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

Maritime Labour Convention, 2006 (MLC, 2006) - Tuvalu (Ratification: 2012)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Tuvalu on 8 January 2019 and 26 December 2020, respectively, and that those approved in 2022 will enter into force for Tuvalu on 23 December 2024.

The Committee notes the efforts made by the Government to implement the Convention and that it has adopted marine notices, guidance and MLC, 2006 related forms to give effect accordingly. The Committee, however, notes that the Government has not provided answers to the questions raised in its previous comment and that it refers in its report to revised provisions of the Merchant Shipping (Maritime Labour Convention, 2006) Regulations which have not been communicated. In this regard, it recalls that Governments are under the duty to provide information on the application of ratified ILO Conventions in law and in practice. It is on the grounds of that information, that the Committee fulfils its duties of assessment of the effective implementation of the ratified Conventions. Therefore, the Committee hopes that the Government’s next report will include answers to all the matters raised below.

Article II of the Convention, paragraphs 1(f), 2, 3 and 7. Scope of application. Seafarers. The Committee noted that according to section 2(1) of the Merchant Shipping (Maritime Labour Convention, 2006) Regulations (thereafter, the Regulations), a seafarer is defined as any person who is employed in any capacity on board a ship to which the Regulations apply. The Committee also noted that this definition contains a list of persons who are not considered seafarers, including: (i) scientists, researchers, divers, specialist off-shore technicians and so forth, whose work is not part of the routine business of the ship; (ii) harbour pilots, inspectors, surveyors, auditors, superintendents, etc. who although trained and qualified in maritime skills and performing key specialist functions, carry out work that is not part of the routine business of the ship; (iii) guest entertainers, repair technicians, port workers whose work is occasional and short term with their principal place of employment being ashore; and (iv) non-marine personnel, employed under outsourced service agreements, the terms of which determine the conditions under which the service provider will supply the necessary personnel. The Committee requests the Government to indicate whether these determinations have been made after consultations with the shipowners’ and seafarers’ organizations concerned, as required by Article II, paragraphs 3 and 7.

Regarding the last element of the list – non-marine personnel – the Committee recalled that under the terms of the resolution concerning information on occupational groups, adopted by the 94th (Maritime) Session of the International Labour Conference in 2006, “Persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board.” The Committee therefore requests the Government to indicate how the decision to exclude non-marine personnel from the definition of “seafarer” in the Regulations takes into account this resolution.

Article II, paragraph 6. Scope of application. Ships under 200 gross tonnage. The Committee noted that section 2(4) of the Regulations provides that where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details in provisions of “this Merchant Shipping (Maritime Labour Convention, 2006) Regulations” to a ship or particular categories of ships, those details will not apply to seafarers on the ship or ships concerned to the extent that those seafarers are covered by other provisions relating to those details and that the other provisions fully implement the relevant provisions of the Regulations of the Convention. Such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations and may only be made with respect to ships of less than 200 gross tonnages not engaged in international voyages. The Committee recalls that the flexibility provided for in Article II, paragraph 6, only pertains to “certain details of the Code” of the Convention, that is, Standards and Guidelines and cannot be extended to the content of its Regulations. The Committee therefore requests the Government to indicate the measures taken to revise section 2(4) of the Regulations to ensure full conformity with the provisions of Article II, paragraph 6, thereby restricting the use of this flexibility in relation to the aspects covered by Standards and Guidelines of the Convention.

