Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention du travail maritime, 2006 (MLC, 2006) - Région administrative spéciale de Hong-kong (Ratification: 2018)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that the eight Conventions on maritime labour, which were applicable to Hong Kong Special Administrative Region (HKSAR) have been denounced following the entry into force for the HKSAR of the MLC, 2006. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 entered in force for the HKSAR on 18 January 2017. It also notes that a declaration of acceptance of the 2016 amendments to the Code has not been received and therefore HKSAR is not bound by these amendments. Following a first 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.

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. 1. Exceptions. The Committee notes that under section 114(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, subject to sections 29 and 30, the Authority may exempt a Hong Kong ship or a class or description of Hong Kong ships from complying with any Part 2 requirement - i.e. all requirements concerning working and living conditions - subject to the conditions the Authority thinks fit. The Committee observes that the Convention does not allow for exemptions except in the few cases and under the conditions explicitly provided by it (e.g. Article II(6) and Title 3). The Committee requests the Government to amend section 114 of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation in order to ensure full compliance with the MLC, 2006.

2. Collective agreements. The Committee notes that the example of collective agreement provided by the Government as Annex 8 is no longer in force (expired in 2018). The Committee requests the Government to indicate the collective agreements which are currently in force for seafarers covered by the Convention and supply a copy thereof.

Article II(1)(i)(f) and 4. Definitions and scope of application. Seafarers. The Committee notes the Government's information that the MLC, 2006 is not applicable to ships, which operate voyages between Hong Kong and Macau. The Committee recalls that the Convention applies to all ships flying the flag of the ratifying Member ordinarily engaged in commercial activities, regardless of the types of voyages in which they are engaged. The Committee requests the Government to indicate the measures taken to ensure that the Convention is also implemented with respect to ships operating between Hong Kong and Macau.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. The Committee notes that under section 6(2) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, a young seafarer, i.e. a person under 18 years, must not carry out works during the night period unless the training for the seafarer in accordance with an approved training programme would be impaired, or the specific nature of the duty of the seafarer or of an approved training programme requires the seafarer to work during the night period forming part of training under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW). The Committee observes that such section is only partially compliant with Standard A1.1, paragraph 3(b) of the Convention, which also requires that “the authority determines, after consultation with the shipowners’ and seafarers’ organizations concerned, that the work will not be detrimental to their health or well-being”. The Committee requests the Government to indicate how it ensures full conformity with this provision of the Convention.

Regulation 2.1 and Standard A2.1(1)(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that under section 80(1) of the Merchant Shipping (Seafarers) Ordinance, a written employment agreement must be entered into between a person who works as a seafarer on a Hong Kong ship and the owner of the ship or a person, including the manager or charterer of the ship, who has assumed responsibility for the operation of the ship from the owner. It also notes that under section 12(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, seafarers must have entered into employment agreements with their “employers”, that Schedule 1 of the same Regulation on requirements for the employment agreement refers to employers, and that the model seafarers' employment agreement (SEA) supplied by the Government is stipulated between the seafarer and her/his employer. The Committee notes, in this connection, that section 12(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation and the model SEA are not clear as to who is the responsible party for seafarers’ living and working conditions. The Committee underlines the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. In accordance with Standard A2.1, paragraph 1, every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered the employer of the seafarer). The Committee requests the Government to clarify who are the parties to the SEA. It further requests the Government to harmonize its legislation in accordance with Standard A2.1, paragraph 1(a) and to amend the model SEA accordingly to ensure that the SEA is signed by the shipowner or her/his representative.

The Committee notes that under section 80(5) of the Merchant Shipping (Seafarers) Ordinance “the Secretary for Transport and Housing may make regulations providing for exemptions from the requirements of this section, and the Authority may grant other exemptions from those requirements (whether with respect to particular seafarers or with respect to seafarers employed by a specified person or in a specified ship or in the ships of a specified person) in cases where the Authority is satisfied that the seafarers to be employed otherwise than under a crew agreement will be adequately protected.” The Committee requests the Government to clarify the scope of section 80(5) and related possible exemptions and indicate how it ensures full compliance, in all cases, with Regulation 2.1(1) and Standard A2.1(1)(a).

