Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180) - Denmark (Ratification: 2003)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 2(d) of the Convention. Definition of “seafarer”. Further to its previous comment concerning the exclusion of masters from the definition of seafarers, and consequently from the scope of application of the legislation on hours of rest, the Committee notes the Government’s reference to the definition of the term “seafarer” under Article II(1)(f) of the Maritime Labour Convention, 2006 (MLC, 2006). According to this provision, a seafarer is any person who is employed or engaged or works in any capacity on board a ship, thus including the master of the ship. Recalling the 2007 EU Council decision authorizing Member States to ratify the Convention, and noting the Government’s intention to ratify the MLC, 2006 shortly, the Committee hopes that the Government will take all appropriate measures to extend the coverage of the Merchant Shipping (Masters and Seaman’s) Consolidation Act of 2005 and Order No. 515 of 21 June 2002 on Seafarers’ Hours of Rest to masters, thus bringing the national legislation into line with Article II(1)(f) of the MLC, 2006.

Articles 2(e), 5(3)–(5) and 9. Definition of shipowner, periods of rest in case of drills and call-outs to work, control of records. The Committee notes the Government’s statement that the Merchant Shipping Act and Order No. 515/2002 will be reviewed prior to the forthcoming ratification of the MLC, 2006. The Committee recalls that most of the provisions of Convention No. 180 have been incorporated without significant changes into the MLC, 2006, and therefore ensuring compliance with Convention No. 180 would facilitate the implementation of corresponding requirements of the MLC, 2006, once ratified and entered into force. The Committee accordingly requests the Government to provide full particulars on any legislative changes undertaken with a view to giving effect to the provisions of the MLC, 2006, on hours of rest. It would also appreciate receiving copies of any new laws or regulations not previously communicated to the Office.

Article 5(6). Collective agreements permitting exceptions to the hours of work or rest. The Committee notes the Government’s explanations that special agreements on hours of rest may only be registered if they are part of a collective agreement which ensures seafarers at least six consecutive hours of rest in every 24-hour period and at least 70 hours of rest per week. The Government indicates that, to date, 60 agreements on deviations have been recorded by the Danish Maritime Authority. As these agreements were not attached to the Government’s report, the Committee requests the Government to transmit together with its next report sample copies of these recorded deviation agreements.

Part V of the report form. Practical application. Please supply up-to-date information on the practical application of the Convention, including, for instance, statistics on the number of workers covered by the measures giving effect to the Convention, extracts from inspection reports showing the number and nature of infringements reported and the sanctions imposed, any difficulties encountered in the application of the Convention, in particular with regard to ships operating on a two-watch system (six hours on, six hours off), copies of any relevant collective agreements, as well as copies of official publications and surveys on issues related to the Convention.

Part VII of the report form. Comments of workers’ organizations. The Committee notes the information submitted by the Danish Confederation of Trade Unions (LO) regarding the application of the Convention in law and practice. The LO regrets the fact that the Government has chosen exclusively to regulate minimum hours of rest, which implies that all other hours are considered to be working hours. The LO points out that restrictions on hours of work can only be introduced through collective agreements which are compromised by section 10 of the Act on Danish International Ships’ Register (the DIS Act) that limits the opportunities of trade union organizations. The LO further states that no mechanism has been set up to implement Article 9 of the Convention regarding the examination and endorsement of records of seafarers’ daily hours of rest. However, available information shows that serious breaches of the rules on hours of rest exist. The LO makes reference to a study published by Sea Health Denmark in 2009 which shows that 18 per cent of seafarers have difficulties in taking time to rest, 6 per cent are often too tired to perform their work securely and one fifth indicate that they work more hours than they register. The LO considers that the Danish Maritime Authority does not apply Article 11(2) of the Convention when determining, approving or revising manning levels and also that no consideration has been given to the possibility to remedy violations under Article 10 of the Convention. Furthermore, the LO refers to the agreement between the Danish Shipowners’ Association and the Associated Marine Officers’ and Seamen’s Union of the Philippines (AMOSUP), which allows for general deviations from limits on legislation of work and rest in cases of overriding operational conditions. As the provision falls under the managerial prerogative, the seafarer is obliged to carry out any work in connection with the operation of the ship, even when this unduly limits the rest period. There seems to exist no restrictions on how this provision may be used, except that seafarers are entitled to compensatory rest. Due to the DIS Act, the LO lacks possibility to give a detailed explanation of the consequences of the working conditions that apply to the seafarers employed in accordance with the AMOSUP agreement. The Committee requests the Government to transmit its comments in reply to the observations of the LO.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2, subparagraph (d), of the Convention. Definition of “seafarer”. According to its section 2(1), the Seafarers’ Hours of Rest Order applies to all seafarers covered by sections 1 and 2 of the Merchant Shipping (Masters’ and Seamen’s) Consolidated Act No. 742 of 18 July 2005 (Seafarers’ Act) doing service on board Danish merchant ships. The term “seafarer” thus covers all persons, apart from the master, employed by the shipowner to perform duties on board a ship at sea, persons employed by the shipowner but not belonging to the proper crew, and persons employed by persons other than the shipowner. According to section 2(2) of the Seafarers’ Hours of Rest Order, sections 4(1)–(4) and (6), 5(1), 9, 10 and 11(1) and (4) of the Order shall by analogy apply to masters forming part of the regular bridge watch on board merchant ships. Section 4(1) of the Order is, however, the only provision applicable to all masters, regardless as to whether they form part of the bridge watch. Since section 4(1) only provides that a seafarer shall have regular periods of rest of sufficient length to ensure health and safety, masters not performing bridge watch are almost not covered by the Seafarers’ Hours of Rest Order. The Convention, however, applies to all persons employed or engaged in any capacity on board a seagoing ship (cf. Article 1), including masters, regardless as to whether they form part of the bridge watch. Similarly, an amendment to exempt masters when not engaged in regular watchkeeping from the provisions on hours of rest, has been rejected during the discussion of the Maritime Labour Convention at the International (Maritime) Labour Conference in February 2006 (Report of the Committee of the Whole, paragraphs 436–471). The Committee requests the Government to take the necessary measures to ensure that the relevant national legislation implementing the Convention covers, in conformity with Article 2, subparagraph (d), all persons employed or engaged in any capacity on board a seagoing ship including masters, regardless as to whether they are engaged in regular watchkeeping.

