Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention du travail maritime, 2006 (MLC, 2006) - Ile de Man

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 the Isle of Man, respectively, on 18 January 2017 and on 8 January 2019. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

General questions on application. Implementing measures. The Committee noted, in its previous comment, the Government’s indication that the Convention is implemented by the Merchant Shipping (Maritime Labour Convention) Regulations 2013 (SD 234/2013) (hereinafter MS Regulations 2013) and by several additional Regulations and Marine Labour Notices (hereinafter MLN). The purpose of MLNs is to provide guidance on compliance with Isle of Man Regulations and in most cases; therefore MLNs are not legally binding. MLNs are only legally binding if the underlying Regulations specify that something must be done in accordance with a particular MLN. The Committee notes that the 2018 MLC Report, published by the Isle of Man Ship Registry, indicates that the Isle of Man Ship Registry will consider alternative methods of compliance to those set out in the MLN on a case-by-case basis. Recalling that flexible application of the MLC, 2006, is allowed only in the cases and under the conditions provided for in the Convention, the Committee requests the Government to provide detailed information on the alternative methods of compliance that have been considered and granted by the competent authority.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that Regulation 1(3) of the MS Regulations 2013 provides that these Regulations do not apply to pleasure vessels and to ships, which navigate exclusively within 60 nautical miles of the island’s coast. The Committee recalls that Article II, paragraph 1(i) provides that “ship” means 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 also recalls that Article II, paragraph 4, provides that the Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks. The Committee requests the Government to indicate how it ensures that the Convention applies to all ships navigating beyond inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply. The Committee further requests the Government to indicate how it ensures that the requirements of the Convention apply to pleasure ships that are ordinarily engaged in commercial activities.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. Noting Standard A1.1, paragraphs 2 and 3, are implemented by the non-binding provisions of the MLN 1.1 Young Persons, the Committee requested the Government to provide further information on the implementation of this requirement of the Convention. The Committee notes the Government’s indication that Regulation 35 of the MS Regulations 2013 gives effect to these requirements of the Convention. The Committee takes notes of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee noted that while section 7.2 of the MLN 1.1 Young Persons contains a list of types of work considered hazardous and prohibits young seafarers from engaging in that type of work, this section is not binding and permits exceptions to this prohibition. The Committee requested the Government to indicate whether the Ship Registry’s determination of hazardous work under MLN 1.1 was made after the consultations prescribed under Standard A1.1, paragraph 4, and to clarify how the national legislation implements the absolute prohibition provided for in the Convention. The Committee notes the Government’s explanation on the consultations that have been carried out in accordance with the Convention. Furthermore, the Committee notes with interest that, in order to give full effect to the requirements of the Convention, Regulation 115 of the MS Regulations 2013 and MLN 1.1 have been amended to remove any exception to the prohibited tasks for young seafarers. The Committee takes note of this information, which addresses its previous request.

Regulation 1.4 and Standard A1.4, Paragraph 7. Recruitment and placement. Investigation of complaints. The Committee notes the Government’s indication that Standard 1.4, paragraph 7, of the Convention is implemented by Regulation 11(2)(g) of the MS Regulations 2013, which provides that a private seafarer recruitment and placement service must examine and respond to any complaint concerning its activities and advise the Department of any unresolved complaint. Noting, however, that this Regulation is giving effect to Standard 1.4, paragraph 5(c)(v), the Committee recalls that Standard 1.4, paragraph 7, provides that the “competent authority” shall ensure that adequate machinery and procedures exist for the investigation, if necessary, of complaints concerning the activities of seafarer recruitment and placement services, involving, as appropriate, representatives of shipowners and seafarers. The Committee requests the Government to indicate how full effect is given to Standard 1.4, paragraph 7.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee notes that the MLN 2.3 on Hours of Work and Hours of Rest indicates that the Isle of Man Ship Registry may permit exceptions to the minimum hours of rest required by the regulations that have been either: (i) produced as part of a collective agreement; (ii) applied for by the shipowner with evidence that the exception being applied for has been agreed by the seafarers and/or the seafarers’ representatives. Recalling that, under Standard A2.3, paragraph 13, exceptions to the limit on hours of rest shall only be permitted by an authorized or a registered collective agreement, the Committee requests the Government to indicate the measures taken to ensure full compliance with this provision of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee notes that Regulation 53 of the MS Regulations 2013 provides that a shipowner is prohibited from … (b) recovering the cost of repatriation from the seafarer’s wages or other entitlements except if – (i) permitted by any applicable collective agreement; and (ii) the seafarer has been found in accordance with any applicable collective agreement, to be in serious default of his or her employment obligations. The Committee requests the Government to provide information on the procedure to be followed and the standard of proof to be applied before any seafarer covered by the Convention can be found to be in “serious default of the seafarers’ employment obligations” (Standard A2.5.1, paragraph 3).

