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Maritime Labour Convention, 2006 (MLC, 2006) - Falkland Islands (Malvinas)

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Falkland Islands (Malvinas)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code of the Convention approved by the International Labour Conference in 2014 and 2016 entered into force for the Falkland Islands (Malvinas) at the same time as the Convention. It also notes that a declaration of acceptance of the 2018 amendments to the Code has not been received and therefore the Falkland Islands are 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 refers to the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by the Falkland Islands during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. The Committee notes that section 3 of the Maritime Labour Ordinance 2019 provides that “seafarer” means any person, including the master, who is employed or engaged or works in any capacity on board a ship, but does not include a person whose normal place of work is not on board a ship. The Committee has not been able to find a concrete definition of what is meant by “whose normal place of work is on the ship”. The Committee considers that, in order to avoid legal uncertainties, clear criteria should be adopted to determine which are the categories of workers whose normal place of work is not on board a ship and who are therefore not to be considered seafarers for the purpose of the Convention. The Committee requests the Government to provide any existing legal definition for the term ‘whose normal place of work is on the ship’ or information on the adoption of precise criteria to define the categories of persons which are not regarded as seafarers, after consultations with the shipowners’ and seafarers’ organizations concerned as required by Article II, paragraph 3.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that, under section 5(1) of the Maritime Labour Ordinance 2019, “where the Governor determines from time to time that it would not be reasonable or practicable to apply any provision of this Ordinance, or any regulations made under this Ordinance, to any ship, the Governor may exempt that ship, or particular categories of ships, either generally or for such time or such voyage as the Governor may determine”. The Committee observes that this provision seems to allow for the partial or total exclusion of the application of the legislation implementing the Convention to a ship or category of ships. Recalling that the Convention applies to all ships as defined in Article II, paragraph 1(i), regardless of tonnage, whether publicly or privately owned, ordinarily engaged in commercial activities, other than those excluded by Article II, paragraph 4, the Committee requests the Government to clarify the scope of section 5(1) mentioned above and to indicate how it ensures that the protection afforded by the Convention is guaranteed to all seafarers working on board ships within the meaning of the Convention.

The Committee also notes that section 5(2) of the abovementioned Ordinance states that “[i]n the case of a ship to which Part 2 [conditions of employment and engagement of seafarers] applies, the Governor may only grant an exemption from the requirements of that Part, or any regulations made under it, if the ship - (a) is of less than 200 gross tonnage; (b) is not engaged on an international voyage; and (c) the Governor has first consulted organisations in the Falkland Islands appearing to the Governor to be representative of the interests of shipowners and seafarers”. The Committee recalls that the flexibility provided under Article II, paragraph 6 of the Convention is limited to the application of “certain details of the Code”, that is, Standards and Guidelines. The Committee accordingly requests the Government to ensure that any exemption that may be granted under section 5 of the Maritime Labour Ordinance 2019 is done within the framework of the Convention and to communicate information on any such exemptions, with its next report.

