Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Sudáfrica (Ratificación : 2013)

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 South Africa 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 I of the Convention. General questions on application. Implementing measures. The Committee notes the Merchant Shipping Bill, 2020, published for public comments in Government Gazette No. 43073 of 6 March 2020, which, if adopted, would repeal the Merchant Shipping Act, 1951, as amended by the Merchant Shipping Amendment Act, No. 12 of 2015 (MSA). Noting that several sections of the MSA, as well as its implementing regulations, currently give effect to the provisions of the Convention, the Committee requests the Government to ensure that the new legislation will continue to reflect the provisions that give effect to the Convention. The Committee also hopes that the Government will take into account its comments formulated below to ensure the conformity of the new legislation with the requirements of the Convention, and reminds the Government that it may avail itself of the technical assistance of the Office in this regard. The Committee further requests the Government to provide a copy of any relevant new legislation or other regulatory instruments implementing the Convention once adopted.

Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. The Committee noted that, while section 2(1) of the MSA excludes masters, pilots or cadets from the definition of “seafarer”, a number of provisions of such Act apply to cadets or masters. Recalling that the Convention does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered under Article II, paragraph (f) of the Convention, the Committee requested the Government to consider amending the definition of “seafarer” contained in section 2(1) of the MSA.

The Committee notes that chapter 1, section 1 of the Merchant Shipping Bill, 2020, defines “seafarer” as any person who is employed or engaged or works in any capacity on board a ship to which this Act applies. Noting that such definition of “seafarer”, if adopted, would generally bring the legislation in conformity with Article II, paragraph (f) of the Convention, the Committee requests the Government to provide information on progress made in the adoption of this Bill.

Article III. Fundamental rights and principles. Concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), in relation to seafarers, the Committee has been raising the need to revise a number of provisions of the MSA, as amended, which provide for imprisonment of seafarers (involving compulsory labour) for certain offences. The Committee once again draws the Government’s particular attention to its comments under Convention No. 105.

Article VII. Consultations. Noting that the South African Transport and Allied Workers Union (SATAWU) and the South African Association of Ship Operators and Agents (SAASOA) are the organizations that the competent authority consults in matters relating to the implementation of the Convention, the Committee requested the Government to provide information on consultations held regarding the provisions of the Convention which specifically require them, such as Standard A1.1, paragraph 4 (types of work likely to jeopardize the health or safety of seafarers under 18), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.1, paragraph 5 (minimum notice periods for the early termination of a seafarers’ employment agreement), Standard A3.1, paragraph 2 (accommodation and recreational facilities), Regulation 4.3, paragraph 2 (national guidelines for the management of occupational safety and health on board ships).

The Committee notes that the Government's report does not contain information in this respect. The Committee also notes that the Merchant Shipping Bill, 2020, provides, among others, for the application of the labour laws to seafarers, the conditions of employment of seafarers and the health and well-being of seafarers on board a vessel. According to the Memorandum of Objects of the Merchant Shipping Bill, 2020, the draft Merchant Shipping Bill was presented and discussed in stakeholders meetings convened nationally by the Department throughout 2018-2019. The Committee therefore requests the Government to provide detailed information on the consultations held concerning the adoption of the Merchant Shipping Bill, 2020, its implementing regulations and any other national measures intended to give effect to the Convention, notably whether consultations have taken place with the shipowners' and seafarers' organizations concerned when required by the relevant provisions of the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Prohibition of hazardous work for persons under the age of 18. The Committee previously noted that section 10(3)(a) of the Maritime Occupational Safety Regulations, 1994, provides that the safety officer shall ensure that the crew of the vessel comply with the provisions of the Code of Safe Working Practices for Merchant Seamen, which does not contain a prohibition of specific types of work for persons under the age of 18, but indicates under which conditions they may perform it. Noting that the “Regulations on hazardous work by children in South Africa” adopted on 15 January 2010 do not deal expressly with work on board seagoing ships, the Committee requested the Government to indicate the measures taken or envisaged to prohibit the work likely to jeopardize the health or safety of seafarers under the age of 18 and to adopt a list of the types of such work.

