the seafarers’ employment agreement is to be signed by or on behalf of the shipowner who is responsible for ensuring compliance with all the requirements of the Convention relating to the working and living conditions of the seafarers and who, by such signature, becomes legally responsible vis-à-vis the seafarer for compliance with all those requirements, whether or not the shipowner is considered to be the employer of the seafarer. The Committee refers to its 2014 general observation, in which it stressed “the importance of the basic legal relationship that the MLC, 2006, establishes between the seafarer and the person defined as ‘shipowner’ under Article II”. The Committee requests the Government, in line with paragraph 4 of Article VI, to indicate precisely how it has satisfied itself that the national provisions concerned are substantially equivalent to the Part A requirements concerned and in particular to clarify how the provisions allowing signature by the seafarers’ employers, other than the shipowner or a representative of the shipowner, are conducive to the full achievement of the identified general object and purpose and whether such employers are considered to take over the duties and responsibilities imposed on shipowners in accordance with the Convention.

The Committee recalls that, according to paragraph 1(b) of Standard A2.1, seafarers signing a seafarers’ employment agreement shall be given an opportunity to examine and seek advice on the agreement before signing. In this regard, the Committee notes that articles 3:44 and 7:611 of the Civil Code, to which the Government refers in its report, provide a remedy, respectively, where an agreement is reached through intimidation, fraud or abuse of circumstances and where it contains terms that are unreasonable or unfair, but do not appear to cover the right of seafarers to have an opportunity to examine and seek advice on the agreement before signing, as required by the Convention. The Committee requests the Government to provide further information and material (such as judicial decisions) on how effect is given to the requirements under Regulation 2.1 of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. Concerning implementation of the requirement in Standard A2.3, paragraph 5(b) that minimum hours of rest shall not be less than ten hours in “any 24-hour period”, the two DMLC, Part I and their annexes provided by the Government indicate that the 24-hour period is calculated from the beginning of the longest enjoyed rest periods. The Committee notes however that such a method of calculation, restricted to 24-hour periods beginning with a rest period, would not necessarily cover “any 24-hour period” (emphasis added). Using such a method with the example of the three-day schedule below (see table) would indicate that the seafarer concerned would have had ten or 11 hours of rest per 24 hours in conformity with the abovementioned Standard. But this would overlook other 24 hour periods, such as those beginning with a period of work, particularly a long one such as that of nine hours starting at 3 p.m. on day 2 on the example below. During that 24-hour period (from 3 p.m. on day 2 to 3 p.m. on day 3), the seafarer would have had only nine hours of rest (seven hours from midnight to 7 a.m. on day 3 and two hours between 1 p.m. and 3 p.m. on day 3). This would not be in conformity with the Convention.

	Day 1				Day 2				Day 3
	Work	Rest	Work	Rest	Work	Rest	Work	Rest	Work	Rest	Work	Rest
Time	05:00	13:00	17:00	23:00	05:00	11:00	15:00	24:00	07:00	13:00	17:00	23:00
Duration	8 hrs	4 hrs	6 hrs	6 hrs	6 hrs	4 hrs	9 hrs	7 hrs	6 hrs	4 hrs	6 hrs	6 hrs

With respect to the requirement in paragraph 6 of Standard A2.3 that “Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length”, the Committee notes that, according to the interpretation of Article 6.5.2 of the Working Hours Decree Transport in the Annexes to the two DMLC, Part I, rest may be divided into more than two periods if one of the periods includes an uninterrupted rest for at least six hours. Such an interpretation does not appear justified from the wording of paragraph 6 of Standard A2.3. The Committee is aware that there could indeed be cases in which three periods of rest may be necessary and in which the seafarers concerned are clearly being afforded with adequate rest in keeping with paragraph 5 of Standard A2.3. However, following its previous comment on the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180), the Committee recalls that exceptions to the limits on hours of rest may only be permitted by collective agreements authorized or registered by the competent authority in accordance with national laws or regulations (see paragraph 13 of Standard A2.3).

Finally, the Committee notes from the annexes to the two DMLC, Part I, that “Under Dutch law it is allowed to operate ships under a two-watch system, including 6-on/6-off”. In this respect, the Committee recalls its previous comments, made in connection with Convention No. 180, to the effect that Members should take measures to avoid infringements of the work or rest hour requirements that result from additional work which officers have to perform outside their watchkeeping routine. The Committee requests the Government: (a) to review the method of calculation relating to hours of rest in “any 24-hour period”; (b) to ensure that, where more than two periods of rest are considered necessary, its decisions are based on paragraph 13 of Standard A2.3; and (c) to take appropriate measures to ensure, in the case of a two-watch system, that six-hour periods of rest are not eroded by incidental duties and to provide information as regards the accompanying measures limiting the risks of fatigue, such as compensatory rest granted to seafarers.