Article III. Fundamental rights and principles. The Committee notes that the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Minimum Age Convention, 1973 (No. 138) are not declared applicable to the Falkland Islands. The Committee notes that the Government refers to the Equal Employment Rights Ordinance 1998 but does not provide any information on how it ensures the elimination of discrimination during the recruitment and selection process of seafarers made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin. The Committee requests the Government to provide information on its laws and regulations which give effect to and are in conformity with the fundamental rights and principles of Convention No. 111.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes the Government’s indication that no substantial equivalences regarding crew accommodation have been adopted. The Committee observes however that, according to regulation 35 of the Maritime Labour (General Requirements under the Maritime Labour Convention) Regulations 2019, “[i]n respect of a particular ship, or ships of a particular description, the Governor may approve arrangements which, when taken together with the conditions to which the approval is subject, the Governor considers are substantially equivalent to the requirements which are set out in the United Kingdom Merchant Shipping Notice 1844(M)”. The Committee observes that there is no indication as to what are the conditions to which the approval is subject. The Committee draws the Government’s attention to the fact that the concept of substantial equivalence is not a matter for administrative discretion but has to be decided by a Member following the requirements of the Convention. The Committee requests the Government to provide detailed information with respect to the adoption of substantial equivalence(s) and to ensure that any use of such possibility will be clearly regulated and follow the requirements of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee notes the Government’s indication that regulation 25 of the Maritime Labour Ordinance 2019 provides that a person under 16 years of age must not be employed or engaged in a ship. The Committee, however, observes that Part IV of Employment of Women, Young Persons and Children Ordinance 1967 sets the minimum age to be employed or work on vessels at 15 years and allows exceptions to this limit for vessels upon which only members of the same family are employed as well as for training purposes. The Committee requests the Government to indicate the measures taken or envisaged to harmonize its legislation in order to ensure its full conformity with the minimum age requirement of Standard A1.1.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that, while regulation 7(4) of the Maritime Labour (General Requirements under the Maritime Labour Convention) Regulations 2019 prohibits hazardous work for seafarers under the age of 18, regulation 7(6) of these Regulations authorizes exceptions to this prohibition in so far as that activity is indispensable for their vocational training and is performed under the supervision of a competent person, and in such case, the duty shall be to ensure, so far as is reasonably practicable, the health and safety of the young person when performing that activity. 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 accordingly requests the Government to specify how it gives full effect to Standard A1.1, paragraph 4, clearly distinguishing between types of work that are prohibited and those that can only be undertaken under adequate supervision.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate. Right to have a further examination. The Committee notes that regulation 66(1)(c) of the Maritime Labour (General Requirements under the Maritime Labour Convention) Regulations 2019 provides that “a person who is aggrieved by…, the suspension for a period of more than three months or cancellation of that certificate by a medical practitioner pursuant to regulation 65, may apply to the Governor for the matter to be reviewed by a single medical referee appointed by the Governor”. The Committee observes that this provision is not in conformity with Standard A1.2, paragraph 5, which allows – without any restriction – seafarers who have been refused a certificate or have had a limitation imposed on their ability to work to have a further examination by another independent medical practitioner or by an independent medical referee. The Committee requests the Government to indicate the measures taken or envisaged to ensure full conformity with Standard A1.2, paragraph 5.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that there are no private recruitment and placement services operating in its territory. The Committee requests the Government to provide information on any developments in this regard. It also requests the Government to indicate how seafarers working on board Falkland Islands vessels are recruited.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes that the Government has adopted a system of hours of rest. The Committee observes that the national legislation does not indicate the normal working hours standard for seafarers, nor does it include measures that have been adopted for seafarers under the age of 18. Recalling the principle of eight-hours per day with one day of rest per week and rest on public holidays, the Committee requests the Government to indicate how it ensures that the normal working hours for seafarers are in full compliance with the requirements of Standard A2.3, paragraph 3, giving due consideration to Guideline B2.3.1.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes that under regulation 47 of the Maritime Labour (General Requirements under the Maritime Labour Convention) Regulations 2019, the shipowners’ duty to repatriate ends, inter alia, when the shipowner makes reasonable arrangements for repatriation which are unsuccessful because of the seafarer’s unreasonable conduct (47(b)); the shipowner has used reasonable endeavours to contact the seafarer for a period of three months or more, but has been unable to make such contact (47(c)); the seafarer confirms in writing to the shipowner that repatriation is not required (47(d)). The Committee recalls that the Convention does not provide that the right to repatriation ends when the circumstances provided under Standard A2.5.1, paragraph 1, are met. The only case in which this right may lapse in conformity with the Convention is contemplated under Guideline B2.5.1, paragraph 8, in the case in which the seafarers concerned do not claim that right within a reasonable period of time to be defined by national laws or regulations or collective agreements. The Committee requests the Government to indicate the measures taken or envisaged to ensure that any provision of national legislation which deprives seafarers of their right to repatriationis limited to the circumstances allowed by the Convention. It requests the Government to indicate how regulation 47 is implemented in practice, specifying how the “seafarer’s unreasonable conduct” is determined and the standard of proof with regard to regulation 47(b) and (c).

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 according to regulation 49(3) of the Maritime Labour (General Requirements under the Maritime Labour Convention) Regulations 2019, if a seafarers’ employment agreement contains a provision under which the seafarer must reimburse repatriation costs where the agreement is terminated because of the seafarer’s serious misconduct and that obligation arises, a deduction equivalent to those costs may be made from the wages due to the seafarer under that agreement. The Committee recalls that, while the shipowner may recover the cost of the repatriation under the limited circumstances mentioned in Standard A2.5.1, paragraph 3, this does not release the shipowner from the obligation to pay for the repatriation in the first instance. In light of the above, the Committee requests the Government to indicate how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. The Committee further requests the Government to provide information on the procedure to be followed and the standard of proof to be applied in order for a seafarer to be found liable for serious misconduct.

