Maritime Labour Convention, 2006 (MLC, 2006) - New Caledonia

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for New Caledonia on 18 January 2017 and 8 January 2019, respectively. Further to a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee notes the observations of the International Transport Workers' Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020, respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

Article I of the Convention, General questions on application. Implementing measures. Having noted that, for ships registered in New Caledonia, implementation of the provisions of the Convention is carried out by taking into consideration the distribution of the competencies lying both with the State and with New Caledonia, the Committee requested the Government to provide clarification on this distribution of competencies. The Committee notes the information and documents provided by the Government, which address the issue raised in its previous request. The Committee notes the Government’s indication that an Act of New Caledonia (hereafter territorial Act) and a decision on seafarers are being prepared. The Committee requests the Government to provide copies of all measures being prepared or already adopted to give effect to the Convention. The Committee notes the Government’s indication that only three vessels, registered in New Caledonia, carry out international navigation. A vast majority of the fleet, estimated at some 600 of 650 vessels, navigate in internal waters, and around 350 of those are fishing vessels. The Committee requests the Government to indicate the precise number of vessels registered in New Caledonia to which the Convention applies.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee noted that section Lp.613-1 of the Labour Code of New Caledonia (hereinafter LCNC) specifies that persons who intervene occasionally and for a short period on board a vessel shall not be considered seafarers. Noting that a decision, planned for adoption during the course of 2016, would list precisely the categories of persons not covered by the Convention, the Committee requested the Government to provide detailed information on the determination of the categories of persons not considered to be seafarers owing to the occasional nature of their interventions on board a vessel, and on the consultations held with the shipowners’ and seafarers’ organizations concerned, required under the Convention. The Committee notes the Government’s indication that this issue will be clarified within the framework of a national Bill which will be submitted for consultation to the Social Dialogue Council and the Labour Advisory Committee and that, in the interim, a doctrine note (circular) based on several informal consultations is being applied. The Committee also notes that Part I of the Declaration of Maritime Labour Compliance (DMLC) indicates that persons appearing on the crew list are considered seafarers for the purpose of issuing the Maritime Labour Certificate. The Committee requests the Government to provide: (i) the doctrine note currently applied; (ii) all the relevant measures being prepared or already adopted; and (iii) detailed information on the persons who must be mentioned on the crew list. Furthermore, the Committee notes that section Lp.613-1 of the LCNC specifies that persons who work on board ship but are not employees are not subject to certain provisions of the Code, such as those under section 613-24 et seq. on the duration of work. The Committee recalls that the Convention applies to all seafarers, understood as any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies (Article II, paragraph 1(f)), which includes seafarers who are not employees. The Committee therefore requests the Government to explain how it ensures that persons who work on board ship but are not employees effectively benefit from all the protection measures provided for by the Convention.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee noted that section Lp.613-2 of the LCNC, which prohibits work on board a ship by any person under the age of 16, is applicable to seafarers, mariners and persons working on board ship who are not employees, while employed persons who intervene occasionally and for a short period, who are not considered seafarers, appear to be covered by sections Lp.251-1 et seq. of the LCNC, which authorize, under certain conditions, work by young persons from 14 years and above. The Committee requested the Government to adopt measures to remedy this situation. The Committee notes the Government’s indication that it is taking this comment into account within the framework of the measures currently being prepared. Recalling that Standard A1.1, paragraph, 1 provides that the employment, engagement or work on board a ship to which the Convention applies of any person under the age of 16 is prohibited, the Committee requests the Government to provide information on all measures adopted or being prepared to give full effect to this provision.

Regulation 1.2 and the Code. Medical certificate. The Committee noted that section 28 of Decree No. 2015-1575 of 3 December 2015 provides that the conditions under which the medical examination for fitness for navigation, referred to in section 1, is carried out and those under which a medical certificate for fitness for navigation is issued, are provided for, in compliance with international Conventions, in the regulations applicable in New Caledonia relating to occupational medicine, without prejudice to the support provided by the State under the conditions envisaged in the agreement mentioned in section 26 of the Decree of 3 December 2015, above. Having requested the Government to provide a copy of the relevant regulations applicable in New Caledonia, the Committee notes its indication that, pending the adoption of a future territorial Act, the provisions that are currently applicable are those of the State, both for the persons competent to issue certificates and for the period of validity of certificates. The Committee requests the Government to provide copies of all measures being prepared or already adopted to give effect to Standard A1.2.

Regulation 1.3, paragraph 2. Training and qualifications. Personal safety on board ship. Having noted the current application of the State Transport Code with regard to training and qualifications, the Committee requested the Government to provide copies of provisions requiring seafarers to have successfully completed training on personal safety on board ship, in accordance with Regulation 1.3, paragraph 2. While noting the application of the relevant provisions of the Convention on Standards of Training, Certification and Watchkeeping (STCW Convention), as amended, the Committee notes the Government’s indication that the training on personal safety on board a ship is guaranteed by the obligation on all seafarers to hold the certificate of basic safety training (CFBS). The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraphs 1 and 4. Seafarers’ employment agreement. Requirements. Content. The Committee noted that sections Lp.613-5 and 613-7 of the LCNC, concerning the requirement to conclude a seafarer employment agreement and defining its minimum content, are not made explicitly applicable to seafarers within the meaning of this legislation. Noting the Government’s indication that in the Bill being prepared, the word “mariner” (marin) will be replaced by the word “seafarer” (gens de mer) in sections Lp.613-5 et seq. of the Labour Code, the Committee requests the Government to take the necessary measures to give full effect to Standard A2.1, paragraphs 1 and 4 of the Convention.

Regulation 2.1 and Standard A2.1 paragraph 1(d). Seafarers’ employment agreements. Copy kept on board. The Committee noted that section Lp.613-6 of the LCNC provides that on board ships of over 200 gross tonnage, the master shall keep a copy of the seafarers’ employment agreements and a copy of the contracts of employment of other seafarers. The Committee noted that the same section requires the master to keep on board ships engaged in international voyages a copy of the model contract, without specifying the size of the ship. Recalling that Standard A2.1, paragraph 1(d), gives the seafarer the right to have access to a copy of the employment agreement, which shall not be a model agreement, for any ship to which the MLC, 2006, applies, the Committee indicated that the exemptions accorded to ships of less than 200 gross tonnage not engaged in international voyages must be strictly in compliance with the conditions set out in Article II, paragraph 6. The Committee notes the Government’s indication that the exemption accorded to ships of less than 200 gross tonnage not engaged in international voyages from the requirement to keep a copy of the employment agreement was approved by the New Caledonia congress in a territorial Act which had previously been submitted to the Labour Advisory Committee and the Social Dialogue Council. With regard to the seafarers on ships falling under the exemption, their being informed is ensured by the requirement of the employer to provide him with an original copy of the employment agreement before embarkation (section Lp 613-6, paragraph 1). The Committee recalls that Standard A2.1, paragraph 1(d), provides that measures shall be taken to ensure that clear information as to the conditions of their employment can be easily obtained on board by seafarers, including the ship’s master, and that such information, including a copy of the seafarers’ employment agreement, is also accessible for review by officers of a competent authority, including those in ports to be visited. The Committee requests the Government to indicate the manner in which it ensures that the officers of the competent authority have access to a copy of the seafarers’ employment agreement at an inspection during a stopover.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee requested the Government to provide detailed information on the measures adopted or envisaged to ensure that the seafarer receives a document containing a record of his service on board the ship, in accordance with Standard A2.1, paragraphs 1(e) and 3. The Committee notes the Government’s indication that the requirement to provide seafarers with a record of employment is contained in ordinary labour law provisions, particularly section Lp.122-31 of the LCNC, which indicates that upon expiry of the employment agreement, the employer issues the employee with a certificate, whose content is determined by a decision of congress. Section R.122-5 of the same Code specifies that this certificate consists exclusively of the following elements: (i) the entry and departure dates of the employee; (ii) the nature of the job or, where relevant, the jobs occupied, and the periods for which these jobs were held. The Government specifies that draft regulations being prepared will set out, specifically for seafarers, the requirement for the employer to provide a record of their employment on board ship at their request. The Committee takes notes of this information, which addresses its previous request.

