Repetition

The Committee takes note of the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee notes that South Africa had not previously ratified other Conventions on maritime labour. The Committee notes the efforts achieved and measures taken, particularly through the adoption of legislation and regulations, for the implementation of the Convention. 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.

Article II of the Convention. Seafarers. The Committee notes that section 2(1) of the Merchant Shipping Act, 1951 (MSA), as amended (most recently by the Merchant Shipping Amendment Act, 2015), defines “seafarer” as “any person (except a master, pilot or cadet) employed or engaged in any capacity as a member of the crew of a ship”. It also notes that, while masters and cadets are not included in the definition of “seafarer” for the purposes of this Act, a number of provisions of this Act apply to cadets or masters, or include a specific indication that the section concerned also applies to these categories of workers. The Committee recalls that the Convention does not allow for the partial application of the national law implementing its provision if the workers concerned are seafarers covered by the Convention. Recalling that under Article II, paragraph (f), “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies, the Committee requests the Government to consider amending the definition of “seafarer” contained in section 2(1) of the MSA.

Article III. Fundamental rights and principles. South Africa has ratified all the ILO fundamental Conventions. Concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), in relation to seafarers, the Committee has been raising the need to revise a number of provisions of the MSA, as amended (most recently by the Merchant Shipping Amendment Act, 2015), which provide for imprisonment of seafarers (involving compulsory labour) for certain offences. It therefore draws the Government’s particular attention to its comments under Convention No. 105.

Article VII. Consultations. The Committee notes the Government’s indication that the South African Transport and Allied Workers Union (SATAWU) and the South African Association of Ship Operators and Agents (SAASOA) are the organizations that the competent authority consults in matters relating to the implementation of the Convention. The Committee draws the Government’s attention to the fact that a number of provisions of the Convention specifically require consultations, such as Standard A1.1, paragraph 4 (types of work likely to jeopardize the health or safety of seafarers under 18), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.1, paragraph 5 (minimum notice periods for the early termination of a seafarers’ employment agreement), Standard A3.1, paragraph 2 (accommodation and recreational facilities), Regulation 4.3, paragraph 2 (national guidelines for the management of occupational safety and health on board ships). Noting that the Government has not indicated whether consultations have taken place when required by the relevant provisions of the Convention, the Committee requests the Government to provide information in this regard.

Regulation 1.1 and Standard A1.1, paragraph 4. Prohibition of hazardous work for persons under the age of 18. The Committee notes that section 10(3)(a) of the Maritime Occupational Safety Regulations, 1994, provides that the safety officer shall ensure that the crew of the vessel comply with the provisions of the Code of Safe Working Practices for Merchant Seamen. It notes the Government’s reference to various provisions of this Code, in particular concerning work at height, laundry equipment and maintenance of certain machines. However, these provisions do not contain a prohibition of the specific types of work concerned but they indicate under which conditions persons under the age of 18 may perform such work. The Committee recalls that Standard A1.1, paragraph 4, provides that the employment, engagement or work of seafarers under the age of 18 shall be prohibited where the work is likely to jeopardize their health or safety, and that the types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. In this respect, the Committee notes that the “Regulations on hazardous work by children in South Africa” adopted on 15 January 2010 include the prohibition in the case of persons under 18 of such work as: (i) work involving exposure to a hazardous substance; (ii) work in a confined space; (iii) work at a height of more than 5 metres above the floor; or (iv) work involving the lifting of heavy weights. However, these Regulations do not contain provisions that deal expressly with work on board seagoing ships. The Committee therefore requests the Government to indicate the measures taken or envisaged to prohibit the work likely to jeopardize the health or safety of seafarers under the age of 18 and to adopt a list of the types of such work.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Draft Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2015, published in the Government Gazette of 25 September 2015, which would give effect to most of the provisions of Regulation 1.4 and the Code. It notes, however, that the current draft does not address the content of Standard A1.4, paragraph 9, which states that each Member which has ratified the Convention shall require that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories in which this Convention does not apply, ensure, as far as practicable, that those services meet the requirements of this Standard. The Committee requests the Government to provide information on the promulgation of the draft Regulations and to indicate the measures taken or envisaged to give effect to Standard A1.4, paragraph 9, of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreement (SEA) to be signed by the shipowner. The Committee notes that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalls that any signatory of the SEA other than a shipowner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the shipowner. The Committee requests the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner’s representative as required by Standard A2.1, paragraph 1(a).

