CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Sri Lanka (RATIFICATION: 2017)

Other comments on C186

Direct Request

2021

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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). It notes that the amendments to the Code approved by the International Labour Conference in 2014, 2016 and 2018 entered into force for Sri Lanka on 18 January 2017, 8 January 2019 and 26 December 2020, respectively. 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.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic 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 provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article I of the Convention. General questions on application. Implementing measures. The Committee notes that the Merchant Shipping Act of 1971, as amended (hereinafter, MSA), delegates to “the Minister”, inter alia, the adoption of regulations on qualifications of officers and seamen, the manning of ship and conditions of service. It also notes that the Government supplied a copy of the draft Merchant Shipping (Maritime Labour) Regulations, 2020 (hereinafter, draft MLC Regulations), which are aimed at giving effect to the Convention. The Committee requests the Government to provide information on any development in adopting the draft MLC Regulations, taking into account the points raised below. It also requests the Government to provide copy of the relevant text once adopted.

Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes that regulation 50(16) of the draft MLC Regulations provides for a definition of “seafarer” in line with the Convention and excludes from the definition a list of persons, e.g. pilots, guest entertainers, marine surveyors, researchers, etc.. It notes in particular that regulation 50(16) excludes from the definition of seafarer, inter alia: “(l) any person [who] is employed or engaged or who works in any capacity on board a ship and who fulfils the following criteria set out in sub-paragraphs (i) and (ii) together with any one of the following criteria set out in sub-paragraphs (iii) and (iv): (i) his duration of stay on board that ship does not exceed 45 consecutive days; (ii) his working duration on board that ship in the aggregate does not exceed 4 months in any 12 month period; (iii) the nature of his work does not form part of the routine business of the ship; and (iv) the work he performs is ad-hoc, with his principal place of employment on-shore”. The Committee observes that regulation 50(16)(l) appears to exclude additional categories of persons (beyond the list of exclusions under (a)–(k) of the same regulation). The Committee requests the Government to explain the scope of regulation 50(16)(l) of the draft MLC Regulations and to provide examples of potential exclusions according to the same regulation. It also requests the Government to indicate if seafarers’ and shipowners’ organizations have been consulted in preparing this national determination, as required by Article II, paragraph 3.

Article II, paragraph 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that the MSA and the draft MLC Regulations apply to all Sri Lankan-flagged ships. It also notes that the draft MLC Regulations exclude from their scope of application ships to which the Merchant Shipping (Small Commercial Vessels) Regulations, 2017 apply; and ships to which the Ordinance No. 11 of 1907 applies (regulation 3(2)(e)(f)). While neither the Ordinance nor the Regulations are available at the Office, the Committee notes that the Code of Safety for Small Commercial Vessels engaged in Sri Lankan coastal waters (SCV Code), applies to: (i) commercial vessels that are cargo, or passenger vessels between 5 and 24 metres, which carry not more than 100 passengers or provide overnight accommodation for not more than twenty four passengers engaged in coastal waters of Sri Lanka; and (ii) pleasure vessels used for profit or reward. The Committee recalls that the Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial navigation (Article II, paragraph 4), regardless of their length or tonnage and the number of passengers carried. It also recalls that while ships navigating “exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply” are excluded by the scope of the Convention (Article II, paragraph 1(i)), the latter applies to ships navigating in coastal waters. The Committee accordingly requests the Government to indicate the measures taken to ensure that the protection afforded by the Convention is guaranteed to all seafarers working on board ships within the meaning of the Convention, including small commercial vessels navigating in coastal waters and pleasure vessels used for profit.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee notes that under regulation 3(3)(a)–(c) of the draft MLC Regulations, “Where the Director General [of Merchant Shipping] determines from time to time that it would not be reasonable or practicable to apply any provision of these regulations, to any Sri Lanka ship, of less than 200 gross tonnage not engaged in international voyages, the Director General may exempt that ship, or particular categories of ships, either generally or for such time or such voyage as the Director General shall determine”. In granting any exemptions, he may impose such conditions on the concerned ships as he thinks fit. The conditions may include a requirement that the provisions of any other written law, or the terms of any seafarer’s employment agreement or collective agreement, or other measures, be complied with in lieu of any provision of these regulations or Part A of the Code of the MLC, 2006. The Committee notes that as currently drafted, regulation 3(3)(a)–(c) of the draft MLC Regulations is not fully in line with the Convention as long as: (i) the exemption provided by Article II(6) of the Convention may only concern “certain details of the Code” to the extent that the subject matter is dealt differently by national laws or regulations or collective agreements or other measures; and (ii) the determination by the competent authority shall be made in consultation with the shipowners and seafarers’ organizations concerned. The Committee requests the Government to take the necessary measures to ensure full conformity with Article II, paragraph 6 of the Convention.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. The Committee notes that under regulation 5(2)(b) of the draft MLC Regulations, the prohibition of night work for seafarers under 18 years of age does not apply where the specific nature of the duty or of a recognized training programme requires that the seafarer performs duties at night and the work to be carried out forms part of a list of trainings. The Committee requests the Government to indicate how such provision gives effect to Standard A1.1, paragraph 3(b) of the Convention, which additionally requires the determination by the authority, after consultation with the shipowners’ and seafarers’ organizations, that the work will not be detrimental to the health or wellbeing of the young seafarers.

