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Maritime Labour Convention, 2006 (MLC, 2006) - British Virgin Islands

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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 approved by the International Labour Conference in 2014 and 2016 entered into force for British Virgin Islands on 18 January 2017 and on 8 January 2019 respectively. It also notes that a declaration of acceptance of the 2018 amendments to the Code has not been received and therefore British Virgin Islands is not bound by these amendments. 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 British Virgin 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 III. Fundamental Rights and Principles. The Committee notes that the Equal Remuneration Convention, 1951 (No. 100) and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) have not been declared applicable to the British Virgin Islands. The Committee notes that the Government refers to some provisions of the Merchant Shipping (Maritime Labour Convention) Regulations, 2019 (hereafter referred to as “the Regulations”) but does not provide any information on how equal treatment and equal wages for men and women apply to seafarers and what national provisions ensure the elimination of discrimination during the recruitment and selection process and termination of employment made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin. The Committee requests the Government to provide further information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect these fundamental rights.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee notes that section 2(1) of the Regulations defines a “seafarer” as “any person including a Master, who is employed or engaged or works in any capacity on board a ship, and whose normal place of work is on 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 as to the categories of persons covered by the Convention, clear criteria should be adopted in this regard 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 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), 4, 5 and 7. Definitions and scope of application. Ships. National determination. The Committee notes that section 3(2) of the Regulations stipulates that its provisions shall not apply to: (f) vessels which operate exclusively between Virgin Islands ports. The Committee recalls that the Convention applies to all ships, irrespective of the nature of their voyage, other than those ships which navigate exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply whether publicly or privately owned, ordinary engaged in commercial activities, other than ships engaged in fishing, ships of traditional build, warships or naval auxiliaries (Article II, paragraphs 1(i) and 4). The Committee requests the Government 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, including ships engaged in domestic voyages.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that, according to section 84(5) of the Regulations “ [w]ith respect to a particular ship, or ships of a particular description, the Director may approve requirements which, when taken together with the conditions and limitations to which the approval is subject, the Director considers are substantially equivalent to the requirements which are set out in Schedule 3.” The Committee notes that the Government has not referred to the adoption of any substantial equivalence regarding crew accommodation. The Committee recalls that Article VI, paragraph 3, of the Convention provides that “a Member which is not in position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A”. 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 on a horizontal basis – i.e. not on an ad hocbasis – following the requirements of Article VI, paragraphs 3 and 4 of the Convention. Explanations are required where a national implementing measure differs from the requirements of Part A of the Code. Any substantial equivalences that have been adopted must be stated in Part I of the DMLC that is to be carried on board ships that have been certified. 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 clearly regulated and follow the procedure of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that while section 5(4) of the Merchant Shipping and Fishing Vessel (Health and Safety at Work) (Employment of Young Persons) Regulations 1998 prohibits hazardous work for seafarers under the age of 18, section 5(5) 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 also notes that section 7(1) provides that where the assessment of risk shows that there is a risk to the safety, the physical or mental health or development of young people or where a young person is likely to be required to work at night, no young person shall be engaged as a worker unless he has been provided with a free assessment of his health and capacities before he starts work, and monitoring of his health at regular intervals. 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 section 15(1)(c) of the Regulations provides that “a seafarer 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 14, may apply to the Director for the matter to be reviewed by an independent medical examiner acting as a referee appointed by the Director”. 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 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 regarding the existence of private recruitment and placement services for seafarers based in the British Virgin Islands. It also requests the Government to indicate how seafarers working on board British Virgin Islands vessels are recruited.

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 draws the Government’s attention to the following questions included in the revised report form for the Convention: a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, when the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions.

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 minimum hours of rest. The Committee observes that while section 45 of the Regulations sets the normal working hours standards of seafarers under the age of 18 in accordance with Guideline B2.3.1, the national legislation does not indicate how it ensures that the normal working hours for seafarers are based not only on an eight-hour day but also on one day of rest per week and rest on public holidays, as provided for under Standard A2.3, paragraph 3. 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.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee notes that section 4 of the Regulations provides that “[t]he Director may enter into agreements with shipowners pursuant to which shipowners shall be required to establish career and skill development programmes for seafarers employed by them with the aim of strengthening their competencies and qualifications and generally fostering and enhancing employment opportunities for seafarers on board Virgin Islands ships.” The Committee requests the Government to inform whether such agreements have been entered into with shipowners.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee notes that section 123 of the Regulations implements the requirement set out in Standard A3.1, paragraph 3(a) for ships of 500 gross tonnage or above by providing that a Maritime Labour Certificate may be issued on an interim basis: (a) to new ships upon deliverywhich are to be registered in the Virgin Islands; (b) when a ship enters the Virgin Islands registry from another registry; or (c) when a shipowner assumes responsibility for the operation of a ship that he has newly acquired. The requirement of Standard A3.1, paragraph 3(b) that inspections be carried out when the seafarer accommodation on a ship has been substantially altered is implemented by section 126 of these Regulations which provides that a Maritime Labour Certificate or interim Maritime Labour Certificate ceases to be valid when substantial changes have been made to the structure or equipment covered in Part IV. The Committee however observes that these provisions only apply to ships of 500 gross tonnage and above or ships under 500 gross tonnage that voluntarily requested a Maritime Labour Certificate. The Committee therefore 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 sections 123 and 126 of the Merchant Shipping (Maritime Labour Convention) Regulations, 2019, and to provide the relevant legislative or regulatory references.