Regulation 2.1 and Standard A2.1, paragraph 1(c). Shipowner and seafarer to have a signed original of the SEA. The Committee notes that section 103(c) of the MSA provides that when the crew is first engaged the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master. Recalling that Standard A2.1, paragraph 1(c), provides that the shipowner and seafarer concerned shall each have a signed original of the SEA, the Committee requests the Government to indicate how effect is given to this provision of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 2. Seafarers’ employment agreement to be available in English. The Committee recalls that Standard A2.1, paragraph 2, provides that where the language of the seafarers’ employment agreement and any applicable collective bargaining agreement is not in English, a copy of a standard form of the agreement and the portions of the collective bargaining agreement that are subject to a port State inspection shall also be available in English (except for ships engaged only in domestic voyages). In the absence of information on the application of this provision, the Committee requests the Government to indicate how effect is given to this requirement of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ record of employment. The Committee notes that section 113(2) and (4) of the MSA provides that, upon the discharge of a seafarer, the master shall issue to the seafarer a certificate of his/her discharge in the prescribed form and that when the master declines to express an opinion on the conduct, character and ability of the seafarer, the discharge shall be made before a proper officer, to whom he/she shall furnish a report in the prescribed form stating that he/she so declines, and, if the seafarer so desires, the proper officer shall give to him/her or endorse on his/her certificate of discharge a copy of such report. The Committee also notes the form for seafarers’ Record Book and Certificates of Discharge contained in the Merchant Shipping (Seamen’s Documents) Regulations, 2000, which includes a “report of character”. The Committee recalls that Standard A2.1, paragraph 3, provides that the document to be given to seafarers, containing a record of their employment on board the ship, shall not contain any statement as to the quality of the seafarers’ work. The Committee requests the Government to indicate how conformity with Standard A2.1, paragraph 3, is ensured.

Regulation 2.1 and Standard A2.1, paragraph 4. Content of the SEA. The Committee notes that section 102(3) of the MSA provides for the particulars to be contained in the agreement with the crew. This section does not include the particulars specified in Standard A2.1, paragraph 4(a–c) and (g). The Committee requests the Government to indicate how it is ensured that the particulars to be contained in the SEA include the seafarer’s full name, date of birth or age, and birthplace; the shipowner’s name and address; the place where and date when the seafarers’ employment agreement is entered into; and the conditions of termination of the agreement, in conformity with Standard A2.1, paragraph 4(g).

Standard A2.1, paragraph 6. Shorter notice period for compassionate or other urgent reasons. The Committee notes that the Government indicates, in relation to this Standard, that no circumstances justifying termination of the employment agreement at shorter notice or without notice have been provided for in national laws or regulations or collective agreements. The Committee recalls that, according to Standard A2.1, paragraph 6, in determining the circumstances in which a notice period shorter than the minimum may be given, each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. The Committee requests the Government to indicate how effect is given to Standard A2.1, paragraph 6.

Regulation 2.1 and the Code. Masters’ SEA. The Committee notes that the provisions of the MSA which implement Regulation 2.1 do not cover masters. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of masters.

Regulation 2.2, paragraph 1, and Standard A2.2, paragraph 1. Regular payment of wages. The Committee notes that section 122 of the MSA which addresses the time of payment of wages does not provide that payments due to seafarers are made at no greater than monthly intervals and in accordance with any applicable collective agreement. The Committee therefore requests the Government to indicate how effect is given to this requirement, in accordance with Standard A2.2, paragraph 1.