Regulation 2.1 and Standard A2.1(1)(d). Seafarers’ employment agreements. Information on conditions on board. The Committee notes that section 7(2) of the Merchant Shipping (Seafarers) (Crew Agreements, Lists of Crew and Discharge of Seafarers) Regulation provides for the possibility for the Superintendent to grant exemptions from the requirement of posting copies of the crew agreement on board ships. In relation to this exemption, the Committee requests the Government to indicate how it gives effect, in all cases, to the requirement of Standard A2.1(1)(d) that clear information as to the conditions of employment can be easily obtained on board by seafarers and that such information, including a copy of the SEA, is also accessible for review by competent authorities.

Regulation 2.2 and Standard A2.2(5). Wages. Allotments. The Committee notes that section 57(2)(b)(i) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, which regulates allotment of seafarers' wages, provides that the rate of exchange for the allotment could be “the rate agreed between the employer and the seafarer”. The Committee observes that such provision is not fully compliant with the Convention, in as far as Standard A2.2, paragraph 5 provides that the rate of currency exchange for transmitting earnings to the seafarers' families “unless otherwise provided, shall, in accordance with national laws or regulations, be at the prevailing market rate or the official published rate and not unfavourable to the seafarer.” The Committee requests the Government to indicate the measures taken to ensure full conformity with Standard A2.2, paragraph 5.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. Scope of application. The Committee notes the Government's information that hours of work and rest are regulated under the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation and the Merchant Shipping (Seafarers) (Hours of Rest) Regulation. It observes that while the first Regulation covers all ships registered in Hong Kong, the latter only applies to coastal going ships. It also notes that the Merchant Shipping (Seafarers) (Hours of Rest) Regulation gives only partial effect to Standard A2.3 and allows for exceptions (section 3(2)), which are not allowed by the Convention. The Committee recalls that Regulation 2.3 applies to all ships covered by the Convention, with no possible exemptions allowed whatsoever. The Committee requests the Government to take the necessary measures to ensure that Regulation 2.3 is implemented with respect to all ships covered by the Convention, with no exemptions. In this regard, it also requests the Government to clarify the relationship between the two Regulations mentioned above with regard to their scope of application.

Regulation 2.5 and Standard A2.5.1(2)(b). Repatriation. Maximum period of service on board. The Committee notes that under section 3A of the Merchant Shipping (Seafarers) (Repatriation) Regulation, the seafarer may be repatriated when she/he “… has served on board the ship consecutively for: (i) 11 months; or (ii) any longer period agreed to by the seafarer in writing; …”. The Committee recalls that under Standard A2.5, paragraph 2(b), the maximum duration of service periods on board following which a seafarer is entitled to repatriation shall be less than 12 months. It considers that, from the combined reading of Standard A2.4, paragraphs 2 and 3, on annual leave and Standard A2.5.1, paragraph 2(b), the maximum continuous period of shipboard service without leave is in principle 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. Indeed, Standard A2.4, paragraph 3 does not lay down an absolute prohibition as exceptions may be authorized by the competent authority. While the Convention is silent about the nature and scope of permissible exceptions, the Committee considers that this provision needs to be read restrictively in order not to defeat the purpose of Regulation 2.4. The Committee considers that the possibility to forgo annual leave and stay on board for “(ii) any longer period agreed to by the seafarer in writing”, as provided by section 3A of the Merchant Shipping (Seafarers) (Repatriation) Regulation is clearly not in conformity 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 conformity with Standard A2.5.1, paragraph 2(b) and Standard A2.4, paragraphs 2 and 3 of the Convention.

Regulation 2.5 Standard A2.5.1(1) and 2(a). Repatriation. Circumstances. The Committee notes that under section 3B of the Merchant Shipping (Seafarers) (Repatriation) Regulation, a seafarer’s entitlement to repatriation ceases if – inter alia – “the seafarer informs the employer in writing that the seafarer does not wish to be repatriated”. The Committee recalls that the Convention does not provide that the right to repatriation ends in the above circumstance. It requests the Government to indicate how it ensures that any provision in the national legislation depriving seafarers from the right to repatriation is strictly limited to the circumstances allowed under the Convention.

