Decision No. 2 of 8 March 2012 on Constitutional Case No. 9/2011
The proceeding is based on Art. 149, para 1, item 2 read in combination with Art. 150, para 3 of the Constitution. The Ombudsman challenged the constitutionality of Art. 88b of the Merchant Shipping Code as in his understanding the challenged text violates citizens’ rights for it disagrees with Art. 48, para 5 of the Constitution.
The Constitutional Court discussed the argumentation as listed in the Ombudsman’s challenge and the view was expressed in the positions submitted by the stakeholders on whose behalf the proceedings were initiated and took into account the following to judge the case on its merit:
І. The Merchant Shipping Code (MSC), which originally was titled Merchant Marine Code, was adopted in 1970 when the Constitution of 1947 was in force. The Code continued to be applicable both under the Constitution of 1971 and under the Constitution of 1991. The Ombudsman asked the Constitutional Court to declare anticonstitutional Art. 88b of the MSC that did not exist in the original version and was passed by the National Assembly in 2002, i.e. it entered into effect after the adoption of the existing Constitution. Therefore in this particular case the Constitutional Court does not face the hypotheses of § 3 of the Constitution’s Transitional and Concluding Provisions.
Art. 88b, para 1 of the MSC reads thus: „The employment relationships and the relationships directly related thereto between the members of the ship‘s crew and the ship-owner shall be regulated by an ordinance of the Council of Ministers.”
The pieces of legislation that deal with relations of employment are: the Constitution, international treaties, laws that are passed by the National Assembly and statutory acts.
All ship crew members and the ship-owner are employees and an employer respectively: however, not all employees and employers in the country are ship crew members or ship-owners. The notion “ship crew member/ship-owner” is covered by the umbrella notion employed/employer. The relation between a “ship crew member” and a “ship-owner” is a relation that answers the definitions of an “employee” as per Art. 301 of the LC and “employer” as per Item 1 of § 1 of the LC Supplementary Provisions.
Given the existing national legislation, undoubtedly the Labor Code is valid with respect to ship crew members and the ship-owner. The Constitutional Court found unsustainable and disagreed with the claim of the Ombudsman of the Republic that the relations of employment and related relations between the ship crew members and the ship-owner shall be dealt with by a law as prescribed by Art. 48, para 5 of the Constitution.
Art. 114 of the Constitution reads: Pursuant to and in implementation of the laws, the Council of Ministers shall adopt decrees, ordinances and resolutions. In addition, the Council of Ministers is competent to adopt decrees to pass rules and regulations. The Government’s drafting activity is confined to secondary legislation and is an agency for the enforcement of the laws that the National Assembly passes. A regulation is a piece of legislation on the specifics in definite areas and activities. Therefore, on the basis of and to enforce the provision of Art. 88b, para 1 of the MSC the Council of Ministers passed Decree 226/14 October 2003 to adopt a Regulation of employment relations and related relations thereof between ship crew members and a ship-owner. This regulation was passed by the Government within the framework of its competence to draft pieces of legislation as provided by Art. 114 of the Constitution. The Council of Ministers issues a regulation which concerns rights other than the labor rights of all workers and employees countrywide that are to be subject to law in the sense of Art. 48, para 5 of the Constitution. The legislation in question is not a primary or a Constitution-based tool that deals with social relations which are liable to a long-term arrangement. The legislative text that the Ombudsman challenges does not refer to all workers and employees countrywide who enter into relations of employment; it refers only to the employment relations and directly related relations thereof between ship crew members and a ship-owner. The Council of Ministers regulation provides arrangement for social relations that are within the range of its executive and command activity but are not arranged in the Merchant Shipping Code. The regulation discussed does not invalidate the Labor Code; it just gives concreteness to what is characteristic of employment relations and relations directly related thereto between ship crew members and a ship-owner. The adoption of this regulation did not “delegate to the Council of Ministers prerogatives that lie exclusively with the National Assembly”, as the Ombudsman claims, nor is it a usurpation of the Parliament’s legislating powers by the Government.
Guided by the above-stated considerations the Constitutional Court found that paragraph 1 of Art. 88b of the MSC did not conflict with Art. 48, para 5 of the Constitution.
