CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Samoa (RATIFICATION: 2013)

Other comments on C186

Direct Request

2022
2021
2020
2017

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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, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with serious concern the impact of the COVID-19 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.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

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 no other Conventions on maritime labour had previously been ratified by Samoa. The Committee also notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Samoa on 18 January 2017. 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.

General questions on application. Implementing measures. The Committee notes the existing legislation which gives effect to a number of provisions of the Convention, in particular the Shipping Act 1998 and the Standards of Training, Certification and Watchkeeping for Seafarers (STCW) Regulations 2014 (hereafter STCW Regulations 2014), as well as the Labour and Employment Relations Act 2013 (LERA) and the Labour and Employment Relations Regulations 2016. The Committee notes the Government’s indication that it is working on draft maritime Regulations that were however not made available to the Committee. It hopes that these Regulations will be adopted in the near future and will give full effect to the Convention. It encourages the Government to take into account its comments when finalizing the draft Regulations and to ensure full compliance with the requirements of the Convention regarding consultations. It requests the Government to provide a copy of the Regulations once adopted.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age of seafarers. The Committee notes that section 150 of the Shipping Act 1998 provides that no person under the age of 16 years shall be employed as a seaman in a vessel, but that, with the approval of the Principal Shipping Officer, a person under the age of 16 years may be employed in: (a) a vessel in which only members of the same family are employed; or (b) a school vessel or a training vessel. The Committee further notes that the STCW Regulations 2014 prohibits the employment, engagement or work of seafarers under 16 years with the exceptions provided for in section 150 of the Shipping Act 1998. Moreover, it notes that section 51(3) of the LERA states that the minimum age to employ a child on a vessel is 15, but that this does not apply to vessels under the charge of the parent or guardian of the child. Recalling that Standard A.1, paragraph 1, prohibits the employment, engagement or work of seafarers under the age of 16 and that no exceptions are permitted in this respect, the Committee requests the Government to take steps to amend its legislation to give full effect to this provision of the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Determination of types of work which are likely to jeopardize the health and safety of seafarers under 18 years of age. The Committee notes that section 7, paragraph 2(a), of the STCW Regulations 2014 prohibit the employment, engagement or work of seafarers under the age of 18 where the work is likely to jeopardize their health or safety. The Committee notes that section 51(2) of the LERA states that a person must not employ a child under the age of 18 years on dangerous machinery or in any occupation or in any place under working conditions injurious or likely to be injurious to the physical or moral health of such child. It also notes the Government’s indication that the Ministry of Commerce, Industry and Labour (MCIL) is in the process of developing a list of hazardous work for seafarers under 18 years of age. The Committee recalls that according to Standard A1.1, paragraph 4, the types of such work shall be determined after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. The Committee requests the Government to provide a copy of this list once adopted and to provide details about the process of consultation.

Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. The Committee notes that according to section 114, paragraph 1, of the Shipping Act 1998, no person is employed on a vessel as a seaman unless there is in force an employment agreement approved by the Principal Shipping Officer, in writing in both English and Samoan, between the owner, or licensed agent, or master and the seaman. 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 to be the employer of the seafarer). The Committee notes, in this connection, that the provision of the Shipping Act 1998 cited above is not clear as to who is the responsible party for seafarers’ living and working conditions. The Committee requests the Government to clarify who are the parties of the seafarers’ employment agreement and to consider amending the legislation to ensure that seafarers have an original agreement signed by both the seafarer and shipowner or a shipowner’s representative, as required under Standard A2.1, paragraph 1.

The Committee notes that the examples of seafarers’ employment agreements provided by the Government refer to the matters to be included in those agreements as provided for in Standard A2.1, paragraph 4. At the same time, the Committee notes that these matters have not been included in laws or regulations, as required by the Convention. In the absence of such provisions, the Committee requests the Government to indicate the measures taken or envisaged to regulate this issue so as to fully implement this requirement of the Convention.

Finally, the Committee notes that no information was provided by the Government regarding the implementation of Standard A2.1, paragraph 1(d) (seafarers’ conditions of employment to be easily obtained on board), Standard A2.1, paragraph 2 (copy of collective bargaining agreement forming all or part of a seafarers’ employment agreement to be available on board), and Standard A2.1, paragraph 6 (consideration of the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons). The Committee requests the Government to indicate how it gives effect to these requirements of the Convention.

