Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

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

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with serious concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

The Committee takes note of the Government’s first report on the application of the Convention. The Committee notes that Viet Nam had not ratified any of the Conventions revised by the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Viet Nam on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. The Committee notes the efforts undertaken 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.

Article II, paragraphs 1(f) and (i), 3 and 5, of the Convention. Scope of application. Seafarer. The Committee notes the definition of “seafarer” provided for under Decree No. 121/2014/ND-CP dated 24 December 2014 on the implementation of a number of Articles of the MLC, 2006. According to section 3(4) of this Decree, “seafarer” is an employee engaged on board ship meeting the conditions and criteria as prescribed by the law. The Committee does not have a clear understanding which are “the conditions and criteria prescribed by the law” to which this definition refers. The Committee therefore requests the Government to clarify the meaning of “seafarer” under the national legislation taking into account the provisions of Article II, paragraph 1(f) of the Convention.

Regulation 1.2 and the Code. Medical certificate. The Committee notes that section 1 of Decision No. 20/2008/QD-BYT dated 9 June 2006 on Standards of Medical Fitness for Seafarers working on Vietnamese Ships requires a medical certificate prior to the beginning of the work on board ship attesting that the seafarer is fit for that work. However, section 3(b) of said Decision provides that where a seafarer does not satisfy the standards of medical fitness for seafarers (having one of the diseases subject to case-by-case assessment in point 2.3 of section II), but the shipowner demands his or her service, the seafarer shall make a written health guarantee which enables him or her to work on board ship. The Committee recalls that under Regulation 1.2 seafarers shall not work on a ship unless they are certified as medically fit to perform their duties and that exceptions can only be authorized as prescribed in the Code. Noting that the exception provided in the abovementioned Decision is not acceptable under the Convention, the Committee requests the Government to take all necessary measures to ensure full compliance with Regulation 1.2. In this connection, the Committee further notes that the applicable legislation is silent with regard to: (i) the requirements to be a duly qualified practitioner and the fact that they must enjoy full professional independence in exercising their medical judgement in undertaking medical examination procedures (Standard A1.2, paragraph 4); and (ii) the opportunity to have a further examination by another independent medical practitioner or by an independent medical referee (Standard A1.2, paragraph 5). The Committee requests the Government to provide information on the provisions giving effect to these requirements of the Convention.

Regulation 1.3, paragraph 2. Training and qualification for personal safety on board. The Committee notes that the Government provides no information concerning training and qualification for personal safety on board (Regulation 1.3, paragraph 2). The Committee requests the Government to provide information on how effect is given to this requirement of the Convention.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s reference to Decree No. 52/2014/ND-CP dated 23 May 2014, providing conditions and procedures for granting employment service provision licences to employment service enterprises. The Committee notes that this Decree refers to employment agencies in general and does not contain provisions regarding the recruitment and placement of seafarers. The Committee therefore requests the Government to provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers, as well as on the laws, regulations or other measures providing for the minimum requirements concerning the functioning of private seafarer recruitment and placement services pursuant to Standard A1.4, paragraph 5, of the Convention. Furthermore, the Committee requests the Government to specify whether any private seafarer recruitment and placement services already operate in its territory, pursuant to Decree No. 52/2014/ND-CP.

Regulation 2.1 and the Code. Seafarers’ employment agreement (SEA). The Committee notes that the Government does not provide information on the provisions ensuring that seafarers are given an opportunity to examine SEAs and seek advice on them before signing (Standard A2.1, paragraph 1(b)) and that they may easily obtain on board clear information as to the conditions of their employment (Standard A2.1, paragraph 1(d)). The Committee requests the Government to indicate the laws and regulations giving effect to these requirements of the Convention. The Committee further notes that, in relation to SEAs, the Government refers to sections 37 and 38 of the Labour Code which deal with cases of termination of employment. The Committee observes that these provisions are applicable to workers in general but do not necessarily take into account the specific circumstances of seafarers. The Committee requests the Government to indicate whether and how the legislation takes into account the need of the seafarer to terminate the contract without penalty on shorter notice or without notice for compassionate or other urgent reasons in conformity with Standard A2.1, paragraph 6. Concerning the list of matters to be included in SEAs according to Standard A2.1, paragraph 4, the Committee notes that, the majority of the matters listed under Standard A2.1, paragraph 4, are reflected in the existing legislation. However, the Committee observes that the following elements have not been taken into account: (a) the seafarer’s name, date of birth or age and birthplace; (b) the shipowner’s name and address; and (c) the place where and date when the SEA is entered into. The Committee therefore requests the Government to ensure that these matters are also included in SEAs.