The Committee notes that, while the Declaration of Maritime Labour Compliance (DMLC), Part I, submitted by the Government states that any work that is likely to jeopardize the health and/or safety of young persons is prohibited and measures must be put in place to protect young persons from this type of work and refers to articles 110 and 111 of the Merchant Shipping Act, such articles do not contain such a prohibition. The Committee has not found any provision in the relevant legislation containing a prohibition of employment of seafarers under 18 years of age where the work is likely to jeopardize their health and safety. The Committee also notes that, according to Sections 94 and 95 of the Merchant Shipping Bill, 2020, the owner or master of a South African ship must not permit a young person to perform any work (a) that is inappropriate for a person of that age; (b) that places the young person’s well-being, education, physical or mental health, or spiritual, moral or social development at risk; in the case of ships engaged in coastwise traffic, it is prohibited to employ children under the age of 18 years in any capacity on board the ship. However, the proposed Bill does not contain the list of hazardous activities on board seagoing ships, which is required under of Standard A1.1, paragraph 4 of the Convention, and that must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards. The Committee therefore requests the Government to adopt the necessary measures to prohibit work that is likely to jeopardize the health and safety of seafarers under 18 years of age and to indicate whether it has adopted a list of types of hazardous work prohibited for young persons, taking into account the specific conditions of work and risks on board ships, after consultations with the shipowners’ and seafarers’ organizations concerned, as required by the Convention.

Regulation 1.4, paragraph 3 and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes with interest the adoption of the Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2017, which give effect to most of the provisions of Regulation 1.4 and the Code. The Committee further notes that the DMLC, Part I, submitted by the Government, indicates that shipowners using services based in States not party to the MLC, 2006 must ensure, as far as practicable, that these services meet the requirements of the Convention. The Committee notes this information, which addresses its previous request.

Regulation 2.1 and the Code. Seafarers’ employment agreements. Masters. The Committee previously noted that the provisions of the MSA which implement Regulation 2.1 do not cover masters and requested the Government to indicate how effect is given to this Regulation in the case of masters. The Committee notes that the Government does not provide information in this regard. The Committee asks the Government to indicate how it ensures that it complies with this provision of the convention with respect to masters.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee noted that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalled that any signatory of the seafarers’ employment agreement (SEA) other than a shipowner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the shipowner and requested the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner's representative as required by Standard A2.1, paragraph 1(a). The Committee notes that the Government does not provide any information in its report and that the Merchant Shipping Bill, 2020, does not address this issue. The Committee therefore asks the Government to indicate how it complies with this provision of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(c). Seafarers’ employment agreements. Signed Original. The Committee noted that section 103(c) of the MSA provides that when the crew is first engaged the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master, and requested the Government to indicate how effect is given to Standard A2.1, paragraph 1(c). The Committee notes that the Government does not reply to this request. The Committee therefore asks the Government to indicate the measures taken to ensure that the shipowner and seafarer concerned shall each have a signed original of the SEA.

Regulation 2.1 and Standard A2.1, paragraph 2. Seafarers’ employment agreement. Documents available in English. The Committee previously noted the absence of information on the application of this provision, and requested the Government to indicate how effect is given to this requirement of the Convention. The Committee notes that the Government submitted a standard form, in English, of a copy of an agreement with foreign going ships for framing and displaying. The Committee also notes that according to MSA Section 102(3)(l), crew agreements shall contain, inter alia, reference to any collective bargaining agreement and that the MSA Section 109 foresees that the master of a South African ship shall at the beginning of every voyage or engagement cause a legible copy of the agreement with the crew (omitting the signatures) to be framed and displayed in some conspicuous place on board the ship which is accessible to the crew, and shall cause it to be kept so framed and displayed during its currency. The Committee notes this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ record of employment. The Committee previously noted that section 113(2) and (4) of the MSA provides that, upon the discharge of a seafarer, the master shall issue to the seafarer a certificate of his/her discharge and that when the master declines to express an opinion on the conduct, character and ability of the seafarer, the discharge shall be made before a proper officer, to whom he/she shall furnish a report stating that he/she so declines, and, if the seafarer so desires, the proper officer shall give to him/her or endorse on his/her certificate of discharge a copy of such report. Noting the form for seafarers’ Record Book and Certificates of Discharge contained in the Merchant Shipping (Seamen’s Documents) Regulations, 2000, includes a “report of character”, the Committee recalled that Standard A2.1, paragraph 3, provides that the document to be given to seafarers containing a record of their employment on board the ship shall not contain any statement as to the quality of the seafarers’ work. Noting that the Government provides no information on how it ensures conformity with this provision of the Convention, the Committee once again requests the Government to indicate how conformity with Standard A2.1, paragraph 3, is ensured.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee previously noted that section 102(3) of the MSA, which provides for the particulars to be contained in the agreement with the crew, does not include the particulars specified in Standard A2.1, paragraph 4(a–c) and (g). The Committee notes that the Government does not indicate how it ensures that the content of a seafarer’s employment agreement fully complies with the Convention. The Committee therefore asks the Government to indicate how it is ensured that the particulars to be contained in the SEA include the seafarer’s full name, date of birth or age, and birthplace; the shipowner’s name and address; the place where and date when the seafarers’ employment agreement is entered into; and the conditions of termination of the agreement, in conformity with Standard A2.1, paragraph 4(g). The Committee further requests the Government to provide an updated model of a seafarers’ employment agreement that is in conformity with Standard A2.1, paragraph 4, of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. In its previous comment, the Committee noted that no circumstances justifying termination of the employment agreement at shorter notice or without notice have been provided for in national laws or regulations or collective agreements and requested the Government to indicate how the need of the seafarer to terminate the contract without penalty on shorter notice or without notice for compassionate or other urgent reasons has been taken into account, in accordance with Standard A2.1, paragraph 6. The Committee notes that the example of DMLC, part II, submitted by the Government foresees that the company shall allow a seafarer to terminate the SEA at short notice or without notice and without any penalty in case of a reasonable urgent or compassionate reason. The committee notes however that, under the terms of national law, there are no provisions which allow the termination of an employment agreement with shorter notice or without notice. Recalling that Standard A2.1, paragraph 6, requires the circumstances which justify the termination of an employment agreement at shorter or without notice to be recognized under national law or regulations or collective bargaining agreements, the Committee requests the Government to specify the national provisions which give effect to this prescription of the Convention. The Committee further requests the Government to indicate how it is ensured that such circumstances take into account the need of the seafarer to terminate, without penalty, the employment agreement for compassionate or other urgent reasons.

