Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

Maritime Labour Convention, 2006 (MLC, 2006) - Cook Islands (Ratification: 2019)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes the efforts undertaken by the Government to implement the Convention. It notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for the Cook Islands at the same time as the Convention and that, regarding the 2018 amendments to the Code it has not yet submitted a declaration of acceptance thereof and is therefore not bound by these amendments. The Committee also notes that the amendments to the Code approved by the International Labour Conference in 2022 will enter into force for Cook Islands on 23 December 2024. 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.

Article I of the Convention. General questions on application. Implementing measures. The Committee notes the Government’s reference to a number of legal texts implementing the Convention. These include: (i) the Maritime Labour Convention Rules 2014 (MLC Rules, 2014), which incorporate the Convention (section 4); and (ii) the draft Maritime (MLC) Rules, 2024 (hereinafter, the draft MLC Rules), which have yet to be adopted by the Parliament. In this context, the Committee recalls that the Office provided technical assistance to the Government in assessing the conformity of the draft MLC Rules with the Convention. The Committee hopes that the draft MLC Rules will be adopted in the near future and requests the Government to provide a copy of the relevant texts once adopted. In this context, the Committee trusts that the Government will adopt all the necessary measures to address any inconsistencies or gaps in its legislation and other implementing measures in consultation with the seafarers’ and shipowners’ organizations in order to give full effect to the Convention, taking into account the points raised below.

Article III. Fundamental rights and principles. The Committee notes that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Minimum Age Convention, 1973 (No. 138) have not been ratified by the Cook Islands. In accordance with its approach followed when a country has not ratified some of the ILO fundamental Conventions and thereby is not subject to supervision in their respect, the Committee expects to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. In this regard, the Committee notes the Government’s general indication that: (i) freedom of association and collective agreements are covered by the Employment Relations Act (ERA) 2012, Part 2; and (ii) discrimination, harassment and duress are covered by the ERA, Part 5. The Committee requests the Government to provide more detailed information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect the fundamental rights of seafarers to freedom of association and the effective recognition of the right to collective bargaining, discrimination and equal remuneration, indicating the applicable national provisions and reproducing, if possible, the relevant texts.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. 1. Seafarers. The Committee notes the Government’s reference to the Maritime Transport Act, 2007, which contains a definition of: (i) “crew”, i.e. any person employed or engaged in any capacity on board a vessel, except a master, a pilot, or a person temporarily employed on the vessel while it is in port; and (ii) “seafarer”, i.e. any person who is employed or engaged or works on any vessel in any capacity for hire or reward, excluding pilots or any persons temporarily employed on a vessel while it is in port. The Committee further notes that the Government also refers to the definition of seafarer contained in section 2.1(gg) of the draft MLC Rules, which is in line with the Convention. Referring to its comments under Article I,the Committee requests the Government to indicate the measures taken to ensure that the legislation implementing the Convention is harmonized and applies to all seafarers, including masters, as defined by Article II, paragraph 1(f).

2. National determination. The Committee notes the Government’s information that, in the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of the Convention, the question shall be determined by the competent authority after consultation with the shipowners’ and seafarers’ organizations concerned. It further notes that the Government refers to the list of persons under section 2.1(hh) of the draft MLC Rules that are not considered as seafarers for the purpose of the Convention. In relation to the exclusion of categories of workers who work occasionally and short term onboard with their principal place of employment being ashore, the Government specifies that “short term” is to be intended as a maximum period of employment onboard of 15 days. The Committee further notes that section 2.1(hh) of the draft MLC Rules excludes from the definition of seafarer “non-marine personnel employed for short term under outsourced service agreements, the terms of which determine the conditions under which the service provider will supply the necessary personnel”. The Committee recalls that for the purpose of the Convention, “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies, including hotel and catering staff and other personnel employed by third contractors. The Committee accordingly requests the Government to adopt the necessary measures to ensure that non-marine personnel working on board employed under outsourced service agreements are considered seafarers under the legislation implementing the Convention.

Article II, paragraphs 1(i), 4, 5 and 7. Definitions and scope of application. Ships. National determination. The Committee notes that the Government refers to various definitions of “vessel” and “ship”, contained in the MLC Rules, 2014, the Ship Registration Act 2007, and the draft MLC Rules. It notes that, while the definition of ship contained in the draft MLC Rules is in line with the Convention, that contained in the Ship Registration Act 2007 excludes “small ships”. The Committee recalls that the MLC, 2006 covers all ships ordinarily engaged in commercial activities, which navigate in areas not excluded by the Convention, regardless of their size. The Committee requests the Government to adopt the necessary measures to harmonize the legal texts implementing the Convention and ensure that they cover all the ships under its scope.

