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Comments adopted by the CEACR: Samoa

Adopted by the CEACR in 2021

MLC, 2006 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, 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-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments on the General Report of 2021 on this issue.
The Committee notes with concern that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that no other Conventions on maritime labour had previously been ratified by Samoa. The Committee also notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Samoa on 18 January 2017. Following a 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.
General questions on application. Implementing measures. The Committee notes the existing legislation which gives effect to a number of provisions of the Convention, in particular the Shipping Act 1998 and the Standards of Training, Certification and Watchkeeping for Seafarers (STCW) Regulations 2014 (hereafter STCW Regulations 2014), as well as the Labour and Employment Relations Act 2013 (LERA) and the Labour and Employment Relations Regulations 2016. The Committee notes the Government’s indication that it is working on draft maritime Regulations that were however not made available to the Committee. It hopes that these Regulations will be adopted in the near future and will give full effect to the Convention. It encourages the Government to take into account its comments when finalizing the draft Regulations and to ensure full compliance with the requirements of the Convention regarding consultations. It requests the Government to provide a copy of the Regulations once adopted.
Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age of seafarers. The Committee notes that section 150 of the Shipping Act 1998 provides that no person under the age of 16 years shall be employed as a seaman in a vessel, but that, with the approval of the Principal Shipping Officer, a person under the age of 16 years may be employed in: (a) a vessel in which only members of the same family are employed; or (b) a school vessel or a training vessel. The Committee further notes that the STCW Regulations 2014 prohibits the employment, engagement or work of seafarers under 16 years with the exceptions provided for in section 150 of the Shipping Act 1998. Moreover, it notes that section 51(3) of the LERA states that the minimum age to employ a child on a vessel is 15, but that this does not apply to vessels under the charge of the parent or guardian of the child. Recalling that Standard A.1, paragraph 1, prohibits the employment, engagement or work of seafarers under the age of 16 and that no exceptions are permitted in this respect, the Committee requests the Government to take steps to amend its legislation to give full effect to this provision of the Convention.
Regulation 1.1 and Standard A1.1, paragraph 4. Determination of types of work which are likely to jeopardize the health and safety of seafarers under 18 years of age. The Committee notes that section 7, paragraph 2(a), of the STCW Regulations 2014 prohibit the employment, engagement or work of seafarers under the age of 18 where the work is likely to jeopardize their health or safety. The Committee notes that section 51(2) of the LERA states that a person must not employ a child under the age of 18 years on dangerous machinery or in any occupation or in any place under working conditions injurious or likely to be injurious to the physical or moral health of such child. It also notes the Government’s indication that the Ministry of Commerce, Industry and Labour (MCIL) is in the process of developing a list of hazardous work for seafarers under 18 years of age. The Committee recalls that according to Standard A1.1, paragraph 4, the types of such work shall be determined after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. The Committee requests the Government to provide a copy of this list once adopted and to provide details about the process of consultation.
Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. The Committee notes that according to section 114, paragraph 1, of the Shipping Act 1998, no person is employed on a vessel as a seaman unless there is in force an employment agreement approved by the Principal Shipping Officer, in writing in both English and Samoan, between the owner, or licensed agent, or master and the seaman. The Committee underlines the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. In accordance with Standard A2.1, paragraph 1, every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer). The Committee notes, in this connection, that the provision of the Shipping Act 1998 cited above is not clear as to who is the responsible party for seafarers’ living and working conditions. The Committee requests the Government to clarify who are the parties of the seafarers’ employment agreement and to consider amending the legislation to ensure that seafarers have an original agreement signed by both the seafarer and shipowner or a shipowner’s representative, as required under Standard A2.1, paragraph 1.
The Committee notes that the examples of seafarers’ employment agreements provided by the Government refer to the matters to be included in those agreements as provided for in Standard A2.1, paragraph 4. At the same time, the Committee notes that these matters have not been included in laws or regulations, as required by the Convention. In the absence of such provisions, the Committee requests the Government to indicate the measures taken or envisaged to regulate this issue so as to fully implement this requirement of the Convention.
Finally, the Committee notes that no information was provided by the Government regarding the implementation of Standard A2.1, paragraph 1(d) (seafarers’ conditions of employment to be easily obtained on board), Standard A2.1, paragraph 2 (copy of collective bargaining agreement forming all or part of a seafarers’ employment agreement to be available on board), and Standard A2.1, paragraph 6 (consideration of the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons). The Committee requests the Government to indicate how it gives effect to these requirements of the Convention.
