Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Repetition

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic.Noting with deep concern the impact of the COVID-19 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 on the General Report of 2021 on this issue.

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 MLC, 2006, is the first ILO Convention ratified by Tuvalu. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Tuvalu on 18 January 2017. The Committee also notes the efforts undertaken by the Government, particularly through the adoption of 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, paragraphs 1(f), 2, 3 and 7. Scope of application. Seafarers. The Committee notes that according to section 2(1) of the Merchant Shipping (Maritime Labour Convention, 2006) Regulations (thereafter, the Regulations), a seafarer is defined as any person who is employed in any capacity on board a ship to which the Regulations apply. The Committee also notes that this definition contains a list of persons who are not considered seafarers, including: (i) scientists, researchers, divers, specialist off-shore technicians and so forth, whose work is not part of the routine business of the ship; (ii) harbour pilots, inspectors, surveyors, auditors, superintendents, etc. who although trained and qualified in maritime skills and perform key specialist functions, their work is not part of the routine business of the ship; (iii) guest entertainers, repair technicians, portworkers whose work is occasional and short term with their principal place of employment being ashore; and (iv) non-marine personnel, employed under outsourced service agreements, the terms of which determine the conditions under which the service provider will supply the necessary personnel. The Committee requests the Government to indicate whether these determinations have been made after consultations with the shipowners’ and seafarers’ organizations concerned, as required by Article II, paragraphs 3 and 7, of the Convention.

Regarding the last element of the list – non-marine personnel – the Committee recalls that under the terms of the resolution concerning information on occupational groups, adopted by the 94th (Maritime) Session of the International Labour Conference in 2006, “Persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board.” The Committee therefore requests the Government to indicate how the decision to exclude non-marine personnel from the definition of “seafarer” in the Regulations takes into account this resolution.

Article II, paragraph 6. Scope of application. Ships under 200 gross tonnage. The Committee notes that section 2(4) of the Regulations provides that where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details in provisions of “this Merchant Shipping (Maritime Labour Convention, 2006) Regulations” to a ship or particular categories of ships, those details will not apply to seafarers on the ship or ships concerned to the extent that those seafarers are covered by other provisions relating to those details and that the other provisions fully implement the relevant provisions of the Regulations of the Convention. Such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations and may only be made with respect to ships of less than 200 gross tonnages not engaged in international voyages. The Committee recalls that the flexibility provided for in Article II, paragraph 6, only pertains to “certain details of the Code” of the Convention, that is, Standards and Guidelines and cannot be extended the content of its Regulations. The Committee therefore requests the Government to indicate the measures taken to revise section 2(4) of the Regulations to ensure full conformity with the provisions of Article II, paragraph 6, thereby restricting the use of this flexibility in relation to the aspects covered by Standards and Guidelines of the Convention.

Article VI, paragraphs 3 and 4. Concept of substantial equivalence. The Committee notes that the application form for the Declaration of Maritime Labour Compliance (DMLC), Part I, states that “any areas where substantial equivalency or exemption may be required should be highlighted to the Administration for consideration and insertion into the ship specific DMLC Part I”. Marine Circular MC-13/2012/1 also states that after a gap analysis is carried out, the shipowner/operator should, through the completion and submission of the DMLC application form, highlight to the Administration any areas of concern where substantial equivalency or exemption may be permitted. While noting that such possibility for the shipowner to request substantial equivalence is not contained in the Regulations, the Committee recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the Convention. The Committee recalls that explanations are required where a national implementing measure differs from the requirements of Part A of the Code. In particular, the Committee needs information on the reason why the Member was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in Article VI, paragraph 4. The Committee requests the Government to provide detailed information, as explained above, with respect to the adoption of substantial equivalence(s), including concrete examples, and to ensure that any use of such possibility will be regulated and follow the procedure of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age of seafarers. The Committee notes that, while section 3(1) of the Regulations provides for a minimum age of 16 to work on board a ship, section 85(1) of the Employment Act provides that the minimum age of 15 applies to work on board a ship and section 85(2) allows for exceptions to the employment of a person under the age of 15 years to work upon a school-ship or a training-ship. The Committee recalls that Standard A1.1, paragraph 1, provides that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited and that no exceptions are permitted in this respect. The Committee draws the attention of the Government to the need to avoid any inconsistencies in the legislation so as to ensure full conformity with the Convention. The Committee therefore requests the Government to take the necessary steps to review its legislation in order to give full effect to Standard A1.1, paragraph 1.