Regulation 2.2 and Standard A2.2, paragraph 1. Wages. Regular payment. The Committee requested the Government to indicate the provisions requiring the payment of wages to be made at no greater than monthly intervals, and those providing that seafarers be given a monthly account of the payments due and the amounts paid to them (Standard A2.2, paragraphs 1 and 2). The Committee notes the Government’s indication that the general labour provisions of the LCNC are applicable to seafarers and that sections Lp.143-2, Lp.143-6 and R.143-3 meet the requirements of the Convention concerning monthly payments and the distribution of payslips. The Committee takes note of this information, which addresses its previous request.

Regulation 2.2 and Standard A2.2, paragraphs 3, 4 and 5. Wages. Allotments. The Committee noted that section Lp.613-38 of the LCNC provides that in the event of embarkation for a period of over one month outside the territorial waters of New Caledonia, the shipowner shall take the necessary measures to enable seafarers to transmit, at their request, the whole or part of their remuneration to their family or to their dependants. The Committee also noted the Government’s indication that, in practice, it is extremely rare for a ship from New Caledonia to stay for more than one month outside its territorial waters. The Committee recalled that Standard A2.2, paragraphs 3 to 5, do not envisage such an exemption. Noting the Government’s indication that this comment will be taken into account in the following legislative amendment, the Committee requests it to provide a copy of all measures being prepared or already adopted to give effect to Standard A2.2, paragraphs 3 to 5.

Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of work and hours of rest. Limits. The Committee noted the Government’s statement that the national provisions giving effect to Regulation 2.3 are based on a maximum number of hours of work and a minimum number of hours of rest. The Committee notes the Government’s indication that the LCNC determines a cumulative maximum number of hours of work in any 24-hour period and any seven-day period, while providing for a minimum number of hours of daily rest of ten hours per day, thereby meeting the requirements of Standard A2.3, paragraph 6. The Committee recalls that this system should not be interpreted as giving shipowners or masters the choice of regimes concerning maximum hours of work or minimum hours of rest in light of the limits set out in Standard A2.3 paragraph 5. The Committee takes note this information, which addresses its previous request.

Regulation 2.3 and Standard A2.3, paragraphs 7 to 9. Duration of work and rest. Drills. On-call work. With reference to the requirements relating to minimizing the disturbances caused by various types of drills and the granting of compensatory rest (Standard A2.3, paragraphs 7, 8, 9 and 14), the Committee noted the Government’s indication that the arrangements for compensatory rest are determined by collective agreements or, in their absence, by the employer after consultation with the enterprise’s committee, the committee on health and safety and conditions of work and the workers’ representatives on board, as appropriate. Having noted that several clauses of the collective agreement for subordinate personnel on commercial vessels of 2006 did not meet the requirements under Standard A2.3, paragraphs 7 to 9 and 14, the Committee requested the Government to provide information on the efforts made to ensure the conformity of the collective agreements in force. The Committee notes the Government’s indication that it recognizes that an effort to this end should be made by the social partners with regard to compensatory rest and in other areas. To date, it has not been possible to take this step owing to the preparation of new legislative and regulatory provisions, and to the arduousness of the collective bargaining procedures. The Committee requests the Government to, without delay, take the legislative and regulatory measures to which it refers and to encourage the social partners to bring the collective agreements in force into conformity, where they give effect to the requirements of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Possible exceptions to the prohibition to forgo paid annual leave. The Committee noted that section Lp.613-12 of the Labour Code envisages the succession of fixed-term articles of agreement or a voyage for 12 consecutive months, with the employer then being required to have recourse to a contract without limit of time if he wishes to extend the employment relationship. The Committee noted that this provision could lead seafarers to work continuously for a period of more than 12 months without taking paid leave. The Committee notes the Government’s indication that the right to paid annual leave for seafarers on fixed-term agreements is guaranteed by ordinary labour law and that, under section Lp.123-7 of the LCNC, in the event that an employee has not exercised his right to leave, he benefits, upon expiry of his agreement, from a compensatory indemnity calculated on the basis of the duration of the agreement, which may not be less than one-tenth of the remuneration received. The Committee recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo the minimum annual leave with pay prescribed in this Standard, except in cases provided for by the competent authority, shall be prohibited. The Committee considers that to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. In this regard, the Committee emphasizes that the possibility set out under section Lp.123-7 of the LCNC of replacing effective paid leave of seafarers recruited for a fixed period with an indemnity, with no other condition than to note that the seafarers concerned were not able to take their paid leave, is not compatible with the Convention. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to indicate the measures taken to ensure that no agreement is authorized on forgoing the right to minimum paid annual leave, except in cases envisaged by the competent authority, and on a restrictive basis.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Maximum duration of service periods on board. The Committee notes that section Lp.613-9 of the LCNC provides that the maximum duration of periods on board served under a seafarers’ employment agreement, whether permanent or fixed-term, is limited to three months. This period may be increased by collective agreement, but may not exceed nine months. The Committee recalls that, further to a combined reading of Standard A2.4, paragraph 3, on annual leave and Standard A2.5.1, paragraph 2(b), on repatriation, the maximum continuous period of service on a ship without any leave is 11 months. In this context, the Committee highlights that section Lp.613-9 of the LCNC envisages the maximum duration of periods on board only within the framework of a single agreement, thereby not limiting this duration in the event of accumulated successive agreements. The Committee requests the Government to adopt measures to ensure that the maximum continuous period of service on a ship without leave is limited to 11 months, including in the event of successive fixed-term agreements.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee notes that section Lp.613-18 of the LCNC provides that the shipowner must be in a position to financially secure the eventual repatriation of seafarers, and that the Government states that the financial security for repatriation will be provided through specific insurance in the draft implementing decision of the territorial Act of 2016 on the status of seafarers. The Committee also notes that the Government has provided a copy of the financial security certificate. The Committee draws the Government’s attention to the following points, included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (c) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9(c); and (e) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above questions, indicating in each case the applicable national provisions.

Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment Indemnity. The Committee noted the Government’s reference to section Lp.613-14 of the LCNC, which provides for the payment of a termination indemnity which may not be less than an amount calculated, per year of service in the enterprise, based on 20 hours of wages for employees paid by the hour and one-tenth of the month for employees paid by the month (R. 122-4 of the LCNC). The Committee requested the Government to provide detailed information on the manner in which due account has been taken of Guideline B2.6.1 to determine the adequate compensation to which seafarers are entitled in the event of the ship’s loss or foundering, in accordance with Regulation 2.6, paragraph 1. The Committee notes the Government’s indication that the evaluation of the compensation in the event of a maritime incident is based on a long-standing practice contained in the Maritime Labour Code, which has been the legal reference in France since 1926. The Committee requests the Government to indicate the manner in which the right to adequate compensation in the case of unemployment arising from the ship’s loss of foundering (Standard A2.6, paragraph 1) will be implemented within the framework of the draft territorial Acts and decision being prepared.

Regulation 2.7 and the Code. Manning levels. While noting the Government’s reference to the provisions of section L.5522-2 of the Transport Code, applicable to New Caledonia, concerning the determination by the competent authority of the manning levels required to ensure safety and prevent excessive fatigue for seafarers (Regulation 2.7; Standard A2.7, paragraphs 1 and 2), the Committee noted the Government’s indication that the requirements applicable to ships only engaged in national navigation have to be specified by decision. Having requested the Government to provide detailed information on this decision, and having reminded the Government of the need to take into consideration, in the determination of sufficient manning levels, the provisions of Standard A3.2 concerning food and catering, the Committee notes the indication that the decision setting out specific rules on the determination of minimum manning levels required on board is still being prepared. In the interim, the provisions of the Transport Code are applied, which take into consideration the requirements of Standard A3.2. The Committee requests the Government to provide information on all measures being prepared or already adopted concerning Standard A2.7 for ships under the jurisdiction of New Caledonia.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee noted that the provisions of the LCNC and the collective agreements in force in New Caledonia only meet inadequately the requirements of Regulation 3.1 and Standard A3.1 and that Decree No. 84-810 of 30 August 1984, concerning the safety of life at sea, the standard of accommodation on board ship and the prevention of pollution, and an Order of 23 November 1987 on ship safety, with its appendices, have been rendered applicable to New Caledonia subject to the competencies attributed to the authorities of New Caledonia. The Committee requested the Government to indicate all of the legislative measures and regulations in force giving effect to Regulation 3.1 and Standard A3.1, drawing a distinction, where appropriate, between measures respecting ships covered by the competencies exercised by the State and those exercised by New Caledonia. The Committee notes the Government’s indication that the national provisions in force in France (Decree No. 84-810 and the implementing texts) are directly applied to ships under the jurisdiction of the State, pursuant to territorial Act No. 2009-10 of 28 December 2009. No specific text is required for its application. For ships under the jurisdiction of New Caledonia, (which do not hold an international ship security certificate), a draft decision has been under examination by congress since June 2018. The Committee notes that Decision No. 119/CP of 26 November 2018 on safety and standard of accommodation on board ship and Order No. 2020-289/GNC of 25 February 2020 set forth relevant provisions, particularly regarding ship inspections. Noting, however, that sections 33 et seq. of Decision No. 119/CP of 26 November 2018, on issues related to accommodation on board, contain only very general provisions, the Committee requests the Government to provide all the measures adopted or being prepared to give effect to Standard A3.1, in particular through the updating of Division 215, “habitable conditions”, of the Order of 23 November 1987, in the version applicable to ships falling under the jurisdiction of New Caledonia . The Committee noted the Government’s indication that the application of Regulation 3.1 has given rise to a problem relating to certain recreational vessels engaged in commercial navigation and that section Lp.613-23 of the LCNC provides for the pragmatic application of the provisions of the Convention to these vessels, through the following provision: the existence, nature, size and comfort of these spaces shall be in relation to the dimensions and configuration of the ship, and the duration of the voyages undertaken. Having reminded the Government that exemptions from the implementation of Regulation 3.1 can only be made in the cases envisaged by the Convention, and in consultation with shipowners’ and seafarers’ organizations, the Committee notes the Government’s indication that, with regard to the habitable conditions on recreational vessels allocated for professional use, the exemption granted is justified by the fact that these ships undertake voyages exclusively in the internal waters of New Caledonia, which rarely exceed a day. Noting this information, the Committee requests the Government to provide detailed explanations on the nature of the exemptions granted and on the consultations held to this end.

Regulation 3.2 and the Code. Food and catering. The Committee noted that the LCNC does not provide any specifications concerning the qualifications or skills required to work as a ships’ cook, nor does it specify the requirements in terms of training for persons preparing meals where there are fewer than ten persons on board. Requesting the Government to provide detailed information on the measures adopted or envisaged to meet the requirements of Standard A3.2, paragraphs 3, 4 and 5, the Committee notes the Government’s indication that ships carrying ten persons or more fall under the jurisdiction of the State with respect to ship safety, and that therefore the STCW Convention applies pursuant to Decree No. 2015-723 of 24 June 2015 concerning the issuance of maritime training qualifications and conditions of work on board merchant, recreational, fishing and marine culture vessels. Noting, however, that the State applies the requirements of Standard A3.2 paragraphs 3, 4 and 5 by means of Decree No. 2015-517of 11 May 2015 on ships’ cooks, the Committee requests the Government to indicate whether this Decree is made applicable to ships under the jurisdiction of the State registered in New Caledonia. Furthermore, the Committee requests the Government to indicate the measures adopted or being prepared specifying the requirements on training for persons preparing meals where there are fewer than ten persons on board.

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee noted that the conditions set out in Division 217-2.02 respecting the requirement to have on board a qualified medical doctor responsible for providing medical care, do not correspond to the requirements set out in Standard A4.1, paragraph 4(b), particularly in relation to a voyage including successive crossings of more than seven days’ duration and in cases where it is specified that communities or groups of passengers are accompanied by a medical mission. Noting that the Government has not responded to its request on this matter, the Committee once again requests it to provide detailed information on the measures adopted or envisaged to meet the requirements of Standard A4.1, paragraph 4(b) . The Committee noted that Division 217-2.04, in respect of ships not covered by the requirement to carry a medical doctor, refers to the possibility of delegating responsibility for providing care, the maintenance and use of medical supplies to one or more crew members who have received appropriate training, periodically updated, at least every five years. The Committee requested the Government to specify the level of training required and whether account is taken of the relevant provisions of the STCW Convention. The Committee notes the Government’s indication that training of officers responsible for providing medical care on board is provided for in the STWC Convention applied on board vessels by Decree No. 2015-723 of 24 June 2015. The Committee takes notes of this information, which addresses its previous request.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee noted that under section Lp.613-17 of the LCNC the requirement for the shipowner to defray the cost of assistance to the seafarer, in relation to medical expenses, food and lodging is only envisaged until the repatriation of the seafarer, whereas Standard A4.2.1, paragraph 1(c), provides that the liability of the shipowner extends until the recovery of the seafarer, or until the sickness or incapacity has been declared of a permanent character, possibly within the limit of 16 weeks from the day of the injury or the commencement of the sickness (Standard A4.2.1, paragraph 2). The Committee also noted that Standard A4.2.1, paragraph 3(b), relates to the requirement to pay wages in whole or in part from the time when the seafarers are repatriated or landed until their recovery or, if earlier, until they are entitled to cash benefits under another scheme, possibly within the limit of 16 weeks from the day of the injury or the commencement of the sickness. Noting the Government’s explanation that the social coverage of these risks is ensured through the compulsory coverage of the single social security scheme (CAFAT), the Committee requested the Government to provide detailed information on the measures adopted or currently being taken in relation to the requirement placed upon shipowners to provide seafarers with material assistance and support with respect to the financial consequences of sickness, injury or death occurring while they are serving under a seafarers’ employment agreement or arising from their employment under such an agreement (Regulation 4.2, paragraph 1; Standard A4.2.1, paragraphs 1 and 3). The Committee notes that the Government has provided it with a link to amended territorial Act No. 2001-016 of 11 January 2002, concerning social security in New Caledonia. The Committee notes, however, that this Act applies only to personnel recruited in New Caledonia who are not affiliated with the National Maritime Invalidity Institute, embarked on vessels of over ten gross tonnage registered in New Caledonia (section Lp.4-13) and, for benefits in kind, to non-salaried workers of the maritime professions who are not affiliated, with the National Maritime Invalidity Institute (section Lp. 30). The Committee also notes that the Government has not explained, as requested, how the implementation of this Act ensures that seafarers, irrespective of the type of ship on which they work, are afforded the coverage required by the Convention. The Committee therefore reiterates its request to the Government to provide detailed information on how it ensures that Standard A4.2.1, paragraphs 1 and 3, are effectively implemented for all seafarers within the meaning of the Convention.