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. In this regard, the Committee takes note with interest that the MS Regulations 2013 have been amended to give effect to Standard A2.5.2. The Committee requests the Government to provide an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners.

Regulation 3.1, paragraph 2. Accommodation and recreational facilities. Scope of application. The Committee notes that, pursuant to Regulation 61(3) to (5) of the MS Regulations 2013, the requirements concerning crew accommodations on large commercial yachts are those included in three Codes published by the UK’s Maritime and Coastguard Agency, instead of Regulations 61 to 79 of the MS Regulations 2013, which have been adopted to implement Regulation 3.1 and Standard A3.1 of the Convention. The Committee further notes that the MSN 054 issued in January 2019 indicates that the Red Ensign Group Yacht Code, launched on 13 November 2017, is also applicable to all “commercial yachts of 24 metres in load line length or over, constructed on or after 1 January 2019” which are permitted to carry a maximum of 12 passengers. In order to properly assess how Standard A3.1 is applied to large commercial yachts, the Committee requests the Government to provide detailed information on this issue indicating any eventual substantial equivalence adopted for this category of ships.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum requirements. Medical advice by radio or satellite. The Committee notes that the MLN 4.1 indicates that Radio Medical Advice is available to all ships at sea by contacting HM Coastguard. The Committee requests the Government to clarify it these services are provided free of charge to all ships irrespective of the flag that they fly, as required by the Convention.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. 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. In this regard, the Committee takes note with interest that the MS Regulations 2013 have been amended to give effect to Standard A4.5.1, paragraphs 8 to 14 and to Standard A4.2.2. The Committee requests the Government to provide an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners.

Regulation 4.3 and Standard A4.3, paragraphs 1 and 2. Health and safety protection and accident prevention. Policies and programmes. Noting that, under Regulation 110(7) of the MS Regulations 2013, the requirement that shipowners provide protective equipment does not apply to self-employed seafarers or any other person working in any capacity on board the ship, who is not employed by the shipowner or the shipowner’s representative, the Committee requested the Government to explain how it ensures that all seafarers are provided with the required protective equipment in accordance with Standard A4.3, paragraph 1(c). The Committee notes the Government’s indication that self-employed seafarers are normally employed on board a ship for a short period for a specialist task which they are familiar with and trained in. Because the task is of a specialist nature, the self-employed seafarers would normally own and bring their own personal protective equipment (PPE) to the ship with them and they have better knowledge than the shipowner to choose and purchase the most appropriate PPE for the task they are carrying out. The Government further indicates that because self-employed seafarers are normally contracted on-board the ship, if new or additional PPE is required it can be factored into the contract which is agreed between the self-employed seafarer and the shipowner. The Committee takes note of this information, which addresses its previous request.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee requested the Government to provide clarifications concerning the social security benefits of seafarers ordinarily resident in the Isle of Man (around 240 according to the available information). The Committee notes the detailed explanations provided by the Government in this regard, including the specific provisions made for these seafarers in the social security legislation taking into account that their place of work is a ship. The Government indicates that although they may be physically off-island (i.e. technically abroad) when on board ship, this does not affect their Isle of Man domiciled status (See Regulation 117(1)(b) Social Security (Contributions) Regulations 2001 (SI 2001/1004)). The Committee takes note of this information, which addresses its previous request.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee recalled that, although the primary obligation regarding social security rests with the Member in which the seafarer is ordinarily resident, Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to non-resident seafarers in the absence of adequate coverage in the applicable branches of social security (Standard A4.5, paragraph 6). Noting that there are 9,684 seafarers working on board Isle of Man flagged vessels, the Committee requested the Government to explain how it gives consideration to this issue. Noting that the Government has not taken any measures in this regard, the Committee requests the Government to provide information on any future developments of the situation.

Regulation 4.5 and Standard 4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. Noting the Government’s indication that the shipowners’ and seafarers’ contributions to relevant social protection and social security systems or schemes are not monitored to verify that they are made, the Committee requested the Government to explain how it ensures compliance with the required contributions to relevant social protection and social security schemes. The Committee notes the detailed information provided by the Government on the enforcement mechanisms contained in its legislation and on the inspections that are carried out. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee requested further information regarding recognized organization. The Committee notes that the Government has provided a document called “Generic Class Agreement”, which contains relevant information concerning survey procedures and issue of certificates by recognized organizations. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. The Committee notes that, under Regulation 10(1) of the Merchant Shipping (Accident Reporting and Investigation) Regulations 2001, where a casualty, accident, or incident occurs, the Department shall decide whether or not an investigation should be carried out. The Committee recalls that Regulation 5.1.6, paragraphs 1 and 2, provides that each Member shall hold an official inquiry into “any serious marine casualty, leading to injury or loss of life that involves a ship that flies its flag”. The Committee requests the Government to indicate the measures taken to ensure full conformity with this requirement of the Convention.

[The Government is asked to reply in full to the present comments in 2022.]