Regulation 2.5, Standard A2.5.1 and Guideline B2.5.1(6)(7). The Committee notes that the Merchant Shipping (Seafarers) (Repatriation) Regulation gives effect to Regulation 2.5 and the Code. It also notes that clause 18 of the “standard clauses for a Honk Kong registered / foreign sea-going ship” (hereinafter, Standard Clauses for SEA) refers to repatriation to the place at which the seafarer was employed, while article 16 of the collective bargaining agreement supplied by the Government refers to the place of repatriation as either the place of original engagement or home. The Committee recalls that Guideline B2.5.1, paragraph 6 provides that Members should prescribe the destinations to which seafarers may be repatriated. The destinations should include the countries with which seafarers may be deemed to have a substantial connection including: (a) the place at which the seafarer agreed to enter into the engagement; (b) the place stipulated by collective agreement; (c) the seafarer’s country of residence; or (d) such other place as may be mutually agreed at the time of engagement. Seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated (Guideline B2.5.1, paragraph 7). The Committee requests the Government to indicate how it has given due consideration to Guideline B2.5.1, paragraphs 6 and 7.

Regulation 4.2 and Standard A4.2.1(5). Shipowners’ liability. Possible Exclusion. While noting the Government's information that under clause 24.8 of the Standard Clauses for SEA the shipowner is excluded from liability in the cases provided for by Standard A4.2.1, paragraph 5, the Committee observes that such Standard provides that exclusions may only be regulated through “national laws or regulations”. The Committee requests the Government to indicate the relevant national provisions giving effect to Standard A4.2.1, paragraph 5 of the Convention.

Regulation 4.2 and Standard A4.2.2(3). Shipowners’ liability. Financial security. Procedures for contractual claims related to compensation. The Committee notes the Government's information that sections 61 and 62 of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation give effect to Standards A4.2.1 and A4.2.2. It also notes that under section 62(2) of the Regulations , the financial security: (a) must be in the form of an insurance policy; and (b) must comply with the requirements set out in paragraphs 8(a), (b), (c), (d) and (e) and 13 of Standard A4.2.1 of the Convention. The Committee notes that no national provisions appear to provide for the procedures 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. It requests the Government to indicate the legislative measures taken to establish such procedures in line with Standard A4.2.2, paragraph 3.

Regulation 4.3 and Standard A4.3. Health and safety protection and accident prevention. Scope of application. The Committee takes note of the legislation cited by the Government, in particular the Merchant Shipping (Seafarers) (Health and Safety: General Duties) Regulation and the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation, which give effect to most of the requirements of Regulation 4.3 and Standard A4.3. It further notes that both Regulations, as well as the Merchant Shipping (Seafarers) (Code of Safe Working Practices) Regulation, contain provisions allowing the authority to grant exemptions from all or any of the provisions of the regulations or parts thereof “for classes of cases or individual cases on such conditions, if any, as the Authority thinks fit”. The Committee further notes that some provisions of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation (Part II on safety officials and section 12A on reporting of notifiable diseases) exclude from their scope of application high speed crafts that navigate exclusively between Hong Kong and any other port in China. The Committee recalls Regulation 4.3 covers all ships under the scope of the Convention (Article II, paragraph 4) and does not allow for any exclusions nor exemptions. The Committee requests the Government to indicate the measures taken to ensure that Regulation 4.3 and the Code are implemented with regard to all ships covered by the Convention without exceptions.

Regulation 4.3(2). Health and safety protection and accident prevention. National guidelines. The Committee requests the Government to provide information on the development, after consultation with representative shipowners' and seafarers' organizations, of national guidelines for the management of occupational safety and health on board ships flying its flag.

Regulation 4.3, Standard A4.3(5) and (6) and Guideline A4.3.5(1). Health and safety protection and accident prevention. Reporting of occupational accidents, injuries and diseases. Protection of personal data. The Committee notes that sections 10-12A of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation give application to most of the requirements of Standard A4.3, paragraph 5. Noting that section 12A of the Regulation provides that in reporting notifiable diseases the seafarer's data should be included, the Committee requests the Government to indicate how it is ensured that the reporting and investigation and publication of statistics on occupational accidents and occupational injuries and diseases take into account the protection of the personal data of the seafarers concerned (Standard A4.3(6) and Guideline B4.3.5(1)).

Regulation 4.5, Standard A4.5(2), (10) and (11) and Guideline B4.5(1). Social security. Recommended branches. The Committee notes that at the time of ratification, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security: medical care, old-age benefit and invalidity benefit. The Committee recalls that, in order to complement the protection afforded under Regulations 4.1 and 4.2, Guideline B4.5, paragraph 1 provides that the protection to be provided at the time of ratification should at least include the branches of medical care, sickness benefit and employment injury benefit. Noting that two of these branches have not been specified by the Government, the Committee requests it to indicate how it has given due consideration to Guideline B4.5, paragraph 1. The Committee takes note of the Government’s statement that the Marine Department will regularly review the situation for improving the benefits currently provided to seafarers. The Committee requests the Government to provide information on the progress made to extend protection to other branches (Regulation 4.5, paragraph 2 and Standard A4.5, paragraph 11).