Regulation 2.2 and the Code. Wages. The Committee previously noted that the provisions of the MSA which implement Regulation 2.2 do not cover cadets and that section 122 of the MSA, which addresses the time of payment of wages, does not provide that payments due to seafarers are made at no greater than monthly intervals and in accordance with any applicable collective agreement, as required by Standard A2.2, paragraph 1. The Committee requested the Government to indicate how effect is given to this Regulation, including with respect to cadets. The Committee notes that point 14(d) of the DMLC, Part I, provided by the Government, referring to Sections 119-144 of the MSA, foresees that seafarers must be paid at no greater than monthly intervals and in full for their work in accordance with their employment agreements. The Committee also notes that Section 100(2) of the Merchant Shipping Bill, 2020, foresees that the frequency of providing a payment advice must be at least every 30 days or as may be agreed in the crew agreement, which must require a payment advice at least every 30 days. Noting that the draft Merchant Shipping Bill, 2020, contains provisions implementing the Convention, the Committee requests the Government to adopt the necessary measures in the near future to ensure the conformity of its legislation with Regulation 2.2. and the Code, including with respect to cadets. The Committee further requests the Government to explain how the guidance provided in Guideline B2.2 is given due consideration in the national measures adopted.

Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of rest. The Committee previously requested the Government to indicate how effect is given to Standard A2.3, paragraphs 2 and 5, in the case of seafarers who are not covered by Regulation 93(2) of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of ten hours of rest in any 24-hour period; and (b) 77 hours in any seven-day period. The Committee notes that Marine Notice No. 13 of 2018 relating to Hours of Work and the Maritime Labour Convention, provides that South Africa implements the requirement of Standard A2.3 Paragraph 5(b) under the above mentioned Regulations Section 93 – “Hours of work: general duty of owners, masters and others’’ and that the requirements of this section are the same for all seafarers operating on all commercial vessel types, and for all areas of operation. The Committee notes this information, which addresses its previous request.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee previously requested the Government to review paragraphs 9–11 of Regulation 93 of the Merchant Shipping (Safe Manning, Certification and Training) Regulations 2013, which provide for possible exceptions to the hours of rest. The Committee notes that the revised paragraphs 9–11 of Regulation 93 of the Draft Merchant Shipping (Training Certification and Manning) Regulations, 2020, published by the department of transport Notice No. 232 of 2020, in the Government Gazette of 3 April 2020, do not ensure that any exception regarding hours of work is only authorized by collective agreement, in accordance with the requirements of Standard A2.3, paragraph 13. Recalling that any exception to the hours of rest may only be authorized by collective agreement, the Committee once again requests the Government to review paragraphs 9–11 of Regulation 93 to give full effect to Standard A2.3, paragraph 13, and to provide information on measures taken in this regard.

