Nghị định 121/2014/NĐ-CP hướng dẫn Công ước Lao động hàng hải năm 2006 về chế độ lao động của thuyền viên làm việc trên tàu biển

NGHỊ ĐỊNH

QUY ĐỊNH CHI TIẾT MỘT SỐ ĐIỀU CỦA CÔNG ƯỚC LAO ĐỘNG HÀNG HẢI NĂM 2006 VỀ CHẾ ĐỘ LAO ĐỘNG CỦA THUYỀN VIÊN LÀM VIỆC TRÊN TÀU BIỂN

Căn cứ Luật Tổ chức Chính phủ ngày 25 tháng 12 năm 2001;

Căn cứ Bộ luật Hàng hải Việt Nam ngày 14 tháng 6 năm 2005;

Căn cứ Bộ luật Lao động ngày 18 tháng 6 năm 2012;

Căn cứ Luật Ký kết, gia nhập và thực hiện điều ước quốc tế ngày 14 tháng 6 năm 2005;

Căn cứ Công ước Lao động hàng hải năm 2006 của Tổ chức Lao động quốc tế;

Theo đề nghị của Bộ trưởng Bộ Giao thông vận tải,

Chính phủ ban hành Nghị định quy định chi tiết một số điều của Công ước Lao động hàng hải năm 2006 về chế độ lao động của thuyền viên làm việc trên tàu biển.

DECREE

ELABORATING CERTAIN ARTICLES OF THE MARITIME LABOUR CONVENTION IN 2006 WITH RESPECT TO CONDITIONS OF EMPLOYMENT OF SEAFARERS WORKING ON BOARD SHIPS

Pursuant to the Law on Government Organization dated December 25, 2001;

Pursuant to the Maritime Code of Vietnam dated June 14, 2005;

Pursuant to the Labour Code dated June 18, 2012;

Pursuant to the Law on conclusion, adoption and implementation of international treaties dated June 14, 2005;

Pursuant to the Maritime Labour Convention in 2006 by the International Labour Organization;

At the request of the Minister of Transport;

The Government promulgates a Decree elaborating certain articles of the Maritime Labour Convention in 2006 with respect to conditions of employment of seafarers working on board ships.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree elaborates certain articles of the Maritime Labour Convention in 2006 with respect to employment conditions, entitlements, duties and responsibilities of seafarers, shipowners, and relevant organizations and individuals; inspections of Vietnamese-flagged ships and foreign-flagged ships operating in ports of Vietnam.

2. Other employment conditions, entitlements, duties and responsibilities of seafarers, shipowners, relevant organizations and individuals, which are not prescribed herein, shall be carried out in accordance with relevant laws.

Article 2. Regulated entities

1. This Decree applies to:

a) Vietnamese-flagged ships, shipowners and seafarers working on board Vietnamese-flagged ships;

b) Foreign-flagged ships operating in ports of Vietnam, shipowners and seafarers working on board such ships;

c) Vietnamese and foreign organizations and individuals concerned.

2. The shipowners and seafarers working on board the following ships shall not be governed by this Decree:

a) Military ships, public vessels and fishing vessels;

b) Vietnamese-flagged ships that do not operate on international voyages.

Article 3. Interpretation of terms

For the purposes of this document, the terms below are construed as follows:

1. “Vietnamese-flagged ship” means a ship which has been named in the Vietnam National Ships Registration Book or permitted to provisionally fly the Vietnamese flag by a diplomatic mission or consular post of Vietnam abroad.

2. “foreign-flagged ship” means a ship flying the flag of a foreign country.

3. “shipowner” means the owner of the ship or another organization or individual who has assumed the responsibility for the operation of the ship from the owner and has agreed to take over the duties and responsibilities imposed on the shipowner, regardless of whether any other organization or individual fulfills certain of the duties or responsibilities on behalf of the shipowner.

4. “seafarer” means any person who is employed or engaged to work in any capacity on board a ship upon his/her satisfaction of relevant requirements and standards as regulated by laws.

5. “period of service on board” means the length of time lasting from a seafarer's receipt of duties on board a ship to his/her repatriation.

6. “maritime occupational accident” means an accident which occurs within the period of service on board a ship of a seafarer and causes injury or impairment in the function of any part of the body or results in death of the seafarer when he/she performs his/her duties or any other tasks as assigned by the shipowner or any person authorized by the shipowner.

