Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Maritime Labour Convention, 2006 (MLC, 2006) - Australia (Ratification: 2011)

The Committee notes the observations of 1 September 2014 made by the Australian Council of Trade Unions (ACTU) and its affiliate, the Maritime Union of Australia, expressing their satisfaction with the way the Maritime Labour Convention, 2006 was implemented in Australia and the process that led to its provisions being integrated in Australian legislation and regulations. They also observed that the Australian Maritime and Safety Authority (AMSA) worked closely with the International Transport Workers Federation (ITF) and established a national body to ensure the distribution of seafarers’ welfare information.

General questions on application. Scope of application. Article II, paragraphs 1(i), 4 and 6 of the Convention. Ships. The Committee notes that this is the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006) and that the Government has previously ratified 10 maritime labour Conventions, all of which were automatically denounced on entry into force of the MLC, 2006 for Australia. It notes the statement from the Government, under part VII of the report form (“Statistical information”), that 793 ships fly its flag and that the Convention applies approximately to 100 ships. The Committee also notes that the Navigation Act of 2012 and the Marine Order 11 (Living and working conditions on vessels) 2013 are the main legislation giving effect to the MLC, 2006 and that paragraph 1 of section 7 of the Order, dealing with application, provides that it applies to “regulated Australian vessels”. The term “regulated Australian vessel” is defined in section 15 of the Navigation Act 2012 as applying specifically to categories of vessels that engage in overseas voyages or for which a certificate issued under the Act is in force or an opt-in declaration is in force for the vessel.

The Committee notes that aspects of the MLC, 2006 are also implemented through an industry award pursuant to the Fair Work Act 2009 and its Regulation. The Committee recalls the comments it made in 2012 regarding the application of the Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8), whereby it noted that the relevant legislation (at the time the Navigation Act 1912) excluded from its scope, among others, trading ships proceeding on voyages other than overseas or interstate voyages and requested the Government “to indicate the steps it intends to take to ensure the application of the Convention to all ships and boats of any nature whatsoever, engaged in maritime navigation, whether publicly or privately owned with the only exception of warships”, and drew the Government’s “attention to the fact that the Maritime Labour Convention, 2006, provides in an equally comprehensive manner that it applies to ‘all ships …’ ”. The Committee also notes that, in the Regulation Impact Statement (RIS) prepared in 2011 it was stated that the Government intended to rely on Article II, paragraph 6, of the Convention “to exclude ships of less than 200 gross tonnage (GT) not engaged in international voyages”. In this regard, the Committee recalls that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those excluded under paragraph 4. In the event of doubt, a determination may be made under paragraph 5 as to whether the Convention applies to a ship or particular category of ships. Article II, paragraph 6, provides additional flexibility with respect to the application of “certain details of the Code” to ships of less than 200 GT that do not voyage internationally. This flexibility can only be exercised by the competent authority in consultation with the shipowners’ and seafarers’ organizations concerned for cases where it determines that it would not be reasonable or practicable to apply the details of the Code provisions concerned at the present time and that the subject matter of the relevant Code provisions is dealt with differently by national legislation or collective agreements or other measures. The Committee notes that paragraph 6 does not provide for the exclusion of a ship, or a category of ships, from the protection offered by the Convention and, even if a determination has been made, it can only apply to details of the Code (the Standards and Guidelines). The Committee requests the Government to provide information to clarify the application of the MLC, 2006 to ships that fly the flag of Australia but do not fall within the definition of “regulated Australian vessels”.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that in the statistical information requested in the report form, the Government indicates that there are 28 private seafarer recruitment and placement services registered as operating in its territory. These services are regulated inter alia under Marine Order 11. The Committee notes that section 30 requires that service providers ensure that they have in place insurance to compensate a seafarer for any monetary loss to him or her caused by the service provider failing to meet its legal obligation to the seafarer. The Committee recalls that Standard A1.4, paragraph 5(c)(vi), requires that insurance or an equivalent appropriate measure must also be in place to compensate seafarers for monetary loss they may incur as a result of the failure of a recruitment and placement service “or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them”. The Committee requests the Government to provide information with respect to the obligation under paragraph 5(c)(vi) of Standard A1.4 regarding protection in the event of a failure by a shipowner to meets its obligations to the seafarer.

Regulation 2.2 and the Code. Wages. The Committee recalls that Standard A2.2, paragraph 5, requires that allotment services, which provide seafarers with means to transmit all or part of their earnings to their families, dependants or legal beneficiaries, be charged at a reasonable amount and that the rate of currency exchange be at the prevailing market rate or the official published rate and not unfavourable to the seafarers. In this regard, section 53, paragraph 6, of Marine Order 11 provides that the shipowner may charge a reasonable amount for providing the allotment service, but does not refer to the currency exchange rate. The Committee asks the Government to provide information with respect to any requirements it has adopted to ensure that the currency exchange rate is at the prevailing market rate or the official published rate and not unfavourable to the seafarers.