Regulation 4.2 and Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. Regarding the 2014 amendments to the Code to the Convention, the Committee recalls that, pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meets certain minimum requirements. The Committee notes that Part I of the DMLC refers to affiliation with the social security scheme set out under section Lp.3 of amended territorial Act No. 2001-016 of 11 January 2002, concerning social security in New Caledonia. The Committee notes, additionally, that the Government has provided a copy of the certificate proving issuance of this financial security. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee noted that Standard A4.3 is implemented mainly through the general provisions of the LCNC and Decree No. 84-810, of 30 August 1984, and its implementing texts, in their version applicable in New Caledonia. In response to its request for clarification of the applicable measures, the Committee notes the Government’s reference to section 64 of Decision No. 119/CP of 26 November 2018 on safety and standard of accommodation on board ship, which sets out the abrogation of certain provisions of Decree No. 84-810 of 30 August 1984, as applicable in New Caledonia. The Committee also requested the Government to indicate the specific measures which give effect to all of the provisions of Standard A4.3, paragraphs 1 to 3, including seafarers under the age of 18 years. The Committee notes that section 46 I of Decision No. 119/CP of 26 November 2018 provides for the adoption of supplementary regulations relating in particular to maritime labour safety. The Committee requests the Government to continue providing copies of all the measures adopted or being prepared to give effect to Standard A4.3, paragraphs 1 to 3.

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. . The Committee notes that section Lp. 261-7 of the LCNC provides that a decision of congress determines the conditions for appointing a seafarers’ representative for safety on board. It recalls that Standard A4.3, paragraph 2(d) provides that a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. The Committee requests the Government to indicate the measures adopted or being prepared to give effect to Standard A4.3, paragraph 2(d).

Regulation 4.5 and the Code. Social security. Requesting the Government to clarify the conditions for affiliation of seafarers with the general social security scheme of New Caledonia, as established by territorial Act No. 2001-016, of 11 January 2002, the Committee notes the Government’s indication that New Caledonian law does not provide for affiliation with the local social security fund of seafarers on board a vessel registered outside of New Caledonia. The Committee also notes the Government’s indication that, in reality, six seafarers domiciled in New Caledonia work on French vessels registered outside of New Caledonia. They all fall under the metropolitan social security scheme pursuant to section L. 5551-1 of the Transport Code. The Committee recalls that Standard A4.5, paragraph 3, requires each country which has ratified the Convention to take steps, according to its national circumstances, to provide the complementary social security protection referred to in paragraph 1 to all seafarers ordinarily resident in its territory. With a view to the application of this provision, it is necessary to ensure that foreign seafarers who are habitually resident in the country are covered under the same conditions as national seafarers. The protection afforded must not be less favourable than that enjoyed by shore workers resident in the territory of the Member. The Committee requests the Government to provide information on the measures adopted or being prepared to give effect to Standard A4.5, paragraph 3.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. Requesting detailed information on measures adopted or currently being adopted relating to the responsibilities of New Caledonia as a flag State, within the meaning of Title 5 of the Convention, the Committee notes the Government’s reference to an instruction note of 11 July 2017 determining the general framework for the procedure for the labour certification of ships, which includes explanations of the requirements of the Convention in terms of certification but does not address all of the requirements of Regulation 5.1 and of the Regulations and Standards under Regulation 5.1. With regard to inspection, the Committee notes the Government’s indication that only two vessels are concerned in New Caledonia, on which inspections are conducted several times a year for the renewal of safety certificates, and quality audits. The Committee also notes that Decision No. 119/CP of 26 November 2018 on safety and standard of accommodation on board ship, and Order No. 2020-289/GNC of 25 February 2020 made thereunder, contain provisions relating to the inspection of ships, complaints by the crew and authorization of classification societies without, however, explicit reference to the MLC, 2006, the procedures it requires, and working and living conditions of seafarers on board ships. The Committee once again requests the Government to provide detailed information on the measures adopted or which are currently being adopted to ensure application of Regulation 5.1.1, and to indicate whether the functions of inspections and issuance of the maritime labour certificate have been delegated to the authorized bodies. The Committee requests the Government to indicate whether ships registered in New Caledonia are obliged to have a copy of the Convention available on board (Standard A5.1.1, paragraph 2). The Committee once again requests the Government to provide updated statistical information, particularly on the number of ships that have been inspected since the previous report for compliance with the Convention; the number of inspectors appointed by the competent authority or a duly authorized recognized organization who have carried out those inspections since the previous report; and the number of maritime labour certificates in force.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. The Committee noted, recalling its direct request addressed to France, that under the terms of section L.5514-1 of the Transport Code, which is applicable in New Caledonia, certification is compulsory for any ship of 500 gross tonnage or over engaged in international voyages, as required by Regulation 5.1.3, paragraph 1(a). However, the Committee recalled that this provision does not appear to apply to ships of 500 gross tonnage or over “flying the flag of a Member and operating from a port, or between ports, in another country”, as prescribed by paragraph 1(b). The Committee notes that the instruction note of 11 July 2017 sets out the same scope of application as section L.5514-1 of the Transport Code. The Committee notes the Government’s indication that the possibility of delegating certification to another Member is not relevant in New Caledonia given the low number of vessels concerned. Noting, however, that the Government does not specify whether ships of 500 gross tonnage operating from a port, or between ports, in another country are also subject to certification, the Committee requests the Government to provide information on the notion of “international voyages”, within the meaning of the instruction note of 11 July 2017. The Committee also requests the Government to indicate: (i) how effect is given to the 2016 amendments to the Code of the Convention with regards renewal of certificates (Standard A5.1.3, paragraph 3 and 4); (ii) the conditions in which an interim certificate may be issued pursuant to the 2017 instruction note (Standard A5.1.3, paragraph 5 and 7); (iii) the measures giving effect to Standard A5.1.3, paragraph 11, on recording and accessing the results of all inspections; and (iv) the measures giving effect to Standard A5.1.3, paragraph 12, on keeping a copy of the Maritime Labour Certificate and the DMLC on board.