Regulation 2.5 and the Code. Repatriation. Recalling that, according to paragraph 2 of Regulation 2.5, each Member shall require ships sailing under its flag to provide financial security to ensure that seafarers are duly repatriated, the Committee notes that the current national legislation does not appear to implement the requirements of the Convention on this matter. The Committee requests the Government to provide any documentation clarifying the kind of financial security which is required from ships flying the flag of the Netherlands in order to implement Regulation 2.5 and the Code. Noting the information and documents submitted subsequent to its report (in response to a letter of 3 March 2015 from the Office requesting supplementary information), the Committee requests the Government to provide an example of the kind of documentation that is accepted or issued as proof of the financial security that must be provided by ships flying its flag to ensure that seafarers are duly repatriated.

The Committee also notes that, according to section 7:718, paragraph 4, of the Civil Code, the right to repatriation lapses (and the seafarer is therefore expected to pay for the cost of repatriation) if the seafarer has not made his or her wish to repatriation known to the captain within two days after one of the situations provided for in section 7:718 occurred. The Committee recalls that Guideline B2.5 provides guidance, which must be given due consideration by Members when implementing the requirements of the Convention. Paragraph 8 of Guideline B2.5.1 provides that “the entitlement to repatriation may lapse if the seafarers concerned do not claim it within a reasonable period of time to be defined by national laws or regulations or collective agreements”. The Committee requests the Government to clarify the basis for its decision, after giving due consideration to implementing its responsibilities in the manner provided for in Part B of the Code, that two days from the time when the seafarer is entitled to be repatriated (paragraph 4 of section 7:718) would represent a reasonable period of time justifying the loss of the seafarer’s right to repatriation.

Regulation 2.8 and the Code. Career and skill development and opportunities for seafarers’ employment. The Committee notes the Government’s indication that it has no separate programme for seafarers and that it encourages career and skills development and employment opportunities of all workers, including seafarers. The Committee recalls its previous comments on the application of the Continuity of Employment (Seafarers) Convention, 1976 (No. 145), by the Netherlands. The Committee also recalls that paragraph 3 of Standard A2.8 requires consultation with shipowners’ and seafarers’ organizations concerned in establishing clear objectives for the vocational guidance, education and training of seafarers whose duties on board ship primarily relate to the safe operation and navigation of the ship, including ongoing training. The Committee requests the Government to provide information with respect to the measures it has adopted, after consultation with shipowners’ and seafarers’ organizations concerned, with respect to vocational guidance, education and training of seafarers in application of paragraph 3 of Standard A2.8, giving due consideration to Guideline B2.8.1.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that, in relation to the way the Government implements the requirements of Standard A3.1, the latter refers to paragraphs and articles of the “Regulation Seafarers” (in Dutch) without indicating their substance. The Committee requests the Government to explain in detail how effect is given to the provisions of Standard A3.1.

More specifically, the Committee notes, from the DMLC, Part I, for “new ships” provided by the Government, that substantially equivalent provisions have been adopted with respect to certain requirements relating to sleeping rooms of Standard A3.1. In this connection, the said DMLC, Part I refers to sections 3.4, 3.5 and 3.6 of the “Regulation Seafarers”. Section 3.4 sets out new dimensions for floor areas; section 3.5 relates to ships under 500 gross tonnage; and section 3.6 to the location of sleeping rooms above the load line in passenger and special purpose ships. The Committee was not able to examine the provisions concerned in detail because of lack of access to a reliable translation in one of the working languages of the Organization. The Committee requests the Government to state the content of each of the three articles concerned, indicating the precise differences between the national provisions and the corresponding requirements in Standard A3.1. Referring to its comments above, the Committee requests the Government to explain why the Netherlands is not in a position to implement the requirements concerned in the manner set out in Standard A3.1 and to indicate precisely how it has satisfied itself that the national provisions concerned are substantially equivalent to the requirements of Standard A3.1.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee recalls that, under paragraph 1(c) of Standard A4.1, seafarers have the right to visit a qualified medical doctor or dentist without delays in ports of call, where practicable. However, the Committee notes that section 7:734(a) of the Civil Code, to which the Government makes reference in its report in relation to this Standard, does not explicitly mention this obligation. The Committee therefore requests the Government to provide clarification as to how effect is given to this provision of the Convention.

