CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Hong Kong Special Administrative Region (RATIFICATION: 2018)

Other comments on C186

Direct Request

2023
2020

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Previous comments

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the 2016 and 2018 amendments to the Code of the Convention have not yet been declared applicable to the Hong Kong Special Administrative Region (HKSAR), which is therefore not bound by these amendments. The Committee draws the Government’s attention to the following issues.

Article I of the Convention. General questions on application. Implementing measures. In its previous comments, the Committee requested the Government to amend section 114 of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation (which provides for the possibility for the authority to grant exemptions from the requirements on working and living conditions on board) to ensure full compliance with the Convention. The Committee notes the Government’s information that the possibility to grant exemptions under section 114(1) is “subject to sections 29 and 30”, which cover respectively exemptions for ships of less than 200 gross tonnage, and for ships of less than 3,000 gross tonnage and special purpose ships in accordance with Title 3 of the Convention. The Committee takes note of this information.

Article II, paragraph 1(i), and 4. Definitions and scope of application. Ships. The Committee requested the Government to indicate the measures taken to ensure that the Convention is implemented with respect to ships operating between the HKSAR and Macao Special Administrative Region (MSAR). The Committee notes the Government’s indication that ships which operate in the waters between the HKSAR, the Pearl River Delta of the Mainland China and the MSAR navigate exclusively in inland waters or waters within or closely adjacent to sheltered waters, and are subject to port regulations of the HKSAR, the Mainland China and the MSAR, respectively. The Committee notes that under the Merchant Shipping (Seafarers) Ordinance, coastal-going ship is defined as any ship employed exclusively in trading, or going, between any place or places situated within river trade limits. Thus, they fall outside the scope of Article II, paragraph 1(i). The Committee takes note of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. Observing that section 6(2) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation (exception to prohibition of night work for training under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW)) is only partially compliant with Standard A1.1, paragraph 3(b), the Committee requested the Government to indicate how it ensures full conformity with this provision with regard to consultations. The Committee notes the Government’s indication that in relation to section 6(2)(b) of the above-mentioned Regulation, the adoption of the training requirements under the STCW and its Code went through consultations and discussion with the stakeholders of the industry, thus meeting the requirement of Standard A1.1, paragraph 3(b). The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. 1. Signature of seafarer and shipowner or a representative. The Committee requested the Government to clarify, in relation to section 12(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, who are the parties to the seafarers’ employment agreement (SEA). The Committee notes the Government’s information that the “employer” under section 12(1) of the above-mentioned Regulation is the owner of the ship or the owner’s representative. While taking note of this information, the Committee observes that both the Regulation and the Merchant Shipping (Seafarers) Ordinance equally include the terms “employer” and “shipowner”, making it unclear whether the parties to the SEA are always the seafarer and the shipowner, and whether the SEA needs to be signed by both of those parties, as required by the Convention. The Committee accordingly requests again the Government to take the necessary measures to amend the relevant legislation to ensure full conformity with Standard A2.1, paragraph 1(a), as well as to amend the model SEA accordingly.

2. Exemptions. The Committee requested the Government to clarify the scope of section 80(5) of the Merchant Shipping (Seafarers) Ordinance in relation to possible exemptions from the requirement of a crew agreement. The Committee notes the Government’s reference to section 3 of the Merchant Shipping (Seafarers) (Crew Agreements, Lists of Crew and Discharge of Seafarers) Regulation, which lists the categories of seafarers and ships to which section 80 of the Ordinance does not apply. The Committee takes note of this information.

Regulation 2.1 and Standard A2.1, paragraph 1(d). Seafarers’ employment agreements. Information on conditions on board. In relation to section 7(2) of the Merchant Shipping (Seafarers) (Crew Agreements, Lists of Crew and Discharge of Seafarers) Regulation, which provides for the possibility to grant exemptions from the requirement of posting copies of the crew agreement on board, the Committee requested the Government to indicate how it gives effect, in all cases, to the requirement of Standard A2.1, paragraph 1(d). The Committee notes the Government’s reference to sections 12 and 14 of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, which stipulate that a copy of the employment agreement must, on request, be made available for review by the competent authority of a country party which ratified the Convention. The Government adds that so far, no application for exemption has been received and no exemption has been granted to Hong Kong registered ships. The Committee takes note of this information.