7. “international voyage” means a voyage of a Vietnamese-flagged ship from a port of Vietnam to a foreign port or between ports in a foreign country.

8. “STCW Convention” means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.

Chapter II

CONDITIONS OF EMPLOYMENT OF SEAFARERS WORKING ON BOARD VIETNAMESE-FLAGGED SHIPS

Article 4. Seafarers’ employment agreements

1. Before a seafarer works on board a ship, a seafarers' employment agreement must be signed by both the seafarer and the shipowner. If the shipowner cannot personally sign the seafarers’ employment agreement, he/she may authorize in writing his/her representative to sign the seafarers’ employment agreement. The conclusion, authorization and performance of the seafarers’ employment agreement shall conform to the Labour Code, regulations herein and relevant documents.

2. In addition to primary contents prescribed in the Labour Code, a seafarers’ employment agreement must include the following contents:

a) The seafarer’s entitlement to repatriation;

b) Accident insurance;

c) The amount of paid annual leave;

d) Conditions of termination of the seafarers’ employment agreement.

3. The seafarers’ employment agreement, its appendixes and relevant documents must be prepared in Vietnamese and English, and shall have the same legal effect.

Article 5. Wages, allowances and other incomes

1. Shipowners shall assume the responsibility to pay monthly wages and allowances directly to seafarers or their legal beneficiaries.

2. Wages, allowances and other incomes of seafarers shall be paid in cash or transferred to bank accounts of seafarers or their legal beneficiaries. If payments are made through bank transfer, the shipowner and the seafarer must reach an agreement on the service fees relating the opening, money transfer and maintenance of bank accounts as regulated by laws.

3. The shipowner shall assume the responsibility to prepare and provide seafarers with a monthly account of the payments due, including wages, allowances and other incomes.

Article 6. Hours of work and hours of rest

1. Hours of work shall be arranged according to the shift-work system, providing uninterrupted 24-hour performance of duties every day, including weekly days of rest and public holidays.

2. Hours of rest shall be regulated as follows:

a) Minimum hours of rest shall not be less than 10 hours in any 24-hour period, and 77 hours in any 07-day period;

b) Hours of rest in the 24-hour period may be divided into no more than two periods, one of which shall be at least 06 hours, and the interval between two consecutive periods of rest shall not exceed 14 hours;

c) Any 24-hour period is counted from the beginning or the end of a rest period.

3. In case of emergencies which threaten the security and safety of the ship or the cargo or put life at risk or render assistance to any ship or person found at sea in danger, the master of the ship is entitled to request a seafarer to work at all hours. Upon the fulfillment of urgent duties, the master is required to provide adequate compensatory rest period for the seafarer according to Point a Clause 2 of this Article.

4. Hours of work and hours of rest must be specified in the table of shipboard working arrangements which is established in Vietnamese and in English according to the form provided in the Appendix I enclosed herewith, and posted in an easily accessible place on board the ship.

5. In case of musters, fire-fighting and lifeboat drills, or other drills prescribed by applicable lawsoft, the master may arrange the hours of rest in a manner other than the one prescribed in Point a Clause 2 of this Article provided that such arrangement must minimize the disturbance of rest periods, do not cause fatigue to seafarers, and be prescribed in the collective labour agreement or the seafarers’ employment agreement according to the following principles:

a) Minimum hours of rest shall not be less than 10 hours in any 24-hour period, and 70 hours in any 07-day period. The application of exceptions shall not be allowed for more than two consecutive weeks. The intervals between two periods of exceptions on board shall not be less than twice the duration of the previous exception;

b) Minimum hours of rest prescribed in Point a Clause 2 of this Article may be divided into no more than three periods, one of which shall be at least 06 hours in length and neither of the other two periods shall be less than 01 hour in length;

c) The intervals between two consecutive periods of rest shall not exceed 14 hours;

d) The exceptions shall not extend beyond two 24-hour periods in any 07-day period.

6. The master or any person authorized by the master shall assume the responsibility to prepare and provide seafarers with the records of hours of rest according to the form provided in the Appendix II enclosed herewith.

Article 7. Annual leave and public holidays

1. Seafarers working on board ships shall be given paid annual leave and public holidays.

2. The annual leave shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment. Public and customary holidays, compassionate leave and leave without pay as regulated by laws shall not be counted as part of annual leave.

