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

Convention du travail maritime, 2006 (MLC, 2006) - Royaume-Uni de Grande-Bretagne et d'Irlande du Nord (Ratification: 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 2016 entered into force for the United Kingdom on 18 January 2017 and 8 January 2019, respectively. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Regulation 1.4 and the Code. Recruitment and placement. The Committee requested the Government to explain how it ensures that its legislative provisions prohibiting the use of means, mechanisms or lists intended to prevent or deter seafarers from gaining employment extend beyond trade union purposes. The Committee notes the Government’s indication that pursuant to the Data Protection Act 1998, the data controller must specify the purpose for which personal data is held and any data processing must be carried out in accordance with those specified purposes. Therefore, any information a shipowner or recruitment and placement service holds on individual seafarers for the purposes of employing, recruiting or placing seafarers in employment may not be used to create lists of “blacklisted” seafarers without breaching the provisions of the Act. The Government also indicates that compliance with the Act is enforced by the Information Commissioner who can serve information notices, levy fines, etc.. Failure to comply with an information notice is a criminal offence. The Committee takes notes of this information, which addresses its previous request.

Regulation 2.3 and Standard A2.3, paragraph 4. Hours of work and hours of rest. Danger of fatigue. The Committee requested the Government to provide information on how it ensures that its two-watch system does not pose a danger of fatigue on seafarers, as well as to transmit copies of any relevant studies or empirical findings on this matter. The Committee notes the Government’s information that the relevant regulations enforce the international standards for hours of rest in both the MLC, 2006 and Regulation VIII/1 of the International Convention on the Standards of Training, Certification and Watchkeeping for Seafarers 1978, as amended (STCW). It further indicates that the Merchant Shipping Notice 1868(M) sets out the requirements for safe manning of ships, including requiring shipowners to demonstrate to the satisfaction of the Maritime Coastguard Authority (MCA) that any proposed manning level is sufficient for the normal operations of the ship and any foreseeable additional demands due to circumstances. The Committee further notes the Government’s information on two studies conducted recently, which analysed the effects of watchkeeping patterns on the fatigue of seafarers. The Committee takes note of this information, which addresses its previous request.

Regulation 2.3 and Standard A2.3, paragraphs 8 and 9. Hours of work and hours of rest. On-call work. The Committee notes the Government’s information in reply to its previous comments, that Regulation 5(3) of the Merchant Shipping (Hours of Work) Regulations 2002 provides that firefighting and lifeboat drills prescribed by the Merchant Shipping (Musters, Training and Decision Support Systems) Regulations 1999(1) shall be conducted in a manner which minimizes the disturbance of rest periods and does not induce fatigue. Regulation 5(4) provides that a seafarer who is on call on board ship shall have an adequate compensatory rest period if his normal period of rest is disturbed by call outs to work. The Committee takes note of this information, which addresses its previous request.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Possible exceptions to the prohibition to forgo paid annual leave. The Committee noted the Government’s indication that, following tripartite consultations, there was an agreement that a seafarer should not be forced to return on leave to a home country if he or she does not wish to do so for some specific reasons such as fearing for their personal safety or no longer having family in that location. The Committee noted, in this connection, the Government’s indication that, under this agreement, seafarers may be permitted to change their repatriation destination or to extend their time on board. The Committee requested the Government to provide information on the safeguards put in place, if any, to limit the seafarers’ extended time on board. The Committee notes the Government’s information that within the MLC Tripartite Working Group (TWG) it was agreed to establish the above-mentioned exceptions to the entitlement of repatriation in particular circumstances, such as those of seafarers who would need to return to a war zone to enjoy annual leave. While recognizing the importance of annual leave, it was agreed that in such circumstances the well being of the seafarers concerned would not be well-served by requiring them to return to a war zone. The MLC TWG also agreed that such cases should be considered on a case-by-case basis, as they should only be justified in such rare and exceptional circumstances. The Committee takes note of this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. With regard to the exception to the shipowner’s duty to provide repatriation when the seafarer confirms in writing that repatriation is not required (section 21(6) of the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers, etc.) Regulations 2014 – SI 2014/1613), the Committee requested the Government to identify any protections in place to ensure that this provision does not enable the waiver of the right to repatriation by seafarers wishing to gain or retain employment. The Committee notes the Government’s indication that no specific protections have been put in place. This provision has been in the United Kingdom legislation since 1979 as one of the conditions in which the shipowner’s duty to repatriate ends. The Government further indicates that few cases have come to the MCA’s attention with respect to such exception. It considers that since repatriation is an entitlement for seafarers, seafarers should have the right to waive their right if they consider that to be in their best interests (for example, to extend their term at sea by one or two months in order to complete a period of sea service). In this regard, the Government indicates that MCA surveyors are alert to the risk of seafarers being put under pressure to waive their rights and would investigate if there were any sign of a pattern of such behaviour on a particular ship or in a particular company. While noting this information, the Committee recalls that the Convention does not provide that the right to repatriation ends when the circumstances provided under Standard A2.5.1, paragraph 1, are met. The only case in which this right may lapse in conformity with the Convention is contemplated under Guideline B2.5.1, paragraph 8, in the case in which the seafarers concerned do not claim that right within a reasonable period of time to be defined by national laws or regulations or collective agreements. The Committee requests the Government to ensure that any provision of national legislation which deprives seafarers of their right to repatriation is limited to the circumstances allowed by the Convention. In this regard, it requests the Government to bring its legislation into conformity with the Convention.