Regulation 2.2 and Standard A2.2, paragraph 5. Allotments. 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. Noting the absence of information in this regard, the Committee requests the Government to indicate how it implements this provision of the Convention.
Regulation 2.3 and Standard A2.3, paragraph 8. On-call work. The Committee notes that no information was provided by the Government regarding the implementation of Standard A2.3, paragraph 8 (compensatory rest for seafarers on call). The Committee requests the Government to indicate how it gives effect to this requirement of the Convention.
Regulation 2.3 and Standard A2.3, paragraph 13. Exceptions to the hours of rest. The Committee notes that the Government has fixed a system of hours of rest in conformity with Standard A2.3, paragraph 5(b). The Committee notes, however, that section 15, paragraph 2(f), of the STCW Regulations 2014 stipulates that notwithstanding the provisions on hours of rest, “the minimum period of 10 hours may be reduced to not less than 6 consecutive hours, provided that any such reduction shall not extend beyond two days and not less than 70 hours of rest are provided in each 7 days period.” The Committee recalls that the limits on hours of work or rest shall not exceed those established under Standard A2.3, paragraph 5, and that any exceptions to paragraphs 5 and 6 of this Standard which do not fall within those covered by paragraph 14 (immediate safety of the ship, persons on board or cargo, or assistance to other ships or persons in distress at sea), including those provided for in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, must follow the requirements of Standard A2.3, paragraph 13, and be provided by collective agreements. The Committee requests the Government to indicate the measures taken to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6 other than those justified under paragraph 14 of the same Standard, are only provided through a collective agreement and not fixed by law, as required by Standard A2.3, paragraph 13, of the Convention.
The Committee notes the Government’s indication that there are collective agreements which have been authorized or registered that permit exceptions to the established limits. The Committee requests the Government to provide a copy of the relevant collective agreement.
Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that the existing legislation does not give effect to the requirements of Regulation 2.4, paragraph 2 (seafarers to be granted appropriate shore leave), nor Standard A2.4, paragraph 2 (annual leave with pay entitlement to be calculated on the basis of a minimum of 2.5 calendar days per month of employment). The Committee requests the Government to indicate the measures taken or envisaged to ensure conformity with these requirements of the Convention.
Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. The Committee notes the Government’s reference to section 41 of the LERA which states that instead of taking annual leave, the employee may, with the approval of the employer and the consent of the Chief Executive Officer of the MCIL, choose to have the annual leave entitlement paid to him or her. 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 ensure that the new maritime Regulations fully implement the requirements of Standard A2.3 and that any agreements to forgo the minimum annual leave with pay is prohibited. Any possible exceptions in this regard may only concern specific cases restrictively provided for by the competent authority.
Regulation 2.5. Repatriation. The Committee notes that, except for section 125 of the Shipping Act 1998, which provides for the return of a distressed seaman in cases of abandonment and shipwreck, there are no specific provisions in the Act which recognize seafarers’ entitlement to repatriation. The Committee requests the Government to ensure that the new Regulations to be adopted fully implement the requirements of Regulation 2.5.
Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. 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 brings the Government’s attention to the following questions 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) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) 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); (e) 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?; and (f) 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 abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).
Regulation 2.6 and Standard A2.6, paragraph 1. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes, that while section 122(1)(b) of the Shipping Act 1998 provides for a seafarer to be granted an indemnity in the case of a ship’s loss or foundering, the indemnity payable is limited to the period commencing on the date of termination of the service and ending 30 days after he or she reaches his or her proper return port. The Committee recalls that, under Regulation 2.6 and Guideline B2.6, paragraph 1, the indemnity payable to a seafarer who remains effectively unemployed as a result of a ship’s foundering or loss may not be less than two months’ wages. The Committee requests the Government to give due consideration to Guideline B2.6.1, paragraph 1, when examining this issue in the framework of the adoption of the new maritime Regulations.
Regulation 2.7 and Standard A2.7, paragraphs 2 and 3. Manning levels. The Committee notes sections 91 and 92 of the Shipping Act 1998 which relate to manning levels in the context of the STCW Convention. The Committee recalls that the MLC, 2006, contains additional requirements, including that of taking into account, when determining manning levels, the requirements concerning food and catering within Regulation 3.2 and Standard A3.2. The Committee requests the Government to ensure that the new Regulations fully take into account all the requirements of Standard A2.7, and to provide an example of a safe manning document.
