Solicitud directa (CEACR) - Adopción: 2017, Publicación: 107ª reunión CIT (2018)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Islas Marshall (Ratificación : 2007)

The Committee notes the Government’s second report. The Committee 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 the Republic of the Marshall Islands on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. It notes that the national legislation and regulations implementing the Convention have been revised, in particular with a view to taking into account the entry into force of the abovementioned amendments. Based on its second 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.

Article II of the Convention. Scope of application. The Committee notes that the Maritime Act, 1990, as amended (MI-107), provides for two registration regimes for ships. According to section 204 of this Act, any vessel engaged solely in domestic commerce shall not be documented under the provisions of Chapter 2 (Documentation and identification of vessels). Vessels operated exclusively within the waters of the Republic shall be documented under the provisions of Chapter 9 (Domestic watercraft). According to the definition of “waters of the Republic” contained in section 902(4)(iii) of MI-107, “Waters of the Republic” shall mean the “Internal Waters, Territorial Waters, and Exclusive Economic Zone”. The Committee notes that section 904(2) of MI-107 provides that the Minister shall prepare for the approval of the Cabinet Rules and Regulations necessary and proper to implement the numbering and documentation of domestic watercraft; ensure their safety and fitness; the safeguarding of the environment and the prevention of marine pollution by domestic watercraft; the certification and training of their crews; the formulation and enforcement of standards and rules for their crews and equipment; the supervision and maintenance of adequate safety and sanitary conditions on board; and other matters as may be required for the effective administration of this Chapter. The Committee therefore understands that, in principle, the main legislation applying the Convention, in particular Chapter 8 (Merchant seafarers) of MI-107 and its implementing regulations which apply to vessels registered under Chapter 2, does not apply to vessels under Chapter 9. Since the Convention defines a ship in Article II, paragraph 1(i), as “a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply”, the Committee considers that vessels which are operating in waters extending to a 200 nautical miles exclusive economic zone do not fall within the exclusion contained in this provision of the Convention. The Committee therefore requests the Government to review the definition of “waters of the Republic” in section 902(4)(iii) of the Maritime Act, 1990 (MI-107), in order to ensure that it excludes from the application of the Convention only ships which navigate exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply.

Article II, paragraphs 1(f), 2, 3 and 7. Scope of application. Seafarers. The Committee notes that Annex 1 of Marine Notice 2-011-33 (Rev. Dec/2016) contains the national determinations adopted by the Administrator. It also notes that paragraph 4.5 indicates that determinations would be made on a ship-by-ship basis and that the shipowners seeking exclusions must request the Administrator to consider such exclusions prior to issuance of the Declaration of Maritime Labour Compliance (DMLC) Part I. The Committee requests the Government to clarify whether any “ship-by-ship” exclusion is adopted within the framework of the determinations contained in Annex 1 of MN 2-011-33 or if other categories of persons, not listed in Annex 1, can also be excluded. It further requests the Government to provide examples of determinations made on the basis of this Marine Notice.

Moreover, the Committee notes that, according to the determinations contained in Annex 1, the following categories of persons among others are not considered seafarers: (i) personnel under the employ or contract of the charterer of a yacht; and (ii) ranks such as riggers, riggers foreman, offshore construction managers, surveyors, divers, technicians, medics and so forth, who are working onboard the vessel for extended periods as part of the normal working complement. The Committee requests the Government to explain on what basis it took the decision to exclude those categories of workers from the definition of seafarer, taking into account the definition contained in the Convention as well as the content of Resolution VII concerning information on occupational groups adopted by the International Labour Conference at its 94th (Maritime) Session.

In addition, the Committee notes that paragraph 4.4 of MN 2-011-33 states that in accordance with Resolution VII, the Administrator considers that any person engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship who is contractually provided with social protections by either the shipowner/operator or third party that are equivalent to or are greater than those required by the Convention has been provided with social protections that substantially meet the Convention requirements. In all cases, the burden of proof shall rest with the shipowner/operator who shall show through documentation during the inspection process that these requirements have been met. The Committee requests the Government to clarify the meaning of this provision, and, in particular, whether it is intended that the category of persons concerned would not be considered seafarers and would not be covered by the Convention.

Article III. Fundamental rights and principles. Taking into account that the Republic of the Marshall Islands has not ratified all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee recalls that it expects to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the Convention, the fundamental rights referred to in Article III. The Committee notes the information provided by the Government in this respect. Concerning the right to freedom of association and collective bargaining, the Committee notes that, while sections 854–857 of MI 107 recognize the freedom of association of seafarers and their employers, as well as their right to bargain collectively, no specific provision addresses the protection against acts of anti-union discrimination. Moreover, with regard to the elimination of discrimination in respect of employment and occupation, it notes that section 858, which prohibits discrimination as to terms and conditions of employment of seafarers, only provides for certain grounds (race, colour, gender or creed). The Committee therefore requests the Government to provide more information regarding: (i) the protection against acts of anti-union discrimination; and (ii) the elimination of any discrimination in respect of employment and occupation made on the basis of political opinion, national extraction or social origin.

