Demande directe (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention du travail maritime, 2006 (MLC, 2006) - Malaisie (Ratification: 2013)

The Committee notes the Government’s third 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 2022 will enter into force for the Republic of Malaysia on 23 December 2024.

Impact of the COVID-19 pandemic. In this regard, the Committee notes the Government’s indication that Malaysia Marine Department (MMD) had taken temporary measures to uphold seafarers’ rights during the COVID-19 pandemic considering that shipping is classified as an essential service industry under the Industrial Relation Act 1967, and that seafarers are recognized as key workers to support the industry. The Government adds states that Shipping Notices issued during the COVID-19 pandemic context no longer apply. The Committee takes note of this information.

Article I of the Convention. General questions on application. Implementing measures. The Committee observes that the provisions of the Convention are mainly implemented by the Merchant Shipping Ordinance, 1952, as amended and through Shipping Notices. The Committee notes the Government’s indication that it is engaged in consultations with social partners through the National Special Tripartite Committee engagement on several matters previously raised by the Committee. The Committee observes that a number of detailed provisions of the Convention have yet to be given effect. The Committee requests the Government to adopt the necessary laws and regulations and other measures without further delay with a view to implementing measures for the application of the Convention, taking into account the points raised below, and to provide copies of the relevant texts once they have been adopted.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. The Committee requested the Government to amend section 2 of the Merchant Shipping Ordinance, 1952, as amended by the Merchant Shipping Ordinance (Amendment) Act, according to which the following categories, inter alia, are excluded from the definition of seafarer: (a) a person not directly employed for the normal manning of the ship within the deck, engine or catering department; (e) any person whose work is not part of the routine business of the ship; (h) non-marine personnel, employed under outsourced service agreement. The Committee observes that Marine Notice NPM 07/2013 is also not in conformity as it excludes under paragraph 4(iv) and 4(vii) respectively persons whose work is not part of the routine business of the ship as well as 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 notes the Government’s indication that MMD is currently engaged in consultations with social partners of the National Special Tripartite Committee engagement on this matter. It states that the primary focus of these discussions is to refine and standardize the definition and applicability of “seafarer” within the Ordinance and that the outcome is expected to be finalized by the first quarter of 2025. Recalling the importance of ensuring that all seafarers benefit from the protection provided by the Convention, the Committee requests the Government to adopt the necessary measures without delay to give full effect to this requirement of the Convention and to provide information on the progress made in this regard.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that, in response to its previous request, the Government indicates that MMD stands guided with respect to the possibility under section 73(2)(b) of the Merchant Shipping Ordinance, 1952, as amended, to exempt seafarers between the age of 16 and 18 from the prohibition of undertaking hazardous work when they undergo an approved training programme and refers to the ILO Guidelines for Implementing the Occupational Safety and Health Provisions of the MLC 2006, and the Port (Safety Workers Rules) 1985. The Committee observes that the Government states that, to date, no exemption has been issued to seafarers between age 16 and 18 to conduct hazardous work onboard without approved training. 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. Noting the Government’s indication that MMD is consulting social partners through the National Special Tripartite Committee engagement on this matter, the Committee requests the Government to take the necessary measures 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 5. Medical Certificate. Right to have a further examination. The Committee notes that, in response to its previous request, the Government indicates that the amendment to the Merchant Shipping (Medical Examination) Rules 1999 and to Shipping Notice NPM 05 /1999 on Medical and Eyesight Standards is still in progress. The Government, however, indicates that rule 9 of the Merchant Shipping (Medical Examination) Rules 1999, as currently drafted, states that a seafarer has a right of appeal without mentioning a restriction of such right for new entrants at their first examination, in compliance with the requirement of the Convention. Observing that Shipping Notice NPM 05/1999 on Medical and Eyesight Standards still imposes a limitation for new entrants at their first examination to have a right of appeal, the Committee requests the Government to align these Standards with the Rules and the requirements of Standard A1.2, paragraph 5 for all seafarers that have been refused a certificate or have had a limitation imposed on their ability to work to have a right of appeal, without exception, including new entrants and to transmit copy of the amended provisions once adopted.

Regulation 1.4 and the Code. Recruitment and placement. Referring to its previous comments, the Committee notes the Government’s indication that it will issue a specific instruction, as provided for under section 121 of the Merchant Shipping Ordinance, 1952, as amended, in support to Shipping Notice NPM 07/2013 specifying the obligations of private recruitment and placement services. The Committee requests the Government to provide information on any developments in this regard.