Regulation 3.1 and Standard A3.1. Seafarers’ accommodation and recreational facilities on board. The Committee notes section 152(1) of the Shipping Act 1998, which provides that a vessel shall have accommodation exclusively reserved for the use of the crew. The Government also makes reference to the International Safety Management (ISM) Code and to certain provisions of the national legislation on occupational safety and health which do not specifically address living conditions onboard a ship. In the absence of information on any detailed standards for crew accommodation which would have been adopted at the national level to give effect to the Convention, the Committee requests the Government to ensure that the new Regulations to be adopted fully implement the requirements of Standard A3.1.
Regulation 3.2 and Standard A3.2. Food and catering. The Committee notes that section 153(1) of the Shipping Act 1998 states that an owner or master of a vessel shall ensure that the provisions and water supplies for the use of seamen are as prescribed. In the absence of information on any detailed standards regarding food and catering which would have been adopted at the national level to give effect to the Convention, the Committee requests the Government to ensure that the new Regulations to be adopted fully implement the requirements of Standard A3.2.
Regulation 4.1 and Standard A4.1. Medical care on board ship and ashore. The Committee notes that section 154 of the Shipping Act 1998 states that an owner or master of a vessel who permits the vessel to go to sea without carrying the prescribed number of seamen with first aid, medicines, medical and surgical stores, each commits an offence and each is liable upon conviction to a fine not exceeding 50 penalty units. In the absence of more detailed provisions implementing Standard A4.1, the Committee requests the Government to ensure that the new Regulations to be adopted give full effect to the requirements of this Regulation.
Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the relevant provisions of the Shipping Act 1998 only cover two elements of the shipowners’ liability under Regulation 4.2: section 192 deals with shipowner’s liability for seafarers’ death and personal injuries in cases where there is a fault attributable to the shipowner, whereas Standard A4.2.1, paragraph 1, provides for shipowners to be liable to bear costs in respect of sickness and injury of the seafarers even in the absence of such fault; and section 123 addresses wages to be paid to sick or injured seaman, but provides for a maximum period during which the seafarer is entitled to wages which is shorter (two months) than the one provided for in the Convention, which is 16 weeks in accordance with Standard A4.2.1, paragraph 4. The Committee also notes that section 126 of the Shipping Act 1998 provides for seafarers’ property to be safeguarded in case of the seafarers’ death, but does not make similar provision in case of seafarers’ sickness or injury, as provided for under Standard A4.2.1, paragraph 7. The Committee requests the Government to ensure that the new Regulations to be adopted give full effect to the requirements of Regulation 4.2.
The Committee further notes the Government’s indication that Samoa has an Accident Compensation Corporation gives citizens the right to remuneration in cases of injury and death provided that the citizen and the employer have made the required contributions to the fund. The Committee requests the Government to provide information as to how the Accident Compensation scheme applies to seafarers.
Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of 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 brings 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 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. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).
Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s indication that the provisions of the Occupational Safety and Health Act 2002 and of the Occupational Safety and Health Regulations 2014 cover all sectors and industries. It also notes that the provisions of the Occupational Safety and Health Act 2002 do not specifically address occupational safety and health (OSH) on board ships and therefore do not fully ensure the implementation of the detailed provisions of Regulation 4.3. Moreover, the Committee notes the Government’s indications that: the development of a National OSH Framework/Policy is in its draft form; an OSH Task Force has been established to look at OSH-related matters in consultation with employees and employers; these issues will then be made known to the National Tripartite Forum; and from these consultations, review of national laws and policies will be determined. The Committee requests the Government to ensure that the new maritime Regulations as well as the relevant national guidelines and policies to be adopted will give full effect to the requirements of Regulation 4.3.
Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Samoa declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit and employment injury benefit. Noting that the Government has not submitted information on the national provisions for the implementation of this Regulation, including details of the benefits provided under each of the three branches mentioned above, the Committee requests the Government to indicate the measures taken or envisaged to give effect to this Regulation of the Convention.