The Committee also notes that section 860(1)(a) of MI-107 provides that it shall be unlawful for any person or labour organization to promote or to engage in any strike or picketing, or any boycott or like interference with the internal order or operation of a vessel, unless the procedures of conciliation, mediation and arbitration under section 861 have been followed to conclusion. Section 861(2)(c) provides that, in the event that a dispute cannot be resolved by conciliation or mediation, either party may submit the matter to an independent arbitrator or arbitrators for a final determination, as provided by regulation, and that if the parties cannot agree upon a choice of arbitrator or arbitrators, the matter shall be finally determined by the Maritime Administrator or his appointed agent, acting as sole arbitrator. Section 861(3) adds that any arbitration award may be enforced, if necessary, by any court of competent jurisdiction. The Committee notes that these sections provide for compulsory arbitration as a prerequisite to engaging in industrial action, which may eventually impede the exercise of the right to take industrial action. The Committee requests the Government to indicate how it has satisfied itself that these provisions respect the fundamental right to freedom of association.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that, in reply to its previous comments, the Government indicates in its report that the Administrator has adopted a number of substantial equivalences related to the requirements in Part A of the Code in Titles 1–4, and that any such substantial equivalencies are indicated on individual DMLC Part I and not on the model form. The Committee notes that it is not clear from the information provided by the Government how many, and on what matters substantial equivalences have been adopted under Article VI. It recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with paragraphs 3 and 4 of Article VI, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the Convention. The Committee recalls that explanations are required where a national implementing measure differs from the requirements of Part A of the Code. In particular, the Committee needs information on the reason why the Member was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in paragraph 4 of Article VI. The Committee requests the Government to provide detailed information with respect to the substantial equivalence(s) it has adopted.

Regulation 1.2 and Standard A1.2, paragraph 1. Medical examination prior to beginning work. The Committee notes that section 836(3)(d) of MI-107 refers to seafarers’ loss of certain entitlements if at the time of their engagement they refused to be medically examined. The Committee understands that there may be cases where a seafarer may be engaged despite the absence of a medical examination although Standard A1.2, paragraph 1, does not allow for exceptions to the requirement of medical certification prior to beginning work on a ship. The Committee therefore requests the Government to clarify the meaning and application of this provision in light of Standard A1.2, paragraph 1.

Regulation 2.3 and Standard A2.3, paragraph 3. Seafarers’ normal working hours. The Committee notes that, according to section 7.51(1)(c) and (5)(a)(1) of MI-108, the normal hours of work in port and at sea shall mean eight per day. It further notes that no other provision in the relevant legislation refers to weekly rest and rest on public holidays. It recalls that Standard A2.3, paragraph 3, provides that each Member acknowledges that the normal working hours standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. The Committee requests the Government to indicate how it is ensured that the normal working hours standards for seafarers include one day of rest per week and rest on public holidays, as required by this provision of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Possible exceptions to the prohibition to forgo paid annual leave. Maximum period of service on board. The Committee notes that section 5.2 of Marine Notice No. 7 052-2 (MN 7-052-2) enumerates the limited circumstances in which the Administrator has determined that a seafarer may serve on board a vessel for a period of 11 months or more. These circumstances include: (i) seafarers serving a full 12 months to qualify for the minimum 30 days paid leave; and (ii) seafarers who have mutually agreed in writing to extend their time on board. The Committee recalls that it considers, from the combined reading of Standard A2.4, paragraph 3, on annual leave and Standard A2.5, paragraph 2(b), on repatriation, that the maximum continuous period of shipboard service without leave is 11 months. The Committee further recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. In this context, the Committee considers that the exception provided in section 5.2 of MN 7-052-2, which has a very broad scope, would not be compatible with the Convention. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to indicate the measures taken to ensure that any agreement to forgo the minimum annual leave is prohibited, unless in specific cases, restrictively provided for by the competent authority.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2. Entitlement to repatriation. The Committee notes that section 844 of MI-107 provides that a seafarer shall forfeit his right of repatriation in case of: (a) desertion; (b) entering into a new agreement with the same owner after his discharge; (c) entering into a new agreement with another owner within one week after his discharge; (d) criminal offences under sections 847 (barratry; drunkenness; neglect of duty), 849 (incitement of seafarer to revolt or mutiny), and 850 (revolt or mutiny) of this Act; (e) unjustifiable repudiation of the Shipping Articles; or (f) failure of the seafarer to request repatriation within one week from the time that he is in condition to be repatriated. Paragraph 5.0 of MN 7-052-1 (Repatriation) contains the same provisions. The Committee notes that the Convention does not provide for cases of forfeiture of the entitlement to repatriation when the circumstances foreseen in Standard A2.5.1, paragraph 1, are met. The only case where this entitlement may lapse is where the seafarers concerned do not claim it within a reasonable period of time, in accordance with Guideline B2.5.1, paragraph 8, and as provided for under paragraph (f) above. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to ensure that any provision in the national legislation depriving seafarers of this right is limited to the circumstances allowed under the Convention (for example, minimum periods of service). It therefore requests the Government to review section 844 of MI-107 and paragraph 5.0 of MN 7 052-1 to ensure conformity with the Convention. With regard to the cases foreseen in paragraphs (d) and (e) of section 844 of MI-107, while recalling the possibility provided by Standard A2.5.1, paragraph 3, to recover the cost of the repatriation from the seafarer, the Committee underlines that it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. In this regard, the Committee draws the Government’s attention to the fact that, while the shipowner may recover the cost of the repatriation under the limited circumstances mentioned above, this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. In light of the above, the Committee requests the Government to indicate how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. The Committee further requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be liable of criminal offences or unjustifiable repudiation of the Shipping Articles.