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. The Committee notes the Government’s information that, while the 2018 amendments have not yet been declared applicable to the HKSAR, the relevant legislation to implement them has been prepared but not yet enforced due to internal formalities. The relevant requirements have been included in item 4.1(e) of the DMLC, Part I, sub-section 8.3 of the model SEA and paragraph 13.5 of the collective bargaining agreement for compliance by shipowners. Welcoming these measures, the Committee encourages the Government to provide information on any progress made towards the adoption of legislation giving effect to Standards A2.1, paragraph 7 and A2.2, paragraph 7.

Regulation 2.2 and Standard A2.2, paragraph 5. Wages. Allotments. The Committee requested the Government to indicate the measures taken to ensure full conformity of section 57(2)(b)(i) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation with Standard A2.2, paragraph 5. The Committee notes the Government’s information that: (i) item 11.3 of the crew agreement is in conformity with Standard A2.2, paragraph 5, as long as it provides that any charge for the service of allotments and remittances shall be reasonable in amount, and the rate of currency exchange, unless otherwise provided, shall be at the prevailing market rate or the official published rate and not unfavourable to the seafarer; (ii) paragraph 10.1 of the collective bargaining agreement for a Hong Kong registered ship provides that allotments should be in line with Standard A2.2, paragraph 5; and (iii) SEAs are verified by the Mercantile Marine Office; as of 31 May 2023, the Marine Department has not received any complaint on this issue. The Committee takes note of this information.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. Scope of application. Noting that the Merchant Shipping (Seafarers) (Hours of Rest) Regulation applies to coastal-going ships, the Committee requested the Government to take the necessary measures to ensure that Regulation 2.3 is implemented with respect to all ships covered by the Convention. Referring to its comments under Article II, the Committee takes note of this information, which addresses its previous request.

Regulation 2.5 Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. Noting that under section 3B of the Merchant Shipping (Seafarers) (Repatriation) Regulation, the entitlement to repatriation ceases if the seafarer informs the employer in writing that she/he does not wish to be repatriated, the Committee requested the Government to indicate how it ensures that any provision depriving seafarers from the right to repatriation is strictly limited to the circumstances allowed under the Convention. The Committee notes the Government’s information that: (i) it considers that section 3B of the above-mentioned Regulation does not deprive the seafarer of the right to repatriation but gives her/him the freedom not to require the employer to arrange the repatriation; and (ii) no complaint has been received from any party for such kind of arrangement. While noting the Government’s explanation, the Committee recalls that the only case in which the entitlement to repatriation may lapse in conformity with the Convention is provided by Guideline B2.5.1, paragraph 8, where the seafarers concerned do not claim that right within a reasonable period of time to be defined by national legislation or collective agreements. The Committee accordingly requests the Government to take the necessary measures to ensure full conformity with the Convention.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. Noting that under section 3A of the Merchant Shipping (Seafarers) (Repatriation) Regulation, the seafarer may stay on board consecutively for any period longer than 11 months [without being repatriated] if she/he has agreed to it in writing, the Committee requested the Government to indicate the measures taken to ensure conformity with Standard A2.5.1, paragraph 2(b) and Standard A2.4, paragraphs 2 and 3. The Committee notes the Government’s information that it is aware that the service onboard shall not exceed 11 months, as well as of the adverse effect of the prolonged service on the well-being of seafarers. The Government further indicates that section 3A(2)(c)(ii) of the above-mentioned Regulation was meant to provide flexibility for the exceptional cases in which seafarers have to stay onboard to continue the service. In this context, in July 2020, the Marine Department issued a circular letter to shipowners to provide for the extension of the SEA for seafarers who could not be repatriated due to the COVID-19 pandemic. Such extension can only be accepted subject to a number of specific conditions, including written consent by the seafarer and a repatriation plan by the shipowner. The Government adds that it will not take it lightly on the extension of SEA to over 11 months, in view of the utmost importance of the health and well-being of seafarers. While taking note of the Government’s comprehensive explanation, the Committee notes that section 3A(2)(c)(ii) of the Merchant Shipping (Seafarers) (Repatriation) Regulation, as it is formulated, is not in conformity with Standard A2.5.1, paragraph 2(b) and Standard A2.4, paragraphs 2 and 3. The Committee requests theGovernment to take the necessary measures to amend section 3A(2)(c)(ii) of the Merchant Shipping (Seafarers) (Repatriation) Regulation to bring it in full conformity with Standard A2.5.1, paragraph 2(b) and Standard A2.4, paragraphs 2 and 3.