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 of the adoption of the Merchant Shipping (Maritime Labour Convention) (Compulsory Financial Security) (Amendment) Regulations, 2018, which 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 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee notes that in reply to its previous comments, the Government clarifies that in relation to the exception to shipowners’ liability for wages following sickness or injury sustained by a seafarer where the injury occurred while the seafarer “was not at work” (section 50(11)(b) of SI 2014/1613), the term “not at work” was preferred to “in the service of the ship”, but it does not change the scope of the duty. Thus, a seafarer who is carrying out any part of her/his duties either on the ship or ashore would be covered by the national regulations. According to the Government, no other circumstances may be identified, which would be covered by the term “in the service of the ship”. Neither term would cover a seafarer undertaking recreational activities ashore or on the ship. The Committee takes note of this information, which addresses its previous request.

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 of the adoption of the Merchant Shipping (Maritime Labour Convention) (Compulsory Financial Security) (Amendment) Regulations, 2018, which 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 4.5 and Standard A4.5, paragraphs 3 and 6. Social security. Protection for seafarers ordinarily resident in its territory. Comparable benefits to non-resident seafarers. In its previous comments, the Committee requested the Government to provide information on the measures adopted to give effect to a number of requirements of the Convention related to social security. The Committee notes that the Government reiterates the information previously provided on the European social security coordinating Regulations. The Committee requests the Government to provide detailed information on the relevant provisions regulating social security protection for seafarers ordinarily resident in the United Kingdom in the branches specified. It further requests the Government to specify whether: (i) social security coverage for the above-mentioned benefits extends to seafarers who reside in the United Kingdom and work on board ships flying the flag of non-EU countries and countries other than those with which reciprocal social security agreements were stipulated; and (ii) consideration has been given to providing comparable benefits to non-resident seafarers working on ships that fly its flag (Standard A4.5, paragraph 6).

Regulation 5.1.6. Marine casualties. The Committee notes that, under Regulation 8 of the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, the chief inspector must ensure a safety investigation is carried out in relation to any accident that is a “very serious marine casualty”, which are defined as those involving the total loss of the ship or loss of life, or severe pollution. In the case of “serious casualties”, the chief inspector shall carry out a preliminary assessment in order to decide whether to undertake a safety investigation. In the case of a “marine casualty”, the chief inspector may carry out a safety investigation. The Committee notes that in the latter cases the holding of an investigation is optional. It 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 not only to loss of life but also to injury 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.

Regulations 5.2.1 and 5.2.2. Inspections in port. Onshore seafarer complaint-handling procedures. The Committee requested the Government to provide its comments in reply to the observations of Nautilus International expressing concern with respect to the current shortage of MCA marine surveyors, as well as to provide information on the implementation of Regulation 5.2.2. The Committee notes the Government’s information that the MCA carried out two recruitment campaigns of marine surveyors in 2016 and 2018, respectively. The Committee further notes that Regulation 18 of the Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulations 2013 provides that non-UK ships shall comply, inter alia, with the requirements of Regulation 5.2.2 and Standard A5.2.2 (onshore seafarer complaint-handling procedures). Maritime Guidance Note (MGN) 487(M) regulates in detail onshore complaint procedures. The Committee finally notes the Government’s indication that the MCA reports regularly to the TWG on (anonymized) complaints received and the outcomes. The Committee takes note of this information, which addresses its previous request.

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