Regulation 2.4 and the Code. Entitlement to leave for masters and cadets. The Committee previously noted that the provisions of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which implement Regulation 2.4, do not cover masters and cadets. Noting that the Government does not provide information on this point, the Committee once again refers to its comments under Article II of the Convention, and asks the Government to indicate how effect is given to this Regulation in the case of masters and cadets.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee previously noted the Government’s indication that shipowners are required to give seafarers appropriate shore leave. In the absence of information on the corresponding measures adopted to ensure compliance with this obligation, the Committee once again asks the Government to indicate how it is ensured that seafarers are granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions, in accordance with Regulation 2.4, paragraph 2.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. The Committee notes that the MSA section 111A (1)(a) and (2) foresees that every seafarer employed or engaged on a South African ship is entitled to leave accrued at the rate of at least 2.5 days per month of employment, and that “month” means a period of 30 days including Saturdays, Sundays and public holidays, as defined in section 1 of the Public Holidays Act, 1994. The Committee requests the Government to clarify if justified absences from work are not considered as annual leave (Standard A2.4, paragraph 2).

Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. In the absence of information on the measures adopted to ensure that any agreement to forgo the minimum annual leave with pay is prohibited, except in cases provided for by the competent authority, the Committee once again requests the Government to indicate how effect is given to this provision of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 to 3. Repatriation. The Committee previously noted that, while sections 114, 116, 140, 154 and 155 of the MSA relate to repatriation, these provisions do not cover all the circumstances in which seafarers are entitled to repatriation under the Convention. The Committee also noted that the MSA does not provide for a maximum period of service on board following which a seafarer is entitled to repatriation, which must be less than 12 months. Moreover, it noted that section 114(3) provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country and who was engaged at a port out of the Republic and discharged at a port outside the Republic. In addition, noting that, pursuant to section 114(2) of the MSA, the shipowner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation, the Committee recalled that while the shipowner may recover the cost of the repatriation under the limited circumstances provided for under Standard A2.5, paragraph 3 (i.e. where the seafarer has been found to be in serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. With regard to the definition of “proper return port”, the Committee also requested the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation. The Committee therefore requested the Government to indicate how it ensures that all seafarers on board a South African ship are entitled to repatriation in all the circumstances provided for in Standard A2.5.1, paragraphs 1, 2 and 3. It further requested the Government to provide the 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 in “serious default of the seafarer’s employment obligations”. With regard to the definition of “proper return port”, the Committee requested the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation. While noting that the Merchant Shipping Bill, 2020, contains provisions which, if adopted, would implement some of the requirements of the Convention, the Committee notes that such provisions do not ensure full conformity with Regulation 2.5 and the related provisions of the Code. Hoping that the relevant amendments will be introduced in the near future to ensure full compliance with Standard A2.5.1, paragraphs 1 to 3, the Committee reiterates its previous request.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee previously requested the Government to indicate how it is ensured that all ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code, as provided for in Regulation 2.5, paragraph 2. The Committee notes that Regulation 7(k)(iv) of the Merchant Shipping (Seafarer Recruitment and Placement) Regulations (SRPR), 2017, provides that a seafarer recruitment and placement service must ensure that the shipowner has in place financial protection to cover repatriation costs in the event that the seafarer is stranded in any port. The Committee notes, however, that such provision only addresses the obligations placed on seafarer recruitment and placement services in this respect. The Committee also notes that the DMLC, part I, submitted by the Government, requires the provision of an expeditious and effective financial security system to assist seafarers in the event of abandonment, defined in the same terms as prescribed by Standard A2.5.2, paragraph 2 of the Convention. Ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider, a copy of which must be placed in a conspicuous place on board the vessel, and that completed evidence of financial security forms must be submitted for approval of the Maritime Authority. While taking note of the information contained in the DMLC, Part I, the Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (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 above-mentioned questions, indicating the national laws and regulations adopted to give effect to the requirements of Regulation 2.5 and Standard A2.5.2.

Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment Indemnity. In the absence of information in the Government report, the Committee reiterates its previous request to the Government to indicate how effect is given to this provision of the Convention.

Regulation 2.7 and the Code. Manning Levels. The Committee previously noted the power given to the Authority in section 85 of the MSA to grant exceptions to the safe manning provisions, and requested the Government to provide information on its application in practice. Noting the absence of reply from the Government, the Committee once again requests the Government to provide information on the application of this provision in practice. The Committee also requests the Government to provide information on how complaints or disputes about determinations on the safe manning levels on a ship are investigated and settled (see guidance in Guideline B2.7).