Regulation 2.2 and Standard A2.2, paragraph 5. Wages. The Committee notes that section 5(2) of Decree No. 121/2014/ND-CP provides that salaries, allowances and other incomes of the crew are paid in cash or paid into the personal account of the crew or the authorized persons. Where paid through bank accounts, shipowners have to discuss with the seafarer the costs related to the opening, transfer and account maintenance as prescribed. The Committee further notes that the Government does not indicate which are the provisions ensuring that any charge for this service is reasonable in amount and the rate of currency exchange, unless otherwise provided, is, in accordance with national laws or regulations, at the prevailing market rate or the official published rate and not unfavourable to the seafarer (Standard A2.2, paragraph 5). The Committee requests the Government to provide information on the specific provisions in the national laws or regulations giving effect to these requirements of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes the Government’s reference to section 6 of Decree No. 121/2014/ND-CP, which regulates working time and provides for a system of minimum hours of work in conformity with Standard A2.3, paragraph 5(b). It observes that according to section 6(5) of the said Decree, in cases of training, drills or other activities related to fire security, the master may arrange a different working time schedule in a manner that minimizes the disturbance of rest periods and does not induce fatigue. The Committee further notes that under said Decree, exceptions to the minimum hours of rest, including a reduction in the hours of rest in any seven-day period and a division of hours of rest into three periods, shall be stipulated in a collective bargaining agreement or an employment contract. The Committee recalls in this regard that the limits on hours of rest shall not exceed those established under Standard A2.3, paragraph 5, and that any exceptions to paragraphs 5 and 6 of this Standard which do not fall within those covered by paragraph 14 (immediate safety of the ship, persons on board or cargo, or assistance to other ships or persons in distress at sea), including those provided for in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, as amended, must follow the requirements of Standard A2.3, paragraph 13, and be provided only by collective agreements. The Committee requests the Government to adopt the necessary measures to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6, of the Convention other than those justified under paragraph 14 of the same Standard, can be provided only under collective agreements and not under the employment contract.

Regulation 2.3, Standard A2.3, paragraph 10. Posting of shipboard working arrangements. The Committee notes that the Government’s report is silent on this issue. The Committee requests the Government to indicate how effect is given to this provision of the Convention.

Regulation 2.5, Standard A2.5.1, paragraph 3. Prohibition of recovering cost of repatriation from seafarers. The Committee notes that section 8(2) of Decree No. 121/2014/ND-CP provides that “shipowners do not have to pay the expenses for the repatriation of crew member in cases they were disciplined in the form of dismissal or illegally unnatural termination the labour contract”. The Committee recalls that while the shipowner may recover from the seafarer the cost of the repatriation under the limited circumstances provided for under Standard A2.5, paragraph 3 (that is where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective agreements, to be in serious default of the seafarer’s employment obligations), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. The Committee underlines that the possibility provided by the Convention to recover the cost of the repatriation from the seafarer is conditional on a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements. The Committee therefore requests the Government to ensure that shipowners pay for repatriation of seafarers in all cases when seafarers are entitled to this right. The Government is also requested to provide information on the provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be disciplined in the form of dismissal or be considered in cases of “illegal and unnatural termination of the labour contract”.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Maximum period of service on board ship. The Committee notes that the Government has provided no information on this issue. The Committee recalls that Standard A2.5, paragraph 2(b), provides that national laws or regulations, other measures, or collective bargaining agreements, should prescribe “the maximum duration of service periods on board following which a seafarer is entitled to repatriation – such periods to be less than 12 months”. The Committee requests the Government to provide information regarding the maximum period of service on board before a seafarer is entitled to repatriation.

Regulation 2.5, Standard A2.5.2. Financial security in the event of abandonment. The Committee notes the Government’s reference to section 8 of Decree No. 121/2014/ND-CP according to which shipowners shall have the financial security to pay for the repatriation of crew members under the provision of this Decree. The Committee further notes the Government’s statement that the Ministry of Transport and the Ministry of Finance were in the process of drafting a joint circular guiding the payment of repatriation of seafarers. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.6 and the Code. Seafarer’s compensation for the ship’s loss or foundering. The Committee notes that sections 48, 49, 144, 145, 148 and 186 of the Labour Code referred to by the Government do not deal with the case of ship’s loss or foundering but with the issue of severance pay. Noting that the legislation to which the Government refers in relation to this issue does not implement this Regulation, the Committee requests it to indicate how it ensures that seafarers are entitled to adequate compensation in the case of injury, loss or unemployment arising from the ship’s loss or foundering, as required by Regulation 2.6, paragraph 1.

Regulation 4.1, Standard A4.1, paragraph 3. On-board hospital and medical facilities. The Committee notes that the Government’s report contains no information on the implementation of this provision of the Convention. The Committee therefore requests the Government to provide information concerning on-board hospital and medical care facilities and equipment and training on ships that fly the Vietnamese flag.