Regulation 2.4 and the Code. Entitlement to leave. The Committee recalls that paragraph 2 of Regulation 2.4 requires that seafarers be granted shore leave to benefit their health and well-being and consistent with the operational requirement of their positions. The Committee notes that the Government indicates that there are no provisions specifically mandating shore leave but that AMSA will consider this in consultation with the social partners. The Committee also notes that the Government indicates that it is standard industry practice that shore leave is granted to all seafarers within the operational limits of their positions. The Committee requests the Government to provide information with respect to measures it has taken to ensure that shore leave is granted to seafarers.

Regulation 2.5 and the Code. Repatriation. The Committee recalls that paragraph 2 of Regulation 2.5 requires that ships provide financial security to ensure that seafarers are duly repatriated in accordance with the Code. The Committee notes that the Navigation Act 2012, under Division 5 (Repatriation and protection), section 76, provides that regulations may make provision in relation to the repatriation of seafarers at no cost to the seafarer, including in relation to the liability for the costs of repatriation and recovery of costs. The Committee also notes that the Government refers to Marine Order 11, Division 15 on repatriation, which provides in section 95 that the owner of a vessel must ensure that a seafarer is entitled to repatriation, at no cost to the seafarer, in certain circumstances (which are listed), and provides in section 97 details of what is to be paid by the shipowner. Section 103 provides that AMSA must repatriate seafarers in the event a shipowner fails to do so, and provides for recovery of costs by AMSA including detention of vessels. Section 96, entitled “Financial Security”, states that a shipowner must demonstrate to AMSA’s satisfaction financial security to assure compensation if a seafarer dies or suffers a long-term disability because of an occupational injury, an illness or a hazard. The Committee notes that no similar provision is found regarding repatriation. The Committee asks the Government to provide information with respect to the kind of financial security that is required for repatriation of seafarers working on ships flying its flag and to provide a copy of an example of the kind of documentation that is accepted or issued with respect to this financial security.

Regulation 2.6 and the Code. Seafarer compensation for the ship’s loss or foundering. The Committee recalls that Standard A2.6, paragraph 1, requires that rules be made to ensure that in every case of loss or foundering of any ship, the shipowner is to pay to each seafarer on board an indemnity against unemployment resulting from the loss or foundering and notes that section 85 of the Navigation Act 1912, entitled “Right to conveyance and wages in case of termination of services by wreck or loss”, does not seem to have been reproduced in the Navigation Act 2012. The Committee also notes that the Government has indicated that this matter is addressed in the Seafarers Rehabilitation and Compensation Act 1992, section 96 of Marine Order 11 and section 119 of the Fair Work Act. The Committee notes that the Seafarers Rehabilitation and Compensation Act does not cover unemployment in the case of a ship’s loss or foundering and that section 96 of Marine Order 11 relates to financial security to cover seafarers’ compensation in the case of death or long-term disability only (not unemployment). The Committee notes that while section 119 of the Fair Work Act may encompass a situation where a ship has been lost or has foundered, this Act may not apply to all seafarers’ employment relationships. The Committee asks the Government to provide information with respect to any rules that have been made to ensure that the indemnity against unemployment is provided by shipowners in the case of a ship’s loss or foundering.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee recalls that in the comments it made in 2009 in relation to the Accommodation of Crews Convention (Revised), 1949 (No. 92) and the Accommodation of Crews Convention (Supplementary Provisions) Convention, 1970 (No. 133), where it drew the Government’s attention to the fact that, even when the MLC, 2006 enters into force for Australia, “Regulation 3.1, paragraph 2, of [that Convention] provides that, [for] ships constructed before the date of its entry into force, the requirements relating to ship construction and equipment … set out in [Conventions Nos 92 and 133] shall continue to apply to the extent that they were applicable, prior to that date, under the law or practice of the Member concerned”. The Committee requests the Government to indicate the measures envisaged to give effect to the following provisions (for ships constructed prior to 20 August 2013, date of entry into force of the MLC, 2006 for Australia): Article 7 (ventilation); Article 9(1) (natural lighting) and (3) (emergency lighting); Article 10(23) (tables or desks); Article 13(7) (washbasins and tub baths) and (8) (water closets); and Article 15(2) (room for the deck department and room for the engine department) of Convention No. 92 as well as Article 9(1)(a) (washbasin), and Article 11(3) (emergency lighting) of Convention No. 133.

The Committee also notes that, according to section 68 of Marine Order 11, an issuing body can approve substantial alteration or reconstruction of seafarer accommodation based on plans, submitted by the shipowner. The Committee recalls that paragraph 3 of Standard A3.1 provides that an inspection is required when the seafarer accommodation on a ship has been substantially altered. The Committee requests the Government to provide information with respect to any inspections that are carried out when seafarer accommodation on a vessel has been substantially altered when the vessel is one that must also be inspected for certification.