Article V. Implementation and enforcement. The Committee notes that the Government refers to the Maritime Transport Act, 2008, without however mentioning what provisions implement Article V, paragraph 6. The Committee requests the Government to identify, in relation to Titles 1 to 4 of the Convention, the provisions of national legislation which prohibit violations of the requirements of the MLC, 2006, and, in accordance with international law, establish sanctions or require the adoption of corrective measures to discourage such violations.

Regulation 1.1 and the Code. Minimum age. Noting the Government’s reference to the Declaration of Maritime Labour Compliance (DMLC), part I, the Committee observes that the Government has annexed various versions thereof, which refer to different national requirements implementing the provisions on minimum age. In particular, it notes that: (i) the DMLC, part I supplied as Annex 2 refers to the MLC Rules, 2014 and to a minimum age of 16 years; and (ii) the DMLC supplied as Annex 1 refers to the draft MLC Rules under which, the employment, engagement or work on board a ship of any person under the age of 18 is prohibited, and any shipowner wishing to employ a seafarer under 18 years must apply to the competent authority explaining how the seafarer will be employed so as not to jeopardize her/his health and safety (Title 1, section 1). The Committee further notes that the draft MLC Rules do not contain provisions on night work nor on the determination of types of hazardous work prohibited or partially allowed to seafarers under 18 years. In this respect, the Committee notes that the DMLC, part II supplied by the Government indicates that “a risk assessment will be undertaken prior to any young seafarer under the age of 18 commencing work, the findings of which will be used to establish whether to prohibit or restrict the task being undertaken by young seafarers. Young seafarers will be prohibited from undertaking those processes and work tasks as identified as restricted by the flag state and advised in the relevant guidance notice.” The Committee recalls that: (i) under Regulation 1.1 of the Convention, the minimum age to work on board is 16 years; (ii) night work of seafarers under 18 years is prohibited, subject to the exceptions provided under Standard A1.1, paragraph 3; (iii) night work shall be defined in accordance with national legislation and practice in accordance with Standard A1.1, paragraph 2; (iv) Standard A1.1, paragraph 4, requires the absolute prohibition for persons under the age of 18 of the types of work considered hazardous but allows, under Guideline B4.3.10, the determination of types of work which young seafarers cannot undertake without adequate supervision and instruction; and (v) the types of hazardous work prohibited to seafarers under 18 years should be determined in accordance with Standard A1.1, paragraph 4, after consultations with the relevant social partners. The Committee requests the Government to adopt the necessary measures to harmonize its legislation to ensure full compliance with the detailed requirements of Standard A1.1.

Regulation 1.2 and Standard A1.2, paragraph 7. Medical certificate. Period of validity. The Committee notes the Government’s reference to Title 1, section 2 of the draft MLC Rules, which is mostly in line with Regulation 1.2. Referring to its comments under Regulation A1.1, the Committee requests the Government to take the necessary measures to ensure that when the seafarer working on board is between 16 and 18 years of age, the maximum period of validity of the medical certificate is one year (Standard A1.2, paragraph 7(a)).

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreements. Termination. Shorter notice period for urgent reasons. The Committee notes that Title 2, section 1.11, of the draft MLC Rules lists circumstances that may lead to the termination of a contract without notice and without entitlement to a severance payment. The Committee requests the Government to indicate the measures taken to amend section 1.11 of the draft MLC Rules in order to: (i) define “serious misconduct” and (ii) clarify whether cases under this section refer to termination by the shipowner, the seafarer or both.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that Title 2, section 3.4, of the draft MLC Rules provides that “Cook Islands leave to the shipowner discretion the use of the limits set out at paragraph 3.2(a) or (b) (hours of work or hours of rest) accordingly to its ships operations”. The Committee recalls that Regulation 2.3, paragraph 2 and Standard A2.3, paragraph 2 require each country to fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time. It is up to the country to decide which of the two arrangements to choose. However, Standard A2.3, paragraph 2 should not be understood as giving shipowners or masters an option to choose between one or the other systems. The Committee therefore observes that section 3.4 of the draft MLC Rules is not in conformity with Standard A2.3, paragraph 2. The Committee requests the Government to review and amend Title 2, section 3.4, of the draft MLC Rules to ensure full conformity with Standard A2.3, paragraph 2.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee notes that Title 2, section 3.5, of the draft MLC Rules provides, inter alia, that “a SEA or CBA may provide for exceptions to the limits set for rest hours according to the procedures and requirements laid down in paragraph 9 of Section A-VIII/1 of the STCW Code.” The Committee recalls that Standard A2.3, paragraph 13 provides that any exception to the minimum hours of rest or maximum hours of work prescribed by the Convention may only be authorized by collective agreement. It observes thus that the aforementioned section of the draft MLC Rules is not in line with Standard A2.3, paragraph 13 as it provides that exceptions to the limits set for hours of rest may be provided under the SEA. The Committee requests the Government to adopt the necessary measures to amend Title 2, section 3.5, of the draft MLC Rules to give full effect to Standard A2.3, paragraph 13.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2 (a). Repatriation. Circumstances. The Committee notes that that the circumstances for repatriation listed under Title 2, section 5.1, of the draft MLC Rules should be alternative and not cumulative in order to fully comply with Standard A2.5.1, paragraphs 1 and 2. The Committee requests the Government to indicate the measures taken to amend Title 2, section 5.1, of the draft MLC Rules to ensure full compliance with Standard A2.5.1, paragraphs 1 and 2.