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee previously noted that the DMLC, Part I, indicated that ships constructed after 20 August 2013 shall comply with the accommodation and recreational facility requirements as specified in the Convention, which was yet to be domesticated in South Africa. Taking note of the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, which, if adopted, would generally bring the legislation in conformity with Standard A3.1, the Committee requested the Government to indicate how it is ensuring, while awaiting that the relevant legislation is adopted, that ships constructed after 20 August 2013 comply with the accommodation and recreational facility requirements of the Convention, in accordance with the indication contained in the DMLC, Part I. The Government indicates in its report that the Draft Merchant Shipping (Crew Accommodation) Amendment Regulations, 1961, are still in progress. While noting this information, the Committee notes that the new DMLC, Part I, provided by the Government, indicates that ships constructed before 21 June 2014 shall comply with the Crew Accommodation Regulations, 1961 and that ships constructed after that date shall comply with the accommodation and recreational facilities requirements (regulation 3.1) as specified in the Convention, which is a schedule to the MSA. The Committee also notes that according to section 356bis of the MSA, the Convention has the force of Law in South Africa. The Committee therefore requests the Government to provide a copy of the Draft Merchant Shipping (Crew Accommodation) Amendment Regulations, 1961, once adopted, which would apply to ships constructed before 21 June 2014. With respect to ships constructed after that date, the Committee requests the Government to provide information on the implementation of Standard A3.1, paragraph 19 (variations of accommodation standards for differing religious and social practices), as well as to indicate whether any exemptions for ships of less than 200 gross tonnage have been granted pursuant to Standard A3.1, paragraphs 20 and 21, of the Convention.

Regulation 3.2 and the Code. Food and Catering. The Committee previously noted that section 156(1) of the MSA provides that the master of a South African ship of more than 100 gross tons shall furnish provisions to every seafarer (who does not furnish his/her own provisions) in accordance with the prescribed scale. Noting that the 2007 draft Amendments to the Merchant Shipping (Provisions) Regulations, 1961, as amended, include ships of more than 100 gross tons and do not provide for the possibility that seafarers furnish their own provisions, the Committee requested the Government to indicate the progress made in the adoption of these Amendments. The Committee notes that the Government provides no information on the state of adoption of the 2007 Draft Merchant Shipping (Provisions) Amendment Regulations. The Committee notes, however, that section 119 of the Merchant Shipping Bill, 2020, provides that the owner of a prescribed ship must provide or ensure the provision of free provisions to the seafarers employed on that ship for the period of employment, as required by Regulation 3.2, paragraph 2. The Committee therefore requests the Government to provide information on the adoption of new or amended legislation in compliance with the Convention.

Regulation 3.2 and Standard A3.2, paragraph 2. Food and Catering. Religious and cultural practices. Organization and equipment. Noting that the food supplies provided for in the Annex to the Merchant Shipping (Provisions) Regulations, 1961, as amended, did not take into account the differing cultural and religious backgrounds of seafarers, the Committee previously requested the Government to indicate how effect is given to this requirement of the Convention when determining the suitability of food supplies. It also requested the Government to indicate how effect is given to standard A3.2, paragraph 2(b) regarding the organization and equipment of the catering department. The Committee notes that sections 120 and 121 of the Merchant Shipping Bill, 2020, provide that the master must not take the ship to sea or cause or permit that ship to be taken to sea, unless the ship: i) is carrying (a) drinking water of suitable quality and quantity; (b) food of suitable quality, quantity, nutritive value and variety; and (c) provisions having regard to the nature and duration of the voyage and the number, and cultural and religious backgrounds, of the seafarers employed on the ship; and ii) has catering facilities that are arranged and equipped so as to enable proper meals to be served to the seafarers employed on the ship. Noting that these provisions would bring the legislation in conformity with Standard A3.2, paragraph 2, the Committee requests the Government to provide information on progress made in the adoption of the Merchant Shipping Bill, 2020.

Regulation 4.1 and Standard A4.1, paragraph 1 (c). Medical care on board and ashore. Right to visit a doctor or dentist in ports of call. The Committee notes that, while the Government indicates that the shipowner shall be liable for medical costs on board and ashore, no information is provided on the measures adopted to ensure that seafarers are permitted by the shipowner/master to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Committee therefore requests the Government to indicate how it ensures full compliance with this provision of the Convention.

Regulation 4.1 and Standard A4.1, paragraph 2. Medical care on board and ashore. Standard medical report form. Noting that the Government does not provide any information in reply to its previous request, the Committee asks the Government to provide an example of the standard medical report form for use by the ships’ masters and relevant onshore and onboard medical personnel and to indicate how it is ensured that the form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers.