Regulation 2.2 and the Code. Wages of cadets. The Committee notes that the provisions of the MSA which implement Regulation 2.2 do not cover cadets. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of cadets.

Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of rest. The Committee notes that the Government has decided to apply the system of minimum hours of rest. It further notes that Regulation 93(2) of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013 provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of ten hours of rest in any 24-hour period; and (b) 77 hours in any seven-day period. The Committee requests the Government to indicate how effect is given to Standard A2.3, paragraphs 2 and 5, in the case of seafarers who are not covered by Regulation 93(2).

Regulation 2.3 and Standard A2.3, paragraphs 5, 6 and 13. Exceptions to the hours of rest. The Committee notes that paragraphs 9–11 of Regulation 93 of the Merchant Shipping (Safe Manning, Certification and Training) Regulations 2013, provide for possible exceptions to the hours of rest. Recalling that exceptions to the hours of rest, including those provided by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, may only be permitted by collective agreements authorized or registered by the competent authority in accordance with national laws or regulations, as provided for in paragraph 13 of Standard A2.3, the Committee requests the Government to review paragraphs 9–11 of Regulation 93 so as to ensure conformity with the Convention.

Regulation 2.4 and the Code. Entitlement to leave for masters and cadets. The Committee notes that the provisions of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which implement Regulation 2.4 do not cover masters and cadets. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of masters and cadets.

Regulation 2.4, paragraph 2. Shore leave. The Committee notes the Government’s indication that shipowners are required to give seafarers appropriate shore leave. In the absence of information on the corresponding measures adopted to ensure compliance with this obligation, the Committee requests the Government to indicate how it is ensured that seafarers are granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions, in accordance with Regulation 2.4, paragraph 2.

Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. In the absence of information on the measures adopted to ensure that any agreement to forgo the minimum annual leave with pay is prohibited, except in cases provided for by the competent authority, the Committee requests the Government to indicate how effect is given to this provision of the Convention.

Regulation 2.5, paragraph 2, and the Code. Financial security for repatriation. The Committee notes that the Draft Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2015, provide that seafarer recruitment and placement services must ensure that the shipowner has in place financial protection to cover repatriation costs in the event of the seafarer being stranded in any port (draft Regulation 7(1)(k)(iv)). While it hopes that these draft Regulations will be promulgated in the near future, the Committee notes that such provision only addresses the obligations placed on seafarer recruitment and placement services in this respect. The Committee requests the Government to indicate how it is ensured that all ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code, as provided for in Regulation 2.5, paragraph 2.

Regulation 2.5 and Standard A2.5, paragraphs 1–3. Entitlement to repatriation. The Committee notes the Government’s indication that circumstances for repatriation include illness, injury, death, loss and or abandonment of vessel, bankruptcy of the owner and/or recruitment agency and termination of service. It notes, however, that the Government does not specify under which provisions of the relevant legislation or collective agreement or other measures this entitlement to repatriation is guaranteed. It also notes that, while various provisions of the MSA relate to repatriation, in particular sections 114 and 140 which address cases where the seafarer’s service terminates before the expiration of the period of engagement, section 116 which concerns cases of change of ownership, and sections 154 and 155 which relate to distressed seafarers, these provisions do not cover all the circumstances mentioned by the Government, nor all those provided for in Standard A2.5. The Committee further notes that these provisions do not provide for a maximum period of service on board following which a seafarer is entitled to repatriation, which must be less than 12 months. Moreover, it notes that section 114(3) which provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country (other than the Republic) and who was engaged at a port out of the Republic and discharged at a port outside the Republic. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to indicate how it ensures that all seafarers on board a South African ship are entitled to repatriation in all the circumstances provided for in Standard A2.5, paragraphs 1 and 2. In addition, noting that, pursuant to section 114(2) of the MSA, the shipowner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation, the Committee recalls that while the shipowner may recover the cost of the repatriation, under the limited circumstances provided for under Standard A2.5, paragraph 3 (i.e. where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective agreements, to be in serious default of the seafarer’s employment obligations), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. The Committee underlines that pursuant to the amendments to the Code approved by the International Labour Conference at its 103rd Session in 2014 that resulted in the inclusion of Standard A2.5.2 of the Convention, Members shall require a financial security system to assist abandoned seafarers for ships flying its flag. It notes that seafarers are deemed abandoned, among others, when the shipowner fails to cover the cost of their repatriation. In light of the above, the Committee requests the Government to provide information on how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. With regard to the possibility provided by the Convention to recover the cost of the repatriation from the seafarer, the Committee underlines that it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. It requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarer’s employment obligations”. Finally, with regard to the definition of “proper return port” contained in section 2(1) of the MSA, which provides for the proper officer to decide which port, among three options, is to be considered as such, the Committee draws the Government’s attention to Guideline B2.5.1, paragraph 7, which provides that seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. It therefore requests the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation.