Article 2, subparagraph (e). Definition of “shipowner”. Please indicate by what means it is ensured that the term “shipowner” shall be understood as the owner of the ship or any other organization or person, such as the manager or bareboat charterer, who has assumed the responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the attendant duties and responsibilities.

Article 5, paragraphs 3, 4 and 5. Rest in case of musters or drills and in the event of call-outs to work. According to section 8 of the Seafarers’ Hours of Rest Order, musters, firefighting and lifeboat drills and other prescribed drills shall be conducted in a manner that minimizes the disturbance of periods of rest and does not induce fatigue. Section 6 provides that seafarers on call shall have a compensatory period of rest, if the normal period of rest is disturbed by call-outs to work.

The Convention, however, links paragraphs 3 and 4 to the provisions of paragraph 5 of this Article. Accordingly, if no collective agreements or arbitration awards exist on the conducting, in accordance with paragraph 3, of musters, firefighting and lifeboat drills and other prescribed drills, and on compensatory rest for disturbances of normal periods of rest by call-outs to work (paragraph 4), the competent authority shall determine provisions seeking to ensure that the seafarers concerned have sufficient rest. Paragraphs 3 and 4 read in conjunction with paragraph 5 of this Article of the Convention therefore require more than a mere repetition of the wording of the Convention in national legislation. There appear to be no relevant collective agreements or arbitration awards in respect of Article 5(3) and (4). The competent authority has laid down framework provisions in respect of Article 5(3) and (4) (sections 6 and 8 of the Seafarers’ Hours of Rest Order). Yet, questions of detailed implementation remain open.

In view of the link between paragraphs 3, 4 and 5 of this Article, please indicate whether there are any collective agreements or arbitration awards on the conducting, in accordance with paragraph 3, of musters, firefighting and lifeboat drills and other prescribed drills, and on compensatory rest for disturbances of normal periods of rest by call-outs to work (paragraph 4), and whether the competent authority has established that the provisions in the relevant agreement or award are adequate. If not, the Committee requests the Government to make sure that the competent authority shall determine provisions to ensure that the seafarers concerned have sufficient rest.

Article 5, paragraph 6. Exceptions to the limits on hours of rest. According to section 5(1) of the Seafarers’ Hours of Rest Order, the provisions regarding rest hours (section 4(2) and (3)) may be departed from by collective agreements for watchkeeping seafarers or seafarers engaged on ships on short voyages, taking into account more frequent or longer periods of leave or the granting of compensatory days off and with due consideration of the seafarers’ health and safety. Section 5(2) requires that, before applying such departures from provisions regarding rest hours, the agreement shall be registered with the Danish Maritime Authority. Please describe the exceptions permitted in conformity with this provision of the Convention, if any, and supply copies of the relevant collective agreements authorized or registered by the competent authority.