Regulation 4.1, Standard A4.1, paragraph 4(a). Inspection and maintenance of medicine chests, medical equipment and medical guides at regular intervals. The Committee notes that under section 10(5) of Decree No. 121/2014/ND-CP, the Minister of Health is responsible for regulating medical cabinets, equipment, documentation on ships and medical report forms. Noting the Government’s indication in this regard that a draft circular is being prepared on this issue, the Committee requests the Government to provide a copy of the draft circular once adopted.

Regulation 4.1, Standard A4.1, paragraph 4(d). System of medical advice by radio or satellite communication to ships at sea. The Committee notes the Government’s statement that ships are adequately equipped and maintain up-to-date contact information by radio or satellite communication to obtain onshore medical advice while ship are on voyage, following the guidelines of the International Maritime Organization and the World Health Organization. However, the Committee notes that the Government does not indicate which national provisions give effect to this requirement. The Committee therefore requests the Government to provide information on the laws and regulations adopted to give effect to this requirement of the Convention.

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

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government has provided no information on the adoption of national guidelines for the management of occupational safety and health on board ships that fly its flag required under Regulation 4.3, paragraph 2. The Committee requests the Government to indicate whether these guidelines have been adopted and, if so, if consultations with the representative shipowners’ and seafarers’ organizations have taken place. It further notes that according to section 13 of Decree No. 121/2014/ND-CP, the shipowner has responsibility for the development and implementation of occupational safety and health policies for seafarers. The Committee requests the Government to provide information on how it implements Standard A4.3, paragraphs 1(c), 2(b) and 8 (on-board programmes, obligations of shipowners, seafarers and others in relation to occupational safety and health, risk evaluation), and to provide examples of declarations of maritime labour compliance (DMLCs) Part II approved by the competent authority in order to assess shipowners’ practices regarding this issue.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Viet Nam specified that the branches for which it provides social security protection to seafarers in accordance with Standard A4.5, paragraphs 2 and 10, are: medical care, old-age benefit and employment injury benefit. The Committee is aware that recent reforms have been adopted regarding legislation on social security. The Committee therefore requests the Government to provide a copy of the new texts in order to enable it to review their content and scope of application. It further requests the Government to indicate how it ensures that all seafarers ordinarily resident in its territory, including foreign seafarers, are granted social security coverage in the branches specified which is no less favourable than that enjoyed by shoreworkers resident in Viet Nam, in conformity with Regulation 4.5 of the Convention.

Regulation 5.1.1 and the Code. Flag State responsibilities. System of inspection. Copy of the MLC, 2006, on board. The Committee notes that the Government provides no information on the duties and powers of inspectors. The Committee therefore requests the Government to provide information in this regard. Furthermore, noting that the Government provides no information on the legislative or regulatory provisions requiring all ships that fly its flag to have a copy of the Convention available on board, the Committee requests the Government to indicate how effect is given to Standard A5.1.1, paragraph 2.

Regulation 5.1.3, paragraph 6, and Standard A5.1.3. Maritime labour certificate and declaration of maritime labour compliance. The Committee notes that the Government has not provided a copy of the maritime labour certificate nor the DMLC Part I that must be issued by the competent authority under Regulation 5.1.3. Recalling that the examination of these documents is crucial to assess the correct implementation of the Convention, the Committee requests the Government to send them with its next report.

Regulation 5.1.4 and Standard A5.1.4, paragraphs 3 and 7(c). Inspection and enforcement. The Committee notes that the Government does not specify the national provisions that set the requirement ensuring that the inspectors shall have the status and the independence necessary to enable them to carry out the verification of the application of the Convention. The Committee therefore requests the Government to specify the legislative or regulatory provisions giving effect to Standard A5.1.4, paragraphs 3, 6, 11(a) and 17, and to indicate how it ensures that the inspector is empowered to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken as required under Standard A5.1.4, paragraph 7(c), of the Convention.

Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee notes the Government’s indication that no model procedure for on board complaints has been drafted. The Committee therefore requests the Government to indicate the measures taken to give effect to Standard A5.1.5, paragraphs 1–3. The Committee further notes that the Government has not indicated the provisions prohibiting and penalizing any kind of victimization of a seafarer for filing a complaint, as requested by Regulation 5.1.5, paragraph 2. The Committee therefore requests the Government to indicate how effect is given to this requirement of the Convention. The Committee further requests the Government to explain how effect is given to the following paragraphs of Standard A5.1.5: (i) the seafarer’s right to complain directly to the master (paragraph 2); and (ii) the seafarer’s right to be accompanied or represented during the complaints procedure (paragraph 3).

Regulation 5.2.2 and the Code. Onshore seafarer complaint-handling procedures. The Committee notes that the Government has not provided sufficient information concerning the procedures that enable seafarers on ships calling at Vietnamese ports to report a complaint of a breach of the requirements of the Convention. The Committee requests the Government to provide detailed information on the mechanism established to receive and deal with complaints in Vietnamese ports, and particularly the steps taken to safeguard the confidentiality of complaints made by seafarers.