Regulation 2.6 and Standard A2.6, paragraph 1. Indemnity against unemployment resulting from the ship’s loss or foundering. In the absence of information, the Committee requests the Government to indicate how effect is given to this provision of the Convention.

Regulation 2.7. Safe manning. The Committee notes that section 85 of the MSA provides that the Authority may, at its discretion and for such periods and under such conditions as it may specify if it is satisfied that no suitable holder of a certificate of the required grade is available, permit a South African ship to go to sea from any port whatsoever or a ship other than a South African ship to go to sea from a port in the Republic without the prescribed number of certificated officers or other persons. Noting the power given to the Authority in this provision to grant exceptions to the safe manning provisions, the Committee requests the Government to provide information on its application in practice.

Standard A3.1, paragraph 1. Accommodation and recreational facilities. Implementing legislation. The Committee notes that the Declaration of the Maritime Labour Compliance (DMLC), Part I, provided by the Government, indicates that ships constructed after 20 August 2013 shall comply with the accommodation and recreational facility requirements as specified in the Convention which was yet to be domesticated in South Africa. It also notes the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, which, if adopted, would generally bring the legislation in conformity with Standard A3.1. The Committee requests the Government to provide information on the developments related to the adoption of these amendments. It hopes that the Government will take into account its comments formulated below in relation to Standard A3.1 when finalizing these amendments. It also requests the Government to indicate how it is ensuring, while awaiting that the relevant legislation is adopted, that ships constructed after 20 August 2013 comply with the accommodation and recreational facility requirements of the Convention, in accordance with the indication contained in the DMLC, Part I.

Standard A3.1, paragraph 6(a). Minimum headroom in seafarer accommodation. The Committee notes that the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, provide for a revised Regulation 6(1), as follows: “in every ship the height of the crew accommodation measured from the deck to the deck head shall not be less than 2.1 metres; the Authority may, in respect of store rooms and sanitary accommodation, permit some reduction in head room”. The Committee also notes that the draft Amendments do not provide for a revision of Regulation 6(2) which provides that, in sleeping rooms, headroom shall be at least 6 feet 3 inches (which corresponds to 1.9 metres and therefore is not in conformity with the minimum of 203 centimetres provided for in the Convention). When finalizing the Amendments, the Committee therefore requests the Government to review Regulation 6(2) and, in relation to the draft Amendments to Regulation 6(1), to ensure that the competent authority may only permit some limited reduction in headroom in any space, or part of any space, in seafarer accommodation, where it is satisfied that such reduction: (i) is reasonable; and (ii) will not result in discomfort to the seafarers, as provided for in Standard A3.1, paragraph 6(a).

Standard A3.1, paragraph 9. Sleeping accommodation. The Committee notes that the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, include a number of provisions which would bring the national legislation into conformity with most of the content of Standard A3.1, paragraph 9. However, its paragraph (l) – which concerns floor areas for seafarers performing the duties of ships’ officers where no private sitting room or day room is provided on passenger ships and special purpose ships, and paragraph (m) – which concerns additional room for the master, the chief engineer and the chief navigating officer, do not seem to be covered. When finalizing the Amendments, the Committee therefore requests the Government to ensure that Standard A3.1, paragraph 9(l) and (m), are taken into account.

