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

Maritime Labour Convention, 2006 (MLC, 2006) - Canada (Ratification: 2010)

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 in 2016 entered into force for Canada on 18 January 2017 and on 8 January 2019 respectively. Based on its 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 takes note of the observations of the International Transport Workers' Federation (ITF) and of 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 II, paragraphs 1(i), 4 and 5, of the Convention. Definitions and scope of application. Ships, inland waters, waters within or closely adjacent to sheltered waters or areas where port regulations apply. In its previous comments, the Committee noted that various provisions of the legislation implementing the MLC, 2006 exclude totally or partially ships engaged on near coastal voyages Class 1 and Class 2. The Committee considered that the concept of near coastal voyages, as defined in the case of Canada, goes clearly beyond the exclusion contained in Article II, paragraph 1(i), of the Convention. The Committee requested the Government to explain how the exceptions provided for near coastal voyages Class 1 and Class 2 could be justified under Article II, paragraph 1(i). The Committee notes the Government’s indication that, in consultation with seafarers and shipowners, it defined the term “Near coastal voyage, Class 2”, which is considered the equivalent of “closely adjacent to sheltered waters”. The Government further indicates that amendments to the Marine Personnel Regulations (MPR) expected in 2021 are anticipated to remove the Near-Coastal, Class 1 voyage from the list of voyages in Canadian legislation. The Committee requests the Government to adopt the necessary measures to ensure that the national provisions implementing the Convention apply to all ships falling within its scope of application and to provide information on any developments in this regard.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships engaged in drilling. The Committee notes that part 3 of the MPR implementing most of the provisions of the Convention does not apply to vessels capable of engaging in the drilling for, or the production of, oil or gas, which are not engaged in navigation (section 301(3)(c) of the MPR). The Committee recalls that under Article II(4), all ships “ordinarily engaged in commercial activities”, regardless of whether they are engaged in navigation, fall within the scope of the Convention. The Committee requests the Government to: i) specify whether the “vessels capable of engaging in the drilling for, or the production of, oil or gas not engaged in navigation” are considered as ships; and ii) explain why those vessels are excluded from the scope of application of the Convention.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee previously noted that some provisions of the MPR, for example sections 308 and 309, exclude from their application ships of less than 100 gross tonnage, including those engaged on international voyages and requested the Government to provide information in this regard. The Committee notes the Government’s information that “sections 308 and 309 of the Marine Personnel Regulations apply to all Canadian vessels that engage on unlimited voyages or international voyages. To extend the protections of the Convention to more vessels, Canada has elected to apply elements to Canadian vessels of 100 gross tonnage or more engaged on a voyage considered closely adjacent to sheltered waters”. The Government further indicates that with respect to section 309 of the MPR, amendments expected in 2021 will extend its application to all Canadian vessels engaged in voyages outside domestic waters. The Committee recalls that ships navigating in domestic waters other than “inland waters or waters within, or closely adjacent to, sheltered waters or waters where port regulations apply” fall within the scope of application of the Convention. It also recalls that Article II, paragraph 6, provides flexibility with respect only to the application of “certain details of the Code”, that is Standard and Guidelines, to a ship or particular categories of ships of less than 200 gross tonnage that do not voyage internationally, under certain requirements (determination of competent authority in consultation with shipowners’ and seafarers’ organizations; subject matter dealt with differently by national legislation, collective agreements or other measures). The Committee requests the Government to indicate the measures taken to guarantee that the provisions of the Convention are implemented with regard to all seafarers working on board all ships covered by the Convention and to provide information on any developments in this regard.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, noting that the Canada Shipping Act, 2001 (CSA) does not appear to contain provisions on types of work prohibited by reason of age, the Committee requested the Government to take the necessary measures to bring its legislation into line with Standard A1.1, paragraph 4 by ensuring that admission to hazardous work for seafarers is prohibited under the age of 18 years. The Committee notes the Government’s information that regulations amending the MPR expected in 2021 will provide additional clarity that hazardous work is prohibited for seafarers under 18 years of age. The Committee requests the Government to provide information on any developments in this regard. It also requests the Government to take the necessary measures to determine, after consultation with the shipowners’ and seafarers’ organizations concerned, the types of work which is likely to jeopardize the health or safety of seafarers under 18 years and is therefore prohibited for these persons.