Regulation 2.5, Standard A2.5.1 and Guideline B2.5.1, paragraphs 6-7. The Committee notes with interest that in reply to its previous comments, the Government indicates that clause 18 of the Standard clauses for a Hong Kong registered sea-going ship, has been amended to be fully in line with section 7 of the Merchant Shipping (Seafarers) (Repatriation) Regulation, taking into account Guideline B2.5.1, paragraph 6.The Committee requests the Government to indicate how it has given due consideration to Guideline B2.5.1, which provides that seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Medical advice by radio or satellite.Noting the information provided by the Government, the Committee requests the Government to indicate the national laws and regulations which provide for a system using satellite or radio or similar forms of communication, to effectively provide medical advice, free of charge, 24 hours a day to all ships.

Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible Exclusions. The Committee notes that, in reply to its request on the legislation giving effect to Standard A4.2.1, paragraph 5, the Government refers to section 5(3) of the Employees’ Compensation Ordinance (ECO), which also applies to seafarers. Under this section, when it is proved that the injury to an employee is attributable to the serious and wilful misconduct of the employee, any compensation claimed in that respect of shall be excluded, except for injuries resulting in death or serious incapacity for which the Court may award the compensation provided by the ECO. In addition, section 5(2)(c) of the ECO provides that no compensation shall be payable in respect of any incapacity or death resulting from personal injury if the employee has at any time represented to the employer that he was not suffering or had not previously suffered from that or a similar injury, knowing that the representation was false. The Committee takes note of this information, which addresses its previous request.

Regulation 4.2 and Standard A4.2.2, paragraph 3. Shipowners’ liability. Financial security. Procedures for contractual claims related to compensation. The Committee notes that, in reply to its request to indicate the legislation giving effect to Standard A4.2.2, paragraph 3, the Government refers to the ECO, which sets out in detail the procedures for dealing with compensation claims. Part II of the ECO provides for compensation for injury, Part III provides for compensation in the case of occupational disease, and Part IV provides for the requirement of compulsory insurance. The Committee takes note of this information.

Regulation 4.3 and Standard A4.3. Health and safety protection and accident prevention. Scope of application. 1. High speed crafts (HSC). Noting that some of the provisions of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation (Part II on safety officials, and section 12A on reporting of notifiable diseases) exclude from their scope of application HSC that navigate exclusively between the HKSAR and any other port in China, the Committee requested the Government to indicate the measures taken to ensure that Regulation 4.3 and the Code are implemented with regard to all ships covered by the Convention without exceptions. The Government indicated that these HSC navigate exclusively within the domestic water in the Pearl River Delta of China and the sailing time is less than two hours from Hong Kong, falling thus outside the scope of application of the Convention. The Committee takes note of this information.

2. Exemptions. The Committee notes the Government’s information, in reply to its previous comment, that section 3, paragraph 3, of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation provides for possible exemptions in relation to MLC, 2006, requirements. Due diligence shall be exercised by the authority in granting the exemption; the exemption granted will be compensated with conditions similar to the Regulation’s requirements. While noting the Government’s information, the Committee recalls again that Regulation 4.3 and the Code apply to all ships covered by the Convention and that in general, any exceptions to the requirements of the Code may only be made under the conditions allowed by the Convention. Moreover, if the intention of the Government is to adopt substantial equivalent measures, the relevant provisions of the MLC, 2006, should be strictly followed (Article VI, paragraphs 3 and 4). The Committee requests the Government to take the necessary measures to ensure that any exemptions adopted pursuant to section 3, paragraph 3, of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation are in line with the provisions of the Convention.

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. The Committee notes that, in reply to its comments, Government indicates that it was agreed in the tripartite working group for the implementation of Regulation 4.3, paragraph 2, to follow the “Code of Safe Working Practice for Merchant Seafarers”, as amended in 2020, published by the United Kingdom. The Committee takes note of this information, which addresses its previous request.