3. Any agreement to forgo the minimum annual leave shall be prohibited.

Article 8. Repatriation

1. The shipowner shall assume the responsibility to make arrangements for and to meet the cost of repatriation of seafarers in the following circumstances:

a) The seafarers’ employment agreement expires;

b) The seafarer suffers from illness or injury resulted from an occupational accident, which requires his/her repatriation;

c) The event of shipwreck occurs;

d) The sale of ship or change of ship's registration is made;

dd) The ship is bound for a war zone to which the seafarer does not consent to go;

e) The repatriation in other cases is made upon agreements between the seafarer and the shipowner.

2. The shipowner must not pay cost of repatriation of the seafarer who is sacked due to his serious default of employment obligations or who early terminates the seafarers’ employment agreement inconsistently with applicable laws.

3. The costs to be borne by the shipowner for the repatriation include the following:

a) Passage to the destination selected for repatriation;

b) Accommodation and food from the moment the seafarers leave the ship until they reach the repatriation destination;

c) Pay and allowances from the moment the seafarers leave the ship until they reach the repatriation destination;

d) Transportation of up to 30 kg of the seafarers’ personal luggage to the repatriation destination; and

dd) Medical treatment when necessary until the seafarers are medically fit to travel to the repatriation destination.

4. Shipowners take responsibility for repatriation arrangements by appropriate and expeditious means. The repatriation destination is the place prescribed in the seafarers’ employment agreement or the seafarer’s place of residence.

5. Seafarers are entitled to claim the repatriation within a maximum period of 01 year from the date of repatriation.

6. Shipowners take the responsibility to keep on board the ship a copy of the applicable regulations on repatriation, and make it available to seafarers.

7. Shipowners are required to provide financial security to ensure that seafarers are duly repatriated in accordance with this Decree.

8. If a shipowner fails to make arrangements for or to meet the cost of repatriation of seafarers who are entitled to be repatriated, the competent authority of Vietnam shall arrange for repatriation of the seafarers concerned and recover costs incurred in repatriating such seafarers from the shipowner.

9. The Minister of Finance and the Minister of Transport shall provide specified guidelines on Clause 8 of this Article.

Article 9. Food and drinking water

1. The shipowner shall provide seafarers working on board the ship with free of charge food and drinking water of appropriate quality, nutritional value and quantity, meeting food safety requirements as well as religious requirements and cultural practices of seafarers.

2. The ship’s master or any person designated by the master is required to conduct frequent inspections and document the following inspected contents:

a) Supplies of food and drinking water;

b) All spaces and equipment used for the storage and handling of food and drinking water; and

c) The gallery and other equipment for the preparation and service of meals.

3. The shipowner shall be responsible for assigning the ship’s chief cook and catering staff providing meals for seafarers working on board the ship. The ship’s chief cook and catering staff are not required on ships operating with a prescribed manning of less than 10 seafarers.

4. The Minister of Health and the Minister of Transport shall promulgate regulations on safety and hygienic standards of food and drinking water, and meals provided to seafarers.

Article 10. Medical care on board ship and ashore

1. Seafarers shall be provided free of charge with prompt and adequate health protection and medical care while they are on board ships or landed in any foreign ports.

2. Shipowners are required to take measures for providing seafarers with health protection and medical care as comparable as possible to that which is generally available to workers ashore, which:

a) ensure that seafarers are given health protection and medical care as comparable as possible to that which is available to workers ashore, including medicines, medical equipment and facilities for diagnosis and treatment and to medical information and expertise;

b) give seafarers the right to visit a qualified medical doctor or dentist without delay in ports of call;

c) include measures for prevention of occupational accidents and illness through health promotion and health education programs.

3. Shipowners must comply with regulations on medical doctors on board as follows:

a) Ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration shall carry a qualified medical doctor;

b) Ships that carry less than 100 persons and do not carry a medical doctor shall be required to have either at least one seafarer on board who is in charge of medical care and administering medicine or at least one seafarer on board competent to provide medical first aid.

Seafarers in charge of medical care on board shall have satisfactorily completed training in medical care that meets the requirements of the STCW Convention. Seafarers designated to provide medical first aid shall have satisfactorily completed training in medical first aid that meets the requirements of STCW Convention.

4. The ships’ masters or on-board medical personnel shall be responsible for making medical report forms as regulated. The medical report form is designed to facilitate the exchange of medical and related information between the ship and shore-based medical facilities. Contents of the medical report form shall be kept confidential and shall only be used to facilitate the treatment of seafarers.