Regulation 1.4 and Standard A1.4, Paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that under regulation 8(2) of the draft MLC Regulations, a seafarer recruitment and placement service provider operating in Sri Lanka for providing national seafarers for national ships or foreign-flagged ships shall conform to the Standard A1.4 of the MLC, 2006. It further notes that regulation 8(5) and (11) of the draft MLC Regulations gives effect to Standard A1.4, paragraph 5(c)(vi), by providing for a system of protection by way of a bank guarantee. It observes, however, that the table in regulation 8(11) refers to seafarers placed on foreign ships. The Committee requests the Government to indicate how Standard A1.4, paragraph 5(c)(vi) is implemented with respect to seafarers recruited by seafarer recruitment and placement service providers operating in Sri Lanka to work on Sri Lankan-flagged ships.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee notes that under regulation 11(6) of the draft MLC Regulations, the Director General may, in accordance with Standard A2.3 of the MLC, 2006 and section A-VIII/1 of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW), permit Sri Lanka ship an exception to the requirements on hours of rest. Such exceptions shall, as far as possible, follow the provisions of the Standard A2.3 of the MLC, 2006 but may take account of more frequent or longer leave periods or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ships on short voyages. The Committee requests the Government to indicate if any such exceptions have been authorized and, if so, to provide information on how they comply with Standard A2.3, paragraph 13 of the Convention.

Regulation 2.4, Standard A2.4, paragraph 2 and Guideline B2.4.1, paragraph 3. Entitlement to leave. Minimum paid annual leave. Calculation on a pro-rata basis. The Committee notes that under regulation 15(3) of the draft MLC Regulations, a seafarer who has served a shipowner for a period shorter than 12 months of continuous service in any year or in the event of termination of employment otherwise than for misconduct, shall be entitled to annual leave in proportion to the number of completed months of service in that year. The Committee recalls that Guideline B2.4.1, paragraph 3 of the Convention provides that for seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis, regardless of the reason for the termination. The Committee requests the Government to indicate how it has given due consideration to Guideline B2.4.1, paragraph 3.

Regulation 2.5 and Standard A2.5.2. Repatriation Financial security. The Committee notes that under regulation 16(7) of the draft MLC Regulations, a ship shall not be operated unless, in the case of a Sri Lankan ship, there is in force a contract of insurance or other financial security adequate to ensure that the shipowner will be able to meet any liabilities arising from the duties in regulations 16(1) and 16(4), i.e. liability in relation to repatriation. The Committee recalls that Standard A2.5.2 requires the establishment of an expeditious and effective system to assist seafarers in the event of their abandonment. It also recalls that the definition of abandonment in Standard A2.5.2, paragraph 2 includes but is not limited to the failure to cover the cost of the seafarer’s repatriation and that the financial security system should be, inter alia, sufficient to cover outstanding wages and other entitlements, limited to four months (Standard A2.5.2, paragraph 9(a)). The Committee requests the Government to indicate the measures taken to ensure full conformity with the detailed requirements of Standard A2.5.2.