Standard A3.1, paragraph 21. Possible exemptions in relation to crew accommodation. The Committee notes that a number of possible exemptions to the requirements relating to crew accommodation are provided for in the Crew Accommodation Regulations, 1961, as amended. The Committee draws the Government’s attention to the need to review these Regulations so as to ensure that any exemptions may be made only where they are expressly permitted in Standard A3.1 and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety, as provided for in Standard A3.1, paragraph 21. The Committee requests the Government to provide information on any measures taken or envisaged in this respect.

Regulation 3.2. Free food and drinking water for all seafarers. The Committee notes that section 156(1) of the MSA provides that the master of a South African ship of more than 100 gross tons shall furnish provisions to every seafarer (who does not furnish his/her own provisions) in accordance with the prescribed scale. It further notes the Merchant Shipping (Provisions) Regulations, 1961, as amended, which implement the MSA on this matter. The Committee recalls that, under Regulation 3.2, seafarers on board a ship shall be provided with food free of charge during the period of engagement and that no exception is permitted in this regard. It notes that the 2007 draft Amendments to these Regulations provide that every seafarer shall be furnished with provisions in accordance with the scale set forth in the Annex to the Regulations. The draft Amendments therefore include ships of more than 100 gross tons and do not provide for the possibility that seafarers furnish their own provisions. The Committee requests the Government to indicate the progress made in the adoption of these Amendments, and to take into account its comments related to the application of Regulation 3.2 when finalizing them.

Regulation 3.2, paragraph 1, and Standard A3.2, paragraph 2(a). Food supplies to take into account the differing cultural and religious backgrounds of seafarers. The Committee notes that the food supplies provided for in the Annex to the Merchant Shipping (Provisions) Regulations, 1961, as amended, do not seem to take into account the differing cultural and religious backgrounds of seafarers. It requests the Government to indicate how effect is given to the requirement that the differing cultural and religious backgrounds of seafarers are taken into account when determining the suitability of food supplies.

Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. The Committee recalls that this Standard provides that the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions. In the absence of information on this matter, the Committee requests the Government to indicate how effect is given to Standard A3.2, paragraph 2(b).

Standard A4.1, paragraph 2. Standard medical report form. In the absence of information, the Committee requests the Government to indicate how effect is given to this Standard which provides that the competent authority shall adopt a standard medical report form for use by the ships’ masters and relevant onshore and onboard medical personnel and that the form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers.

Standard A4.1, paragraph 4(b). Medical doctor on board. The Committee notes that Regulation 5 of the Ship’s Medicines and Medical Appliances Regulations, 1991, provides that a medical practitioner shall be employed on every Class 1 (that is foreign-going) ship which carries 100 or more persons. It also notes that Regulation 13 allows the authority to exempt any ship from any of the requirements of these Regulations. The Committee recalls that the Convention does not allow for any exception to the requirement of carrying a qualified medical doctor on ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration. The Committee requests the Government to provide information on the exemptions granted in application of this provision, if any, in particular in relation to Regulation 5.

Standard A4.1, paragraph 4(d). Free medical advice to all ships. In the absence of information, the Committee requests the Government to indicate how effect is given to this Standard which provides that the competent authority shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day; and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, shall be available free of charge to all ships irrespective of the flag that they fly.

Standard A4.2, paragraph 1(b). Financial security in the event of death or long-term disability. The Committee notes that the DMLC, Part I, indicates that shipowners must have appropriate protection and indemnity cover for the costs related to seafarers’ sickness and injury. It also notes the Government’s reference to a draft Bill for the amendment of the MSA, which would insert a new Chapter IVA to this Act providing for financial security for loss of life and personal injury. While this draft has been published for comments in Notice 356 of 2009 (Government Gazette of 15 April 2009), no information has been provided on its current status. Similarly, no information has been provided on the current status of its implementing regulations, the Merchant Shipping (Seafarer Accident Insurance) Regulations, 2015, which have been advertised for comments in Notice 942 of 2015 (Government Gazette of 25 September 2015). The Committee therefore requests the Government to provide information on the current status of the draft Bill and Regulations, which, when adopted, would give a legal basis to the shipowners’ obligation to provide financial security to assure compensation in the event of death or long-term disability of seafarers due to an occupational injury, illness or hazard.