Title 5. Compliance and enforcement. The Committee notes that, while Samoa has a ship inspection and certification system in place which is operating on the basis of various sections of the Shipping Act 1998, this system does not fully comply with the Convention since the relevant requirements are yet to be integrated in the national legislation. The Committee notes that the Government recognizes, in this respect, that full effect will be given to the Convention only upon adoption of new maritime Regulations. The Committee therefore requests the Government to ensure that the new maritime Regulations will be adopted in the near future and will give full effect to the requirements of Title 5 of the Convention.
Documentation and relevant legislation. The Committee notes that the collective bargaining agreement (CBA) provided by the Government applies to ships flying the flag of another country and that it may therefore not be referred to as giving effect to any of the provisions of the Convention which relate to Samoa’s obligations as a flag or a port State. The Committee requests the Government to provide information regarding existing CBAs which are in force on ships flying the Samoan flag, including copies of any such CBAs. Finally, the Committee requests the Government to provide a copy of the Shipping Registration Regulations 2001, which have not been provided with the Government’s report.

Adopted by the CEACR in 2020

C029 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 1(1) and 2(1) of the Convention. Trafficking in persons. The Committee previously noted that section 155 of the Crimes Act 2013 prohibits trafficking in persons and sets out a sanction of imprisonment not exceeding 14 years. The Committee also noted the Government’s information that there had been no record of internal or cross-border trafficking in persons in Samoa.
The Committee notes the Government’s indication in its report that trafficking in persons is addressed in Samoa through the Pacific Transnational Crime Network. In addition, the Pacific Transnational Crime Coordination Centre based in Apia, Samoa, has a central coordination role in managing and disseminating law enforcement materials and produces annual reports on current trends in the Pacific region for the law enforcement community. The Government also indicates that there have been no recorded cases of trafficking in persons in Samoa. The Committee requests the Government to continue to provide information on the application in practice of section 155 of the Crimes Act 2013, including the number of investigations, prosecutions and the specific penalties applied.
Article 2(2)(c). Prison labour. The Committee previously noted that Section 47(1) of the Prisons and Corrections Act 2013 provides that a convicted prisoner may be required to undertake labour, within or outside a prison, and to perform any labour prescribed by regulations. The Committee also noted that the Prison and Correction Services administer rehabilitation and reintegration programmes, which allow prisoners to participate in activities such as engineering, carpentry, gardening, handcrafting and farming. The Committee requested the Government to indicate whether prisoners working outside of prisons may perform work for private enterprises, associations or individuals and if it is the case, under which conditions.
The Committee notes the Government’s indication that convicted persons do not perform any labour activities for private enterprises. The Government further indicates that convicted persons carry out labour only as part of their rehabilitation under the supervision of public officials of the Ministry of Police and the Ministry of Justice, Courts and Administration.

C105 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(a) of the Convention. Imposition of prison sentences involving the obligation to work as a punishment for expressing certain political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that the Crimes Act 2013 punishes the offence of unlawful assembly (section 42) and disorderly assembly (section 43) with penalties of imprisonment (involving compulsory labour, pursuant to section 47(1) of the Prisons Act 2013) of one year. Moreover, pursuant to section 41 of the Crimes Act 2013, a person who uses or speaks words, or publishes anything, with the intention of, inter alia, undermining the authority of the Government of Samoa or changing any matter affecting the laws, Government, or Constitution or any religious observance of Samoa, in circumstances where there is a present risk of lawlessness and disorder, may be subject to two years’ imprisonment. The Committee further noted the cases filed against young gangsters under sections 41–43 of the Crimes Act 2013 and requested the Government to indicate whether these young gangsters and other individuals had been involved in acts inciting to violence, civil strife or racial hatred.
The Committee notes from the Government’s indication in its report that the young gangsters and other individuals have not been prosecuted for acts inciting to violence, civil strife or racial hatred under the Crimes Act 2013. The Government also indicates that no cases have been filed in relation to unlawful assembly. The Committee further observes that the Crimes Amendment Act 2017 has introduced section 117A into the Crimes Act 2013, which establishes a penalty of a fine or imprisonment (involving compulsory labour) not exceeding three months for publishing by any means information about a person that is false with the intention to cause harm to that person’s reputation.