5. The Minister of Health shall:

a) Announce medical facilities providing medical care for seafarers;

b) Promulgate regulations on medicine chest, medical equipment and medical guide on board ships, and medical report forms.

Article 11. Shipowners’ liability to seafarers suffering from occupational accidents or diseases

1. Shipowners shall be liable to make copayments and bear the costs of medical services which are not covered by the health insurance funding, including medical treatment, surgical operations, hospital accommodation, necessary medicines and equipment, and board and lodging away from home of seafarers occurring from the date of commencing duty until the sick or injured seafarer has recovered, or until the sickness or incapacity has been declared of a permanent character.

2. Shipowners shall pay full wages as defined in the seafarers’ employment agreement while the sick or injured seafarer receives medical treatment.

3. Shipowners shall be liable to pay the cost of burial expenses in the case of death occurring on board or ashore during the period of engagement.

4. Shipowners shall not incur costs relating seafarers in the following circumstances:

a) The seafarer incurs injury otherwise than in the service of the ship;

b) The seafarer incurs injury or sickness due to his/her willful misconduct.

5. Shipowners shall take measures for safeguarding property left on board by sick, injured or deceased seafarers and for returning it to them or to their next of kin.

Article 12. Statement, statistics, investigation and reporting on occupational accidents and diseases

1. Shipowners or ships’ maters shall take responsibility for reporting occupational accidents in accordance with labour regulations to the authority of the nearest port if the ship is operating within a port waters of Vietnam, or to the Vietnam Maritime Administration if the ship is at sea, or to the competent diplomatic mission of Vietnam if the ship is operating in a foreign country.

2. Investigation, statistics and reporting on occupational accidents and diseases shall be carried out in accordance with regulations on labour and labour safety.

3. The Minister of Labour, War Invalids and Social Affairs and the Minister of Transport shall promulgate regulations on statement, investigation, statistics and reporting on maritime occupational accidents.

Article 13. Prevention of occupational accidents and diseases

1. Shipowners shall formulate and implement measures conformable with the regulations on occupational safety and health for prevention of occupational accidents and diseases for seafarers. To be specific:

a) Provide instructions and training in occupational safety and health for seafarers before assigning them to perform duties on board or other tasks or take a position of higher level of risks;

b) Provide regular training programs on occupational safety and health as regulated by laws;

c) Inspect and evaluate dangerous and hazardous elements; work out solutions for eliminating or minimizing occupational dangers and hazards; improve working conditions and provision of health protection programes to seafarers;

d) Assign seafarers to take specific responsibility for the ship’s occupational safety and health;

dd) The ship on which there are five or more seafarers must establish the ship’s safety committee and the authority of the ship’s seafarers appointed or elected as safety representatives to participate in meetings of such committee must be specified.

e) Provide personal protective equipment and other necessary instruments to seafarers and instruct them in using such equipment and instruments for the purpose of prevention of occupational accidents. Personal protective equipment must meet relevant quality requirements;

g) Ensure that machinery, equipment and supplies on board to which strict occupational safety requirements apply must be technically inspected before they are put into operation and inspected on a periodic or ad hoc basis during their service in accordance with applicable laws;

h) Ensure that no one can enter the ship‘s areas posing threats to their health and safety, unless the one assigned to perform duties;

i) Develop plans for response to occupation accidents suffered by seafarers and organize annual drills.

2. Shipowners are liable to purchase accident insurance, shipowners' liability insurance and other compulsory insurance types for seafarers during the period of engagement.

3. Ships’ masters shall take responsibility to expedite and periodical inspect the implementation of measures for occupational safety and health protection adopted by shipowners; correct unsafe conditions on board and report them to shipowners.

4. Seafarers are liable to follow measures for occupational safety and health protection adopted by shipowners.

5. The Minister of Labour, War Invalids and Social Affairs shall promulgate the list of machinery, equipment and supplies which are used to serve the dynamic positioning systems for ship and to which strict occupational safety requirements apply after reaching a unanimous agreement thereof with the Minister of Transport.

