Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8) - Luxembourg (Ratification: 1928)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes with interest that on 20 September 2011 Luxembourg ratified the Maritime Labour Convention, 2006 (MLC, 2006) the entry into force of which will entail the automatic denunciation of Convention No. 8. In the meantime, the Committee will continue to examine the conformity of the national legislation with the requirements of this Convention.

Articles 2 and 3 of the Convention. Unemployment indemnity in the event of shipwreck. The Committee notes that the Government has not undertaken any legislative changes with a view to ensuring conformity with the provisions of the Convention. It notes, in this respect, the Government’s indications that the provisions of the Convention are directly applicable in the domestic legal order and do not call for implementation at the national level as they can be invoked by seafarers and applied by the national authorities. The Committee considers, however, that the application of Article 2 of the Convention requires the adoption by national competent authorities of appropriate measures so as to ensure that shipowners effectively discharge of the obligations arising out of this Article. In addition, in accordance with Article 3 of the Convention, seafarers should have the same remedies for recovering unemployment indemnities as they have for recovering arrears of wages earned during the service. The implementation of this provision requires the intervention of national authorities. The Committee recalls that section 106 of the Act of 9 November 1990 on the creation of a public maritime register establishes a general obligation for shipowners to insure against unemployment, although the benefits are limited to 45 per cent of the prior earnings during at least 13 weeks over a 12-month period, following the completion of a period of employment of over three months. The Committee also notes that, in the context of the general social security scheme, the qualifying period is set at 26 weeks over the 12 months prior to registration as a jobseeker, with the duration of the benefits being equal to the duration of the work, calculated in full months, performed over that period, and the level of the indemnity being equivalent to 80 per cent of the gross previous wage for the past three months (85 per cent if the unemployed person has dependant children). In the absence of any progress on this point, the Committee is bound to recall that Article 2 of the Convention requires the payment by the shipowner of an indemnity against unemployment to seafarers in case of the loss or foundering of the vessel. This indemnity has to be paid for all the days during which the seafarer remains in fact unemployed at the same rate as the wages payable under the contract, although the Convention reserves the possibility of limiting the indemnity to two months’ wages. In any event, the Convention does not authorize the requirement for seafarers to complete a qualifying period to be able to benefit from unemployment indemnities in the case of the foundering of the vessel. The Committee also recalls that Regulation 2.6 of the MLC, 2006, provides that seafarers are entitled to adequate compensation not only in the case of unemployment, but also in the case of injury or loss arising from the ship’s loss or foundering. The Committee notes, in this regard, the Government’s indication that this question will be addressed in the context of implementing the MLC, 2006, by adopting a specific text so that the protection accorded to seafarers be clearly defined. The Committee hopes that the Government will take, in a timely manner, the necessary measures to ensure the application of Convention No. 8 and of the corresponding provisions of the MLC, 2006, and requests it to keep the Office informed of further developments on this matter.

Part V of the report form. Application in practice. The Committee requests the Government to provide information on the number of seafarers employed on board ships flying the Luxembourg flag. The Committee also refers to the indications contained in a previous report from the Government according to which the Employment Administration was prepared to provide an unemployment indemnity corresponding to the conditions set out by the Convention in the case of the loss or foundering of a ship. It requests the Government to indicate whether ships flying the Luxembourg flag have been lost through foundering and, if so, to provide information on the unemployment indemnities paid to seafarers employed on board.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

In its previous comments, the Committee took note of the Government’s statement that the Employment Administration Service has agreed, in the event of loss or foundering of a vessel, to pay to each seafarer employed thereon an indemnity in accordance with the conditions laid down by the Convention. Consequently, the Committee expressed the hope that, in future, the Government would sanction this practice in a legislative, regulatory or administrative provision to explicitly guarantee to all seafarers employed on a vessel registered in Luxembourg an indemnity against unemployment equal to the previous salary earned, for at least two months, in the event of the loss or foundering of the ship. In accordance with the Convention, payment of the indemnity is not subject to the completion of a minimum period of employment. The request made by the Committee was based on section 106 of the Act of 9 November 1990 on the creation of a public maritime register, as amended, which concerns seafarers’ unemployment. Under this provision, owners of vessels registered in Luxembourg are required to take out an insurance policy covering their personnel for unemployment benefit amounting to at least 45 per cent of their previous wages for a period of 13 weeks. Payment of the unemployment benefit is subject to completion of a minimum period of employment. Application of this provision, however, in the event of foundering does not give effect to Article 2 of the Convention for the reasons outlined above.

In its latest report, the Government states that no measure has been taken on this matter since submission of the previous report; it adds that, to date, there has been no case of a Luxembourg-registered vessel foundering. While noting this information, the Committee is bound to reiterate once again the hope that, for improved clarity and legal security, the Government will take the necessary measures to guarantee explicitly the protection laid down by the Convention against unemployment resulting from foundering for seafarers employed on ships or vessels registered in Luxembourg, engaged in maritime navigation, including foreign seafarers who do not reside in Luxembourg but are employed on Luxembourg-registered vessels. The Committee recalls that, pursuant to Article 2, paragraphs 1 and 2, of the Convention, the owner or person with whom the seafarer has contracted for service on board the vessel shall pay to each seafarer employed thereon an indemnity equal to at least two months’ wages payable under the contract as compensation for unemployment resulting from such loss or foundering.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 2, paragraph 2, of the Convention. In response to the Committee's previous comments, the Government states that since the creation of the public maritime register of Luxembourg, in the case of loss or foundering of the vessel the employment administration service accepts to pay to each seafarer employed on the vessel an indemnity against unemployment in accordance with the conditions set forth in this provision of the Convention.

The Committee notes this information with interest. It hopes that the practice adopted would be sanctioned in a legislative provision, regulation or administrative decision which explicitly guarantees to all seafarers who are employed on a vessel registered in Luxembourg, whether residing in Luxembourg or not, an indemnity against unemployment, at the same rate as the previous wage earned, for a period which may be limited to two months' wages in the case of loss or foundering of the vessel. Please provide a copy of any text which has been adopted to this effect.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Article 2, paragraph 2, of the Convention. The Committee notes the information supplied by the Government in its report. The Government states that under section 106 of the Act of 9 November 1990 on the creation of a public maritime register, as amended, owners of vessels registered in Luxembourg are required to take out an insurance policy covering their personnel for unemployment benefit amounting to at least 45 per cent of their previous wages for a period of 13 weeks. Payment of the unemployment benefit is subject to completion of a waiting period. The Government also states that it has signed an agreement with Belgium under which the great majority of seafarers working on vessels registered in Luxembourg come under the Belgian unemployment scheme.

The Committee takes note of this information. It recalls that under Article 2, paragraph 2, of the Convention, in the event of loss or foundering of the ship, each seaman employed thereon must be paid an unemployment indemnity equal to at least two months' wages, and that payment of the indemnity is not subject to the completion of a waiting period. The Committee in conclusion asks the Government to indicate any measures taken or envisaged to ensure that seamen employed on vessels registered in Luxembourg, whether resident or non-resident, receive the protection laid down by this provision of the Convention.