Regulation 2.5 and the Code. Repatriation. The Committee notes that under regulation 3(3)(f) and (g) of the draft MLC Regulations, the Director General may exempt a ship of less than 3,000 gross tonnage engaged in coastal waters of Sri Lanka, inter alia, from any of the applicable requirements specified in Standard A2.5. Such an exemption: (i) shall be given in writing; (ii) shall be granted on such terms as the Director General may specify; and (iii) may be altered or cancelled by the Director General giving written notice to the shipowner. The Committee recalls that Regulation 2.5 and the Code apply to all ships covered by the Convention, including those navigating in coastal waters (see comments under Article II). The Committee requests the Government to provide further information on the circumstances in which the exemptions under section 3(3)(f) and (g) of the draft MLC Regulations may be granted and on the number and types of exemptions granted.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes that under regulation 16(3) of the draft MLC Regulations, the shipowner’s duty to provide for the repatriation of the seafarer ends, inter alia, when the shipowner makes reasonable arrangements for repatriation which are unsuccessful because of the seafarer’s misconduct (regulation 16(3)(b)); when the shipowner has used reasonable endeavours to contact the seafarer for a period of three months or more, but has been unable to make such contact (regulation 16(3)(c)); and when the seafarer confirms in writing to the shipowner that repatriation is not required (regulation 16(3)(d)). The Committee recalls that the Convention does not provide that the right to repatriation ends when the circumstances provided under Standard A2.5.1, paragraph 1, are met. The Committee requests the Government to indicate how regulation 16(3)(b)-(d) of the draft MLC Regulations is implemented in practice, specifying the definition of “seafarer’s misconduct” and the onus of proof of the shipowner with regard to Regulation 16(b) and (c). It also requests the Government to ensure that any provision of national legislation, which deprives seafarers of their right to repatriation is limited to the circumstances allowed by the Convention, and to take the necessary measures to align its legislation to the Convention in this regard.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. The Committee notes that under regulation 16(1) of the draft MLC Regulations, the shipowner and employer of a seafarer on board a Sri Lanka ship shall ensure that the seafarer is repatriated at no cost to the seafarer if the seafarer has been on board for a period not exceeding 12 months. The Committee recalls that is has consistently considered that, from the combined reading of Standard A2.4, paragraphs 2 and 3, on annual leave and Standard A2.5.1, paragraph 2(b), on repatriation, the maximum continuous period of shipboard service without leave is in principle 11 months. The Committee requests the Government to indicate how it is ensured in law and in practice that seafarers are entitled to annual leave and to repatriation in accordance with the provisions of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee notes that under regulation 16(6) of the draft MLC Regulations, the shipowner may recover the costs where the agreement is terminated because of the seafarer’s serious misconduct. The Committee 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 in order for a seafarer to be found in serious default of her/his obligations pursuant to Standard A2.5.1, paragraph 3.

Regulation 2.7 and Standard A2.7, paragraph 1 Manning levels. Adequate manning. The Committee notes that under regulation 26(1) of the draft MS Regulations, the ship owner shall ensure that each ship shall employ on board as per the minimum safe manning document issued by the Director General in accordance with the Merchant Shipping (Minimum Safe Manning) Regulations, 2016, so that the ships are operated safely, efficiently and with due regard to security under all conditions, taking into account concerns about seafarer fatigue and the particular nature and conditions of the voyage. The Committee requests the Government to supply a copy of the Merchant Shipping (Minimum Safe Manning) Regulations, 2016. It also requests the Government to indicate how it has given due consideration to Guideline B2.7.1 (dispute settlement).

Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee notes that under regulation 27(2) of the draft MLC Regulations, accommodation and recreational facilities referred in sub regulation (1)(a) shall be in accordance with the implementation standards published related to it by the Director General. The Committee notes that there is no information about any standards on accommodation implementing such draft provision. The Committee recalls that under Standard A3.1, paragraph 1, each Member shall adopt laws and regulations requiring that ships flying its flag meet the minimum standards for on-board accommodation and recreational facilities set out in paragraphs 6–17 of the Standard. The Committee requests the Government to provide information on the legislation adopted to ensure conformity with Standard A3.1, paragraph 1, of the Convention.

Regulation 4.2 and Standard A4.2.1, paragraph 1(c). Shipowners’ liability. Minimum Standards. Expenses of medical care and board and lodging away from home. The Committee notes regulations 31 et seq. of the draft MLC Regulations, which implement Standard A4.2.1. The Committee reminds the Government that the shipowner’s liability may be limited to a period of no less than 16 weeks from the day of the injury or the commencement of the sickness (Standard A4.2.1, paragraph 2). Accordingly, the Committee requests the Government to indicate the laws and regulations implementing Standard A4.2.1, paragraph 1(c), which provides that shipowners shall be liable to defray the expenses of medical care, board and lodging until the seafarer has recovered or until the sickness or incapacity has been declared permanent in nature.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14 and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes regulation 35 of the draft MLC Regulations, which implements Standards A4.2.1, paragraphs 8–14 and Standard A4.2.2. The Committee requests the Government to indicate how national legislation ensures that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures (Standard A4.2.2, paragraph 3).

Regulation 4.3 and Standard A4.3, paragraph 3. Health and safety protection and accident prevention. Regular review of legislation in consultation with social partners. The Committee notes regulation 36 of the draft MLC Regulation, which gives effect to Standard A4.3 of the Convention. The Committee requests the Government to indicate how it implements Standard A4.3, paragraph 3, requiring that legislation and other measures be reviewed regularly, in consultation with shipowners’ and seafarers’ organizations, with a view to their revision to take account of changes in technology and research and the need for continuous improvement. It further requests the Government to provide information on the development of national guidelines for the management of occupational safety and health, to protect seafarers who live, work and train on board ships flying the Sri Lankan flag (Regulation 4.3, paragraph 2).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes regulation 49 of the draft MLC Regulations, which provides that the Director General of Shipping may issue implementation standards from time to time for providing seafarers on ships that are in Sri Lankan ports with access to adequate welfare facilities and services. The Committee requests the Government to provide information on the development of seafarer welfare facilities and services pursuant to regulation 49 of the draft MLC Regulations, and to indicate how it gives application to the provisions of Regulation 4.4 and the Code.

Regulation 4.5 and Standard A4.5, paragraphs 1 and 2. Social security. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10, the Government has specified the following branches of social security: old-age benefit; employment injury benefit; and invalidity benefit and survivors’ benefit. It also notes, however, that under regulation 37(2) of the draft MLC Regulations, to achieve social security the following branches of social security protections shall be adopted, namely: (a) medical care; (b) sickness benefit; (c) unemployment benefit; (d) old-age benefit; (e) employment injury benefit; (f) family benefit; (g) maternity benefit; (h) invalidity benefit; and (i) survivors’ benefit. The Committee requests the Government to clarify what are the social security branches covered pursuant to Standard A4.5, paragraph 2. It also requests the Government to indicate the main benefits provided under national legislation in the branches concerned.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. The Committee notes that regulation 37 of the draft MLC Regulations on social security applies to Sri Lankan seafarers employed on board a ship, licensed seafarers recruitment and placement service providers and owners of Sri Lankan registered ships. Under regulation 37(4) and (5), the Director General shall: (i) establish social security protection progressively for all its seafarers serving on board Sri Lankan ships or on board other flag state ships, in collaboration with the stakeholder’s equivalent schemes as per the national circumstances; and (ii) publish the implementation standard with regard to the Social Security protection. The Committee recalls that under Regulation 4.5, paragraph 3 and Standard A4.5, paragraph 3 of the Convention, each Member shall take steps to provide to all seafarers ordinarily resident in its territory and their dependants social security protection no less favourable than that enjoyed by shoreworkers. The Committee requests the Government to indicate how it ensures that social security in the branches specified is provided to all seafarers ordinarily resident in Sri Lanka, regardless of their nationality.