Regulation 1.4 and Standard A1.4, paragraph 3. Recruitment and placement. Services operated by a seafarers’ organization. The Committee notes that under section 304(3) of the MPR, the requirement of license does not apply in respect of a seafarer recruitment and placement service operated by a trade union that has been certified under the Canada Labour Code by the Canada Industrial Relations Board as the bargaining agent for the employees in a bargaining unit. The Committee requests the Government to provide information on the implementation of Standard A1.4, paragraph 3 of the Convention (including with respect to the requirements of paragraph 5 of the Standard and the system of protection under paragraph 5(c)(vi)) with regard to seafarer recruitment and placement services operated by trade unions certified by the Canada Industrial Relations Board.

Regulation 2.1 and Standard A2.1, paragraphs 1(a) and 4. Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. Content. The Committee previously requested the Government to provide information on whether the SEA signed by the master provides concrete information on the identity of the shipowner. The Committee notes the Government’s information that in addition to the information required by section 91(2) of the CSA, section 308(2)(b) of the MPR requires the articles of agreement (SEAs) to contain the shipowner’s name and address. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreements. Content. The Committee noted that some of the particulars listed under Standard A2.1, paragraph 4, are not mentioned in section 308 of the MPR and requested the Government to indicate how it ensures compliance with Standard A2.1, paragraph 4(g), (h) and (i). The Committee notes the Government’s statement that anticipated amendments to the MPR expected in 2021 will provide greater clarity that all SEAs must contain all of the particulars required by Standard A2.1, paragraph 4(g), (h) and (i) of the MLC, 2006. The Committee requests the Government to provide information on any developments in ensuring full conformity with Standard A2.1, paragraph 4 of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. Noting that according to the Certification Guide for Seafarer Recruitment and Placement Service Providers (SRPS) and section 306(1)(c) of the MPR, every person recruited or placed by SRPS shall have the possibility to examine their contract of employment before joining a ship, the Committee requested the Government to indicate how Standard A2.1, paragraph 1(b) is implemented with regard to all seafarers covered by the Convention. The Committee notes the Government’s reference to section 91(1) and (2) of the CSA in which the Minister places an obligation on the vessel master to ensure each seafarer understands their rights and obligations under their employment contracts before or in the process of engagement. The Government further indicates that regulations amending the MPR will provide additional clarity ensuring that seafarers fully benefit from the protection offered by Regulation 2.1 and Standard A2.1, paragraph 1(b) of the Convention. The Committee requests the Government to provide information on any development in this regard.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee previously noted that sections 319-321 of the MPR are not in full conformity with the Convention insofar as: i) the working time regime applicable to ships engaged on near coastal voyages is different depending on whether they navigate in the waters of a country having ratified or not the Convention: ii) no system has been fixed by the competent authority in conformity with Standard A2.3, paragraph 2. The Committee also noted that the East Coast and Great Lakes Shipping Employees Hours of Work Regulations 1985, and the West Coast Shipping Employees Hours of Work Regulations contained exceptions to the provisions on hours of work, which were not in conformity with the Convention. The Committee notes the Government’s indication that the maritime labour certificate is considered a “Canadian maritime document” under the CSA and it is issued under the provisions of Article V and Title 5 of the MLC, 2006, hence all the requirements of Standard A2.3, paragraph 5 become conditions that must be respected. The Government further indicates that compliance with the hours of work and rest requirements contained in the MPR (sections 319-323) is required of all masters and crew subject to the MPR. The exceptions to the hours of work contained in the Labour Code and pursuant regulations do not permit contravention of the MPR. The Committee refers to its previous comments in which it detailed the inconsistencies between sections 319-321 of the MPR and the Convention and indicated that the exceptions contained in the above cited Regulations are not in conformity with the Convention. The Committee requests the Government to address these inconsistencies to ensure that its legislation gives full effect to Standard A2.3 with regard to all seafarers working on ships covered by the Convention, providing for legal certainty and predictability to all constituents.