Regulations 2.1 and 2.2 and Standard 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. The Committee notes that Shipping Notice MSN 25/2020 was issued to inform shipowners/managers of the requirement of the 2018 amendments to the MLC, 2006 to be implemented accordingly. The Committee notes the Government’s indication that MMD is updating the SEA guidelines and is consulting social partners through the National Special Tripartite Committee engagement on the matter. The Committee requests the Government toprovide updated information on the progress made to give effect to the requirements of Standard A2.1, paragraph 7 and Standard A2.2, paragraph 7 of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition to forgo paid annual leave. Exceptions. Noting the Government’s indication that, up to date, no agreement has been granted by MMD to forgo the minimum annual leave pay, the Committee takes note of this information andrequests the Government to inform it of any authorizations granted in the future, pursuant to section 91(3) of the Merchant Shipping Ordinance, 1952, as amended.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. In reply to the Committee’s previous comment, the Government states that Shipping Notice NPM 07/2013 states in the model format for a seafarer employment agreement attached under Appendix 2, Note 10, that the maximum period of service following which a seafarer will be entitled to repatriation is to be not more than 52 weeks minus the period of statutory paid annual leave. While noting this information, the Committee recalls that Standard A2.5.1, paragraph 2(b) provides that each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or in collective bargaining agreements, prescribing the maximum duration of service periods on board following which a seafarer is entitled to repatriation. The Committee requests the Government toadopt the necessary measures without delay to ensure that full effect is given to these provisions of the Convention and to provide updated information on the progress made in this regard.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. The Committee notes that Shipping Notice NPM 07/2013 refers to the destination of repatriation in the model format for a seafarer employment agreement attached under Appendix 2, Note 9. The Committee, however, observes that the national provisions do not prescribe the precise entitlements accorded by shipowners for repatriation, including those relating to the mode of transport, the items of expense to be covered and other arrangements to be made by shipowners. The Committee requests the Government to adopt the necessary measures without delay to regulate the precise entitlements to be accorded by shipowners for repatriation as required under Standard A2.5.1, paragraph 2(c).

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that, in response to its previous request, the Government indicates that all Malaysian flagged ships have to comply with Standard A3.1, especially those that are required to carry a DMLC Part I and II, operating in international voyages. It states that, in accordance with MMD Recognized Organization (RO) Instructions 2022, ROs issue a Crew Accommodation Certificate for compliance with the MLC, 2006 or the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133) for ships built before 20 August 2014. The Government further indicates that a MMD guideline is in the process of being drafted for domestic ships and small ships of less than 500GT, in consultation with social partners through National Special Tripartite Committee engagement. While noting this information, the Committee, however, observes that the provisions of MMD Recognized Organization (RO) Instructions 2022 remain of general nature without giving effect to the detailed requirements of Regulation 3.1 and the Code. The Committee recalls that Standard A3.1 calls on Members to adopt laws and regulations in order to ensure that ships flying its flag meet minimum standards for accommodation and recreational facilities. The Committee requests the Government to adopt the necessary measures without delay to give effect to Regulation 3.1 and the Code, for both certified ships and non-certified ships and to provide updated information on the progress made in this regard.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Food and Catering. Organization and equipment. In reply to the Committee’s previous comment, the Government indicates that the requirements of the catering department, its training and certification are provided for in the newly amended draft of the Merchant Shipping (Training & Certification) Rules which is being finalized and heading toward the gazetting procedure. Noting the Government’s indication that the relevant regulations are being amended, the Committee requests the Government to take the necessary measures to give full effect to Standard A3.2, paragraph 2(b) and to provide a copy once it has been adopted.

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee notes the Government’s indication, in reply to its previous comment, that based on the information and the assistance which may be offered by P&I, BlueMed and the International Radio Medical Centre, MMD is consulting with social partners through the National Special Tripartite Committee engagement in order to discuss how to align the real-time 24-hour medical advice to the crew onboard. The outcome of these discussions will be standardized via the Company’s Safety Management System compliance of the International Safety Management (ISM) Code. The Committee requests the Government toprovide updated information on the progress made in this regard.