The Committee once again recalls that Article 1(a) of the Convention prohibits all recourse to compulsory labour, including compulsory prison labour, as a means of political coercion or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. In its 2012 General Survey on the fundamental Conventions, paragraph 302, the Committee indicates that the range of activities which must be protected, under this provision, from punishment involving forced or compulsory labour thus comprises the freedom to express political or ideological views (which may be exercised orally or through the press and other communications media), as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and which may also be affected by measures of political coercion. The Committee therefore requests the Government to ensure that no penalties involving compulsory labour, including compulsory prison labour, are imposed for the peaceful expression of political views or views ideologically opposed to the established political, social or economic system, for example by clearly restricting the scope of sections 41-43 and section 117A of the Crimes Act of 2013 to situations connected with the use of violence, or by repealing penalties involving compulsory labour. The Committee further requests the Government to continue to provide information on the application in practice of sections 41–43, and section 117A of the Crimes Act of 2013, supplying copies of the court decisions defining or illustrating their scope, as well as information on any arrests, prosecutions, convictions and penalties imposed.
Article 1(b). Mobilizing labour for purposes of economic development. The Committee previously noted that pursuant to section 5(2)(b) of the Village Fono Act 1990, every village fono (village council), shall have the power to make rules governing the development and use of village land for the economic betterment of the village, and pursuant to section 5(2)(c), shall have the power to direct any person or persons to do any work required in this regard. The Committee further noted that the Community Sector Plan (CSP) 2012–2021 had been adopted, of which one priority is the economic empowerment of vulnerable groups. The Government pointed out that the enactment of the Village Fono Act 1990 would benefit the vulnerable groups identified, such as through the provision of support to the establishment of small businesses.
The Committee observes from the Government’s indication that, in accordance with the Village Fono Amendment Act 2017, the village fono may adopt village regulations or by-laws (faiga fa’avae or i’ugafono) concerning its powers set out in section 5 of the Village Fono Act 1990. The Government further indicates that regulations or by-laws adopted by the village fono are registered within the Ministry of Women, Community and Social Development (MWCSD) and can be further amended, suspended, revoked and replaced. The Government also indicates that members of families are consulted before the performance of any economic empowerment activities undertaken in the village.
The Committee notes, however, that, pursuant to section 5(2)(b)(e) of the Village Fono Act 1990, the village fono still has the authority to order any person to undertake work to develop village land for the economic betterment of the village. The Committee further observes that as per sections 5(3) and 6 of the Village Fono Act 1990, in case of a failure to obey regulations or by-laws adopted by the village fono in this regard, a person may be punished with a fine, banishment or ostracism, or community work. The Committee once again recalls that Article 1(b) of the Convention prohibits the use of forced or compulsory labour as a method of mobilizing and using labour for purposes of economic development. In its 2007 General Survey on the fundamental Conventions, paragraph 148, the Committee notes that “minor communal services” can constitute an exception to this provision, as long as they are minor services and performed in the direct interest of the community and the members of the community, or their direct representatives must have the right to be consulted in regard to the need for such services (Article 2(2)(e) of the Forced Labour Convention, 1930 (No. 29)). The Committee therefore once again requests the Government to take the necessary measures to ensure that section 5(2)(b) and (e) of the Village Fono Act 1990 is amended by limiting its scope to the definition of minor communal services as provided for by Article 2(2)(e) of Convention No. 29. The Committee also requests the Government to indicate whether a person who has been consulted on any economic empowerment activities, pursuant to section 5(2)(b) and (e) of the Village Fono Act 1990, and who has refused to perform such activities, can be punished according to sections 5(3) and 6 of the Act.
Article 1(c). Disciplinary measures applicable to seafarers. The Committee previously noted that, pursuant to sections 127(e) and 128 of the Shipping Act 1998, a seaman who wilfully and persistently neglects his duty, disobeys any lawful command, or combines with other seamen for these purposes, or to impede the navigation of the vessel, may be subject to a fine or a term of imprisonment (involving compulsory labour) not exceeding two years, or both. The Committee further noted that consideration was being given to reviewing sections 127(e) and 128 of the Shipping Act 1998 and that there were no records of practical application of these sections.
The Committee notes the Government’s information that the Shipping Act 1998 is currently under revision with a view to bringing it into compliance with the Convention. In particular, the recommendations on the amendment of sections 127(e) and 128 of the Act concern the replacement of sanctions on imprisonment with revocation of a seafarer’s licence. The Government further indicates that the Samoa Shipping Corporation (SSC) is involved in the consultations with the Ministry of Works, Transport and Infrastructure regarding the revision of the Shipping Act 1998. The Committee firmly hopes that the Government will take the necessary measures to ensure the amendment of sections 127(e) and 128 of the Shipping Act 1998, so that any form of forced or compulsory labour is not used as a means of labour discipline. It requests the Government to provide information on any progress made in this regard.