Guideline B2.5.1, paragraph 8. Repatriation. Termination of entitlement. The Committee notes that Title 2, section 5.10 of the draft MLC Rules provides that the entitlement to repatriation may lapse if the seafarers concerned do not claim it within two years from the date when the seafarers were repatriated or a reasonable period of time determined by an applicable collective agreement. The Committee requests the Government to clarify this draft provision, indicating how it has given due consideration to Guideline B2.5.1, paragraph 8.

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 Title 2, section 5.3, of the draft MLC Rules mostly reproduces Standard A2.5.1, paragraph 3. 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”.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes the draft MLC Rules provide for some of the requirements of Standard A2.5.2, i.e. the definition of abandonment and the obligation to carry on board documentary evidence of financial security. It notes that the other requirements, although mentioned in examples of the DMLC, parts I and II supplied by the Government, are not regulated by legislation or other measures. The Committee requests the Government to indicate the measures taken to ensure that the detailed requirements of Standard A2.5.2 are fully implemented by national legislation.

Regulation 3.1 and Standard A3.1, paragraphs 20 and 21. Accommodation and recreational facilities. Exemptions. The Committee notes that Title 3 of the draft MLC Rules gives application to Standard A3.1. It further notes that the provisions of the draft provide for most of the exemptions allowed under Standard A3.1, paragraph 20, as well as those for ships of less than 3,000 gross tonnage provided under the same Standard. The Committee further notes that pursuant to Title 1, section 5.4, of the draft MLC Rules, for vessels registered as “yacht” exemptions may be provided to certain requirements in accordance with the provisions of the applicable National Yacht Code, in the limits provided by the MLC, 2006 and after consultation with the National Tripartite Committee. The Committee requests the Government to provide information on any exemptions granted pursuant to the draft MLC Rules upon its adoption.

Regulation 4.1 and Standard A4.1, paragraph 1(b). Medical care on board and ashore. Protection comparable to workers ashore. The Committee notes that Title 4, section 1.1, of the draft MLC Rules provides that “all seafarers working on board a ship must be covered by adequate measures for the protection of their health and must have access to prompt and adequate medical care that is as comparable as possible to that which is generally available to workers ashore in their country of residence.” The Committee requests the Government to take the necessary measures to amend section 1.1 of the draft MLC Rules to ensure its full compliance with Standard A4.1, paragraph 1(b), by clarifying that this provision is addressed to seafarers on board ships flying the Cook Islands flag, and that they must have access to medical care that is as comparable as possible to that which is generally available to workers ashore in the Cook Islands.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that the draft MLC Rules do not include provisions which give effect to Standard A4.2.1, paragraphs 8-14 and Standard A4.2.2. It requests the Government to adopt the necessary measures to implement the detailed requirements of Standard A4.2.1 paragraphs 8-14 and Standard A4.2.2.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that Title 4, section 3, of the draft MLC Rules refers to: (i) standards and guidelines for occupational safety and health protection and accident prevention which have been adopted by the competent authority, after consultation with the seafarers’ and shipowners’ organizations; and (ii) on-board policies and programmes and reporting procedure for occupational accidents, injuries and diseases established by shipowners. In this regard, the Committee recalls that Regulation 4.3 and the Code require Members to adopt laws and regulations setting standards for occupational safety and health protection and accident prevention on ships that fly their flag, which shall be regularly reviewed in consultation with the representatives of shipowners’ and seafarers’ organizations (Regulation 4.3, paragraph 3, Standard A4.3, paragraphs 1-3). The Committee requests the Government to provide information on the laws and regulations adopted pursuant to Regulation 4.3, paragraph 3, indicating how they give effect to the detailed requirements of Standard A4.3. The Committee further notes that the guidelines referred to in Title 4, section 3.3, of the draft MLC, Rules have not been supplied by the Government, nor Schedule V annexed to the draft seems to include a programme, as it does not include objectives to be achieved in a predetermined time frame, priorities and means of action formulated to improve occupational safety and health, and means to assess progress. The Committee requests the Government tosupply a copy of the Guidelines adopted under Regulation 4.3, paragraph 2. The Committee finally notes that, while the Government supplies a model injury/illness report and Schedule V of the draft refers to reporting and investigating accidents, the draft mainly provides for obligations of shipowners without specifying the requirements for investigating occupational accidents nor the obligation of the competent authority to keep, analyse and publish statistics of accidents and diseases, and investigate occupational hazards, as required by Standard A4.3. The Committee requests the Government to provide information on the measures taken to give effect to Standard A4.3, paragraphs 1(d) and 5. Noting the absence of information on the implementation of the 2016 amendments to the Code of the Convention, theCommittee requests the Government toindicate how it has taken into account the implications for health and safety of harassment and bullying (Guideline B4.3.1(4)(d)).