Regulation 4.1, paragraph 3. Medical care on board and ashore. Access to on shore medical facilities for seafarers on board foreign ships. The Committee notes that the Government has not provided information on the measures adopted to give effect to Regulation 4.1, paragraph 3 regarding the obligation to ensure that seafarers on board ships in Malaysian territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee therefore requests the Government to adopt without delay the necessary measures to comply with this requirement of the Convention.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the provisions to which the Government refers only cover limited aspects of the shipowners’ liability under Regulation 4.2. The Committee recalls that Standard A4.2.1, paragraph 1, provides for the adoption of laws and regulations requiring that shipowners of ships that fly the Member’s flag are responsible for health protection and medical care of all seafarers working on board the ships in accordance with the minimum standards provided for in paragraphs 1 and 3 of this Standard, with the possible limitations and exemptions envisaged in paragraphs 2 and 4 to 6.The Committee requests the Government to adopt the necessary measures without delay to give full effect to Regulation 4.2 and Standard A4.2.1, paragraphs 1 to 7.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that, in response to its previous request, the Government refers to paragraphs 50 to 52 of Shipping Circular NPM 07/2013 which cover the duties of the shipowner with respect to health and safety protection of seafarers. The Committee, however, observes that these provisions are of a general nature and, although they address some matters, they do not give effect to the detailed requirements of Regulation 4.3 and the Code. The Committee recalls that Members are required to develop and promulgate national guidelines for the management of occupational safety and health, taken to protect seafarers that live, work and train on board ships flying its flag and to adopt laws and regulations and other measures addressing the matters specified in the Code, as provided for under Regulation 4.3, paragraphs 2 and 3. Under Standard A4.3, paragraphs 1 and 2, Members are also required to develop concrete measures, such as policies and programmes, and on-board programmes for the prevention of accidents and injuries, as well as requirements for the reporting and investigation of on-board occupational accidents, which detail the respective obligations of shipowners, masters, seafarers and others concerned. The Committee requests the Government to adopt necessary measures without delay to give effect to Regulation 4.3, paragraphs 2 and 3, and to the detailed requirements of Standard A4.3 and to provide updated information on the progress made in this regard.

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. Referring to its previous comments, the Committee notes the Government’s indication that additional measures with respect to the requirements of the ship’s safety committee and the necessity to take into account changes in technology and research in order to facilitate continuous improvement in occupational safety and health policies and programmes will be discussed by the National Special Tripartite Committee. The Committee requests the Government to take the necessary measures to give full effect to this requirement of the Convention and to provide information on the progress made in this regard.

Regulation 4.5 and the Code. Social security. In reply to the Committee’s previous comment, the Government indicates that MMD is gathering information on all Malaysia-registered seafarers working onboard foreign ships by collaborating with the Seafarer Management Centre and all Malaysia active private licensed recruitment and placement services and that the statistics will be provided to the Committee at a later date. The Government, however, states that MMD has no control and no statistics with respect to Malaysia citizens holding seafarer certification issued by foreign issuing countries, and working onboard foreign-flagged ships and that inter-agencies engagement is needed on this matter. The Committee requests the Government to adopt the necessary measures to be able to gather information regarding seafarers resident in the country working on board ships that fly the flag of another country and to provide information as tothe social security protection afforded to them.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee observes that section108(2)(a) of Merchant Shipping Ordinance, 1952, as amended, provides that [t]he scheme set out in the Employees Provident Fund Act 1991 shall apply to seafarers who are not Malaysians or permanent residents of Malaysia if they elect to contribute.” The Committee requests the Government to clarify whether, in the cases of voluntary affiliation, the financial burden is shared by both the employer and the employee, in compliance with the principle of equality of treatment between seafarers and shoreworkers established by Regulation 4.5, paragraph 3.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance. Content. Referring to its previous comments, the Committee notes the Government’s indication that the amended DMLC, Part I, will be issued via Malaysia Shipping Notice taking also into account the Amendments of 2022 to the MLC, 2006 and all the issues highlighted via the consultation of social partners through the National Special Tripartite Committee engagement. The Government states that the Notice will be shared as soon as it is available. Bearing in mind the crucial importance of this document for the enforcement of the Convention, the Committee requests the Government to adopt the necessary measures without delay to ensure full conformity with Standard A5.1.3, paragraph 10 of the Convention.