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Maritime Labour Convention, 2006 (MLC, 2006) - Kiribati (RATIFICATION: 2011)

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2023
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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee also notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Kiribati on 8 January 2019 and on 26 December 2020, respectively.

Impact of the COVID-19 pandemic. The Committee observes that, as a result of difficulties for shipowners to arrange crew changes when the seafarers’ employment agreements (SEA) of the crew expired due to the COVID-19 pandemic, the Kiribati Ship Registry issued Marine circular No. 50/2020, according to which a seafarer’s service period may be extended on condition that any such extension is agreed by the seafarer voluntarily in writing and is properly set out in the SEA. The Committee recalls that the extreme fatigue of seafarers who have been on board beyond the default 11 months maximum period of service on board not only constitutes a situation clearly hazardous for the safety and health of the seafarers concerned, but also profoundly endangers the safety of navigation in general. The Committee urges the Government to adopt without delay the necessary measures to bring all relevant legislation in full compliance with the Convention and to ensure in practice that seafarers on board Kiribati-flagged ships are not requested to continue working beyond the default 11 months maximum period of service on board.

Article I of the Convention. General questions on application. Implementing measures. The Committee notes the Government’s indication in reply to its previous comments, that the Maritime Act was adopted in 2017 and amended in 2019 to ensure its effective implementation and full compliance with the provisions of international Conventions. The Government further indicates that consultations are currently being held by the Kiribati Government and its relevant stakeholders to ensure that existing national legislation and draft regulations fully reflect the amendments made to the MLC, 2006. The Ministry of Information, Communication and Transport Development under its Marine Division is finalizing the draft Maritime Labour Regulations 2021 (hereinafter the draft Regulations) with the Office of the Attorney General. Noting that these Regulations would represent a significant step forward in the implementation of the Convention, the Committee expects that they will be adopted in the very near future. The Committee notes that, until the draft Regulations are adopted, the provisions of the Convention are currently implemented through general legislation, such as the Employment and Industrial Relations Code (hereinafter the EIRC) and underscores the need to avoid any inconsistency in the applicable provisions. The Committee accordingly requests the Government to adopt all the necessary measures to implement the Convention taking into account the points raised below and to provide a copy of any new legislation once adopted.

Article II, paragraphs 1(f), 2, 3 and 7. Scope of application. Seafarers. The Committee notes that, in reply to its previous comment, the Government indicates that it worked closely with shipowners and seafarers in developing the draft Regulations and will conduct further consultations with stakeholders to ensure that the list of those excluded from the definition of seafarer is more consistent with the Convention. The Committee also notes that the draft Regulations refer to the definition given in the Maritime Act adopted in 2017, which provides that “seafarer” means a person employed or engaged in any capacity on board a ship on the business of the ship, other than: (a) the master of the ship; (b) a pilot; or (c) a person temporarily employed on board the ship in a port or place. The Committee recalls that, while pilots and persons temporarily employed on the ship while the ship is in port could be excluded from the definition of “seafarer” provided for in Article II, paragraph 1(f) of the Convention, masters must be covered by the Convention. The Committee requests the Government to take the necessary measures to ensure that masters are considered seafarers for the purpose of the Convention. The Committee further notes that the draft Regulations no longer list the various categories of persons not to be considered as seafarers and that draft regulation 3(3) provides that, in the event of doubt as to whether or not these regulations apply to a person or category of persons, the competent authority must determine the question in consultation with the shipowners’ and seafarers’ organizations. The Committee requests the Government to provide information on any further determination regarding the categories of persons who are not regarded as seafarers within the meaning of the national legislation.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee notes the Government’s indication, in reply to its previous comment, that the draft Regulations will be amended in accordance with Article II, paragraph 6 and that this will require further consultation with shipowners and seafarers. The Committee observes that the wording of regulation 3(4) of the most recent version of the draft Regulations has not yet been amended. The Committee accordingly requests the Government to take the necessary measures to ensure that any exemption granted is limited to “certain details of the Code” (Standards and Guidelines), in conformity with Article II, paragraph 6.

Article VI, paragraphs 3 and 4. Substantial equivalence. Noting that Marine Circular No. 23/2013 states that, when requesting certification, the shipowner has to advise whether there are any substantial equivalencies or exemptions it would wish to be granted by the Kiribati Ship Registry, the Committee previously requested the Government to provide detailed information with respect to the adoption of substantial equivalence(s) and to ensure that any use of such an option will be regulated and follow the procedure of Article VI, paragraphs 3 and 4. The Committee notes the Government’s reply that further consultations will be conducted with the social partners to ensure that the draft Regulations are consistent with the Convention. Reiterating 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, not on an ad hoc basis, the Committee requests the Government to ensure that any substantial equivalence adopted in the future follows 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, in reply to its previous comment, that section 115(1) and (2) of the EIRC has been amended and the general minimum age is set at 15 years. The Government further indicates that the Maritime Training Centre is the sole provider of training for Kiribati citizens for seafarers and fishers and that one of the strict requirements of this institute before recruiting is to ensure that prospective recruits are 18 years of age or older. While noting this information, the Committee observes that, until the draft Regulations are adopted, there is no express prohibition of employment on board a ship of any person under the age of 16. Recalling that no person below the minimum age of 16 shall be employed or engaged or work on board a ship, the Committee requests the Government to adopt the necessary measures, without delay, to give effect to this requirement of the Convention.