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 2.7 and the Code. Manning levels. The Committee notes the information provided by the Government concerning its manning requirements. It notes, in this respect, that the requirements on manning composition do not take into account the ship’s cook or catering staff. It recalls that, under Standard A2.7, paragraph 3, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to explain how it implements this provision of the Convention.

Regulation 3.1, paragraph 2 and Standard A3.1. Ship construction and equipment. Ships constructed on or after entry into force of the Convention for the Marshall Islands. The Committee notes that, according to MN 7 044-1 (Accommodations, recreation facilities, food, catering and water), the requirements of that Marine Notice that relate to ship construction and equipment shall apply, to the extent reasonably practicable, to ships constructed on or after 20 August 2013. The Committee notes that the inclusion of the words “to the extent reasonably practicable” introduces possible limitations to the application of the Marine Notice to ships constructed on or after the entry into force of the Convention. In this respect, the Committee recalls that Standard A3.1, paragraph 21, provides that any exemptions with respect to the requirements of Standard A3.1 may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to indicate how it ensures that any exemptions granted in application of MN 7-044-1 are limited to those permitted in Standard A3.1.

Regulation 4.2 and Standard A4.2.1, paragraphs 1(a), 1(c) and 5. Possible exclusion of the shipowner’s liability. The Committee notes that section 836(3)(c) of MI-107 provides for an exception to seafarers’ entitlement to the corresponding benefits in cases of sickness or injury when the seafarer refuses medical treatment for such sickness or injury or is denied such treatment because of wilful misconduct or default. The Committee notes that, as a consequence to this exception, shipowners would not be liable to bear costs in such cases. Since this exception does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2.1, paragraph 5, the Committee requests the Government to review section 836(3)(c) of MI-107 in order to give full effect to Standard A4.2.1, paragraph 1(a) and (c).

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 meet 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 4.5 and Standard A4.5, paragraphs 3 and 6. Social security benefits. The Committee notes the Government’s reference under Regulation 4.5 to the legislative provisions of MI-107 and MI-108 which relate to shipowners’ liability and are therefore relevant to the application of Regulation 4.2. The Committee recalls that unlike the social protection provided under Regulation 4.2, social security under Regulation 4.5 refers to benefits provided under schemes generally operated by a State, with primary responsibility being placed in the Convention on the State of residence (Standard A4.5, paragraph 3). The Committee notes that the Government also refers to provisions of the Marshall Islands Social Security Act of 1990 and indicates that resident seafarers are provided with social security protection under this Act, as follows: section 136 – old age insurance benefits; section 137 – disability insurance benefit; section 138 – surviving spouses insurance and parent’s benefit; and section 139 – the surviving child’s insurance benefit. The Committee notes that the list of such benefits does not correspond to the list of branches specified by the Government at the time of ratification (medical care; sickness benefit; unemployment benefit; employment injury benefit and survivors’ benefit). The Committee also recalls that, although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Members also have an obligation under Standard A4.5, paragraph 6, to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the nine branches of social security. The Committee requests the Government to indicate how effect is given to the obligations under Standard A4.5 in relation to medical care, sickness benefit, unemployment benefit and employment injury benefit.

Regulation 4.5, paragraph 2 and the Code. Branches of social security. The Committee recalls that Regulation 4.5, paragraph 2, provides that each Member undertakes to take steps, according to its national circumstances, individually and through international cooperation, to achieve progressively comprehensive social security protection for seafarers. The Committee requests the Government to provide information on steps taken to extend protection to all the branches listed in Standard A4.5, paragraph 1.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Content of the DMLC, Part I. The Committee notes that the revised model form of the DMLC Part I contains information on items 15 and 16, which have been introduced following the entry into force of the 2014 Amendments. It notes however, that the information provided under other items has not been amended even though, in its previous comment, the Committee had requested the Government to amend the DMLC Part I, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention but that it also provides, to the extent necessary, concise information on the main content of the national requirements, as required under Standard A5.1.3, paragraph 10. For example, regarding minimum age (Regulation 1.1), the DMLC Part I makes reference to “Maritime Act, 1990, as amended (MI-107) §826 – Minimum age at sea” without specifying what is the minimum age retained for seafarers. The Committee requests the Government, once again, to review the DMLC Part I to fully implement Standard A5.1.3, paragraph 10.