Chapter III

INSPECTION AND ISSUANCE OF MARITIME LABOUR CERTIFICATES TO VIETNAMESE-FLAGGED SHIPS, AND INSPECTION AND HANDLING OF COMPLAINTS FILED BY SEAFARERS WORKING ON BOARD VIETNAMESE-FLAGGED SHIPS

Article 14. Inspection and issuance of maritime labour certificate

1. The working and living conditions of seafarers on ships must be inspected in accordance with the Law of Vietnam, and the Maritime Labour Convention, 2006.

2. Ships of 500 gross tonnages or over and engaged in international voyages are required to carry and maintain a maritime labour certificate.

3. The Minister of Transport shall promulgate regulations on inspection of working conditions on ships and issuance of maritime labour certificate to ships.

Article 15. Inspection of ships

1. The Inspectorate of Vietnam Maritime Administration and of port authorities shall conduct inspections of working and living conditions of seafarers on board ships in accordance with regulations herein and relevant laws of Vietnam.

2. The inspection prescribed in Clause 1 of this Article should avoid causing disturbance to the ship’s operations.

3. Shipowners and ships’ masters are liable to facilitate the Inspectorate of Vietnam Maritime Administration and of port authorities in the performance of their inspection tasks, and take any required corrective actions against unsafe conditions.

Article 16. On-board complaint procedures

1. Shipowners are liable to formulate and promulgate on-board procedures for filing complaints and handling of seafarer complaints.

2. On-board procedures for filing complaints and handling of seafarer complaints must be available to all seafarers and kept on board.

Chapter IV

INSPECTION AND HANDLING OF COMPLAINTS FILED BY SEAFARERS WORKING ON BOARD FOREIGN-FLAGGED SHIPS OPERATING IN PORTS OF VIETNAM

Article 17. Inspection of foreign-flagged ships operating in ports of Vietnam

1. Any foreign-flagged ships that operate in ports of Vietnam shall bear the inspection of port authorities of their compliance with the Law of Vietnam and the Maritime Labour Convention, 2006 with respect to working and living conditions of seafarers on board.

2. The inspection tasks prescribed in Clause 1 of this Article shall be performed in accordance with guidelines provided by the International Labour Organization (ILO) and the Co-operative Organization on Port State Control in the Asia-Pacific Region (Tokyo MOU).

3. Owners and masters of foreign-flagged ships are liable to facilitate the port authorities in the performance of inspections of ships, and take any actions for correcting unsafe working and living conditions of seafarers on board as required by the port authorities.

Article 18. Handling of complaints filed by seafarers working on board foreign-flagged ships operating in ports of Vietnam

1. Seafarers working on board foreign-flagged ships operating in ports of Vietnam are entitled to file complaints to the maritime administration of the region in which the ship operates.

2. Upon the receipt of a seafarer complaint, the regional maritime administration shall undertake an initial investigation and handle the complaint according to guidelines provided by ILO and Tokyo MOU.

Article 19. Facilitation measures for seafarers working on board foreign-flagged ships operating in ports of Vietnam

Upon the receipt of information concerning a foreign seafarer left in Vietnam, the regional maritime administration shall submit a report thereof to Vietnam Maritime Administration for immediately informing the diplomatic mission or representative mission of the ship’s State of nationality or the seafarer’s State of nationality or State of residence.

Chapter V

IMPLEMENTATION

Article 20. Effect

This Decree comes into force as from March 01, 2015.

Article 21. Implementation organization

Ministers, heads of ministerial agencies, heads of the Governmental agencies and Chairpersons of People’s Committees of provinces and central-affiliated cities shall implement this Decree./.

APPENDIX I

(Enclosed with the Government’s Decree No. 121/2014/ND-CP dated December 24, 2014)

TABLE OF SHIPBOARD WORKING ARRANGEMENTS

The minimum hours of rest are applicable in accordance with the ILO Maritime Labour Convention, 2006 and the International Convention and Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended 2010 (STCW Convention).

Minimum Hours of Rest: Minimum Hours of Rest shall not be less than: 10 hours in any 24-hour period; and 77 hours in any 07-day period.

Remarks: …………………………………………………………………………………………..

APPENDIX II

 (Enclosed with the Government’s Decree No. 121/2014/ND-CP dated December 24, 2014)

RECORDS OF HOURS OF REST

Please mark periods of rest with an “X”, or using a continuous line.

I agree that this record is an accurate reflection of the hours of rest of the seafarer concerned.

Name/ Signature of Master or Authorized Person: ……………………… Signature of seafarer ………………………………….

A copy of this record is to be given to the seafarer                                Date……………………