The Committee also recalls that paragraphs 9(a), 10(a) and 15 of Standard A3.1 provide for possible exemptions to the requirements specified therein to be granted by the competent authority for ships of less than 3,000 GT and/or special purpose ships “after consultation with the shipowners’ and seafarers’ organizations concerned”. In this regard sections 73, 86 and 91 of Marine Order 11, which implement, respectively, paragraphs 9(a), 10(a) and 15 of Standard A3.1, do not specify that the exemptions can be granted only after consultation of the shipowners’ and seafarers’ organizations concerned. In addition, section 86 does not limit the possibility of exemption to ships of less than 3,000 GT. The Committee also notes that section 85 of Marine Order 11, and the table (2) included under this section, do not fully implement paragraph 9(k) of Standard A3.1 in that they do not specify the minimum floor area for ships (other than passenger ships and special purpose ships) of less than 3,000 GT. They also set a minimum floor area of 7.5m2 for ships of 3,000 GT or over but less than 10,000 GT, whereas paragraph 9(k)(ii) of Standard A3.1 requires 8.5 m2. The Committee requests that the Government provide information with respect to the measures taken to ensure that exemptions are permitted only after consultation as required and that floor areas for sleeping rooms implement the requirements in Standard A3.1.

The Committee notes the indication by the Government that paragraph 18 of Standard A3.1, which requires the competent authority to ensure that frequent inspections are carried out on board ships to ensure that seafarer accommodation is clean, decently habitable and maintained in a good state of repair, was inadvertently not reproduced in Marine Order 11 and that AMSA is currently in the process of updating this requirement. The Committee requests that the Government keep it informed of the progress made in this regard.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee recalls that Regulation 4.1, paragraph 3, requires ratifying Member States to ensure that seafarers on board ships in their territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. This is an obligation of the port State. The Government’s reply to the relevant question in the report form is not clear as it refers to section 58, paragraph b(i) and (ii) of Marine Order 11 which concerns a flag State obligation. The Government is requested to provide information regarding the measures taken in this respect.

Regulation 4.5 and the Code. Social security. The Committee notes that social security protection of seafarers is mainly regulated by provisions of the Navigation Act 2012 (as amended), the Seafarers Rehabilitation and Compensation Act 1992 (as amended) and the Social Security Act 1991 (as amended). The Government indicates that “[s]ocial security protection and systems in Australia are non-contributory and are based on the concepts of the eligibility of residence and need.” The Committee notes that, while protection afforded under legislation applicable specifically to seafarers is related to employment, the protection provided under the general social security scheme is based on residence and need. As a consequence, the Committee understands that seafarers residing in Australia but employed on board ships flying the flag of another country might, in certain circumstances, such as the lack of bilateral social security agreement, only be entitled to means-tested benefits under the Social Security Act that are less favourable than those granted under the Seafarers Rehabilitation and Compensation Act 1992 to seafarers employed on board Australian vessels. This situation would appear to concern the contingencies of sickness, employment injury, invalidity and death. The Committee requests the Government to provide further information in respect of this issue. In particular, it would appreciate receiving information on how application of the Seafarers Rehabilitation and Compensation Act 1992 is secured in practice to seafarers employed on vessels flying the flag of another country both in the presence and absence of a bilateral agreement.

Regulation 5.1.3 and the Code, Maritime labour certificate and declaration of maritime labour compliance. The Committee notes in connection with the Government’s response to the request in Part I of the report form for submission of Principal Documents, that the Government has provided a link to a website on which can be found copies of two Declarations of Maritime Labour Compliance (DMLC), Part I: one for vessels on the Australian General Shipping Register and one for vessels on the Australian International Shipping Register. The Committee recalls that paragraph 10 of Standard A5.1.3 and Guideline B5.1.3 provide detailed information on what is expected of the DMLC Part I and II in order to fulfil the purpose for which they are required under the MLC, 2006, which is to help all persons concerned such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements are being properly implemented on board ship. The Committee notes that in both cases the DMLC, Part I, does not provide information on national requirements, where they relate to matters for which the MLC, 2006 envisages some differences in national practice. For example, the DMLC, Part I, indicates that “Specific working arrangements for seafarers under the age of 18 years are outlined in Schedule 1 of Marine Order 11”, but does not state what those working arrangements are (hours of work, prohibition of night work and hazardous work, etc. …). Unless Marine Order 11 is carried on board ship it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters. The Committee recalls that Standard A5.1.3, paragraph 10(a), states that the DMLC drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee requests that the Government consider amending the DMLC, Part I, to implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements.

[The Government is asked to reply in detail to the present comments in 2016.]