Regulation 4.1 and Standard A4.1, paragraph 4(b). Medical care on board and ashore. Minimum Requirements. Medical doctor on board. The Committee previously noted that while Regulation 5 of the Ship’s Medicines and Medical Appliances Regulations, 1991, provides that a medical practitioner shall be employed on every Class 1 (that is foreign-going) ship which carries 100 or more persons, Regulation 13 allows the authority to exempt any ship from any of the requirements of these Regulations. Recalling that the Convention does not allow for any exception to the requirement of carrying a qualified medical doctor on ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration, the Committee requested the Government to provide information on the exemptions granted in application of this provision, if any, in particular in relation to Regulation 5. Noting the absence of reply from the Government, the Committee reiterates its previous request.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum Requirements. Medical advice by radio or satellite. Noting that the Government does not provide information in reply to the its previous request to indicate how effect is given to this Standard, the Committee notes that, according to the annual report 2018-19, the South African Maritime Safety Authority (SAMSA) assisted in 86 medical advice incidents by connecting vessels to local telemedical services and coordinated the evacuation of 22 crew/passengers from vessels offshore to local hospitals. The Committee also notes that, according to MN No. 14 of 2019, a Maritime Radio Coastal Infrastructure is available. Furthermore, the Committee notes that the South African Search And Rescue Organisation (SASAR), which is available 24h, provides medical advice, an exchange of medical information and recommended treatment for sick or injured persons where treatment cannot be administered directly by prescribing medical personnel, as well as medical evacuation of a seriously ill or injured person on board a vessel at sea. Noting the absence of information on whether medical assistance by radio or satellite is provided free of charge to all ships irrespective of the flag that they fly, the Committee requests the Government to indicate the measures giving full effect to Standard A4.1, paragraph 4(d).

Regulation 4.2 and the Code. Shipowners’ Liability. The Committee previously requested the Government to provide information on the draft Bill published for comments in Notice 356 of 2009 (Government Gazette of 15 April 2009), which would insert a new Chapter IV-A in the MSA providing for financial security for loss of life and personal injury, and on the Merchant Shipping (Seafarer Accident Insurance) Regulations, 2015, advertised for comments in Notice 942 of 2015 (Government Gazette of 25 September 2015), which, when adopted, would give a legal basis to the shipowners’ obligation to provide financial security to assure compensation in the event of death or long-term disability of seafarers due to an occupational injury, illness or hazard. . The Committee notes that the Government does not provide any new information on the adoption of such drafts, the Committee notes that the Merchant Shipping Bill, 2020, provides that the owner of a ship must maintain insurance or other financial security to provide compensation for every seafarer belonging to the ship who suffers loss of life or personal injury as a result of an accident and that such insurance or financial security must be evidenced by a certificate, which must be carried on board the ship at all times. The Committee further notes that section 16 of the DMLC, Part I, submitted by the Government, refers succinctly to the financial security relating to shipowners liability. While noting this information, the Committee recalls that, in relation to the 2014 amendments to the Code of the Convention, pursuant to Standards A4.2. 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 do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures?  The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of an example of the kind of certificate or other documentary evidence of financial security that must be provided by shipowners containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.2 and Standard A4.2.1, paragraph 2. Shipowners’ liability. Expenses of medical care and board and lodging away from home. Limits. The Committee previously noted that section 140(1)(b) of the MSA limits to a maximum of 60 days the period for which a seafarer shall be entitled to receive wages in case of incapacity for work resulting from illness or injury; and that section 169(1) limits the shipowner liability to cover medical and other expenses incurred due to illness or injury until the seafarer concerned is cured or dies or is returned to and arrives at a proper return port. Noting that the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board may be limited to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness, the Committee requested the Government to indicate how effect is given to Standard A4.2, paragraphs 2 and 4. Noting that the Government does not provide relevant information in reply to its request and that the Merchant Shipping Bill, 2020, does not address this issue, requests the Government to indicate the measures adopted to ensure full conformity with this provision of the Convention.

Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee previously noted that section 140(1)(b) of the MSA provides for an exception to seafarers’ entitlement to wages in cases of sickness or injury when the seafarer unreasonably refused medical treatment for such sickness or injury. The Committee recalled that such exclusion is not permitted by Standard A4.2, paragraph 5, and requested the Government to explain how it gives full effect to this provision of the Convention. Noting that the Government does not provide relevant information in reply to its request and that the Merchant Shipping Bill, 2020, does not address this issue, the Committee requests the Government to indicate the measures adopted to ensure full conformity with this provision of the Convention.