Regulation 2.2 and Standard A2.2, paragraph 5. Allotments. The Committee recalls that Standard A2.2, paragraph 5, requires that allotment services, which provide seafarers with means to transmit all or part of their earnings to their families, dependants or legal beneficiaries, be charged at a reasonable amount and that the rate of currency exchange be at the prevailing market rate or the official published rate and not unfavourable to the seafarers. Noting the absence of information in this regard, the Committee requests the Government to indicate how it implements this provision of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 8. On-call work. The Committee notes that no information was provided by the Government regarding the implementation of Standard A2.3, paragraph 8 (compensatory rest for seafarers on call). The Committee requests the Government to indicate how it gives effect to this requirement of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 13. Exceptions to the hours of rest. The Committee notes that the Government has fixed a system of hours of rest in conformity with Standard A2.3, paragraph 5(b). The Committee notes, however, that section 15, paragraph 2(f), of the STCW Regulations 2014 stipulates that notwithstanding the provisions on hours of rest, “the minimum period of 10 hours may be reduced to not less than 6 consecutive hours, provided that any such reduction shall not extend beyond two days and not less than 70 hours of rest are provided in each 7 days period.” The Committee recalls that the limits on hours of work or rest shall not exceed those established under Standard A2.3, paragraph 5, and that any exceptions to paragraphs 5 and 6 of this Standard which do not fall within those covered by paragraph 14 (immediate safety of the ship, persons on board or cargo, or assistance to other ships or persons in distress at sea), including those provided for in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, must follow the requirements of Standard A2.3, paragraph 13, and be provided by collective agreements. The Committee requests the Government to indicate the measures taken to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6 other than those justified under paragraph 14 of the same Standard, are only provided through a collective agreement and not fixed by law, as required by Standard A2.3, paragraph 13, of the Convention.

The Committee notes the Government’s indication that there are collective agreements which have been authorized or registered that permit exceptions to the established limits. The Committee requests the Government to provide a copy of the relevant collective agreement.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that the existing legislation does not give effect to the requirements of Regulation 2.4, paragraph 2 (seafarers to be granted appropriate shore leave), nor Standard A2.4, paragraph 2 (annual leave with pay entitlement to be calculated on the basis of a minimum of 2.5 calendar days per month of employment). The Committee requests the Government to indicate the measures taken or envisaged to ensure conformity with these requirements of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. The Committee notes the Government’s reference to section 41 of the LERA which states that instead of taking annual leave, the employee may, with the approval of the employer and the consent of the Chief Executive Officer of the MCIL, choose to have the annual leave entitlement paid to him or her. 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 the new maritime Regulations fully implement the requirements of Standard A2.3 and that any agreements to forgo the minimum annual leave with pay is prohibited. Any possible exceptions in this regard may only concern specific cases restrictively provided for by the competent authority.

Regulation 2.5. Repatriation. The Committee notes that, except for section 125 of the Shipping Act 1998, which provides for the return of a distressed seaman in cases of abandonment and shipwreck, there are no specific provisions in the Act which recognize seafarers’ entitlement to repatriation. The Committee requests the Government to ensure that the new Regulations to be adopted fully implement the requirements of Regulation 2.5.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.6 and Standard A2.6, paragraph 1. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes, that while section 122(1)(b) of the Shipping Act 1998 provides for a seafarer to be granted an indemnity in the case of a ship’s loss or foundering, the indemnity payable is limited to the period commencing on the date of termination of the service and ending 30 days after he or she reaches his or her proper return port. The Committee recalls that, under Regulation 2.6 and Guideline B2.6, paragraph 1, the indemnity payable to a seafarer who remains effectively unemployed as a result of a ship’s foundering or loss may not be less than two months’ wages. The Committee requests the Government to give due consideration to Guideline B2.6.1, paragraph 1, when examining this issue in the framework of the adoption of the new maritime Regulations.

Regulation 2.7 and Standard A2.7, paragraphs 2 and 3. Manning levels. The Committee notes sections 91 and 92 of the Shipping Act 1998 which relate to manning levels in the context of the STCW Convention. The Committee recalls that the MLC, 2006, contains additional requirements, including that of taking into account, when determining manning levels, the requirements concerning food and catering within Regulation 3.2 and Standard A3.2. The Committee requests the Government to ensure that the new Regulations fully take into account all the requirements of Standard A2.7, and to provide an example of a safe manning document.

Regulation 3.1 and Standard A3.1. Seafarers’ accommodation and recreational facilities on board. The Committee notes section 152(1) of the Shipping Act 1998, which provides that a vessel shall have accommodation exclusively reserved for the use of the crew. The Government also makes reference to the International Safety Management (ISM) Code and to certain provisions of the national legislation on occupational safety and health which do not specifically address living conditions onboard a ship. In the absence of information on any detailed standards for crew accommodation which would have been adopted at the national level to give effect to the Convention, the Committee requests the Government to ensure that the new Regulations to be adopted fully implement the requirements of Standard A3.1.