Regulation 5.1.4. and the Code. Flag State responsibilities. Inspection and enforcement. With regard to the procedures followed for receiving and dealing with complaints and ensuring that their source is treated as confidential (Standard A5.1.4, paragraphs 5, 10 and 11(b)), the Committee noted the information provided by the Government in its report, in which it refers to section 29 of Decree No. 84-810, of 30 August 1984, and asked the Government whether this procedure also relates to non-conformity with the requirements of the Convention and serious deficiencies in the implementation of the measures set out in the DMLC. The Committee notes that the Government has not replied to its request. The Committee also notes that section 23 of Decision No. 119/CP of 26 November 2018, which replaced section 29 of Decree No. 84-810 of 30 August 1984 in this regard, only covers complaints of the crew relating to either seaworthiness and safety, or habitability conditions, sanitary facilities and supplies. The Committee therefore requests the Government once again to provide information on the legislative provisions or regulations ensuring the implementation of Standard A5.1.4, paragraphs 5, 10 and 11.

Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee noted that, concerning on-board complaint procedures, the Government referred to the provisions of the Transport Code pending a decision setting out in particular the guarantees concerning the complaints procedure. Noting the relevant provisions of sections Lp.613-43 and Lp.613-44 of the LCNC on the right of withdrawal and the rights of seafarers to make complaints to the master or his representative, the Committee, requested the Government to provide a copy of the decision once adopted. The Committee notes the Government’s indication that the provisions relating to the treatment of seafarers’ complaints are foreseen in a draft territorial Act and a decision currently being prepared. The Committee also notes that the Government has provided a copy of the complaints procedure without indicating, however, whether it must be given to the seafarers. Furthermore, the copy of the complaints procedure does not contain the name of a person or persons on board the ship who can, on a confidential basis, provide seafarers with impartial advice on their complaint and otherwise assist them in following the complaint procedures available to them on board the ship (Standard A5.1.5, paragraph 4). The Committee requests the Government to adopt the measures necessary to give effect to Standard A5.1.5.

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee requested the Government to provide a copy of any agreements concluded with the State department for the investigation into maritime events in relation with the implementation of Regulation 5.1.6. The Committee notes the Government’s indication that work has been undertaken to this end and has not yet been concluded. The Committee requests the Government to keep it informed of any developments in this matter.

Additional documents requested. The Committee notes that the Government has failed to provide certain documents requested in the report form. It therefore requests the Government to provide the following information and documents: a model medical certificate (Standard A1.2, paragraph 2); a copy of the relevant national guidelines (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a report or other document containing information on the objectives and standards established for the inspection and certification system, including the procedures for its assessment (Regulation 5.1.1, paragraph 5); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see also Guideline B5.1.4, paragraphs 7 and 8); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5; see also Guideline B5.1.4, paragraph 3).

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the Government’s first report on the application of the Convention. It notes that 16 maritime labour Conventions had been declared applicable to New Caledonia, before being denounced as a result of the entry into force of the Maritime Labour Convention (MLC, 2006). Following its first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Implementing measures. While taking into consideration the adoption, by the Congress of New Caledonia, of territorial Act No. 2016-5 of 11 February 2016 issuing the seafarers’ regulations, which applies the Convention, the Committee draws the Government’s attention to need to adopt in the near future all the necessary measures to ensure the conformity of the legislation in force with the MLC, 2006. In this regard, the Committee reminds the Government that it may have recourse to ILO technical assistance. The Committee also notes that sections L.5765-1 et seq. of the French Transport Code makes certain of its provisions applicable to New Caledonia in so far as they relate to the competencies exercised by the State. The Committee notes that territorial Act No. 2009-10, of 28 December 2009, transferred to New Caledonia the competencies of the State in respect of the safety of ships and the inspection of ships in the case of ships registered in New Caledonia and which navigate between all points in New Caledonia, with the exception of those engaged in international navigation or which are required to obtain international safety certification, which remains the competence of the State. The Committee requests the Government to provide detailed information on the laws and regulations in force which give effect to the Convention, making a distinction among the subjects addressed, between those which lie within the competence of the French State and those of New Caledonia.

Article II, paragraphs 1(f), 2 and 3, of the Convention. Scope of application. Seafarers or mariners (“marins”). The Committee notes that territorial Act No. 2016-5 of 11 February 2016, issuing the seafarers’ regulations, contains definitions of the terms “mariners (marins)” and “seafarers” which are not identical to those contained in section L.5511.1 of the Transport Code. The Committee requests the Government to provide detailed information on the scope of application of the French Transport Code and the Labour Code of New Caledonia in relation to seafarers and mariners, within the meaning of the Convention. The Committee draws the Government’s attention, where relevant, to the direct request addressed to France in 2016 relating to the application of the MLC, 2006.

The Committee notes that section Lp.613-1 of the Labour Code of New Caledonia distinguishes between “mariners (marins)”, that is “any person, identified by the maritime authority as a professional mariner, who signs maritime articles of agreement with a view to filling a job on board a ship relating to its exploitation”, and “seafarers” who are defined as “any mariner or any other person exercising a professional salaried activity on board a ship on behalf of the shipowner or any other employer”. The Committee notes that section Lp.613-1 specifies that “persons who intervene occasionally and for a short period on board a vessel shall not be considered seafarers”. The Committee notes that, according to the Government, a decision, planned for adoption during the course of 2016, would enumerate precisely the categories of persons not covered by the Convention. The Committee requests the Government to provide detailed information on the determination of the categories of persons not considered to be either “mariners (marins)” or “seafarers” within the meaning of the Convention, and on the consultations required with the organizations of shipowners and seafarers concerned. The Committee also requests the Government to provide detailed information on the measures adopted or envisaged to ensure that the protection afforded by the Convention is guaranteed to all seafarers within the meaning of the Convention.

Regulation 1.1 and the Code. Minimum age. The Committee notes that section Lp.613-2 of the Labour Code of New Caledonia, which prohibits work on board a ship by any person under the age of 16, is applicable to seafarers, mariners and persons who are not employees who are exercising an occupational activity on board ship. However, employed persons who intervene on an occasional basis and for a short period, who are not considered to be seafarers, appear to be covered by sections Lp.251-1 et seq. of the Labour Code of New Caledonia, which, under certain conditions, authorizes work by young persons as from 14 years of age. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited, in accordance with Standard A1.1, paragraph 1.

Regulation 1.2 and Standard A1.2. Medical certificate. The Committee notes that section 28 of Decree No. 2015-1575 of 3 December 2015 provides that “the conditions under which the medical examination for fitness for navigation referred to in section 1 shall be carried out and under which a medical certificate for fitness for navigation is issued shall be established, in compliance with international Conventions, by the regulations applicable in New Caledonia in relation to occupational medicine, without prejudice to the support provided by the State under the conditions envisaged in the agreement referred to in section 26 of the Decree of 3 December 2015 referred to above”. The Committee requests the Government to provide a copy of the relevant regulations applicable in New Caledonia respecting occupational medicine, and detailed information on any agreement concluded with the French State for its support in the discharge of these functions.