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 the Ministry of Employment has already developed a list of hazardous work prohibited for children under the age of 18 years but that it is still being reviewed and has yet to be adopted. The Committee also notes that the draft Hazardous Work Prohibited For Children Under 18 Years Of Age Regulations 2023 list “cooking, baking or preparing food with sharp implements”, “work in a boiler or engine room or work in connection with the maintenance or repair of machines, engines or equipment” and “any occupations connected with (…) work on ships or in the maritime sector” among the hazardous occupations which are prohibited for children under the age of 18 years. The Committee requests theGovernment to adopt, without further delay, the list of types of hazardous work that are prohibited for young seafarers under 18 years of age, taking into account the specific conditions of work on board ships, after consultation with the seafarers’ and shipowners’ organizations concerned, as required under Standard A1.1, paragraph 4.

Regulation 1.3, paragraph 1. Training and qualifications. The Committee notes the Government’s reply to its previous comment that, while section 144 of the Maritime Act adopted in 2017 currently allows an exception for the requirements under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) on training and certification for vessels of less than 300 gross tonnage, it will be amended in consultation with shipowners and seafarers to ensure compliance with the requirements set out in Regulation 1.3 of the MLC, 2006. The Committee requests the Government to adopt the necessary measures to give full effect to Regulation 1.3,paragraph 1.

Regulation 1.3, paragraph 2. Training and qualifications. Personal safety on board ship. Noting that the Government does not provide information on this point, the Committee reiterates its previous request tothe Government to indicate how it ensures that seafarers are not permitted to work on a ship unless they have successfully completed training for personal safety on board ship, in conformity with Regulation 1.3, paragraph 2.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that these provisions of the Convention are currently implemented through the EIRC, which is not in full conformity with the requirements of the Convention (for example, Standard A2.1, paragraph 5 on minimum notice periods and Standard A2.1, paragraph 6 on circumstances justifying termination of the employment agreement at shorter notice or without notice). It also notes that the draft Regulations would bring the legislation in conformity with Regulation 2.1 and the Code. The Committee expects that the Government will adopt in the near future the necessary measures to ensure the full conformity of its legislation with the requirements of Regulation 2.1 and the Code.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and 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 Part I of the Maritime Labour Compliance Declaration (DMLC) refers to the requirements of Standards A2.1, paragraph 7 and A2.2, paragraph 7 and that the Kiribati Ship Registry adopted Marine Circular No. 57/2020 to notify all parties concerned of the amendments, indicating that maritime labour certificates and DMLCs are required to be updated and re-issued to address the new requirements. While noting this information, 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, where 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 abovementioned questions, indicating in each case the applicable national provisions.

Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of work and hours of rest. Limits. The Committee notes the Government’s indication, in reply to its previous comment, that it will be providing only the minimum hours of rest regime and excluding the maximum of hours of work and that this will be reflected in the draft Regulations. The Committee takes note of this information and expects that the Government will adopt in the near future the necessary measures to ensure the full conformity of its legislation with the requirements of Standard A2.3, paragraph 2.

Regulation 2.5 and Standard A2.5.2, paragraph 2. Repatriation. Financial security. Abandonment. In reply to the Committee’s previous comments, the Government indicates that there are currently no legal provisions in place to govern the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee notes that the most recent copy of the DMLC, Part I, published on the website of the Kiribati Ship Registry, incorporates the information required further to the adoption of the 2014 amendments to the Code of the MLC, 2006. The Committee observes nonetheless that the Government has not indicated the kind of financial security that must be provided by ships flying its flag to cover the right of repatriation, in application of Regulation 2.5, paragraph 2, nor has it indicated measures under preparation with respect to the establishment of a system of financial security for abandonment cases. The Committee requests the Government to indicate: (i) how effect is being given to the requirement that ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with Regulation 2.5, paragraph 2; and (ii) to adopt the necessary measures to define the circumstances under which a seafarer is considered abandoned and to establish a financial security system to assist seafarers in all the circumstances provided for under Standard A2.5.2, paragraph 2. The Committee also requests the Government to provide a copy of a model certificate or any other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 3.1 and Standard A3.1, paragraph 2. Accommodation and recreational facilities. Implementation. In reply to the Committee’s previous comment, the Government indicates that there are currently no measures in place to ensure that ships flying the flag of Kiribati have on-board recreational facilities available to seafarers. Acknowledging the importance of onboard recreational facilities, the Government indicates that further consultations will be held with a view to including the provisions of Regulation 3.1 in relevant national laws and to establishing infrastructure on board vessels flying its flag. The Committee requests the Government to adopt the necessary measures to ensure that full effect is given to Regulation 3.1 and the Code, and to provide updated information on the progress made in this regard.