Regulation 1.1 and Standard A1.1, paragraph 4. Determination of types of work which are likely to jeopardize the health and safety of seafarers under 18 years. The Committee notes that section 3(2) of the Regulations prohibits the employment, engagement or work of seafarers under the age of 18 where the work is likely to jeopardize their health or safety. It also notes the list of hazardous activities provided for in Marine Circular MC-9/2012/1 on health and safety issues for seafarers under the age of 18 and hazardous work which is in conformity with the Convention. At the same time, the Committee notes that section 87(b) of the Employment Act, which prohibits work on a ship as a trimmer or stoker for male persons under 18, also provides for possible exceptions to this prohibition in the case of a person between the ages of 16 and 18 to be employed as a trimmer or stoker on a ship mainly propelled by means others than steam or on a ship exclusively engaged in the coastal trade, and if the person is certified by a medical practitioner to be physically fit for 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 no exceptions are permitted in this respect. The Committee requests the Government to take the necessary measures to ensure full conformity with this requirement of the Convention.

Regulation 1.2 and Standard A1.2, paragraph 8. Exceptional cases in which a seafarer may work without a valid medical certificate. The Committee notes that section 4(7) of the Regulations which provides for exceptional cases in which a seafarer may work without a valid medical certificate complies with the conditions contained in Standard A1.2, paragraph 8, by allowing a seafarer to work without a valid medical certificate only in urgent cases until the next port of call where the seafarer can obtain a medical certificate from a qualified medical practitioner, provided that: (a) the period of such permission does not exceed three months; and (b) the seafarer concerned is in possession of an expired medical certificate of recent date. However, the Committee also notes that section 87(c) of the Employment Act provides for possible exceptions to the requirement of a valid medical certificate in urgent cases, but without specifying the safeguards of Standard A1.2, paragraph 8. The Committee therefore requests the Government to review its legislation in order to ensure full conformity with the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that while the DMLC, Part I, only refers to the minimum hours of rest regime, section 9(2) and (4) of the Regulations reproduces the provisions of Standard A2.3, paragraph 5, of the Convention, thereby providing for the alternative between maximum hours of work and minimum hours of rest. The Committee recalls that, under Standard A2.3, paragraph 2, each Member shall fix either a maximum number of hours of work or a minimum number of hours of rest. The Committee considers that the determination of the system of hours of work or hours of rest has to be made by the competent authority and cannot be left to collective agreements or to the selective application by shipowners or masters. The Committee requests the Government to take the necessary measures to fix either a maximum number of hours of work or a minimum number of hours of rest in conformity with these provisions of the Convention.

The Committee notes that, as provided in Standard A2.3, paragraph 13, of the Convention, section 9(12) of the Regulations stipulates that the competent authority may authorize or register collective agreements permitting exceptions to the limits set out regarding minimum hours of rest and maximum hours of work. Noting the absence of information in this regard, the Committee requests the Government to indicate if any such agreement has been authorized and, if so, to provide a copy of it.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that section 10(4) of the Regulations stipulates that any agreement to forgo the minimum annual leave with pay, except in cases provided for by the competent authority, is prohibited. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to ensure that any agreements to forgo the minimum annual leave with pay is prohibited, except in specific cases restrictively provided for by the competent authorities.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee notes, in this regard, that section 11(4) of the Regulations provides that all ships flying the flag of Tuvalu must provide the competent authority with evidence of financial security to ensure that seafarers are duly repatriated. It further notes that the DMLC, Part I, indicates that shipowners shall ensure that all seafarers are covered by a financial security provider for repatriation even in the event of abandonment and that ships must carry on board a certificate or other documentary evidence of financial security. However, the Committee notes that there are no specific provisions relating to the abandonment of seafarers in the Regulations. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.7. Manning levels. The Committee notes that section 13(2) of the Regulations refers to the need to take into account the requirements concerning food and catering when determining, approving or revising manning levels. It notes, however, that nor the DMLC, Part I, nor the sample manning document contained in the Merchant Shipping (STCW Convention, 2010) Regulations to which the Government refers, mention ship’s cook or catering staff. The Committee recalls that, under Standard A2.7, paragraph 3, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering when determining manning levels. The Committee requests the Government to indicate the measures taken to ensure that full effect is given to this provision of the Convention.