C138 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour and practical application of the Convention.  The Committee previously noted the concern of the Committee of the Rights of the Child on the growing number of working children, including children involved in domestic work and child street vendors, and the need to undertake targeted activities to address this issue. The Committee further noted a draft Child Care and Protection Bill developed by the Ministry of Women Community and Social Development (MWCSD). In particular, as per section 55(1) of the Bill, no child under the age of 14 years shall be permitted to sell any goods on the streets or in any public places, while no child who is below the age requiring compulsory attendance at school is permitted to sell goods on the streets or in any public places after 7 p.m. on any day. The Committee also noted the Government’s statement that the Division for Research Policy/Planning and Information, in collaboration with the Division for Women, had completed a draft Child Policy, which would support the roll-out of the forthcoming childcare and protection legislation.
The Committee notes the Government’s indication in its report concerning a draft Samoa National Childcare Protection for 2019-2024 (SNCP), previously known as the National Policy for Children of Samoa. The Government specifies that the SNCP focuses on health and social protection for children from vulnerable families. The Government further indicates that the Family, Safety, and Child Protection Strategy and the Youth Employment Programs regulate issues on child labour and youth employment. The Committee expresses the firm hope that the draft Samoa National Childcare Protection (SNCP) and the Child Care and Protection Bill will be adopted in the near future. The Committee requests the Government to provide information on any progress made in this regard. It further requests the Government to continue to provide information on the measures taken to progressively eliminate child labour as well as on statistical data on the number of children below the minimum age engaged in child labour, and the nature, scope and trends of their work.
Article 9(3). Keeping of registers. Further to its previous comments concerning the requirement to keep registers of all persons employed under the age of 18 years, the Committee observes that section 7(1)(2) of the Labour and Employment Relations Regulations of 2016 (LER Regulations of 2016) sets out the employer’s obligation to keep records of employees, including information on their sex, age, types of work performed, and wage. The Committee further notes that the form of such record is established in Schedule 1 of the LER Regulations of 2016.

C138 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 2(3) of the Convention. Age of completion of compulsory education. In its previous comments, the Committee noted that section 20 of the Education Act 2009 prohibits arranging for a compulsory school-aged child to engage in street trading or to carry out other work of any kind during school hours. However, the Committee noted that pursuant to section 2 of the Education Act 2009, a compulsory school-aged child is defined as a person between 5 years and 14 years of age, who has not completed the eighth year of school. The Committee noted the Government’s statement that the Ministry of Education, Sports and Culture had started consulting with the Office of the Attorney General on the drafting of the revised Education Amendment Bill 2016 in order to raise the age of completion of compulsory schooling to 15 years.
The Committee notes with satisfaction the adoption of the Education Amendment Act of 2019, which in its section 2, has raised the age of completion of compulsory schooling from 14 years to 16 years of age. The Committee further notes that the minimum age for admission to employment remains 15 years according to section 51(1) of the Labour and Employment Relations Act of 2013 (LER Act of 2013). In this regard, in its 2012 General Survey on fundamental conventions paragraph 370, the Committee indicates that “if the minimum age for admission to work or employment is lower than the school-leaving age, children may be encouraged to leave school as children required to attend school may also be legally authorized to work.” The Committee therefore encourages the Government to take the necessary measures to raise to 16 the minimum age for admission to employment in order to link it with the age of completion of compulsory schooling in conformity with Article 2(3) of the Convention.
Article 3(2). Determination of types of hazardous work. With regard to the list of hazardous types of work prohibited to children under the age of 18 years, the Committee refers to its detailed comments under the Worst Forms of Child Labour Convention, 1999 (No. 182).
Article 7(1) and (3). Minimum age for admission to light work and determination of types of light work activities. In its previous comments, the Committee noted that under section 51(1) of the LER Act of 2013, “a person must not employ a child under the age of 15 years in a place of employment except in safe and light work suited to his or her capacity and subject to such conditions as may be determined by the Chief Executive Officer of the Ministry of Labour”. The Committee observed, however, that there appeared to be no lower minimum age for engagement in such light work activities. It further noted the Government’s statement that a list of light work was being reviewed for children under the age of 15 in accordance with section 51 of the LER Act of 2013 and would be submitted to the Samoa National Tripartite Forum for endorsement.