Regulation 2.8 and the Code. Career and skill development and employment opportunities. The Committee notes the Government’s indication that there are currently no policies in place on this issue for seafarers domiciled in the Falkland Islands. The Committee requests the Government to provide information on the measures taken to give effect to Regulation 2.8 and the Code.

Regulation 3.1 and Standard A3.1, paragraph 2(a). Accommodation and recreational facilities. Implementation. The Committee requests the Government to indicate how the laws and regulations establishing the minimum standards for seafarers’ on-board accommodation and recreational facilities take account of the requirements of Regulation 4.3 and the Code regarding occupational safety and health and accident prevention.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee notes that regulations 8(1) and 10(8) of the Maritime Labour (Survey and Certification under the Maritime Labour Convention) Regulations 2019 implement the requirements set out in Standard A3.1, paragraph 3 for ships of 500 gross tonnage or above. The Committee requests the Government to indicate how inspections required under Regulation 5.1.4 are carried out when: (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered for ships under 500 gross tonnage that are not subject to regulations 8((1) and 10(8) of the Maritime Labour (Survey and Certification under the Maritime Labour Convention) Regulations, 2019, and to provide the relevant legislative or regulatory references.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, the Falkland Islands declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit, old-age benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit. The Committee also notes that the benefits provided for under the Public Health Ordinance 1894 and the Employment Protection Ordinance 1989 apply to residents in the Falkland Islands. With respect to invalidity benefits and survivors’ benefits, the Committee notes that section 33(1) of the Workmen’s Compensation Ordinance 1960 provides that this Ordinance applies to masters, seamen and apprentices to the sea service, provided that such persons are workmen within the meaning of this Ordinance, and are members of the crew of any ship registered in the Falkland Islands or of any other British ship or vessel of which the owner, or (if there is more than one owner) the managing owner, or manager resides or has his principal place of business in the Falkland Islands. The Committee requests the Government to provide clarifications as to the coverage of seafarers who are resident in the Falkland Islands (i) when they work on a ship flying the flag of the Falkland Islands, orany other British ship or vesselbut whose owner or manager does not reside or have his or her principal place of business in the Falkland Islands; and (ii) when they work on ships that fly the flag of another country. The Committee further requests the Government to provide statistics on the number of non-resident seafarers working on ships flying its flag, and whether consideration has been given to ways to provide benefits for those who do not have adequate social security coverage (Standard A4.5, paragraphs 5 and 6).

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance.Content. The Committee notes that the copy of the DMLC, Part I, provided by the Government refers to the United Kingdom legislation and provides information on the requirements under such legislation, which are however not specific to the Falkland Islands as there is no reference to the provisions adopted by the Government of the Falkland Islands. The Committee also notes that the DMLC, Part I also lists the substantial equivalent measures adopted by the United Kingdom, whereas the Government of the Falkland Islands indicates in its report that no substantially equivalent measures have been adopted. The Committee requests the Government to indicate the measures taken or envisaged to amend the DMLC, Part I, in accordance with Standard A5.1.3, paragraph 10 of the Convention, and to provide a copy with its next report.

Regulation 5.1.4 and Standard A5.1.4, paragraphs 5, 10 and 11(b). Flag State responsibilities. Procedures for receiving and investigating complaints, and ensuring that their source is kept confidential. The Committee notes the provisions under regulation 94 of the Maritime Labour (General Requirements under the Maritime Labour Convention) Regulations 2019 relating to on-board and on-shore complaints. The Committee requests the Government to provide information as to how the procedures established to receive and investigate complaints regarding ships that fly its flag are implemented in practice.

Regulation 5.1.4 and Standard A5.1.4, paragraph 12. Flag State responsibilities.Reporting on inspections. TheCommittee requests the Government to specify how it ensures that inspectors submit a copy of the inspection report to the master and that another copy is posted on the ship’s notice board for the information of the seafarers, and upon request, sent to their representatives, as required by Standard A5.1.4, paragraph 12.

Additional documents requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee requests the Government to provide the following documents: an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see guidance in Guideline B4.1.2, paragraph 1); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2.1, paragraph 1(b)); the following statistical information: (i) number of ships flying your country’s flag that were inspected for compliance with the requirements of the Convention; (ii) number of inspectors, appointed by the competent authority or by a duly authorized recognized organization, carrying out those inspections; (iii) number of full-term (up to five years) maritime labour certificates currently in force; and (iv) number of interim certificates issued (Standard A5.1.3); and a copy of a document, if any, that describes the onshore complaint-handling procedures (Standard A5.2.2).