ІІ. Paragraph 2 of Art. 88b of the Merchant Shipping Code reads thus:
“The ordinance referred to in Paragraph (1) shall furthermore establish the requirements for:
“1. Safety and health at work on board the vessels, taking into account the specifics of the carriage performed;
“2. Shipowners, regarding compliance with the requirements of occupational safety;
“3. Prevention of occupational diseases and occupational accidents on board the vessels;
“4. Maintenance of the appropriate standards of hygiene on board the vessels.”
The Constitutional Court cannot agree with the Ombudsman’s claim, viz. that Paragraph 2 of Art. 88b of the MSC conflicts with Art. 48, para 5 of the Constitution as in their view the requirements listed in items 1-4 were determined in the ordinance under Paragraph 1 of Art. 88b of the MSC, and not in a law.
Art. 48, para 5 of the Constitution does not arrange all labor rights; it arranges some labor rights. The Constitution text reads that all workers, irrespective of the basis on which employment relations are entered into, are entitled to:
- healthy and non-hazardous working conditions;
- guaranteed minimum pay;
- remuneration for the actual work performed; and
- rest and leave
in accordance with conditions and procedures established by law.
It is to be concluded from Art. 48, para 5 of the Constitution that the State is bound to codify only the labor rights that the Constitution enumerates but not all labor rights. The State meets its Constitution-prescribed obligation that derives from Art. 48, para 5 of the Constitution by the passage of a law that constitutes the arrangement of the above-listed fundamental labor rights.
A comparison of the text of Art. 88b, para 2 of the MSC and the text of Art. 48, para 5 of the Constitution shows that the requirements that are enumerated in items 2-4 of Art. 88b, para 2 of the CSM do not press, by virtue of Art. 48, para 5 of the Constitution, for their codification by the National Assembly and therefore it is not anticonstitutional.
A question is put whether the requirement arising from Art. 88b, para 2, item 1 of the CSM – “safety and health at work on board the vessels, taking into account the specifics of the carriage performed” – should be codified, as the Ombudsman of the Republic thinks or be made subject to a Council of Ministers ordinance, as the Merchant Shipping Code prescribes.
The workers’ Constitution-proclaimed right to healthy and non-hazardous working conditions in line with Art. 48, para 5 of the Constitution is codified in the Labor Code in the form of standards to protect the life, health and work capacity of the working persons.
Art. 127, para 1 of the Labor Codes reads thus: “The employer shall be obligated to provide the factory worker normal conditions for execution of the work under the employment relationship on which the said worker has agreed, providing to the said worker: …………..3. health and safety at work…”, and then Chapter ХІІІ (Arts. 275-290) prescribes in detail the general rules of health and safety at work where work is performed providing an employment relationship exists.
Art. 275, para 1 of the LC codifies a key obligation to ensure, viz. “The employer shall be obligated to ensure health and safety at work so that any risks to worker‘s life and health could be eliminated, restricted or mitigated”. Art. 275, para 2 of the LC makes it binding on the Government, within its powers thereof, to implement the state policy of ensuring health and safety at work.
In addition to the Labor Code the National Assembly has approved a Health and Safety at Work Act (HSWA) as a general instrument for the implementation of the state policy of guaranteed healthy and safe working conditions. The HSWA field of application encompasses all enterprises and workplaces irrespective of the form of organization, the type of ownership and the rationale of the work performed and regardless of the sector where they work or the type and subject of the work activity performed.
Therefore the Labor Code and the HSWA texts provide for health and safety at work for all workers in all enterprises in the country. The lawmaker has codified the right to healthy and safe working conditions for all workers, including “ship crew members” who fall in this category regardless of the terms underlying the employment relationship. The two pieces of legislation materialize the Constitution-proclaimed (Art. 48, para 5) right to safe and healthy and non-hazardous working conditions as a Constitution-enshrined right. By the passage of the Labor Code and the HSWA the State has met its Constitution-prescribed obligation.
The ordinance that the Council of Ministers approved in keeping with Art. 88b of the MSC further develops the general legal rules of healthy and non-hazardous working conditions for crew members on board a ship while it duly considered the specifics of the cargo shipped in order to stay away from potential occupational risks and hazards. This conforms to Art. 3, para 1 of the HSWA that prescribes that health and safety at work shall be provided compliant with the specificity of performed activity.
Considering that, the Constitutional Court did not find Art. 88b, para 2 of the CSM to be inconsistent with Art. 48, para 5 of the Constitution.
With considerations thus stated the National Ombudsman’s challenge of the constitutionality of Art. 88b of the Merchant Shipping Code was found unsustainable and accordingly was dismissed.