The Committee notes the Government’s reply indicating that there is a list of medical doctors approved by the administration, who alone are authorized to decide on the fitness of seafarers for duties at sea. The Committee requests the Government to provide further information on the requirements applicable to persons authorized to issue medical certificates and certificates solely concerning eyesight, in accordance with Standard A1.2, paragraph 4.

The Committee notes the Government’s reply indicating that “the validity of the medical certificate is generally for one year. This is liable to change to a duration of two years for seafarers aged between 18 and 55 years. Below and above that limit, the validity will be for one year. The examination of eyesight has the same validity as the medical examination”. The Committee requests the Government to indicate the specific measures adopted or envisaged to determine the validity of the certificates in accordance with the requirements of Standard A1.2, paragraph 7.

Regulation 1.3. Training and qualifications. With regard to the training and qualifications of seafarers, the Committee notes the Government’s reply, which refers to the provisions of the Transport Code applicable in New Caledonia. The Committee notes the Government’s indication that “specific provisions for New Caledonia will nevertheless have to be formulated and implemented out of a concern for legal clarity”. The Committee requests the Government to indicate the measures adopted or envisaged to give effect to Regulation 1.3, paragraph 2. The Committee also requests the Government to indicate and, where appropriate, provide copies of provisions requiring seafarers to have successfully completed training on personal safety on board ship, in accordance with Regulation 1.3, paragraph 3.

Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. The Committee notes that section Lp.613-6 of the Labour Code of New Caledonia provides that “on board ships of over 200 gross tonnage, the master shall keep a copy of the seafarers’ employment agreements and a copy of the contracts of employment of other seafarers”. The Committee notes that the same section requires the master to keep on board a copy of the model contract, without specifying the size of the ship. However, the Committee recalls that Standard A2.1, paragraph 1(d), gives the seafarer the right to have access to a copy of the employment agreement, which shall not be a model agreement, for any ship to which the MLC, 2006, applies. The Committee also recalls that the exemptions accorded to ships of less than 200 gross tonnage not engaged in international voyages must be strictly in compliance with the conditions set out in Article II, paragraph 6, of the Convention. The Committee requests the Government to provide detailed information on the consultations with the shipowners’ and seafarers’ organizations concerned concerning this exemption, and on the manner in which the matter is dealt with differently by national laws or regulations for such ships, in accordance with Article II, paragraph 6, of the Convention.

The Committee notes that Title 1, Chapter III, of Book VI of the Labour Code does not contain any reference to the document containing a record of the employment of the seafarer (Standard A2.1, paragraph 1(e)). The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that the seafarer receives a document containing a record of his service on board the ship, in accordance with Standard A2.1, paragraph 1(e) and paragraph 3.

The Committee notes that sections Lp.613-5 and 613-7 of the Labour Code, respecting the requirement to conclude a maritime employment agreement and defining its minimum content, are not made explicitly applicable to seafarers within the meaning of this legislation. Furthermore, section Lp.613-5 does not refer to the requirement for the agreement to be signed. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that seafarers, within the meaning of the MLC, 2006, are in possession of a seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner and including the minimum particulars required in accordance with Standard A2.1, paragraph 1(a) and paragraph 4.

Regulation 2.2 and Standard A2.2. Wages. The Committee notes that Title 1, Chapter III, of Book VI of the Labour Code does not contain any provision requiring the payment of wages to be made at no greater than monthly intervals, and that it does not refer to the existence of a monthly account of the payments due and the amounts paid to seafarers. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that the requirements of Standard A2.2, paragraphs 1 and 2, are applied to all seafarers, within the meaning of the Convention.

The Committee notes that section Lp.613-38 of the Labour Code provides “that in the event of embarkation for a period of over one month outside the territorial waters of New Caledonia the shipowner shall take the necessary measures to enable seafarers to transmit, at their request, the whole or part of their remuneration to their family or to their dependants”. The Committee notes the Government’s indication that, in practice, it is extremely rare for a ship from New Caledonia to stay for more than one month outside its territorial waters. The Committee reminds the Government that Standard A2.2, paragraphs 3 to 5, do not envisage such an exemption. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that the requirements of Standard A2.2, paragraphs 3 to 5, are applied to all seafarers within the meaning of the Convention.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. The Committee notes the Government’s statement that the national provisions giving effect to Regulation 2.3 are based on a maximum number of hours of work and a minimum number of hours of rest. Section Lp.613-30 of the Labour Code provides for a maximum daily working time of 14 hours and a minimum of ten hours of rest a day. However, the Committee notes that section Lp.613-31 of the Labour Code only refers to a maximum of 72 hours of work a week. The Committee recalls that Standard A2.3, paragraph 2, requires the member State to fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time. The first alternative is more favourable to the seafarer than the second. The Committee requests the Government to take the necessary measures to fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time, in accordance with Standard A2.3, paragraphs 2 and 5.

With reference to the requirements relating to minimizing the disturbance caused by various types of exercise and the granting of compensatory rest (Standard A2.3, paragraphs 7, 8, 9 and 14), the Committee notes the Government’s indication that the arrangements for compensatory rest are determined by collective agreements or accords or, in their absence, by the employer after consultation with the works committee, the committee on health and safety of conditions of work and the delegates on board, as appropriate. The Committee notes that clause 43 of the collective agreement for subordinate personnel on commercial vessels does not provide for the granting of compensatory rest where the seafarer is engaged in work necessary for the safety of the vessel, or the securing of debris, possessions or cargo in the event of shipwreck. The Committee also notes that this clause provides that the seafarer shall perform, outside hours of work, the work necessary to maintain the cleanliness of the workstation, the equipment of the workstation, sleeping and eating materials, without such work giving rise to remuneration. The Committee recalls that Standard A2.3, paragraph 9, provides that this matter shall be determined by a collective agreement or arbitration award, and that the competent authority may determine, if it considers the protection granted inadequate, to determine itself such provisions as to ensure that the seafarers concerned have sufficient rest. It is not therefore envisaged that this matter should be determined by the employer, even following consultation with the staff representatives. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure the implementation of the requirements of Standard A2.3, paragraphs 7, 8, 9 and 14.

Regulation 2.4 and Standard A2.4. Entitlement to leave. The Committee notes that the minimum period of paid leave granted to seafarers under the terms of section Lp.613-40 of the Labour Code is three days per month of employment. However, the Committee notes that section Lp.613-12 of the Labour Code envisages the succession of fixed-term articles of agreement or a voyage for 12 consecutive months, with the employer then being required to have recourse to a contract without limit of time if he wishes to extend the employment relationship. The Committee requests the Government to indicate whether the laws and regulations and collective agreements in force guarantee that all seafarers, including those who have a succession of fixed-term contracts or contracts per voyage, are effectively entitled to annual paid leave, in accordance with Regulation 2.4, paragraph 1.

Regulation 2.5 and Standard A2.5. Repatriation. With regard to the financial security that shall be required of ships to ensure that seafarers are duly repatriated, the Committee notes that section Lp.613-18 of the Labour Code provides that: “the shipowner shall be in a position to financially guarantee any repatriation of mariners. No advance may be required from mariners to cover the costs of repatriation.” The Committee requests the Government to provide detailed information on the type of financial security required and the extent of the entitlements which shall be covered by this financial security, in accordance with Regulation 2.5, paragraph 2. The Committee requests the Government to provide a copy of the model document accepted or produced concerning the financial security that shall be provided by shipowners.