Article 9. Examination of records at appropriate intervals. Section 13(1) of the Seafarers’ Hours of Rest Order requires the Danish Maritime Authority to check that the requirements of the Order are complied with. To do so, a copy of the records of hours of rest, as mentioned in section 11(4), shall be submitted to the Danish Maritime Authority upon request for inspection and endorsement (section 11(5)). The Danish Maritime Authority may allow the information on the seafarers’ hours of rest to be stored and submitted to it electronically; it may make such an allowance conditional upon storage and submission of information in a special format (section 11(6)).

Under Part V of the report form, the Government reports, however, that direct control of seafarers’ records of rest only occasionally forms part of the Danish Maritime Authority’s inspection regime. It further indicates that random control of records of rest is carried out on board when circumstances give particular rise thereto, and that indirect control of records of hours of rest is carried out at intervals on board chosen ships. Thus, in 2004, shipowners were requested to pass on copies of seafarers’ records of hours of rest to the Danish Maritime Authority. Special inspection covered records of hours of rest for the month of July 2003 for all the seafarers serving on board ten ships of ten different shipowners. In 2005, a similar special inspection covered 14 ships of 14 shipowners. The results of the inspections showed that the regulations are generally applied to.

The Committee requests the Government to specify at what intervals the records of seafarers’ daily hours of rest of all ships flying the Danish flag are examined and endorsed by the competent authority (Danish Maritime Authority), as required by this Article of the Convention.

Article 10. Measures in case of infringements. According to section 13(2) of the Seafarers’ Hours of Rest Order, if the provisions of this Order are not complied with, the Danish Maritime Authority may, observing binding international conventions, take the measures necessary to prevent such fatigue as may constitute an obvious danger to the safety or health of seafarers. Such measures may include a prohibition of the ship leaving port, until the seafarers are sufficiently rested. Please indicate whether action taken pursuant to section 13(2) of the Order in case of infringements of provisions governing hours of rest, includes, if necessary, the revision of the manning of the ship.

Article 15, subparagraph (c). Complaint procedures. No relevant provisions or information have been made available to the Committee. It, therefore, requests the Government to describe the procedures in place to investigate complaints relating to hours of rest or manning, and indicate the consultations which have been held in conformity with this provision of the Convention.

Part V of the report form. Application in practice. Please supply extracts from inspection reports and information on the number and nature of infringements reported, penalties imposed, etc.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report on the application of the Convention.

Article 2, subparagraph (d), of the Convention. Definition of “seafarer”. According to its section 2(1), the Seafarers’ Hours of Rest Order applies to all seafarers covered by sections 1 and 2 of the Merchant Shipping (Masters’ and Seamen’s) Consolidated Act No. 742 of 18 July 2005 (Seafarers’ Act) doing service on board Danish merchant ships. The term “seafarer” thus covers all persons, apart from the master, employed by the shipowner to perform duties on board a ship at sea, persons employed by the shipowner but not belonging to the proper crew, and persons employed by persons other than the shipowner. According to section 2(2) of the Seafarers’ Hours of Rest Order, sections 4(1)-(4) and (6), 5(1), 9, 10 and 11(1) and (4) of the Order shall by analogy apply to masters forming part of the regular bridge watch on board merchant ships. Section 4(1) of the Order is, however, the only provision applicable to all masters, regardless as to whether they form part of the bridge watch. Since section 4(1) only provides that a seafarer shall have regular periods of rest of sufficient length to ensure health and safety, masters not performing bridge watch are almost not covered by the Seafarers’ Hours of Rest Order. The Convention, however, applies to all persons employed or engaged in any capacity on board a seagoing ship (cf. Article 1), including masters, regardless as to whether they form part of the bridge watch. Similarly, an amendment to exempt masters when not engaged in regular watchkeeping from the provisions on hours of rest, has been rejected during the discussion of the Maritime Labour Convention at the International (Maritime) Labour Conference in February 2006 (Report of the Committee of the Whole, paragraphs 436–471). The Committee requests the Government to take the necessary measures to ensure that the relevant national legislation implementing the Convention covers, in conformity with Article 2, subparagraph (d), all persons employed or engaged in any capacity on board a seagoing ship including masters, regardless as to whether they are engaged in regular watchkeeping.

Article 2, subparagraph (e). Definition of “shipowner”. Please indicate by what means it is ensured that the term “shipowner” shall be understood as the owner of the ship or any other organization or person, such as the manager or bareboat charterer, who has assumed the responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the attendant duties and responsibilities.

Article 5, paragraphs 3, 4 and 5. Rest in case of musters or drills and in the event of call-outs to work. According to section 8 of the Seafarers’ Hours of Rest Order, musters, firefighting and lifeboat drills and other prescribed drills shall be conducted in a manner that minimizes the disturbance of periods of rest and does not induce fatigue. Section 6 provides that seafarers on call shall have a compensatory period of rest, if the normal period of rest is disturbed by call-outs to work.