Regulation 4.5 and Standard A4.5(3). Social security. Protection for seafarers ordinarily resident in its territory. The Committee notes that the Government provides limited information on the application of Regulation 4.5 and the Code. It notes the Government’s information for the branches specified that “in general, where eligible, Hong Kong registered seafarers when discharged on shore will have the same benefit as other HKSAR residents”. The Committee recalls that Standard A4.5, paragraph 3 of the Convention requires that each Member shall take steps according to its national circumstances to provide social security protection to all seafarers ordinarily resident in their territory, which shall be no less favourable than that enjoyed by resident shoreworkers. The Committee requests the Government to indicate how this requirement is implemented with respect to all seafarers ordinarily resident in its territory, regardless of their nationality and the flag of the ships on which they work. In this regard, it requests the Government to provide detailed information on the benefits granted to resident seafarers under the branches specified, including reference to the provisions of the applicable legislation.

Regulation 4.5, Standard A4.5(5) and Guideline B4.5(6) and (7). Social security. Monitoring of payment of contributions. The Committee requests the Government to provide information on how shipowners’ and, if applicable, seafarers’ contributions to relevant social protection and social security schemes are monitored to verify that the contributions are made (Standard A4.5, paragraph 5 and Guideline B4.5, paragraphs 6 and 7).

Regulation 4.5 and Standard A4.5(9). Social security. Procedures to settle disputes. The Committee notes the Government’s information that the Marine Department will facilitate the settlement of disputes when necessary. It requests the Government to provide more details on the procedures established to settle disputes on social security (Standard A4.5, paragraph 9).

Regulation 5.1.2(2) and Standard A5.1.2(1). Flag State responsibilities. Recognized organizations. The Committee notes the Government's information on the coordination between the Marine Department and the recognized organizations (ROs) authorized to carry out certification and inspections for Hong Kong registered ships related to the Convention. The Committee requests the Government to provide detailed information on how it reviews the criteria for competency and independence of recognized organizations (Standard A5.1.2, paragraph 1 and Guideline B5.1.2, paragraphs 1 and 2).

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee notes that while the Declaration of Maritime Labour Compliance (DMLC) Part I supplied by the Government contains extensive information on the content of national requirements, it is not easy to identify the respective national provisions for each requirement. The Committee recalls that Standard A5.1.3, paragraph 10(a), provides that the DMLC, Part I, shall identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions. It also recalls that the purpose of the DMLC, Part I, is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 16 listed matters are being properly implemented on board ship. The Committee requests the Government to indicate any steps taken to revise the DMLC, Part I, to ensure that it clearly identifies the relevant national provisions.

Regulation 5.1.6(1). Marine casualties. The Committee notes that section 122 of the Merchant Shipping (Seafarers) Ordinance provides for the obligation for the Superintendent to hold inquiries into deaths of persons on board Hong Kong ships. It further notes the Government's information that the Mercantile Marine Office of the Marine Department conducts inquiries into all death of person cases including accident and natural death. The Marine Accident Investigation Section of the Marine Department conducts safety investigation into all serious marine accidents including injury cases. The Committee requests the Government to indicate the provisions establishing that competent authorities shall hold a compulsory official inquiry into serious marine casualties leading to injuries, and to indicate the relevant legislative provisions.

Regulation 5.2.2(1) and Standard A5.2.2 (1)–(7). The Committee's notes that the Government refers to complaints in the framework of flag State control. It also notes that, while sections 103 et seq. of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation regulate Port State Control inspections, including following to complaints, the same legislation does not regulate procedures for seafarers calling at its ports to report a complaint alleging breach of the requirements of the MLC, 2006. The Committee recalls that Regulation 5.2.2, paragraph 1 provides for the right of seafarers on ships calling at a port in the Member's territory to bring complaints alleging a breach of the Convention requirements, which shall be investigated by competent port state control authorities as detailed in Standard A5.2.2. The Committee requests the Government to indicate the measures taken to implement Regulation 5.2.2 and the Code.

[The Government is asked to reply in full to the present comments in 2023.]