Regulation 4.2 and the Code. The Committee notes that section 7:734(a) and (b) of the Civil Code provide that the right to medical care and treatment, as well as the right to full payment of wages in case of illness “ends when the seafarer reaches his country of residence”. The Committee recalls that, under paragraph 1(c) of Standard A4.2, shipowners are liable to defray the expense of medical care, as well as those of board and lodging away from home, until recovery or a declaration that the sickness or incapacity is permanent. Similarly, under paragraph 3(b) of Standard A4.2, shipowners are liable to pay wages in whole or in part as prescribed by national laws or regulations or as provided for in collective agreements from the time when the seafarers are repatriated or landed until their recovery or, if earlier, until they are entitled to cash benefits under the legislation of the Member concerned. Paragraphs 2 and 4 of Standard A4.2 provide that national laws or regulations may limit the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board “to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness”. The Committee requests the Government to clarify whether shipowners are required: (a) to continue to defray the expense of medical care after the sick or injured seafarers have returned home at the termination of their employment for at least 16 weeks or until recovery or until such time as the sickness or incapacity has been declared of a permanent character; and (b) to pay wages in whole or in part as prescribed by national laws or regulations or as provided for in collective agreements from the time when the seafarers are repatriated or landed until their recovery or, if earlier, until they are entitled to cash benefits under the legislation of the Member concerned. Furthermore, noting the information and documents submitted subsequent to its report (in response to a request for supplementary information), the Committee requests the Government to provide an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard (Standard A4.2, paragraph 1(b)).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s statement that the five major sea harbours in the Netherlands have founded, in October 2013, a Dutch Port Welfare Board. The goals of this Board are to offer and coordinate in a more effective way the seafarers welfare in Dutch ports; to offer better and more organized welfare services; to gather the needs of seafarers and their well-being; to meet the criteria laid down in the Convention, and the European Union Council Directive 2009/13/EC; to provide an appropriate response to port-related complaints which have come forward by the MLC, 2006, complaints desk; and to seek to avoid and to solve serious problems relating to seafarers’ welfare in ports. The Committee notes, however, that, in its observations, Platform Maritiem has expressed concerns on the development of seafarer welfare facilities in the country. It underlined that two facilities in Rotterdam recently closed due to financial problems and that welfare facilities in this port – one of the main seaports in the world – are well below standard. The Committee requests the Government to provide detailed information on measures taken or envisaged in order to promote the development of seafarer welfare facilities in Dutch ports.

Regulation 4.5 and the Code. Social security. The Committee recalls that, in the declaration made at the time of ratification (in accordance with Standard A4.5, paragraph 10), the Government had indicated that seafarers who legally reside in the Netherlands are entitled to social security protection for the following branches: medical care, old-age benefit, child benefit, and surviving relatives benefit. It further declared that seafarers legally residing in the Netherlands and employed by an employer residing in the Netherlands, as well as seafarers legally employed by a foreign employer and working on a ship flying the Dutch flag, are covered for the following additional branches of social security: sickness benefit, unemployment benefit, maternity benefit, and invalidity benefit. At the time of the abovementioned declaration, the Government had not indicated employment injury benefit as one of the branches of social security provided to seafarers. However, the Committee notes that, in its report, the Government stated that “all branches [of social security] are covered” while at the same time indicating that “in the Netherlands there is no special scheme for employment injury benefit”. The Committee requests the Government to provide clarifications as to whether, and under which framework, employment injury benefits are provided to seafarers. The Committee recalls that the obligation of each Member, under paragraphs 2 and 3 of Standard A4.5, to provide at least three branches of social security to all seafarers ordinarily resident in its territory may be implemented in a number of ways, as set out in paragraph 7 of Standard A4.5. 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 whether seafarers ordinarily resident in the Netherlands working on ships flying the flag of another country are provided with social security protection, as required under Regulation 4.5 and the Code, both in the presence and absence of bilateral or multilateral agreements.

Regulation 5.1.2 and the Code. Recognized organizations. The Committee notes that the Government refers to the instructions to recognized organizations in its report on the implementation of the Convention. The Committee requests the Government to clarify the legal status of these instructions and to explain to what extent they are legally binding.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee recalls that paragraph 12 of Standard A5.1.4 requires that a copy of the report on each inspection carried out by flag-state inspectors be submitted to the competent authority. It also requires that a copy of the report in English or in the working language of the ship be furnished to the master of the ship, that another be posted on the ship’s noticeboard and that a copy be sent to seafarers’ representatives upon their request. The Committee observes that the Government’s statement, to the effect that a report is included in the administrative process and that a master will always request a copy of the inspection report, does not appear to implement the requirements of the Convention on this point. The Committee requests the Government to provide detailed information on the relevant legislative or regulatory provisions ensuring that the requirements under paragraph 12 of Standard A5.1.4 are fulfilled.

[The Government is asked to reply in detail to the present comments in 2017.]