Solicitud directa (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Reino Unido de Gran Bretaña e Irlanda del Norte (Ratificación : 2013)

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The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006), and the observations of Nautilus International communicated with the Government’s report. The Committee also notes that the amendments to the Code of the MLC, 2006, approved by the International Labour Conference in 2018 entered into force for the United Kingdom on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to 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. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by the United Kingdom during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had 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 ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article III of the Convention. Fundamental rights and principles. The Committee notes the observations made by Nautilus International, alleging that UK equality laws do not apply to those in the process of being recruited as a seafarer. According to the case referenced by such organisation, the Equality Act (Work on Ships and Hovercraft) Regulations 2011 permits an offshore employment service provider to discriminate on United Kingdom soil on the ground of any of the protected characteristics in the Equality Act 2010 when recruiting, in that country, personnel to serve on its clients’ foreign flagged ships sailing outside United Kingdom waters. The Committee requests the Government to provide its comments in this regard.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that Marine Guidance Note (hereafter “MGN”) 471 (M), as amended in June 2022, indicates that the UK interpretation of ships navigating beyond inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply, includes “ships operating from a UK port on domestic voyages no more than 60 miles from a safe haven in the UK”. The Committee also notes the indication in MGN 471 (M) that, since many earlier regulations on seafarer living and working conditions applied to all sea-going ships, the UK is not disapplying most of the MLC, 2006, standards to ships operating in “waters within, or closely adjacent to, sheltered waters or areas where port regulations apply”; however certain provisions of the Convention, where inappropriate, are not applied. While noting this information, the Committee requests the Government to provide information on: (i) the criteria that it has used to define waters “closely adjacent to sheltered waters”; and (ii) the number of ships excluded from the application of the Convention as a result of this definition.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that Regulation 9 of the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014 provides that if the seafarer is an employee but is not an employee of the shipowner, the employer of the seafarer must be a party to the seafarer employment agreement and the seafarer employment agreement must include provision under which the shipowner guarantees to the seafarer the performance of the employer’s obligations under the agreement insofar as they relate to the matters specified in paragraphs 5 to 11 of Part 1 of Schedule 1 and in Part 2 of Schedule 1. The Committee also notes that “employer” means a person by whom the seafarer is employed under a contract of employment. The Committee recalls the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II of the Convention and the fact that under Standard A2.1, paragraph 1(a), every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer). The Committee therefore requests the Government to amend its legislation to ensure that, in all cases, the shipowner is a party and signs the seafarers’ employment agreement, independently of who is considered “employer” from the perspective of employment law.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes that the Government has adopted a system of minimum hours of rest. The Committee requests the Government to indicate how it ensures that the normal working hours for seafarers are based not only on an eight-hour day but also on one day of rest per week and rest on public holidays, as provided for under Standard A2.3, paragraph 3, giving due consideration to Guideline B2.3.1.

Regulation 2.3 and Standard A2.3, paragraph 13. Exceptions to the limits on hours of work and hours of rest. The Committee notes that Regulation 7 of the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 allows exemptions to the limits of hours of work and hours of rest agreed through collective agreement or workforce agreements. It also notes the Government’s indication that the Maritime Coastguard Authority authorised agreements for 8 hours on/8 hours off working pattern and agreements to provide daily rest to be taken in three periods, one of which must be at least six hours, and that these agreements were made on a case-by-case basis in consultation with the UK’s social partners. The Committee further notes that the Government has not provided a reply to the observations made by Nautilus International alleging that the workforce agreements mentioned by the Government were concluded to circumvent consultations with unions and are inconsistent with the cornerstone of the MLC, 2006, which should be consultation with the social partners/collective agreements. The Committee requests the Government to provide its comments in this regard.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes the absence of reply to its previous comment on this issue. The Committee also notes that the Government does not indicate the procedure which would be used to determine whether the seafarer’s conduct was reasonable or not pursuant to Regulation 21(b) of the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014 as amended. The Committee once againrequests the Government to adopt the necessary measures 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.

Regulation 4.2 and Standard A4.2.1, paragraph 4. Shipowners’ liability. Wages of an injured or sick seafarer no longer on board. Limits. The Committee notes that Regulation 50 of the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014 as amended, does not fully comply with Standard A4.2.1, paragraph 4 as it does not guarantee, in all cases, that the shipowner is liable to pay wages in whole or in part in respect of a seafarer no longer on board for a minimum period of not less than 16 weeks from the day of the injury or the commencement of the sickness. The Committee requests the Government to indicate the measures taken to fully implement this provision of the Convention.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. Noting the absence of reply to its previous comment in this regard, the Committee once again requests the Government to provide detailed information on the relevant legal provisions concerning social security protection granted to seafarers ordinarily resident in the United Kingdom regarding: medical care; sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; family benefit; invalidity benefit and survivors’ benefit.