Article VI, paragraphs 3 and 4. Concept of substantial equivalence. The Committee noted that the application form for the Declaration of Maritime Labour Compliance (DMLC), Part I, states that “any areas where substantial equivalency or exemption may be required should be highlighted to the Administration for consideration and insertion into the ship specific DMLC Part I”. Marine Circular MC-13/2012/1 also states that after a gap analysis is carried out, the shipowner/operator should, through the completion and submission of the DMLC application form, highlight to the Administration any areas of concern where substantial equivalency or exemption may be permitted. While noting that such possibility for the shipowner to request substantial equivalence is not contained in the Regulations, the Committee recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the Convention. The Committee recalls that explanations are required where a national implementing measure differs from the requirements of Part A of the Code. In particular, the Committee needs information on the reason why the Member was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in Article VI, paragraph 4. The Committee requests the Government to provide detailed information, as explained above, with respect to the adoption of substantial equivalence(s), including concrete examples, and to ensure that any use of such possibility will be regulated and follow the procedure of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age of seafarers. Referring to its previous comment, the Committee observes that the Employment Act, which specifically referred to the minimum age of 15 to work on board a ship and allowed for exceptions to the employment of a person under the age of 15 years to work upon a school-ship or a training-ship, has been repealed and replaced by the Labour and Employment Relations Act 2017. While this last Act sets a lower minimum age than the Convention, the Committee understands that the provisions of the Merchant Shipping Act and the Regulations for crew agreements, in compliance with the minimum age requirement of 16, are considered lex specialis with respect to the employment of seafarers. The Committee takes note of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. Referring to its previous comment, the Committee notes that the Employment Act was repealed and that section 44(1) of the Labour and Employment Act 2017 provides that a child under the age of 18 years must not be employed or work in any hazardous work that by its nature or the circumstances under which it is carried out is likely to jeopardise the child’s health, safety or morals. Section 3(2) of the Regulations also prohibits the employment, engagement or work of seafarers under the age of 18 where the work is likely to jeopardize their health or safety. While noting this information, the Committee observes that, under Marine Circular MC-9/2012/1 on health and safety issues for seafarers under the age of 18 and hazardous work, a ship owner/operator shall address in their Shipboard Occupational Health and Safety Program (SOHSP) the safety and health of young seafarers and, specifically, restrictions on work considered hazardous for those under the age of 18. Potentially hazardous activities are to be determined by the ship owner / operator in the development of their SOHSP. The Committee draws the Government’s attention to the fact that the responsibility to determine the types of work which are potentially hazardous and likely to jeopardize the health and safety of young seafarers under the age of 18 years does not lie with the shipowner or operator and that the types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. The Committee recalls that the Convention, under 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. The Committee requests the Government to review Marine Circular MC-9/2012/1 to ensure full conformity with Standard A1.1, paragraph 4, clearly distinguishing between types of work that are to be prohibited, without exception, and those that can only be undertaken under adequate supervision and instruction and to provide information on the progress made in this regard.

Regulation 1.2 and Standard A1.2, paragraph 8. Medical certificate. Validity. Exception. Referring to its previous comment, the Committee notes that the Employment Act was repealed and there are no longer possible exceptions to the requirement for a seafarer to work without a valid medical certificate in urgent cases, without the safeguards of Standard A1.2, paragraph 8. The Committee takes note of this information, which addresses its previous request.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee notes that the Government refers, in its report, to regulations 7(9) and 8(6) of the Regulations as giving effect to the requirements of Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. While noting this information, the Committee, however, observes that the Government has not submitted the revised version of the Regulations which include the above-mentioned provisions and that the version published on Tuvalu’s Ship Registry has not been revised. The Committee requests the Government to indicate the measures taken to give effect to these provisions of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee noted that while the DMLC, Part I, only refers to the minimum hours of rest regime, section 9(2) and (4) of the Regulations reproduces the provisions of Standard A2.3, paragraph 5, thereby providing for the alternative between maximum hours of work and minimum hours of rest. The Committee recalls that, under Standard A2.3, paragraph 2, each Member shall fix either a maximum number of hours of work or a minimum number of hours of rest. The Committee considers that the determination of the system of hours of work or hours of rest has to be made by the competent authority and cannot be left to collective agreements or to the selective application by shipowners or masters. The Committee requests the Government to take the necessary measures to fix either a maximum number of hours of work or a minimum number of hours of rest in conformity with these provisions of the Convention.

The Committee noted that, as provided in Standard A2.3, paragraph 13, section 9(12) of the Regulations stipulates that the competent authority may authorize or register collective agreements permitting exceptions to the limits set out regarding minimum hours of rest and maximum hours of work. Noting the absence of information in this regard, the Committee requests the Government to indicate if any such agreement has been authorized and, if so, to provide a copy of it.

Regulation 2.4 and the Code. Entitlement to leave. The Committee noted that section 10(4) of the Regulations stipulates that any agreement to forgo the minimum annual leave with pay, except in cases provided for by the competent authority, is prohibited. 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 ensure that any agreements to forgo the minimum annual leave with pay is prohibited, except in specific cases restrictively provided for by the competent authorities.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes that the Government refers to Regulation 11.2 of the Regulations as giving effect to the requirements of the 2014 amendments to the MLC, 2006. While noting this information, the Committee observes that the Government has not submitted the revised version of the Regulations which include the above-mentioned provisions and that the version published on Tuvalu’s Ship Registry has not been revised. The Committee requests the Government to indicate the measures taken to give effect to Standard 2.5.2 and to provide a copy of a standard certificate or other documentary evidence of financial security containing the information required in Appendix A2-I (Standard A2.5.2, paragraph 7).