Regulation 3.1 and Standard A3.1, paragraphs 20 and 21. Accommodation and recreational facilities. Exemptions. The Committee notes that section 84(1) and 84(3) of the Regulations provide that certain categories of ships may be exempted from the requirements regarding crew accommodation. The Committee notes that section 84(1) of the Regulations provides that the Director may, taking into consideration the special circumstances that apply to each individual ship and following consultation with the shipowner and the relevant seafarers' organization representing the crew of the ship, allow variations from the requirements of these Regulations in the cases of (a) ferries and similar ships which are not continuously manned with one permanent crew; (b) ships with personnel temporarily on board for repairs; (c) seafarers who go home or make use of comparable facilities for part of the day; and (d) any other ship, provided that the variations to be made provide corresponding advantages as a result of which the overall conditions are not less favourable than those which would result from the full application of the requirements of these Regulations together with the Schedule 3. The Committee observes that these variations from the requirements of the Regulations are not provided for by the MLC, 2006 and that the procedure to be followed for requesting and granting such variations and the extent of such variations are not clear. The Committee further notes that section 84(3) of the Regulations, while specifying that exceptions for ships of less than 200GT shall relate to those permitted under Standard A3.1, paragraph 20, also provides that “[t]he Director may exempt a ship of less than 200 gross tonnage from some or all of the requirements of Schedule”. The Committee recalls that while certain limited exceptions are permitted under Standard A3.1, paragraph 20, for ships of less than 200 gross tonnage, paragraph 21 makes clear that any exemptions concerning the requirements of Standard A3.1 are limited to those expressly permitted under the Standard and only for certain circumstances. The Committee requests the Government to indicate the measures taken or envisaged to ensure that all exemptions to the application of the Regulations are made within the limitations provided for under Standard A3.1, paragraphs 20 and 21.

Regulation 4.2 and Standard A4.2, paragraph 1(c). Shipowners’ liability. Expenses of medical care and board and lodging away from home. The Committee notes that section 97(1)(a) of the Regulations provides that, in the event of any sickness, disease or injury suffered by any seafarer, the shipowner shall provide, at his own expense, whether on board the ship or ashore, adequate board and lodging for such seafarer. The Committee recalls that Standard A4.2.1, paragraph 1(c), provides that shipowners shall be liable to defray “the expense of medical care, including medical treatment and the supply of the necessary medicine and therapeutic appliances”, and not only the cost of board and lodging, until the sick or injured seafarer has recovered, or until the sickness or incapacity has been declared of a permanent character. The Committee requests the Government to indicate the laws and regulations implementing Standard A4.2.1, paragraph 1(c).

Regulation 4.2 and Standard A4.2.1, paragraph 1(d). Shipowners’ liability. Cost of burial expenses. The Committee observes that there does not seem to be national provisions giving effect to the requirement of Standard A4.2.1, paragraph 1(d) that shipowners shall be liable to pay the cost of burial expenses in the case of death occurring on board or ashore during the period of engagement and that there is no possible exception to this requirement. The Committee requests the Government to indicate how itgives effect to the requirement under Standard A4.2.1, paragraph 1(d).

Regulation 4.2 and Standard A4.2.1, paragraph 7. Shipowners’ liability. Safeguarding of property left on board. The Committee notes the Government’s indication that the shipowners’ obligation in Standard A4.2.1, paragraph 7, to safeguard the personal property of sick or injured or deceased seafarers and/or to return it to them or their next of kin is currently not prescribed. The Committee requests the Government to indicate the measures taken to ensure conformity with this provision of the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, the Government declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are: sickness benefit; old-age benefit; employment injury benefit; maternity benefit; invalidity benefit and survivors’ benefit. The Committee notes that in accordance with section 18 of the Social Security Ordinance, social security protection is provided to “persons gainfully occupied in employment in the British Virgin Islands”. The Committee observes that the Act may therefore not cover all seafarers ordinarily resident in its territory, who work on board ships covered under the Convention. The Committee reminds that, under Standard A4.5, paragraph 3, each Member shall take steps according to its national circumstances to provide the social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory. The Committee requests the Government to indicate whether seafarers ordinarily resident in the British Virgin Islands working on ships operating under the flag of another country are provided with social security protection, as required under Regulation 4.5 and the Code.

Regulation 5.1.4 and Standard A5.1.4, paragraph 4. Flag State responsibilities. Inspection and enforcement. Intervals of inspection. The Committee notes that section 120 of the Regulations provides that inspections shall take place at intervals not exceeding three years. The Committee observes that this section applies to ships of 500 GT or above, engaged in international voyages, operating from a port, or between ports, in another country and to ships that have voluntarily decided to be certified for working and living conditions. No information has been provided as to how vessels which are not required to carry a Maritime Labour Certificate, are subject to inspection on working and living conditions. The Committee recalls that under the MLC, 2006, all ships must be inspected at least every three years (Standard A5.1.4, paragraph 4). The Committee accordingly requests the Government to provide information with respect to inspections of all ships flying its flag in accordance with Regulation 5.1.4 and the Code.

[The Government is asked to reply in full to the present comments in 2025.]