Regulation 2.6 and Standard A2.6. Seafarer compensation for the ship’s loss or foundering. The Committee notes that the Government refers to section Lp.613-14 of the Labour Code, which provides for the payment of a termination indemnity which may not be less than an amount calculated, by year of service in the enterprise, on the basis of 20 hours of wages for employed persons paid by the hour and one-tenth of the month for employed persons paid by the month (R. 122-4 of the Labour Code). The Committee requests the Government to provide detailed information on the manner in which due account has been taken of Guideline B2.6.1 to determine the adequate compensation to which seafarers shall be entitled in the event of the ship’s loss or foundering, in accordance with Regulation 2.6, paragraph 1.

Regulation 2.7 and Standard A2.7. Manning levels. The Committee notes the Government’s reference to the provisions of section L.5522-2 of the Transport Code, applicable to New Caledonia, concerning the determination by the competent authority of the manning levels required to ensure safety and prevent excessive fatigue for seafarers (Regulation 2.7; Standard A2.7, paragraphs 1 and 2). The Government indicates that the requirements applicable to ships only engaged in national navigation have to be specified by decision. The Committee requests the Government to provide detailed information on this decision once it has been adopted. The Committee reminds the Government of the need to take into consideration, in the determination of sufficient manning levels, the provisions of Standard A3.2 concerning food and catering.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. The Committee notes that the provisions of the Labour Code and the collective agreements in force in New Caledonia only meet inadequately the requirements of Regulation 3.1 and Standard A3.1 of the Convention. The Committee notes that Decree No. 84-810 of 30 August 1984, respecting the safety of life at sea, the standard of accommodation on board ship and the prevention of pollution, and an Order of 23 November 1987 on the safety of ships, with its appendices, have been rendered applicable to New Caledonia subject to the competencies devolved to the authorities of New Caledonia. The Committee requests the Government, in relation to the competencies exercised by the State, to take into consideration the direct request addressed to France in 2016 relating to the application of the MLC, 2006. The Committee understands that the above regulatory texts have been rendered applicable to the competencies exercised under the authority of New Caledonia, but that these do not include the measures necessary to ensure their conformity with the MLC, 2006. The Committee requests the Government to indicate and provide all of the legislative measures and regulations in force giving effect to Regulation 3.1 and Standard A3.1, drawing a distinction, where appropriate, between measures respecting ships covered by the competencies exercised by the State and those exercised by New Caledonia.

The Committee notes the Government’s indication that the application of Regulation 3.1 has given rise to a problem relating to certain pleasure boats engaged in commercial navigation. The Government specifies that section Lp.613-23 provides for the pragmatic application of the provisions of the Convention to these vessels, through the following provision: “the existence, nature, size and comfort of these spaces shall be in relation to the dimensions and configuration of the ship, and the duration of the voyages undertaken.” The Committee reminds the Government that exemptions from the implementation of Regulation 3.1 can only be made in the cases envisaged by the Convention, and in accordance with the consultations of shipowners’ and seafarers’ organizations that are required. The Committee requests the Government to provide detailed information on any exemptions granted by the competent authority and the procedure followed for their adoption.

Regulation 3.2 and Standard A3.2. Food and catering. With reference to the training of ships’ cooks, the Government refers to section Lp.613-22 of the Labour Code, which requires the presence of a cook when at least ten seafarers are on board. However, the Committee notes that this provision does not provide any specifications concerning the qualifications or skills required to work as a ships’ cook, nor does it specify the requirements in terms of training for persons preparing meals where there are fewer than ten persons on board. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to meet the requirements of Standard A3.2, paragraphs 3, 4 and 5.

Regulation 4.1 and Standard A4.1. Medical care on board ship and ashore. With regard to the measures adopted to ensure the health protection of seafarers on board, the Committee notes the Government’s reference to Part 217 of the Regulations annexed to the Order of 23 November 1987 on the safety of ships. The Committee recalls that this Part is applicable to the competencies exercised by New Caledonia, and also, in a version incorporating provisions relating to the MLC, 2006, to those exercised by the State. The Committee therefore requests the Government to take into consideration the direct request addressed to France in 2016 relating to the application of the MLC, 2006. The Committee notes that the conditions set out in Part 217-2.02 respecting the requirement to have on board a qualified medical doctor responsible for providing medical care, do not correspond to the requirements set out in Standard A4.1, paragraph 4(b), particularly in relation to a voyage including successive crossings of more than seven days’ duration and in cases where it is specified that communities or groups of passengers are accompanied by a medical mission. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to meet the requirements of Standard A4.1, paragraph 4(b). The Committee notes that Part 217-2.04 referred to above, in respect of ships not covered by the requirement to carry a medical doctor, refers to the possibility of delegating responsibility for providing care, the maintenance and use of medical supplies to one or more crew members who have received appropriate training, periodically updated, at least every five years. The Committee requests the Government to specify the level of training required and whether account is taken of the relevant provisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), in accordance with Standard A4.1, paragraph 4(c).

Regulation 4.2 and Standard A4.2. Shipowners’ liability. The Committee notes that under section Lp.613-17 of the Labour Code the requirement for the shipowner to defray the cost of assistance to the seafarer, in relation to medical expenses, food and lodging is only envisaged until the repatriation of the seafarer. The Committee recalls that Standard A4.2, paragraph 1(c), provides that the liability of the shipowner extends until the recovery of the seafarer, or until the sickness or incapacity has been declared of a permanent character, possibly within the limit of 16 weeks from the day of the injury or the commencement of the sickness (Standard A4.2, paragraph 2). The Committee also notes that Standard A4.2, paragraph 3(b), relates to the requirement to pay wages in whole or in part from the time when the seafarers are repatriated or landed until their recovery or, if earlier, until they are entitled to cash benefits under another scheme, possibly within the limit of 16 weeks from the day of the injury or the commencement of the sickness. The Committee notes that this requirement is not envisaged in the Labour Code. It notes the Government’s indication in its report that, in the case of seafarers resident in New Caledonia, the social coverage of these risks is ensured through the compulsory coverage of the single social security scheme (CAFAT). However, the Committee emphasizes that the Government has not specified, nor provided the legislative or other provisions, under which this coverage is ensured. The Committee requests the Government to provide detailed information on the measures adopted or that are currently being taken in relation to the requirement placed upon shipowners to provide seafarers with material assistance and support with respect to the financial consequences of sickness, injury or death occurring while they are serving under a seafarers’ employment agreement or arising from their employment under such an agreement (Regulation 4.2, paragraph 1; Standard A4.2, paragraphs 1 and 3). The Committee requests the Government to provide copies of all the measures applicable ensuring the coverage of seafarers by the single social security scheme (CAFAT).