Regulation 2.4 and the Code. Entitlement to leave. In its previous comment, noting that section 184 of the Labour Code, which provides for a period of two weeks of paid leave per year, is not in conformity with Standard A2.4, paragraph 2, the Committee requested clarifications in this regard. The Committee notes the Government’s information that all employees covered by the Canada Labour Code, including those employed on ships, are entitled to a minimum of two weeks of annual vacation after one year of continuous employment. As of September 1, 2019, annual vacation entitlements increased to three weeks after five years and four weeks after ten years of continuous employment. The Government further indicates that employees covered by the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 or the West Coast Shipping Employees Hours of Work Regulations may be entitled to additional leave with pay where their employer establishes a lay-day plan (under which employees are entitled to leave with pay in exchange for longer standard hours of work – i.e. a higher threshold before overtime hours become payable). Hence, employees under a lay-day plan can accumulate up to 45 lay days with pay (or more, with a permit issued by the Minister of Labour). Referring to its previous comments, the Committee reiterates that section 184 of the Labour Code is not in conformity with Standard A2.4, paragraph 2, of the Convention, which provides for all seafarers a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave. Moreover, according to Guideline B2.4.1, paragraph 3, for seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis. With regard to the entitlement to leave under the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 and the West Coast Shipping Employees Hours of Work Regulations, the Committee observes that it is not clear what the annual leave per month is for seafarers covered by the Regulations. In this regard, the Committee recalls that compensatory leave of any kind should not be counted as part of annual leave with pay (Guideline B2.4.1, paragraph 4(d)). The Committee requests the Government to take the necessary measures without delay to bring the Labour Code and the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 and the West Coast Shipping Employees Hours of Work Regulations, in conformity with Standard A2.4, paragraph 2 giving due consideration to Guideline B2.4.1, paragraphs 3 and 4 (d) of the Convention.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes the Government’s information that seafarers are provided financial security for repatriation pursuant to section 328 of the MPR and that the same section specifies the conditions under which a seafarer is considered abandoned. The Government also indicates that anticipated amendments to the MPR expected in 2021 will provide greater clarity about the shipowner’s obligation to have an expeditious and effective financial security system to assist seafarers in the event of abandonment, as well as on the cases in which a seafarer is considered abandoned. The Committee notes that under section 328(2) of the MPR, “The authorized representative of a Canadian vessel shall have insurance or other financial arrangements sufficient to compensate crew members for any monetary loss that they may reasonably incur as a result of a failure of the authorized representative to meet its obligations to them under subsection 94(1) of the Act or subsection (1)”. Section 94(1) of the CSA concern payment by the authorized representative of the expenses for the return of crew when “crew member is left behind when a Canadian vessel sails or is shipwrecked”. The Committee observes that section 328(2) of the MPR is not in full conformity with Standard A2.5.2, insomuch as the latter requires the establishment of a system of financial security for abandonment, which is defined in wider terms than those provided under section 328(2) of the MPR. The Committee requests the Government to adopt the necessary measures to ensure full conformity with Standard A2.5.2. It requests the Government to provide information on the implementation of the detailed requirements of Standard A2.5.2.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2 (a). Repatriation. Circumstances. Prohibition of advance payment and to recover costs from seafarers. In its previous comments, the Committee observed that under section 94(1) of the CSA and section 328(1) of the MPR circumstances in which seafarers shall be entitled to repatriation do not fully coincide with those provided by Standard A2.5.1, paragraph 1. It also noted that section 328(1) of the MPR excludes the payment of costs of repatriation by the authorized representative in case of mutual agreement, which is not in conformity with the Convention. The Committee requested the Government to take the necessary measures to bring its legislation in full conformity with Standard A2.5.1, paragraphs 1 and 3 of the Convention, as well as to specify the maximum period of service on board ship following which a seafarer is entitled to repatriation (Standard A2.5.1, paragraph 2). The Committee notes the Government's information that anticipated amendments to the MPR expected in 2021 will fully align repatriation requirements for Canadian seafarers with those provided by Standard A2.5.1, paragraphs 1-3. The Committee requests the Government to adopt the necessary measures to ensure full compliance with these provisions of the Convention and to provide information on any developments in this regard.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning Levels. Food and catering. In its previous comments, the Committee requested the Government to indicate how the determination of the safe manning levels takes into account the requirements under Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee notes the Government's information that the provision of quality food for seafarers is addressed in both the MPR (sections 173, 227 and 329) and the Maritime Occupational Health and Safety Regulations (made under the Canada Labour Code) (hereinafter, MOHS, sections 80-85). Noting that the Government does not provide specific information on the question previously raised, the Committee requests the Government to indicate how the requirements on manning level take into account the need to have on board a ship’s cook or catering staff as required by Standard A2.7, paragraph 3. The Committee requests the Government to provide a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it.

Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee previously noted that a number of provisions of the MOHS and the Crew Accommodation Regulations (CAR) provide for exceptions to the accommodation requirements which are not allowed under the Convention. It requested the Government to indicate the measures taken or envisaged to ensure compliance with Standard A3.1, paragraphs 20 and 21. The Committee notes the Government's information that Standard A3.1, paragraphs 20 and 21 have been fully implemented. In this regard, the Government indicates that the Maritime Labour Certificate is considered a “Canadian maritime document”, which under paragraph 20(1)(b) of the CSA may lose validity if “the term or condition attached to the document has been contravened.” The Government adds that the Maritime Labour Certificate states at the top of the document that it is issued under the provisions of Article V and Title 5 of the MLC, 2006. As a consequence, all of the requirements of Standard A3.1. paragraphs 20 and 21 must be met in order for the maritime labour certificate to be issued. While the Committee takes note of the Government's statement, it recalls that Standard A3.1, paragraph 1 calls for the adoption of laws and regulations to implement the accommodation standards detailed in Standard A3.1. Referring to its previous comments, which specify the inconsistencies between relevant legislation and the Convention, the Committee requests the Government to take the necessary measures to bring the Maritime Occupational Health and Safety Regulations and the Crew Accommodation Regulations in full compliance with Standard A3.1.

Regulation 4.2 and Standard A4.2.1, paragraph 3(a). Shipowners’ liability. Work-related sickness. In its previous comments, the Committee requested the Government to confirm whether and, if so, in what manner, section 239.1(2) of the Labour Code applied to all seafarers covered by the Convention, and whether the shipowner continued to pay full wages to the seafarer during periods of absence from work due to work-related illness or injury. The Committee notes the Government’s reply indicating that section 239.1(2) of the Labour Code provides a general requirement applicable to all federally regulated works, undertakings and businesses, primarily meant to bridge any gaps in coverage under existing provincial workers’ compensation schemes, and that with respect to seafarers, the applicable scheme is the Merchant Seamen Compensation Act, 1985 (MSCA). The MSCA, as indicated by the Government, provides coverage, in case of work accident, to every seaman (with the exception of pilots, apprenticed pilots and fishers) regardless of residency status, who are employed or engaged on a ship registered in Canada or chartered by demise to a person resident in Canada or having their principal place of business in Canada. The Government also indicates that the MSCA applies to seaman who are not covered by the Government Employees Compensation Act, 1985 (GECA) or by provincial or territorial workers' compensation legislation. The Committee observes that, while the GECA covers both accidents and diseases contracted in relation to work, coverage under the MSCA is limited to work accidents, and does not include occupational or industrial diseases. As regards the amount of the compensation paid to seafarers in case of suspension of wages due to work-related injury, the Committee notes that, according to section 38(9) of the MSCA (compensation in case of temporary total disability), compensation in case of work accident consists in a weekly payment equal to 75% of the seaman’s average weekly earnings. The Committee recalls that, according to Regulation 4.2, Standard A4.2.1(3)(a), the shipowner shall be liable for the payment of full wages to seafarers who suffer an employment-related injury or sickness, as long as the sick or injured seafarers remain on board or until the seafarers have been repatriated. The Committee requests the Government to indicate whether there are any measures in place providing for the payment of the 25% difference between the seafarer’s full wage and the amount of compensation due under the MSCA (e.g. whether it is paid by the shipowner) while the injured seafarer remains on board or is repatriated. The Committee also requests the Government to provide information on the coverage of seafarers for employment-related injury and sickness under provincial or territorial workers' compensation acts, and to specify the amount or level of compensation to which seafarers are entitled under the relevant provincial and territorial legislation. Finally, the Committee requests the Government to indicate the measures through which the coverage of occupational or industrial diseases, or employment-related sickness, is ensured, outside of the scope of the GECA and in the absence of provincial or territorial legislation to this effect.