Regulation 2.7. Manning levels. The Committee noted that section 13(2) of the Regulations refers to the need to take into account the requirements concerning food and catering when determining, approving or revising manning levels. It notes, however, that nor the DMLC, Part I, nor the sample manning document contained in the Merchant Shipping (STCW Convention, 2010) Regulations to which the Government refers, mention ship’s cook or catering staff. The Committee recalls that, under Standard A2.7, paragraph 3, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering when determining manning levels. The Committee requests the Government to indicate the measures taken to ensure that full effect is given to these provisions of the Convention.

Regulation 4.2 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In its previous comments, the Committee requested the Government to provide information on the implementation of Standards A4.2.1 and A4.2.2. The Committee notes that the Government refers to regulation 18.9 to 18.18 of the Regulations as giving effect to the requirements of the 2014 amendments to the MLC, 2006. While noting this information, the Committee, observes that the Government has not submitted the revised version of the Regulations which include the above-mentioned provisions and that the version published on Tuvalu’s Ship Registry has not been revised. The Committee requests the Government to indicate the measures taken to give effect to Standard 4.2.2 and to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. Referring to its previous comment, the Committee notes the Government’s indication that the previous and only shore-based welfare facility available for seafarers visiting Tuvalu ceased operation. The Government, however, states that Tuvalu flag State may consider the development of a shore-based welfare facility available for seafarers visiting Tuvalu, subject to availability of funding and support. In light of this information, the Committee requests the Government to provide information concerning any progress achieved in this regard.

Regulation 4.5 and Standard A4.5. Social security. The Committee noted that in accordance with Standard A4.5, paragraphs 2 and 10, the Government has specified at the time of ratification that protection would be provided for the following branches of social security: medical care; sickness benefit and employment injury benefit. The Committee noted that according to section 21 of the Regulations, the competent authority shall cooperate, through bilateral or multilateral agreements or other arrangements, to ensure the maintenance of social security rights, provided through contributory or non-contributory schemes, which have been acquired, or are in the course of acquisition, by all seafarers regardless of residence. The Committee requests the Government to specify whether Tuvalu participates in any such bilateral or multilateral arrangements regarding the provision of social security protection to seafarers (Standard A4.5, paragraphs 3, 4 and 8). It further requests the Government to indicate if consideration has been given to ways to provide benefits to non-resident seafarers working on ships flying its flag who do not have adequate social security coverage (Standard A4.5, paragraphs 5 and 6).

Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee noted the Government’s indication that inspection and certification functions under the Convention have been delegated to a number of recognized organizations listed in Marine Circular MC-13/2012/1. The Committee notes, however, that the Government has not provided examples of the agreements signed with such organizations. The Committee accordingly requests the Government to provide copies of such agreements.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance (DMLC). The Committee noted that the DMLC, Part I, form available on the Tuvalu Ship Registry’s website, contains concise information on the main content of the national requirements embodying the relevant provisions of the Convention on the list of 16 matters to be inspected. However, the form does not contain the necessary reference to the national legal provisions, as required under Standard A5.1.3, paragraph 10(a). Moreover, under certain items, the DMLC, Part I, does not accurately reflect the content of the national legislation. This is the case for example under item 6 (hours of work or rest), where the DMLC indicates that the national system is based on hours of rest, whereas the national legislation provides for an option between hours of work and hours of rest. The Committee recalls that the DMLC, Part I, must identify the national requirements, as contained in the legislation. The Committee requests the Government to review the DMLC, Part I, in order to ensure that it identifies the national requirements embodying the relevant provisions of the Convention by providing a reference to the relevant national legal provisions as well as, to the extent necessary, concise information on the main content of the national requirements.

In addition, the Committee observed that the DMLC, Part II, is a blank form and is not an 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 requests the Government to provide one or more examples of an approved DMLC, Part II.

Regulation 5.2 and the Code. Port State responsibilities. The Committee noted the information provided by the Government according to which Tuvalu is not a member of any Memorandum of Understanding (MoU) on Port State Control. The Committee also noted that under section 23(3) of the Regulations, the competent authority shall establish an effective port State inspection and monitoring system to help ensure that the working and living conditions for seafarers on foreign ships entering a port of Tuvalu meet the requirements of the Convention including seafarers’ rights. The Committee noted, however, that the Government has not provided information about the actual development of this system by the competent authorities nor about its implementation in practice. The Committee requests the Government to provide detailed information in this regard.