Regulation 4.5 and Standard A4.5, paragraphs 1-3. Social security. Branches. Protection for seafarers ordinarily resident in its territory. Recalling that, at the time of ratification, the Government has specified sickness benefit; unemployment benefit, employment injury benefit and maternity benefit as the branches of social security for which protection is provided, and noting the Government’s indication that no maternity benefit is given to seafarers ordinarily resident in the country, unless provided for in the contract of employment, the Committee previously requested the Government to indicate how it envisaged to give effect to its obligations in this respect. The Committee notes the Government’s reply indicating that the maternity benefit may be claimed from the Unemployment Insurance Fund (UIF) administered by the Department of Labour. While noting this information, the Committee requests the Government to provide statistical information on the number of seafarers who are actually affiliated to the Unemployment Insurance Fund. The Committee further requests the Government to provide detailed information on all the measures that provide seafarers ordinarily resident in South Africa with protection for the branches which it has declared applicable, specifying the applicable national provisions and including details of the benefits provided under each of the branches mentioned above.

Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee previously noted that the Government has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. Recalling that, although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6 requires Members 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 applicable branches of social security, the Committee requested the Government to provide information on any measures adopted to give effect to this provision of the Convention. Noting the absence of reply from the Government, the Committee reiterates its previous request.

Regulation 4.5 and Standard A4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee requests the Government to provide information on the procedures of the settlement of disputes relating to social security for seafarers, as per Standard A4.5, paragraph 9 of the Convention.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles.  The Government indicates in its report that it conducts flag state inspections and an audit of recognised organisations through SAMSA. The Committee notes, however, that the Government does not provide any information regarding the objectives and standards established for the inspection and certification system, as well as on the specific measures taken to ensure the effectiveness of the system in place for the inspection and certification of maritime labour conditions on ships. Noting that the Government did not provide, in its first and second reports, information on the objectives and standards defined for the inspection and certification system, and on the methods in place for its assessment (Regulation 5.1.1, paragraphs 1 and 5) the Committee requests the Government to provide detailed information in this respect.

Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee notes the Government’s indication that the organizations recognized for the purposes of carrying out inspection and certification functions follow the guidelines established by the International Maritime Organization in its Resolution No. A.739(18). The Committee emphasizes the need to take into account specific standards in this field, including Standard A5.1.2 and Guideline B5.1.2 of the Convention. While taking note of the list of recognized organizations contained in Marine Notice No. 40 of 2016, the Committee notes that such list does not include an indication of the functions that they are authorized to carry out, and the Government has not provided information concerning the relevant legislation or other measures governing the authorization of such recognized organizations. The Committee therefore requests the Government, on the one hand, to provide information on the laws and regulations or other measures governing the authorization of recognized organizations and, on the other, to provide the Office with the information required by paragraph 4 of Standard A5.1.2.

Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. Implementing legislation. The Committee notes with interest that the Maritime Labour Certificate and Declaration of Compliance Regulations, 2017 were adopted and published in the Government Gazette of 6 June 2017 and give effect to most of South Africa’s obligations under Regulation 5.1.3. The Committee notes this information, which addresses its previous request.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee previously requested the Government to review the DMLC, Part I, so as to ensure that it provides a reference to the national legal provisions embodying the relevant provisions of the Convention as well as concise information on the main content of the national requirements. It also requested the Government to ensure that the DMLC, Part II, approved by the competent authority provides specific information on the ways in which the national requirements are to be implemented between inspections. The Committee notes that the Government has revised the DMLC Part I and that the copy submitted by the Government contains information on the 16 matters to be inspected in line with the relevant provisions of the MLC, 2006, as well as reference to the national legal provisions and concise information on their main content. The Committee also takes note of the example of an approved DMLC, Part II, that has been drawn up by a shipowner to set out the measures adopted to ensure ongoing compliance with the national requirements and measures proposed to ensure that there is continuous improvement, as provided under Standard A5.1.3, paragraph 10(b). The Committee notes this information, which addresses its previous request.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee notes that, while Regulation 11 of the Maritime Labour Certificate and Declaration of Compliance Regulations, 2017, enumerates the cases in which a maritime labour certificate and a Declaration of Maritime Compliance may be suspended or cancelled, these do not include the circumstances in which a Maritime Labour Certificate shall cease to be valid (Standard A5.1.3, paragraphs 14 and 15; Guideline B5.1.3, paragraph 6) and must be withdrawn (Standard A5.1.3, paragraphs 16 and 17) according to the Convention. The Committee therefore requests the Government to indicate the measures adopted to ensure full conformity with these requirements of the Convention.

