12.11.2018

To establish a single legal mechanism of monitoring over the employment of seafarers, regardless of vessels' jurisdiction

With such proposal the Seafarers' Union of Russia (SUR) addressed the Ministry of Transport and the Interdepartmental Commission on preparation for Maritime Labor Convention ratification by the Russian Federation.

Before that  Russian Ministry of Internal Affairs (MIA) introduced for discussion during the meeting of the working group of the Russian Trilateral  Commission (RTC) on the Regulation of Social and Labor Relations, held on October 3, 2018, two issues:

1) On the draft federal law Concerning the Annulment of Certain Provisions of Legislative Acts of the Russian Federation, and 

2) On the draft federal law On Introducing Amendments to the Code of the Russian Federation on Administrative Offenses.

Monitoring is outside of powers

Briefly, we are talking about the abolition of compulsory licensing of overseas employment of  Russian citizens, including seafarers (the Ministry of Internal Affairs proposed to abolish Clause 35, Part 1, Article 12 of the Federal Law on Licensing of Certain Types of Activity). And, as a result, to exclude administrative responsibility for such activity, which, at present, is  considered illegal  without  license, by abolishing Articles 18.13, 23.1 and 28.3 of the Code of the Russian Federation on Administrative Offenses.

The Ministry of Internal Affairs explains its actions by the instruction of the President - allegedly the function of monitoring over the implementation of such activities is inappropriate to the powers of the Ministry.

Furthermore,  the Government of the Russian Federation proposes to abandon licensing as a type of state regulation of overseas employment of Russian citizens, including seafarers.

At the same time, the Ministry of Internal Affairs believes that the abolition of licensing of overseas employment  will not affect the nonfulfilment of the Russian Federation to comply with the relevant Convention requirements and will not adversely affect the rights of the employed seafarers, because there are other forms of state control over agency business, like state registration of a legal entity.

However, the  Seafarers' Union of Russia (SUR) does not share this optimistic position and  the opinion that the existing regulation mechanism for the employment of seafarers on board Russian-flagged  vessels,  which establishes a system of creation and maintenance  - at the Federal Service for Labor and Employment (Rostrud) and its local offices - of the record of  employment contracts, concluded, through  the mediation of recruiting and crewing agencies, with Russian citizens, foreign citizens and stateless persons intended to work on board Russian-flagged  vessels, is applicable for Russian seafarers employed on board foreign-flagged vessels. MIA.

No right to check crewing agencies

Indeed, crewing agencies, which employ seafarers for work on board Russian ships, needn't  licenses, because they operate in accordance with other rules, although they are engaged in the same business with crewing agencies which offer seafarers the work on board foreign vessels.

This system, despite the peremptory objections from the SUR, which had pointed at its obvious non-viability, was established in 2009 by the predecessor of the Ministry of Labor of Russia - the former Ministry of Health and Social Development of Russia, which developed the form of  seafarer's employment contract and the provision on registration of these contracts with the Rostrud local offices.

The idea was that  crewing agencies would  use this contract of employment as a basis, conclude it properly with seafarers and then took it for registration. However, in fact very few crewing agencies follow this procedures since no legal liability has been established for non-compliance with this provision. Rostrud, in turn, did not have and still does not have the right to monitor the crewing agencies' operation, because its jurisdiction covers employers only, which not the case with  crewing agencies. 

So, this whole monitoring  system does not work as it should, although everything seems to be adjusted and well on paper.

An objective assurance of this conclusion is the fact that Rostrud, for contrived reasons, refused to provide SUR with information on the number of such crewing agencies, the data on the seafarers employed through them and the Russian shipowners  whom they supply crews, as well as the most typical deviations (violations) from the established form of the employment contract.

There is a similar situation with the employment on foreign-flagged vessels. Despite the fact that the revised in December of 2017 Regulations on the licensing of overseas employment of Russian citizens incorporated  almost all the requirements of Rule 1.4, MLC, regulating recruitment and employment of seafarers, they (Regulations) still lack the possibility to have a conventional mechanism for the prompt handling of:

1) seafarers complaints concerning  non-fulfillment or improper fulfillment by the licensee - which is the crewing agency in this case - of its obligations before seafarers related to their employment, and

2) failure of the licensing authority to response to these non-performances.

Indeed, by virtue of the current law on licensing of certain types of activity, which for the purposes of inspections of licensees is based on the law protecting  the rights of legal entities and self-employed entrepreneurs during the performance of state control (supervision) and municipal control, a random inspection of, in this case, crewing agencies, can only be carried out when the seafarers complaint contains   information about gross violations.

In turn,  the law define gross violations as actions which resulted in risk of harm to life and health of citizens and other similar extreme consequences like human losses. Consequently, the licensing authority has a right to initiate appropriate administrative measures, up to the suspension of license, regarding the licensee (crewing agency), only if such facts are confirmed.

So, it turns out that, essentially,  seafarer cannot apply to licensing authority in cases when  crewing agency has sent him to work to unscrupulous foreign shipowner who regularly delays or does not pay wages at all or violates other terms of the employment contract.

To determine the responsible person at the federal level

Also, during the meeting of the RTC working group the representatives of the Ministry of Internal Affairs stated that Rostrud was ready and willing to exercise control over the employment of seafarers both on ships of foreign owners and Russian ones. In consideration of the foregoing this statement raises significant doubts.

However, due to the objections from the the Federation of Maritime Transport Workers' Trade Unions (FMTWTU)  representing the interests of the SUR on the RTC platform, the RTC working group did not support the draft laws submitted by the MIA. The  RTC working group regarded them as premature due to the absence of  alternative, sound and relevant to MLC  regulating mechanism to monitor the performance of organizations engaged in overseas employment of seafarers on foreign ships.

At the same time, the Ministry of Internal Affairs was invited to carry out this work in the format of the Interdepartmental Commission on preparation for Maritime Labor Convention ratification by the Russian Federation with the participation of, first of all, the Ministry of Transport of Russia as the coordinating federal executive body in accordance with the Resolution of the Government of the Russian Federation No. 966 dated November 8, 2013 On measures to secure enforcement of Russian Federation's obligations arising from the Maritime Labor Convention, 2006 .

To this end, a petition was directed to the Chairman of this Commission, State Secretary and Deputy Minister of Transport, Aristov S. A. with the request to hold an unscheduled Commission's meeting in order to discuss the current situation and work out profound proposals regarding the determination of a federal executive body responsible for the implementation of the Conventional Rule 1.4 of the MLC Recruitment and Employment and with regard to the establishment of a single legal mechanism of monitoring over the employment of seafarers, regardless of  vessels' jurisdiction.

For its part, the SUR suggest establishing a system of accreditation of crewing agencies at Rostrud. The SUR submitted its suggestion to all federal agencies involved in the work of the Interdepartmental Commission as far back as May 2018.

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