Regulation 3.2 and Standard A3.2. Food and catering. The Committee notes that section 153(1) of the Shipping Act 1998 states that an owner or master of a vessel shall ensure that the provisions and water supplies for the use of seamen are as prescribed. In the absence of information on any detailed standards regarding food and catering which would have been adopted at the national level to give effect to the Convention, the Committee requests the Government to ensure that the new Regulations to be adopted fully implement the requirements of Standard A3.2.

Regulation 4.1 and Standard A4.1. Medical care on board ship and ashore. The Committee notes that section 154 of the Shipping Act 1998 states that an owner or master of a vessel who permits the vessel to go to sea without carrying the prescribed number of seamen with first aid, medicines, medical and surgical stores, each commits an offence and each is liable upon conviction to a fine not exceeding 50 penalty units. In the absence of more detailed provisions implementing Standard A4.1, the Committee requests the Government to ensure that the new Regulations to be adopted give full effect to the requirements of this Regulation.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the relevant provisions of the Shipping Act 1998 only cover two elements of the shipowners’ liability under Regulation 4.2: section 192 deals with shipowner’s liability for seafarers’ death and personal injuries in cases where there is a fault attributable to the shipowner, whereas Standard A4.2.1, paragraph 1, provides for shipowners to be liable to bear costs in respect of sickness and injury of the seafarers even in the absence of such fault; and section 123 addresses wages to be paid to sick or injured seaman, but provides for a maximum period during which the seafarer is entitled to wages which is shorter (two months) than the one provided for in the Convention, which is 16 weeks in accordance with Standard A4.2.1, paragraph 4. The Committee also notes that section 126 of the Shipping Act 1998 provides for seafarers’ property to be safeguarded in case of the seafarers’ death, but does not make similar provision in case of seafarers’ sickness or injury, as provided for under Standard A4.2.1, paragraph 7. The Committee requests the Government to ensure that the new Regulations to be adopted give full effect to the requirements of Regulation 4.2.

The Committee further notes the Government’s indication that Samoa has an Accident Compensation Corporation gives citizens the right to remuneration in cases of injury and death provided that the citizen and the employer have made the required contributions to the fund. The Committee requests the Government to provide information as to how the Accident Compensation scheme applies to seafarers.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meets certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place 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, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government 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 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s indication that the provisions of the Occupational Safety and Health Act 2002 and of the Occupational Safety and Health Regulations 2014 cover all sectors and industries. It also notes that the provisions of the Occupational Safety and Health Act 2002 do not specifically address occupational safety and health (OSH) on board ships and therefore do not fully ensure the implementation of the detailed provisions of Regulation 4.3. Moreover, the Committee notes the Government’s indications that: the development of a National OSH Framework/Policy is in its draft form; an OSH Task Force has been established to look at OSH-related matters in consultation with employees and employers; these issues will then be made known to the National Tripartite Forum; and from these consultations, review of national laws and policies will be determined. The Committee requests the Government to ensure that the new maritime Regulations as well as the relevant national guidelines and policies to be adopted will give full effect to the requirements of Regulation 4.3.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Samoa declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit and employment injury benefit. Noting that the Government has not submitted information on the national provisions for the implementation of this Regulation, including details of the benefits provided under each of the three branches mentioned above, the Committee requests the Government to indicate the measures taken or envisaged to give effect to this Regulation of the Convention.

Title 5. Compliance and enforcement. The Committee notes that, while Samoa has a ship inspection and certification system in place which is operating on the basis of various sections of the Shipping Act 1998, this system does not fully comply with the Convention since the relevant requirements are yet to be integrated in the national legislation. The Committee notes that the Government recognizes, in this respect, that full effect will be given to the Convention only upon adoption of new maritime Regulations. The Committee therefore requests the Government to ensure that the new maritime Regulations will be adopted in the near future and will give full effect to the requirements of Title 5 of the Convention.

Documentation and relevant legislation. The Committee notes that the collective bargaining agreement (CBA) provided by the Government applies to ships flying the flag of another country and that it may therefore not be referred to as giving effect to any of the provisions of the Convention which relate to Samoa’s obligations as a flag or a port State. The Committee requests the Government to provide information regarding existing CBAs which are in force on ships flying the Samoan flag, including copies of any such CBAs. Finally, the Committee requests the Government to provide a copy of the Shipping Registration Regulations 2001, which have not been provided with the Government’s report.