Standard A4.2, paragraphs 2 and 4. Minimum duration of the shipowners’ liability. The Committee notes that section 140(1)(b) of the MSA provides that the period for which a seafarer shall be entitled to receive wages in case of incapacity for work resulting from illness or injury is limited to a maximum of 60 days; and that section 169(1) provides that the shipowner is liable to cover medical and other expenses incurred due to illness or injury until the seafarer concerned is cured or dies or is returned to and arrives at a proper return port. The Committee requests the Government to indicate how effect is given to Standard A4.2, paragraphs 2 and 4, which provide that the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board may be limited to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness.

Standard A4.2, paragraph 5. Possible exclusion of the shipowner’s liability. The Committee notes that section 140(1)(b) of the MSA provides for an exception to seafarers’ entitlement to wages in cases of sickness or injury when the seafarer unreasonably refused medical treatment for such sickness or injury. The Committee notes that, as a consequence to this exception, shipowners would not be liable to bear costs in such cases. Since this exception does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2, paragraph 5, the Committee requests the Government to explain how it gives full effect to this provision of the Convention.

Standard A4.5, paragraph 2. Maternity benefit. The Committee notes that, at the time of ratification, the Government has specified the following branches of social security for which protection is provided: sickness benefit; unemployment benefit; employment injury benefit and maternity benefit. Noting that the Government indicates that no maternity benefit is given to seafarers ordinarily resident in the country, unless provided for in the contract of employment, the Committee requests the Government to indicate how it envisages to give effect to its obligations in this respect.

Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee notes the Government’s indication that it has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. The Committee recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6, provides that Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to provide information on any measures adopted to give effect to Standard A4.5, paragraph 6.

Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. Implementing legislation. The Committee notes the draft Merchant Shipping (Maritime Labour Convention) Regulations, 2015, which have been published for comments in the Government Gazette of 2 October 2015. When adopted, these draft Regulations would generally give effect to South Africa’s obligations under Regulation 5.1.3. The Committee therefore requests the Government to provide information on the adoption of these Regulations.

Standard A5.1.3, paragraph 10 (a). Content of Part I of the DMLC. The Committee notes the copy of the Maritime Labour Certificate and DMLC, Part I, as well as the example of an approved DMLC, Part II, provided by the Government. It notes that, in relation to a number of Regulations, the DMLC, Part I only refers to the provisions of the Convention and not to the national requirements embodying those provisions. It understands that this is mainly due to the fact that implementing legislation is currently being developed. Concerning the DMLC, Part II, which is intended to identify the measures adopted by shipowners to implement the national requirements, the Committee notes that the example provided does not contain any information on such measures. The Committee considers that the DMLC, Parts I and II, do not appear to fulfil the purpose for which they are required under the Convention which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ships. The Committee requests the Government to review the DMLC, Part I, as the implementing legislation is adopted, and taking into account the Committee’s comments in relation to existing legislation, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements. The Committee requests the Government to ensure that the DMLC, Part II, approved by the competent authority provide specific information on the ways in which the national requirements are to be implemented between inspections.

Regulation 5.1.5, paragraph 2. In the absence of information on the implementation of this Regulation, the Committee requests the Government to indicate the measures taken to prohibit and penalize any kind of victimization of a seafarer for filing a complaint.

Regulation 5.2.1. Port State responsibilities. The Committee notes the Government’s indication that the national port State control system is under development. The Committee requests the Government to indicate the measures taken to establish an effective port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention, including the method used for assessing its effectiveness, as provided for under Regulation 5.2.1.