The Committee notes the Government’s indication concerning the revision of the list of light work under the on-going review of the LER Act of 2013. The Committee, however, observes that section 22 of the Labour and Employment Relations Regulations of 2016 (LER Regulations of 2016) sets out limited working hours for children between 12 and 14 years of age. The Committee recalls that Article 7(1) of the Convention provides that national laws or regulations may permit children only from the age of 13 to engage in light work. The Committee therefore strongly urges the Government to take the necessary measures to bring section 22 of the Labour and Employment Relations Regulations of 2016 in line with the Convention by permitting employment in light work only by young people who have reached the age of 13 years. The Committee once again expresses the firm hope that the Government will take the necessary measures to regulate light work activities in compliance with Article 7(3) of the Convention. It further requests the Government to provide information on any progress made in this regard.
The Committee is raising other matters in a request addressed directly to the Government.

C182 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 3 of the Convention. Worst forms of child labour. Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs.  The Committee previously noted that the Narcotics Act of 1967 as well as the Crimes Act of 2013 do not specifically establish offences related to the use, procuring or offering of a child for the production and trafficking of drugs. It also noted the Government’s statement that the national legislation needed to be amended in order to include the prohibition of drug trafficking by children under the age of 18.
The Committee notes the Government’s indication in its report that the question on the amendment of the national legislation concerning this issue is currently under consideration by the relevant agencies, including the Ministry of Police and the Ministry of Health. The Committee expresses the firm hope that the Government will take the necessary measures to ensure the prohibition of the use, procuring or offering of children under 18 years of age for illicit activities, including the production and trafficking of drugs. It requests the Government to provide information on any progress made in this regard.
Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. The Committee previously noted that, since 2017, the Ministry of Education, Sports and Culture (MESC), along with school attendance officers (school principals, inspectors and committees), had been focusing on monitoring the compliance of the compulsory education indicator within the revised School Minimum Service Standards of 2016. The Government indicated that these concerted efforts had been very successful and that 106 of the 167 community/village schools had established by-laws on compulsory education for children from the age of 5 to 14 years. In this regard, the Committee noted that according to the UNESCO estimates, in 2016, the net enrolment rate (NER) in primary education was 94.86 per cent (96.11 female and 93.7 male) and the NER in secondary education was 77.27 per cent. There was a total of 1,275 children and adolescents who were out of school in 2016.
The Government indicates that the MESC continues to implement the School Fee Grant Scheme, which aims at the provision of free education in primary and secondary schools. In addition, the School Operations Units of the MESC has noted the increased number of school enrolment and attendance rates. The Committee encourages the Government to continue its efforts to facilitate access of all children to free basic education. It further requests the Government to continue to provide information on the measures taken and the results achieved in this regard, including the data on school enrolment and attendance rates and school drop-out rates, to the extent possible disaggregated by age and gender.

C182 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee previously noted that section 82 of the Crimes Act 2013, makes it an offence to sell, deliver, exhibit, print, publish, create, produce or distribute any indecent material that depicts a child engaged in sexually explicit conduct. It observed, however, that for the purposes of this section a child is defined as a person under the age of 16 years. The Committee further noted the Government’s information that the Ministry of Commerce, Industry and Labour (MCIL), with the technical assistance from the Samoa Technical Facility Project, was carrying out a revision of the national legislation, including the Crimes Act 2013 in order to align the definition of a child with the provisions of the Convention. The Committee requested the Government to take the necessary measures to ensure that the use, procuring or offering of children between the ages of 16 and 18 years for the production of indecent materials is also effectively prohibited.
The Committee notes with interest the development of the Crimes Amendment Bill 2020, which has revised section 82 of the Crimes Act 2013. The Committee takes note of the Government’s indication in its report that the Crimes Amendment Bill will be submitted to the Cabinet for its approval before consideration by the Parliament. The Committee expresses the firm hope that the Government will take the necessary measures to ensure that the Crimes Amendment Bill 2020 is adopted, without delay, so that the prohibition under section 82 of the Crimes Act 2013 on the production and distribution of indecent materials depicting children will include children between 16 and 18 years of age. It further requests the Government to provide information on any progress made in this regard.