Regulation 5.1.2 and Standard A5.1.2, paragraph 4. Flag State responsibilities. Authorization of recognized organizations. List provided to the ILO. The Committee notes that under regulation 38(2)(d) of the draft MLC Regulations, the Director General shall provide the International Labour Office with a current list of any recognized organizations (ROs) authorized to act on its behalf and shall keep the list up to date. The list shall specify the functions that the ROs have been authorized to carry out. The Committee notes the examples of agreements with ROs supplied by the Government, specifying the authorizations granted. The Committee requests the Government to supply a current list of recognized organizations which have been duly authorized, specifying the functions which they have been authorized to carry out.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 1 and 10. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. Scope of initial inspection. Content. The Committee notes regulation 39 of the draft MLC Regulations, which implements Regulation 5.1.3 and the Code of the Convention. It notes that under regulation 39(6) of the draft MLC Regulations, initial MLC inspection means an inspection by which a certifying authority ascertains whether the ship meets the standards of the MLC, 2006. The Committee requests the Government to specify the scope of the initial inspection pursuant to regulation 39(5) of the draft MLC Regulations. The Committee further observes that the Declaration of Maritime Labour Compliance (DMLC), Part II, provided by the Government is a blank form and is not a completed and approved DMLC, Part II, that has been drawn up by a shipowner and sets 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). The Committee requests the Government to provide one or more working examples of an approved DMLC, Part II.

Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. The Committee notes that under regulation 45(1) of the draft MLC Regulations, the Director General shall hold an official inquiry into any serious marine casualty, leading to injury or loss of life that involves a ship that flies the flag of Sri Lanka. The Committee requests the Government to provide information on the requirements and procedure to hold an official inquiry pursuant to regulation 45(1) of the draft MLC Regulations.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. Qualifications of officers. The Committee requests the Government to indicate the qualifications and training required for being appointed as port State control officers.

Regulations 5.2.1 and 5.2.2 and the Code. Port State responsibilities. Inspections in port. Onshore seafarer complaint-handling procedures. Information to social partners. The Committee notes regulations 42 and 43 of the MLC Regulations, which implement Regulations 5.2.1 and 5.2.2 and the Code of the Convention. The Committee requests the Government to indicate how it gives effect to the requirement of Standard A5.2.1, paragraph 8 and Standard A5.2.2, paragraph 6 to inform the appropriate shipowners’ and seafarers’ organizations in the port State, among other things.

Additional documentation requested. The Committee requests the Government to provide a copy of the following documents : an example of the standard wording in medical certificates (Standard A1.2, paragraph 10); an example of the approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); the standard form or an example of a seafarers’ employment agreement used on board Sri Lankan ships (Standard A2.1, paragraph 2(a)); a copy of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of rest (Standard A2.3, paragraph 12); an example of the documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Regulation 2.5, paragraph 2 and Standard A4.2.1, paragraph 1(b)); for each type of ship (passenger, cargo, etc.), a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it (in English); a copy of the documents used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); the following statistical information for the period covered by next report: number of Sri Lankan ships inspected for compliance with the requirements of the Convention; number of inspectors, appointed by the competent authority or by a duly authorized recognized organization, carrying out those inspections; number of full-term (up to five years) maritime labour certificates currently in force; number of interim certificates issued; number of foreign ships inspected in port; number of more detailed inspections carried out according to Standard A5.2.1, paragraph 1; number of cases where significant deficiencies were detected; number of detentions of foreign ships due, wholly or partly, to conditions on board ship that are clearly hazardous to the safety, health or security of seafarers, or constitute a serious or repeated breach of the requirements of the MLC, 2006 (including seafarers’ rights).