Regulation 4.3, Standard A4.3, paragraph 6 and Guideline A4.3.5, paragraph 1. Health and safety protection and accident prevention. Reporting, statistics and investigation. Protection of personal data. Noting that section 12A of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation provides that in reporting notifiable diseases the seafarer’s data should be included, the Committee requested the Government to indicate how it ensures the protection of the personal data of the seafarers concerned. The Committee notes the Government’s information that, as an exception to the principles on data protection, under section 60B of the Personal Data (Privacy) Ordinance (PDPO), personal data may be disclosed when it is provided for by the legislation. In this connection, the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation provides for situations where personal data of the seafarers may be disclosed. The Committee notes the Government’s indication that in compiling statistics, the confidentiality of the personal data of the seafarers concerned is strictly observed and personal data is not disclosed when statistics are published. The Committee takes note of this information, which addresses its previous request.

Regulation 4.5, Standard A4.5, paragraphs 2, 10–11, and Guideline B4.5, paragraph 1. Social security. Recommended branches. The Committee notes that, in reply to its comments, the Government provides comprehensive information on the requirements for resident seafarers to receive benefits under the relevant schemes for medical care, old-age and invalidity, as well as information on the procedures to lodge appeals with the Social Security Appeal Board against the decisions of the Director of Social Welfare, and appeals relating to the eligibility for the medical fee waiver mechanism. The Government also indicates that under the three specified social security schemes, shipowners and seafarers are not required to contribute (e.g., old age and disability allowances are designed to provide a monthly allowance to Hong Kong residents from 70 years of age or who are severely disabled). The Committee further notes the Government’s indication that: (i) since the implementation of the Convention, the Marine Department has not come across any cases relating to the shortfall of the three specified social security schemes provided in the HKSAR; and (ii) the Marine Department will continue examining the remaining six branches appropriately in accordance with local circumstances in order to achieve progressively the provision of social security protection according to the Convention. The Committee recalls that, under Guideline B4.5, paragraph 1, the protection to be provided at the time of ratification should at least include, in addition to medical care, the branches of sickness benefit and employment injury benefit, which have not been specified by the HKSAR. The Committee requests the Government to provide information on any progress made to extend progressively the protection to sickness benefit and employment injury benefit.

Regulation 5.1.2 and Standard A5.1.2, paragraph 1. Flag State responsibilities. Recognized organizations. The Committee notes that, in reply to its comments, the Government provides comprehensive information on the assessment process carried by the Marine Department when considering whether to authorize a Classification Society as a recognized organization (RO) to carry out inspections and certification of ships in accordance with the MLC, 2006. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee requested the Government to indicate any steps taken to revise the DMLC, Part I, to ensure that it clearly identifies the relevant national provisions. The Committee notes the Government’s information that the Marine Department has prepared a revised copy of the DMLC, Part I, to meet the requirements of Standard A5.1.3, paragraph 10(a) and dispatched it to shipowners of Hong Kong registered ships in August 2023. The Committee notes with interest that the revised version of the DMLC, Part I, supplied by the Government, contains reference to the relevant national legal provisions. The Committee takes note of this information, which addresses its previous request.

Regulation 5.1.6, paragraph 1. Marine casualties. The Committee requested the Government to indicate the provisions establishing that competent authorities shall hold a compulsory official inquiry into serious marine casualties leading to injuries. The Committee notes that under the provisions referred to by the Government (section 51 of the Merchant Shipping Ordinance, sections 39 and 59 of the Shipping and Port Control Ordinance, and sections 40 and 60 of the Merchant Shipping (Local Vessels) Ordinance) in case of serious marine casualty leading to injury the holding of an investigation appears to be optional. The Committee requests the Government to provide information on the measures taken to ensure that it is compulsory for the competent authority to hold an official inquiry into serious marine casualties leading to injuries.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that, in reply to its comments, the Government indicates that, upon receipt of complaint from a foreign flagged ship calling at HKSAR ports, the Marine Department will send a surveyor on board to carry out investigations according to paragraph 2.5 of the Tokyo MoU guidelines for port state control officers, and the Marine Department quality manual on handling onshore seafarer complaints from non-Hong Kong ships (HKMD-735). The Committee also notes the statistics provided by the Government on the number of onshore complaints brought by foreign flagged ships between June 2020 and May 2023. The Committee takes note of this information, which addresses its previous request.