Regulation 4.3 and Standard A4.3. Health and safety protection and accident prevention. The Committee notes the Government’s reference in its replies to the general provisions of the Labour Code, and to Decree No. 84-810, of 30 August 1984, and its implementing texts, in their version applicable in New Caledonia. The Committee requests the Government to indicate the conditions governing the application of the general principles of prevention set out in Title VI, Book 2, of the Labour Code in the case of seafarers, including with regard to the assessment of risks, and to provide a copy of Decree No. 84-810, of 30 August 1984 and its implementing texts, in their version applicable in New Caledonia. The Committee also requests the Government to indicate the specific measures which give effect to all of the provisions of Standard A4.3, paragraphs 1 and 2, in the case of seafarers, including seafarers under the age of 18 years, with an indication of whether Decree No. 2006-534 of 10 May 2006 respecting the protection of young workers on board ships is applicable to New Caledonia.

The Committee notes the Government’s indication that the laws and regulations and other measures applicable are not reviewed regularly, in consultation with the representatives of shipowners’ and seafarers’ organizations (Standard A4.3, paragraph 3). The Committee requests the Government to provide detailed information on the measures adopted or which are currently being adopted to give effect to Standard A4.3, paragraph 3, with an indication of whether Decree No. 2007-1227, of 21 August 2007, on the prevention of professional maritime risks and the welfare of seafarers at sea and in ports is applicable to New Caledonia.

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security: medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit. The Committee notes the information provided by the Government concerning the application to seafarers of territorial Act No. 2001-016, of 11 January 2002, respecting social security in New Caledonia, and the information concerning Decree No. 2002-1371, of 19 November 2002, on the coordination of the metropolitan and New Caledonian social security systems. The Committee notes that section Lp.4(13) of the Act of 11 January 2002 provides that “personnel recruited in New Caledonia not affiliated to the national merchant marine invalidity establishment, on board ships of over ten gross tonnage registered in New Caledonia” are covered by the general social insurance scheme of New Caledonia. The Committee recalls that Standard A4.5, paragraph 3, requires each country which has ratified the Convention to take steps, according to its national circumstances, to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory. With a view to the application of this provision, it is necessary to ensure that foreign seafarers who are habitually resident in the country are covered under the same conditions as national seafarers. The protection afforded must not be less favourable than that enjoyed by shoreworkers resident in the territory of the Member. The Committee notes that the information provided by the Government shows that the coverage of seafarers who are pensioners under the CAFAT may vary according to the nationality of the seafarers, under the terms of circulars that the Government has not provided. The Committee requests the Government to provide detailed information on the measures that have been adopted or are currently being adopted intended to ensure to seafarers habitually resident in the territory of New Caledonia and working on ships flying the flag of another country the social security protection envisaged by Regulation 4.5 and the corresponding Code. The Committee requests the Government, for each of the branches of social security specified when ratifying the MLC, 2006, to indicate the principal benefits provided for seafarers habitually resident in New Caledonia and to provide copies of the circulars applicable to the social protection of seafarers.

Regulation 5.1. Flag State responsibilities. Regulation 5.1.1. General principles. The Committee notes the Government’s indication in its report that New Caledonia has not yet adopted measures setting out the procedure for the labour certification of ships. The Committee notes that section L.5514-1 of the Transport Code, applicable to New Caledonia, provides for a first stage in bringing the applicable legislation into conformity, while awaiting the required additional measures. The Committee requests the Government to provide detailed information on the measures adopted or which are currently being adopted to give effect to Regulation 5.1 and the Regulations and Standards set out under Regulation 5.1, with an indication, where applicable, of measures specifying the areas of competence exercised by the State and those exercised by the authorities of New Caledonia.

Regulation 5.1. Flag State responsibilities. Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. The Committee recalls the direct request addressed to France in 2016 relating to the application of the MLC, 2006. The Committee noted that, under the terms of section L.5514-1 of the Transport Code, which is applicable in New Caledonia, certification is compulsory for any ship of 500 gross tonnage or over engaged in international voyages, as required by Regulation 5.1.3, paragraph 1(a). However, this provision does not appear to apply to ships of 500 gross tonnage or over “flying the flag of a Member and operating from a port, or between ports, in another country”, as prescribed by Regulation 5.1.3, paragraph 1(b). The Committee therefore requests the Government to provide information on the legislative provisions or regulations that give effect to this requirement.

Regulation 5.1. Flag State responsibilities. Regulation 5.1.4. Inspection and enforcement. With regard to the procedures followed for receiving and dealing with complaints and ensuring that their source is treated as confidential (Standard A5.1.4, paragraphs 5, 10 and 11(b)), the Committee notes the information provided by the Government in its report, in which it refers to section 29 of Decree No. 84.810, of 30 August 1984, on the safety of life at sea, the standard of accommodation on board ship and the prevention of pollution, in the version applicable in New Caledonia. However, the Committee understands that this provision only relates to conditions of seaworthiness, safety, accommodation, hygiene and supplies, and does not therefore cover all issues that may give rise to a complaint, namely that the ship does not conform to the requirements of the Convention or that there are serious deficiencies in the implementation of the measures set out in the declaration of maritime labour compliance. The Committee therefore requests the Government to provide information on the legislative provisions or regulations that give effect to Standard A5.1.4, paragraphs 5, 10 and 11.

Regulation 5.1. Flag State responsibilities. Regulation 5.1.5 and Standard A5.1.5. On-board complaint procedures. The Committee notes the Government’s reference to section L.5534-1 of the Transport Code, without however confirming that it is applicable in New Caledonia. The Government indicates that this provision will be adapted by means of a decision setting out guarantees concerning the complaints procedure. The Committee, noting the relevant provisions of sections Lp.613-43 and Lp.613-44 of the Labour Code on the right of withdrawal and the rights of seafarers to make complaints to the master or his representative, requests the Government to provide with its next report the decision to which it refers in its reply.

Regulation 5.1. Flag State responsibilities. Regulation 5.1.6. Maritime casualties. The Committee notes the Government’s indication in its report that an Order of 16 December of 1997 established in France the Bureau for technical and administrative investigations following accidents and other maritime events and a standing commission of inquiry. It specifies that New Caledonia does not have specific resources, but may have recourse, through an agreement, to the support of this Bureau for inquiries into maritime casualties. The Committee requests the Government to provide a copy of any agreements concluded with the maritime investigation bureau.

Request for further documents. The Committee notes that the Government has failed to provide certain documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: a copy, of the maritime labour certificate and Part I of the declaration of maritime labour compliance (DMLC), as well as one or more copies of Part II of the DMLC drawn up by a shipowner and accepted by New Caledonia when certifying one or more ships (Standard A5.1.3, paragraph 12); an example of the approved document for the seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); a standard form example of a seafarers’ employment agreement (Standard A2.1, paragraph 2(a)); a copy in English of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest (Standard A2.3, paragraph 12); for each type of ship, a typical example of a safe-manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1); an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see also Guideline B4.1.2, paragraph 1); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2, paragraph 1(b)); an example of a document (for example, Part II of the DMLC) outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a report or other document containing information on the objectives and standards established for the inspection and certification system, including the procedures for its assessment (Regulation 5.1.1, paragraph 5); a copy in English of the national interim maritime labour certificate (Regulation 5.1.3); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see also Guideline B5.1.4, paragraphs 7 and 8); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5; see also Guideline B5.1.4, paragraph 3); a copy of a model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships in the registry of New Caledonia.

[The Government is asked to reply in full to the present comments in 2018.]