Regulation 4.2 and Standard A4.2.1, paragraph 3(b). Shipowners’ liability. Non-work related sickness. In its previous comments, the Committee requested the Government to provide information on the protection available under Regulation 4.2 in case of non-work related illness occurring when seafarers are serving under a seafarer’s employment agreement or arising from their employment under such agreement, as well as to specify, both for employment-related and non-employment related sickness, the requirements implementing Standard A4.2.1, paragraphs 1(c) and 3, and the eventual limits to the liability of shipowners provided under Standard A4.2.1, paragraphs 2 and 4, of the Convention. The Committee notes the Government’s indications concerning the protection of seafarers in case of sickness under the Employment Insurance Act, 1996, which provides for wage replacement up to 15 weeks after a waiting period of one week. The Committee recalls that, under Standard A4.2.1, paragraphs 3 and 4, of the Convention, shipowners are liable for the payment of wages from the day of the commencement of the illness, until seafarers are repatriated or, if earlier, until they are entitled to cash benefits under the national legislation. It requests the Government to indicate whether wages continue to be paid to seafarers who are incapable of working due to illness during the 1-week waiting period before benefits are paid under the Employment Insurance Act.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee previously requested the Government to provide information on the implementation of the 2014 amendments to the Code (Standards A4.2.1, paragraphs 8-14 and A4.2.2). The Committee notes the Government’s indication that the MSCA ensures that merchant seamen injured in work-related accidents receive eligible health benefits and medical compensation. If the workplace injury or illness leads to a permanent disability, the seamen may be entitled to disability payments based on a percentage of previous wages. In the case of death, coverage includes burial costs as well as ongoing payments to children, spouses or other dependents. The federal Minister of Labour is responsible for the Act and the Labour Program adjudicates claims made under the Act. The Committee notes that with regard to the implementation of Standard A4.2.1, paragraph 8, the Government refers generically to various sections of the MSCA. The Committee requests the Government to provide more detailed information on how it gives application to the requirements of Standard A4.2.1, paragraph 8, as well as on the arrangements to settle claims relating to compensation (Standard A4.2.2, paragraph 3). The Committee notes the Government’s indication that the national legislation does not implement the requirements provided by Standard A4.2.1, paragraphs 9-11, 12 and 14. It requests the Government to take the necessary measures to bring national legislation in full conformity with the detailed requirements of Standard A4.2.1, paragraphs 9-11, 12 and 14 and Appendix A4-I, and to provide information on any developments in this regard.

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. The Committee previously requested the Government to provide information on the development of national guidelines on occupational safety and health on board, as required under Regulation 4.3, paragraph 2. It notes the Government's information that it develops national occupational health and safety guidelines in consultation with representative shipowners’ and seafarers’ organizations at the Canadian Maritime Advisory Council and through ad hoc working groups. The Committee requests the Government to provide copy of such guidelines.

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A4.3, paragraph 2(d). The Committee notes the Government's information that there is an exception under Canada Labour Code (section 135(2)) that states that the employer is not required to establish a workplace health and safety committee for a workplace that is on board a ship in respect of employees whose base is the ship. In cases where the employer is not required to establish a workplace health and safety committee, such as workplaces with fewer than 20 employees or the workplace is on board a ship, the Canada Labour Code (section 136(1)) requires the employer to appoint a health and safety representative for that workplace. The Government also indicates that it is presently working to ensure full implementation of Standard A4.3, paragraph 2(d) articulating the requirements of a ship’s safety committee. Recalling that Standard A4.3, paragraph 2(d) requires the establishment of such a committee on board a ship on which there are five or more seafarers, the Committee requests the Government to indicate the measures taken to fully comply with this provision of the Convention.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. I. Employment injury benefits, invalidity benefits and survivors’ benefits. In its previous comments, the Committee noted that the scope of application of the MSCA does not cover all seafarers ordinarily resident in the Canadian territory. It requested the Government to indicate how it ensured that social security coverage as regards employment injury benefits, invalidity benefits and survivors’ benefits was granted to all seafarers ordinarily resident in its territory who work on board ships covered by the Convention, including those who work on ships which do not fly the Canadian flag, and to their dependants, in conformity with Regulation 4.5. The Committee notes the Government’s reply concerning the Canada Pension Plan (CPP), a contributory social insurance scheme that provides benefits in the event of retirement, disability and death, including benefits for the survivors of a contributor, who meet qualifying conditions. The Government indicates that a member of the crew of a ship is subject to the CPP if all three of the following conditions are met: i) the employer who has engaged the crew has a place of business in Canada; ii) the ship is operating under an agreement entered into in Canada with the crew; and iii) the crew member is a Canadian citizen or a permanent resident of Canada with a permanent place of residence in Canada. The Committee therefore notes that the status of ordinary residence in Canada of a seafarer per se does not grant the coverage under the CPP. The Committee further notes the Government’s indications concerning the coverage of work-related disability or death compensation under provincial or territorial workers’ compensation schemes. The Committee requests the Government to provide clarifications on the social security coverage of seafarers ordinarily resident in Canada who are not covered by the MSCA or the CPP, e.g. those working on board foreign-flagged ships with a non-Canadian shipowner. The Committee also requests the Government to provide information on: i) the coverage of seafarers and their survivors in case of permanent disability or death resulting from a work-related injury or sickness under provincial and territorial legislation; ii) the qualifying conditions for entitlement to benefits; and iii) the level of benefits.