Article 4(1). Determination of hazardous types of work. In its previous comments, the Committee noted that the Hazardous Work List, which contains a list of types of hazardous work prohibited to children under 18 years, had been approved by the Cabinet in May 2018 and was in the process of being incorporated into the Labour and Employment Relations Regulations. The Committee further noted the Government’s information that the list had been reviewed by the National Occupational Safety and Health Task Force and supported by the Samoa National Tripartite Forum. The Government also indicated that the MCIL had included this list in its first National Occupational Safety and Health Framework 2018 to ensure that all stakeholders take ownership in monitoring and reporting of any activities that are in breach of this list.
The Committee takes note of the Government’s information that the revised Hazardous Work List is currently pending vetting from the Office of the Attorney General before its submission to the Parliament. The Government also indicates that no cases of hazardous work by children under 18 years have been reported through the National Occupational Safety and Health Framework 2018. The Committee once again expresses the firm hope that the Government will take the necessary measures to ensure that the Hazardous Work List will be enacted and enforced, without further delay. The Committee requests the Government to provide information on any progress made in this regard. It also requests the Government to continue to provide information on any cases of hazardous work by children under 18 years that have been reported through the National Occupational Safety and Health Framework.
Article 7(2). Effective and time-bound measures. Clause (d). Reaching out to children at special risk. Children working as street vendors. In its previous comments, the Committee noted various measures taken by the Government to identify and protect children engaged in street vending, including: (i) establishment of a Child Vending Task Force (CVTF), comprised of representatives from the Ministry of Education, Sports and Culture (MESC), the Ministry of Police (MoP), the MCIL, the Office of the Attorney General and the Council of Churches, within the Ministry of Women, Community and Social Development (MWCSD) to address the issues pertaining to children working as street vendors; (ii) initiation of collaborative efforts by the MWCSD and the MoP to monitor and identify exploitation of children in the formal and informal economy, including through regular inspections in the streets of Apia and rural areas; (iii) conducting awareness-raising programmes on the use of children in street vending by the MCIL for employers in Upolu and Savaii, in order to prevent them from employing children under the age of 18 to sell goods and products during school hours; (iv) introduction of the Supporting Children Initiative by the MWCSD in March 2016 for children from vulnerable families, in order to ensure their safety through positive parenting support and providing training and financial assistance to parents for income generation projects; and (v) the initiation of Small Business Youth Incubator for Economic Development which aims to instigate programmes for small businesses and income generation projects for youth, women and vulnerable families. The Committee, however, noted that during the discussion which took place at the 107th Session of the Conference Committee on the Application of Standards in June 2018, concerning the application by Samoa of the Convention, the Employer members expressed their concern about the prevalence of under 15-year olds exploited as street vendors. Moreover, the Worker members indicated that around 38 per cent of child labour in Samoa was performed by under 15-year olds, which called into question the Government’s capacity and commitment to address the worst forms of child labour.
The Committee takes note of the Government’s indication that various services, such as counselling, school placement, and financial assistance, are provided to vulnerable families under the Supporting Children Initiative. In particular, 68 children working as street vendors from 18 families are covered under the Supporting Children Initiative and 11 out of these 18 families have been removed from the situation of having children with high to low risk of engagement in the worst forms of child labour. The Government further indicates that in 2018-2019, labour inspectors of the MCIL carried out inspections of 171 business entities and detected no cases violating section 51 of the Labour and Employment Relations Act of 2013, which regulates the employment of children. In addition, the MESC has developed the School Governance Framework, according to which school committees will monitor children engaged in street trading. The Committee further notes from the latest Government’s report on the Minimum Age Convention, 1973 (No. 138) that particular protection can be provided to child street vendors by the MWCSD through its Care Plan and Child Vending Scheme. The Government further indicates that the draft Interagency Guidelines elaborated by the MWCSD address the issues of child street vending. The Committee also takes note of the information provided by the Government that under the SWEEPS Program, inspectors of the MWCSD, in collaboration with the MoP, conduct monthly inspections to prevent child vending in Apia Town Area during school hours. However, the Government indicates that there are issues regarding the implementation of this Program due to challenges of multi-agency coordination. The Committee once again strongly encourages the Government to continue its efforts to identify and protect children engaged in street trading from the worst forms of child labour. It further requests the Government to provide information on the measures taken and the results achieved in this regard, particularly on the number of child street vendors who have been removed from the worst forms of child labour and provided with assistance.
The Committee is raising other matters in a request addressed directly to the Government.
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