Regulation 4.4 and Standard A4.4, paragraph 3. Access to shore-based welfare facilities. Welfare boards. The Committee notes that Title 4, section 4.5, of the draft MLC Rules provides that the competent authority may take the necessary measures to encourage the establishment of welfare boards. The Committee notes that this provision of the draft is not in full conformity with Standard A4.4, paragraph 3, that requires Members to encourage the establishment of welfare boards. The Committee requests the Government to take the necessary measures to amend Title 4, section 4.5, of the draft MLC Rules to bring it in full conformity with Standard A4.4, paragraph 3. Noting the Government’s information that no welfare boards have been established yet, the Committee request the Government to provide information on any development in this regard.

Regulation 4.5 and the Code. Social security. The Committee recalls 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; sickness benefit; employment injury benefit; maternity benefit and invalidity benefit. It notes, however, that Title 4, section 5.3, of the draft MLC Rules, does not refer to the coverage of seafarers ordinarily resident in the Cook Islands in all the branches specified at the time of ratification (employment injury benefit is missing), thereby not being in full conformity with the Convention. The Committee requests the Government to: (i) indicate the measures taken to ensure that all seafarers ordinarily resident in the country and, to the extent provided for by national law, their dependants, are entitled to benefit from social security protection no less favourable than that enjoyed by resident shoreworkers in the five branches specified at the time of ratification; (ii) provide details on the social security benefits enjoyed by seafarers ordinarily resident in the Cook Islands under the specified social security branches; and (iii) indicate the measures adopted pursuant to Title 4, sections 5.4 and 5.5, of the draft MLC Rules to achieve progressively comprehensive social security protection for all resident seafarers and their dependants, as well as to cooperate, through bilateral or multilateral agreements to ensure the maintenance of social security rights which have been acquired, or are in the course of acquisition, by all seafarers regardless of residence.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. The Committee notes that Title 5, section 3, of the Draft MLC Rules implements Regulation 5.1.3 and the Code. In relation with the DMLC, Part I, the Committee notes that: (i) schedule VII to the draft MLC Rules (model DMLC, part I) does not mention the national provisions giving effect to the requirements of the Convention; and (ii) the two model DMLCs, Part I supplied by the Government refer to different national requirements (i.e. the provisions of the MLC Rules, 2014 (annex 2) and those of the draft MLC Rules (annex 1)). Regarding the example of DMLC, part II supplied by the Government, the Committee observes that it mostly refers to the requirements of the Convention (e.g. “no person under the age of 16 years will be employed…”) and not to the measures adopted to ensure ongoing compliance with the national requirements. The Committee further notes that: (i) Title 5, section 3, of the draft MLC Rules provides that the maritime labour certificate and the DMLC shall conform to the model prescribed by the Rules (section 3.8), at the same establishing that recognized organizations are required to use a form that is compliant with Appendix A5-II (section 3.3) and that the DMLC, part II shall either conform to Schedule VIII of the draft Rules or to Appendix A5-II (section 3.4); and (ii) the models annexed to the draft Rules and the documents supplied by the Government slightly differ from those required by the Convention (Standard A5.1.3, paragraph 9 and Appendix A5-II). The Committee requests the Government to take the necessary measures to ensure that: (i) the DMLC, parts I and II are issued in full conformity with Standard A5.1.3, paragraph 10, giving due consideration to Guideline B5.1.3; and (ii) the maritime labour certificate, the interim maritime labour certificate and the DMLC are drawn up in the form corresponding to the models given in Appendix A5-II. The Government is requested to supply copies of the aforementioned documents.

Regulation 5.2.1 and the Code. Port State responsibilities.Inspections in port. The Committee notes that, while the draft MLC Rules regulate Port State inspections (Title 6) giving effect to Regulation 5.2.1 and the Code, the Government indicates that it has no system of Port State control in place. The Committee requests the Government to provide information on any developments in establishing an effective port State inspection and monitoring system which gives effect to Regulation 5.2.1 and the Code.