Regulation 4.1 and Standard A4.1, paragraph 2. Medical care on board and ashore. Standard medical report form. The Committee notes the Government’s reply to its previous comment that there is currently no progress towards adopting a standard medical report form and that it is still undertaking measures in consultation with related stakeholders regarding the development of this form. The Government however states that nationally recognized recruiting agencies commonly utilize medical forms from vessels from other flag States. The Committee requests the Government to adopt, without further delay,the necessary measures to give full effect to Standard A4.1, paragraph 2.

Regulation 4.2 and the Code. Shipowners’ liability. In reply to the Committee’s previous comment, the Government indicates that the 1977 revised edition provided with its first report is the latest edition of the Workmen’s Compensation Act. The Committee notes that regulation 18 of the draft Regulations gives effect to the requirements that, where the sickness or injury results in incapacity for work, the shipowner shall be liable to pay full wages as long as the sick or injured seafarers remain on board or until the seafarers have been repatriated, in accordance with Standard A4.2.1, paragraph 3(a). The Committee observes, however, that in the absence of adoption and implementation of the draft Regulations, the applicable provisions of the Workmen’s Compensation Act do not specify whether the shipowner is responsible for the payment of full wages in the circumstances foreseen under Standard A4.2.1, paragraph 3(a), as long as the sick or injured seafarers remain on board or until the seafarers have been repatriated. The Committee accordingly urges the Government to adopt the necessary measures to ensure the full conformity of its legislation with Standard A4.2.1 in the near future.

Regulation 4.2, Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the MLC, 2006, the Committee notes the Government’s indication that, while the provisions of the Workmen’s Compensation Ordinance establish a national system of compensation for workers in the event of death or long-term disability due to an occupational injury, illness or hazard, new legislation still needs to be adopted regarding the minimum requirements that the system of financial security must meet. Furthermore, at present, there are no provisions implementing the requirement that shipowners shall provide evidence of financial security and that the certificate or other documentary evidence of financial security issued by a financial security provider shall be posted in a conspicuous place on board and easily available to the seafarers. The Committee also notes that the draft Regulations do not address these issues. Recalling that such provisions require the adoption of laws and regulations, the Committee requests the Government to indicate the measures taken to give effect to Standard A4.2.1, paragraphs 8 and 14, and Standard A4.2.2 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, once available.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes that, in response to its previous request, the Government indicates that there are currently no measures in place or plans to promote the development of welfare facilities at appropriate ports of Kiribati, as well as the establishment of welfare boards. Recalling the importance of access to shore-based welfare facilities for the well-being of seafarers, the Committee requests the Government to indicate the measures adopted to give effect to Regulation 4.4 and Standard A4.4.

Regulation 4.5 and Standard A4.5, paragraphs 1 and 2. Social security. Branches. The Committee notes the Government’s indication in reply to its previous comment that the draft Regulations will be amended to reflect the three branches of social security specified at the time of ratification, by including “employment injury benefit” and that these benefits will be reflected in the national legislation, mainly the Maritime Act, 2017. The Committee requests the Government to keep the Office informed on any development in this respect.

Regulation 4.5 and Standard A4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee notes the Government’s indication in reply to its previous comment, that it will develop procedures for the settlement of disputes in line with requirements of the Convention and report on this matter in its next report. The Committee requests the Government to adopt the necessary procedures to give effect to Standard A4.5, paragraph 9 and to provide updated information with its next report.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s reply to its previous comment, indicating that working and living conditions prescribed by the MLC, 2006, are not being inspected and certified by recognized organizations at present, as the draft Regulations have yet to be adopted. The Committee requests the Government to provide information on the progress made towards the adoption of these new provisions, and, when available, to provide the list of recognized organizations, specifying the functions they have been authorized to carry out.

Regulation 5.1.3 and Standard A5.1.3, paragraph 5. Interim maritime labour certificate. Referring to its previous comment that the draft Regulations submitted with the first report do not address the circumstance when the shipowner assumes responsibility for the operation of a ship which is new to that shipowner, the Committee notes the Government’s indication that this matter requires further consultation with stakeholders and that recent changes in the administration of the Kiribati Ship Registry from Singapore also require changes to existing procedures and guidelines. While noting this information, the Committee requests the Government to take the necessary steps to ensure full compliance with Standard A5.1.3, paragraph 5.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. Observing that the DMLC, Part I, form available on the Kiribati Ship Registry website does not contain the necessary reference to the national legal provisions, the Committee requested the Government to review the DMLC, Part I, upon adoption of the draft Regulations. Noting also that the DMLC, Part II, provided by the Government 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), of the Convention, the Committee requested the Government to provide one or more examples of an approved DMLC, Part II. The Committee notes the Government’s indication that further consultations with stakeholders are needed to change existing procedures and guidelines, given recent changes in the administration of the Kiribati Ship Registry from Singapore. 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.