Regulation 5.1.4 and Standard A5.1.4, paragraphs 2 and 3. Flag State responsibilities. Inspection and enforcement. Qualified inspectors.  The Committee notes the Government’s indication that appointed Flag State Inspectors are STCW Deck and Engineer Officers who have undertaken in-house and/or ILO training. While noting this information, the Committee requests the Government to indicate the national measures adopted to ensure that inspectors have the competence, terms of reference and powers necessary so as to enable them to carry out verifications that the measures relating to working and living conditions are being followed, and that the requirements of this Convention are met (Standard A5.1.4, paragraph 3).

Regulation 5.1.4 and Standard A5.1.4, paragraph 6. Flag State responsibilities. Inspection and enforcement. Independence of inspectors. The Committee notes that section 4 of the MSA provides that SAMSA may appoint any qualified person whom it deems fit to act as a surveyor to inspect any South African ship wherever she may be or any ship not registered in the Republic while she is within the Republic or the territorial waters of the Republic for the purpose of ascertaining whether she complies with the provisions of this Act. The Committee also notes the Government’s statement that surveyors are not Government employees or civil servants. Recalling that adequate rules must be provided and enforced to guarantee that inspectors have a status and conditions of service ensuring that they are independent of changes of Government and of improper external influences, as required by Standard A5.1.4, paragraphs 6, 11(a) and 17 of the Convention, the Committee requests the Government to indicate how it gives effect to these provisions of the Convention.

Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee previously requested the Government to indicate the measures taken to prohibit and penalize any kind of victimization of a seafarer for filing a complaint. The Committee notes that section 158A of the MSA and Marine Notice No. 48 of 9 October 2020, which provides the standard form which the seafarer may use to file complaints, regulate onboard complaints procedures and include safeguards against victimization of the seafarer, notably the right for the seafarer i) to obtain guidance or to submit the complaint directly to the Competent Authority; and ii) to be accompanied and represented by a labour organization or by another seafarer of their choice on board the ship concerned at all times. The Committee also notes that any claims of victimisation should be investigated by the master or shipowner and where instances of victimisation are found to occur, these must be dealt with under the Company's disciplinary procedures in the shortest possible time, and the outcome reported to the Competent Authority. The Committee notes this information, which addresses its previous request.

Regulation 5.2.1. Port State responsibilities. The Committee previously noted that the national port State control system was under development and requested the Government to indicate the measures taken to establish an effective port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention, including the method used for assessing its effectiveness, as provided for under Regulation 5.2.1. The Government indicates in its report that the national port State control system is still under development and that inspectors use the ILO guidelines on port State control, having carried out 63 detailed inspections to Standard A5.2.1. Regarding compensation to be paid for any loss or damage for a ship being unduly detained or delayed, the Government states that any loss or damage from the wrongful exercise of the inspectors' powers would require the shipowner to approach SAMSA, and in the event that the shipowner was not satisfied with the decision of the Authority, relief would require an approach through the judicial systems of the Republic. The Committee also notes that South Africa is a Member to the Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU) as well as to the Memorandum of Understanding on Port State Control for the West and Central Africa Region (Abuja MoU). The Abuja MoU includes among the relevant instruments underlying its port State control mechanism, the MLC, 2006, the 1978 International Convention on Seafarer Training, Patenting and Watch Standards, as amended (STCW) and the Convention (No. 147) on Merchant Marine (minimum standards), 1976. While recognising the value of the coordinated implementation of inspections under port State control at the level of these regional organizations, the Committee recalls that national authorities have an obligation to give full effect to the provisions of the MLC, 2006, in their own legislation. Hoping that, in its next report, the Government will be able to submit information on the establishment of an effective port State control inspection and monitoring system to verify conformity with the requirements of the Convention, the Committee requests the Government to provide detailed information on the procedures established at the national level to implement its port State responsibilities under the MLC, 2006.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee takes note of Marine Notice No. 15 of 2019, which provides the national contact point for all complaints which are to be lodged with the National Authority (SAMSA), concerning the breach or alleged breach of seafarers’ rights as stipulated under the Convention, including for seafarers on board foreign flagged vessels calling at a South African port. The Committee also notes the Government’s statement that SAMSA’s whistleblower policy ensures confidentiality. The Committee notes however that the Government does not provide concrete information on the functioning of the onshore complaint-handling procedure in its administration, including on the possibility to conduct a more detailed inspection in accordance with Standard A5.2.1. The Committee therefore requests the Government to inform how it implements in practice the provisions of Regulation 5.2.2 and Standard A5.2.2. The Committee also requests the Government to indicate the number of complaints filed and resolved with the maritime authority, as well as the text of any document presenting the procedures for processing complaints onshore.