II. Sickness, maternity and unemployment benefits. The Committee notes the information provided by the Government in reply to its previous comments concerning the notion of “insurable employment” and the conditions under which seafarers ordinarily resident in Canada become eligible for sickness, maternity and unemployment benefits. The Committee takes note of this information.

Regulation 4.5 and Standard A4.5, paragraphs 3, 4 and 8. Social security. Bilateral or multilateral agreements. The Committee notes the information provided by the Government in reply to its previous comments in relation to the bilateral and multilateral social security agreements concluded pursuant to Standard A4.5, paragraphs 3, 4 and 8. The Committee takes note of this information.

Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime labour compliance. In its previous comments, in relation to section 333(1) and (2) of the MPR, recalling that Regulation 5.1.3 also applies to ships of 500 GT or more flying the flag of a Member and operating from a port, or between ports, in another country, the Committee requested the Government to indicate whether any such ships operate in Canada. If so, it requested the Government to indicate how it ensures that Regulation 5.1.3 is applicable to those ships. The Committee notes the Government’s information that vessels subject to the MLC, 2006 engage on voyages between Canadian ports and operate in international waters. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. In its previous comments, the Committee observed that the DMLC, Part I supplied by the Government only contains reference to sections of applicable legislation, without providing further details on the content of the relevant provisions. The Committee requested the Government to consider amending the DMLC, Part I, to better implement Regulation 5.1.3, paragraph 10. The Committee notes the Government’s information that the DMLC form is presently being updated to ensure it provides “concise information on the main content of the national requirements” and will be formally released in the fall of 2020. The Committee requests the Government to supply a copy of the DMLC, part I, once updated.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 14-17. Flag State responsibilities. End of validity and withdrawal of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee previously noted that section 16(4) of the CSA cited by the Government refers in general to a “Canadian maritime document” and does not take into account all the requirements of Standard A5.1.3, paragraph 14. It requested the Government to indicate how it gives effect to this provision of the Convention. The Committee notes the Government's indication that since the Maritime Labour Certificate is considered a “Canadian maritime document”, there is very broad authority for the Minister of Transport to suspend, cancel or refuse to renew a maritime labour certificate. Since the Maritime Labour Certificate states at the top of the document that it is issued under the provisions of Article V and Title 5 of the MLC, 2006, all of the requirements of Standard A5.1.3, paragraph 14 become conditions where the certificate ceases to be valid. The Government adds that anticipated amendments to the MPR expected in 2021 will provide even greater clarity by setting out the circumstances when a Maritime Labour Certificate ceases to be valid, which will align requirements with Standard A5.1.3, paragraph 14 of the Convention. The Committee requests the Government to provide information on the measures taken to ensure full conformity with Standard A5.1.3, paragraph 14 of the Convention. The Committee notes that the applicable legislation does not give effect to Standard A5.1.3, paragraphs 15-17. It requests the Government to take the necessary measures to ensure conformity with these provisions of the Convention.