The Convention, however, links paragraphs 3 and 4 to the provisions of paragraph 5 of this Article. Accordingly, if no collective agreements or arbitration awards exist on the conducting, in accordance with paragraph 3, of musters, firefighting and lifeboat drills and other prescribed drills, and on compensatory rest for disturbances of normal periods of rest by call-outs to work (paragraph 4), the competent authority shall determine provisions seeking to ensure that the seafarers concerned have sufficient rest. Paragraphs 3 and 4 read in conjunction with paragraph 5 of this Article of the Convention therefore require more than a mere repetition of the wording of the Convention in national legislation. There appear to be no relevant collective agreements or arbitration awards in respect of paragraphs 3 and 4 of Article 5. The competent authority has laid down framework provisions in respect of Article 5, paragraphs 3 and 4 (sections 6 and 8 of the Seafarers’ Hours of Rest Order). Yet, questions of detailed implementation remain open.

In view of the link between paragraphs 3, 4 and 5 of this Article, please indicate whether there are any collective agreements or arbitration awards on the conducting, in accordance with paragraph 3, of musters, firefighting and lifeboat drills and other prescribed drills, and on compensatory rest for disturbances of normal periods of rest by call-outs to work (paragraph 4), and whether the competent authority has established that the provisions in the relevant agreement or award are adequate. If not, the Committee requests the Government to make sure that the competent authority shall determine provisions to ensure that the seafarers concerned have sufficient rest.

Article 5, paragraph 6. Exceptions to the limits on hours of rest. According to section 5(1) of the Seafarers’ Hours of Rest Order, the provisions regarding rest hours (section 4(2) and (3)) may be departed from by collective agreements for watchkeeping seafarers or seafarers engaged on ships on short voyages, taking into account more frequent or longer periods of leave or the granting of compensatory days off and with due consideration of the seafarers’ health and safety. Section 5(2) requires that, before applying such departures from provisions regarding rest hours, the agreement shall be registered with the Danish Maritime Authority. Please describe the exceptions permitted in conformity with this provision of the Convention, if any, and supply copies of the relevant collective agreements authorized or registered by the competent authority.

Article 9. Examination of records at appropriate intervals. Section 13(1) of the Seafarers’ Hours of Rest Order requires that the Danish Maritime Authority shall check that the requirements of the Order are complied with. To do so, a copy of the records of hours of rest, as mentioned in section 11(4), shall be submitted to the Danish Maritime Authority upon request for inspection and endorsement (section 11(5)). The Danish Maritime Authority may allow the information on the seafarers’ hours of rest to be stored and submitted to it electronically; it may make such an allowance conditional upon storage and submission of information in a special format (section 11(6)).

Under Part V of the report form, the Government reports, however, that direct control of seafarers’ records of rest only occasionally forms part of the Danish Maritime Authority’s inspection regime. It further indicates that random control of records of rest is carried out on board when circumstances give particular rise thereto, and that indirect control of records of hours of rest is carried out at intervals on board chosen ships. Thus, in 2004, shipowners were requested to pass on copies of seafarers’ records of hours of rest to the Danish Maritime Authority. Special inspection covered records of hours of rest for the month of July 2003 for all the seafarers serving on board ten ships of ten different shipowners. In 2005, a similar special inspection covered 14 ships of 14 shipowners. The results of the inspections showed that the regulations are generally applied to.

The Committee requests the Government to specify at what intervals the records of seafarers’ daily hours of rest of all ships flying the Danish flag are examined and endorsed by the competent authority (Danish Maritime Authority), as required by this Article of the Convention.

Article 10. Measures in case of infringements. According to section 13(2) of the Seafarers’ Hours of Rest Order, if the provisions of this Order are not complied with, the Danish Maritime Authority may, observing binding international conventions, take the measures necessary to prevent such fatigue as may constitute an obvious danger to the safety or health of seafarers. Such measures may include a prohibition of the ship leaving port, until the seafarers are sufficiently rested. Please indicate whether action taken pursuant to section 13(2) of the Order in case of infringements of provisions governing hours of rest, includes, if necessary, the revision of the manning of the ship.

Article 15, subparagraph (c). Complaint procedures. No relevant provisions or information have been made available to the Committee. It, therefore, requests the Government to describe the procedures in place to investigate complaints relating to hours of rest or manning, and indicate the consultations which have been held in conformity with this provision of the Convention.

Part V of the report form. Please supply extracts from inspection reports and information on the number and nature of infringements reported, penalties imposed, etc.