Regulation 4.2 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. In this regard, the Committee notes that section 18(3) of the Regulations states that shipowners must provide financial security to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard. However, the Regulations do not contain provisions ensuring that all seafarers are covered by a financial security provider for contractual claims despite the DMLC, Part I, stating that shipowners shall ensure that seafarers are covered by a financial security provider for contractual claims which refer to any claim relating to death or long-term disability of a seafarer due to an occupational injury, illness or hazard and that a 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 brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure 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? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government 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 (Standard A4.2.1, paragraph 14).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indications that there was one shore-based welfare facility operating in Tuvalu from 2009 to 2015 that is no longer operational. The Committee further notes that section 20(1) of the Regulations provides that the competent authority shall promote the development of welfare facilities in appropriate ports of Tuvalu. The Committee requests the Government to provide information concerning any progress achieved in this regard.

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that in accordance with Standard A4.5, paragraphs 2 and 10, the Government has specified at the time of ratification that protection would be provided for the following branches of social security: medical care; sickness benefit and employment injury benefit. The Committee notes that according to section 21 of the Regulations, the competent authority shall cooperate, through bilateral or multilateral agreements or other arrangements, to ensure the maintenance of social security rights, provided through contributory or non-contributory schemes, which have been acquired, or are in the course of acquisition, by all seafarers regardless of residence. The Committee requests the Government to specify whether Tuvalu participates in any such bilateral or multilateral arrangements regarding the provision of social security protection to seafarers (Standard A4.5, paragraphs 3, 4 and 8). It further requests the Government to indicate if consideration has been given to ways to provide benefits to non-resident seafarers working on ships flying its flag who do not have adequate social security coverage (Standard A4.5, paragraphs 5 and 6).

Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee notes the Government’s indication that inspection and certification functions under the Convention have been delegated to a number of recognized organizations listed in Marine Circular MC-13/2012/1. The Committee notes, however, that the Government has not provided examples of the agreements signed with such organizations. The Committee accordingly requests the Government to provide copies of such agreements.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance (DMLC). The Committee notes that the DMLC, Part I, form available on the Tuvalu Ship Registry’s website, contains concise information on the main content of the national requirements embodying the relevant provisions of the Convention on the list of 16 matters to be inspected. However, the form does not contain the necessary reference to the national legal provisions, as required under Standard A5.1.3, paragraph 10(a). Moreover, under certain items, the DMLC, Part I, does not accurately reflect the content of the national legislation. This is the case for example under item 6 (hours of work or rest), where the DMLC indicates that the national system is based on hours of rest, whereas the national legislation provides for an option between hours of work and hours of rest. The Committee recalls that the DMLC, Part I, must identify the national requirements, as contained in the legislation. The Committee requests the Government to review the DMLC, Part I, in order to ensure that it identifies the national requirements embodying the relevant provisions of the Convention by providing a reference to the relevant national legal provisions as well as, to the extent necessary, concise information on the main content of the national requirements.

In addition, the Committee observes that the DMLC, Part II, 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). The Committee requests the Government to provide one or more examples of an approved DMLC, Part II.

Regulation 5.2 and the Code. Port State responsibilities. The Committee notes the information provided by the Government according to which Tuvalu is not a member of any Memorandum of Understanding (MoU) on Port State Control. The Committee also notes that under section 23(3) of the Regulations, the competent authority shall establish an effective port State inspection and monitoring system to help ensure that the working and living conditions for seafarers on foreign ships entering a port of Tuvalu meet the requirements of the Convention including seafarers’ rights. The Committee notes however, that the Government has not provided information about the actual development of this system by the competent authorities nor about its implementation in practice. The Committee requests the Government to provide detailed information in this regard.

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: an example of the approved document for seafarers’ records of employment(Standard A2.1, paragraphs 1 and 3); an example of the kind of 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)); a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; and a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12).