Regulation 5.1.4 and the Code. Inspection and enforcement. In its previous comments, the Committee requested the Government to indicate how the requirements of Standard A5.1.4, paragraphs 5 and 7(c) (investigation on cases of non-compliance and detention of ships), are implemented in practice in cases of non-conformity with the provisions of the Convention. It also requested the Government to specify the frequency of inspections on ships flying its flag (Standard A5.1.4, paragraph 4) and the measures taken to give effect to Standard A5.1.4, paragraph 12 (obligation of inspectors to submit reports). The Committee notes the Government's information that detailed work instructions have been issued to marine safety inspectors providing guidance of their responsibilities under the MLC, 2006, the CSA, MPR, the Canada Labour Code, and the MOHS Regulations. If a marine safety inspector believes on reasonable grounds that provisions of the CSA or its regulations (which capture the requirements of the MLC, 2006) have been contravened by or in respect of a vessel, he/she may make a detention order against the vessel. Moreover, marine safety inspectors have the power to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of the Canadians regulations (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken. The Government further indicates that, regarding the frequency of inspections, as part of the Marine Safety Management System, there is a documented procedure that all Maritime Labour Certificates and DMLCs be valid for a period of five years and subject to an intermediate inspection between the second and third anniversary date of the certificate. Appropriate endorsements by Transport Canada Marine Safety and Security must be made to the certificate. With respect to the obligation of inspectors to submit reports, the Government indicates that as part of the Transport Canada Marine Safety Management System, there is a documented work instruction following completion of each MLC, 2006 inspection that requires: the delegated marine safety inspector preparing and submitting a report which is recorded in Transport Canada’s Ship Inspection Reporting System (SIRS); and two copies of the inspection be provided to the master - one copy for the master’s file and one copy to be posted on the ship’s notice board for the information of the seafarers and, upon request, sent to their representatives. The Committee takes note of this information, which addresses its previous comments.

Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee previously noted the Government’s reference to section 332 of the MPR on on-board complaint procedures and observed that the established procedure is limited to alleged breaches of relevant national legislation. It requested the Government to indicate how it ensures that the on-board procedures may be used by seafarers to lodge complaints related to any matter that is alleged to constitute a breach of the requirements of the Convention, including seafarers’ rights. The Committee notes the Government's information that, in addition to the on board complaints procedure under section 332 of the MPR, it provides a comprehensive on-board complaint procedure to all seafarers under section 127.1 of the Labour Code. The Committee observes, however, that section 332(11) of the MPR provides that “this section does not apply in respect of complaints to which section 127.1 of the Canada Labour Code applies”. The Committee requests the Government to clarify which provision implements Standard A5.1.5, paragraph 1, of the Convention.

Regulation 5.1.5, paragraph 2 and Standard A5.1.5, paragraphs 3 and 4. Flag State responsibilities. On-board complaint procedures. Victimization. Information on procedure. The Committee previously requested the Government to indicate how it gives effect to Regulation 5.1.5, paragraph 2 (prohibition of victimization), as well as to indicate how it gives effect to Standard A5.1.5, paragraph 4 (arrangements to ensure that seafarers are provided with copy of the on-board complaint procedures). The Government indicates that the Regulation 5.1.5, paragraph 2 is implemented by section 147 of the Labour Code (prohibition to dismiss, suspend, refuse to pay remuneration, bring or threaten to bring disciplinary action against the employee who acted as specified in section 147(a), (b) and (c)). Where an employer fails to meet her/his obligations under section 147, an employee may submit a complaint for investigation under section 133. With regard to the implementation of Standard A5.1.5, paragraph 4, the Government indicates that section 125(1)(d) of the Labour Code requires employers to post, among other things, a copy of the Labour Code and associated regulations, which contain the process to file a complaint, in a conspicuous place accessible to every employee. The Committee notes that the provisions cited by the Government appear to be limited to occupational safety and health (Part II). The Committee requests the Government to take the necessary measures to ensure that victimization of seafarers for filing a complaint under Regulation 5.1.5 is prohibited and penalized (Regulation 5.1.5(2)) and that all seafarers are provided with a copy of the on-board complaint procedures (Standard A5.1.5(4)).

Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. In its previous comment, noting that the applicable legislation (Canadian Transportation Accident Investigation and Safety Board Act) does not provide for the obligation in all cases to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Canadian flag, the Committee requested the Government to indicate how it gives effect to Regulation 5.1.6, paragraph 1. The Committee notes the Government's information that the MOHS Regulations outline the requirement of an employer to investigate accidents, occupational diseases or other hazardous occurrences affecting their employees (section 276). The Government also indicates that it is the federal Labour Program policy to investigate all hazardous occurrences that cause injuries that may result in death or serious body injuries. The Committee recalls that Regulation 5.1.6, paragraph 1 provides for the obligation to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Member's flag. The Committee requests the Government to take the necessary measures to fully comply with this provision of the Convention.