The Committee also notes that, in reply to its previous comment, the Government indicates that UK resident seafarers are not exempted from National Insurance contributions rules, irrespective of where the vessel they are working on is flagged, unless an international Social Security Agreement determines that they are not subject to UK social security legislation. Resident seafarers have to meet the same entitlement and qualifying conditions for access to benefits as any other UK resident. The Committee takes note of this information.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Government indicates, in its reply to the Committee’s previous comment, that a non-resident seafarer who is employed on a vessel flying the UK flag will only be required to pay UK National Insurance contributions where their employer is based in the UK. Where a non-resident seafarer has paid UK National Insurance contributions, they may become entitled to a UK State Pension when they reach the UK state pension age and if they have paid sufficient UK national insurance contributions. Unless a social security agreement provides otherwise, other benefits are usually only accessible to those who are residing in the UK. The Committee recalls that, although the primary obligation regarding social security rests with the Member in which the seafarer is ordinarily resident, 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 non-resident seafarers in the absence of adequate coverage in the applicable branches of social security (Standard A4.5, paragraph 6). Noting that there are 35,430 seafarers onboard UK flagged vessels, the Committee requests the Government to provide information on any future developments in this regard.

Regulation 5.1.6. Marine casualties. Referring to its previous comment, the Committee notes that Regulation 7 of the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012 provides that, in case of a serious marine casualty, the Chief Inspector must carry out a preliminary assessment in order to decide whether or not to undertake a safety investigation and that, where the Chief Inspector does not undertake a safety investigation, the reasons for that decision must be recorded. The Committee also notes that the final reports for such preliminary assessments are published on the Marine Accident Investigation Branch website. The Committee takes note of this information, which addresses its previous request.

Isle of Man

The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2018 entered into force for the Isle of Man on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to 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. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by the Isle of Man during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had 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 ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

In this regard, the Committee notes that according to Technical Advisory Notice 002-20 (Rev.8) on COVID-19 advice to ship operators, issued on 31 March 2023, when travel restrictions related to COVID-19 disrupt scheduled crew changes it is still possible, although as a last resort and upon contact with the Ship Registry, to extend a seafarer’s employment agreement beyond the maximum service period. The Committee recalls that in its 2020 general observation it considered that the extreme fatigue of seafarers who have been on board beyond the default 11 months maximum period of service on board not only constitutes a situation clearly hazardous for the safety and health of the seafarers concerned, but also profoundly endangers the safety of navigation in general. Noting thatmore than 3 years have passed since the beginning of the pandemic, the Committee urges the Government to adopt without delay the necessary measures to bring all relevant legislation into full compliance with the Convention and to ensure that in practice seafarers on board Isle of Man-flagged ships are not requested to continue working beyond the default 11 months maximum period of service on board and are not denied the protection derived from the provisions of the Convention.

Article I of the Convention. General questions on application. Implementing measures. In reply to the Committee’s previous comment on the alternative methods of compliance that have been considered and granted by the competent authority, the Government indicates as an example that, although Maritime Labour Notice (MLN) 2.1 provides shipowners with an Annex containing a model seafarer’s employment agreement (SEA), this does not preclude a shipowner from using their own SEA on an Isle of Man ship, provided that it meets the requirements of MLC, 2006, and the Isle of Man Regulations. The Committee takes note of this information.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. In reply to the Committee’s previous request on the application of the requirements of the Convention to pleasure ships that are ordinarily engaged in commercial activities, the Government indicates that the Isle of Man does not permit pleasure vessels to engage in commercial activity; a “pleasure ship that ordinarily engages in commercial activity” (such as a commercial yacht) is not a pleasure vessel for the purposes of the Merchant Shipping (Maritime Labour Convention) Regulations 2013, and is treated as a commercial vessel to which MLC, 2006, is applied. The Committee takes note of this information, which addresses its previous request.

Regarding the application of the Convention to ships navigating beyond inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply, the Government indicates that there is no “domestic” trade on the island, except for fishing vessels and a small number of vessels that operate short sightseeing tours/fishing trips for tourists around the coast of the Island. While noting this information, the Committee notes the Government’s statement that the interpretation of the Isle of Man is that the Convention does not apply to ships that navigate exclusively within 60 nautical miles of its coast. The Committee recalls that ships excluded from the scope of application with respect of the navigational area are defined under Article II, paragraph 1(i). It also recalls that, as the MLC, 2006, does not explicitly define the terms “closely adjacent to” or “sheltered waters” used in Article II, paragraph 1(i), it is for the competent authority of the Member to determine, in good faith and on a tripartite basis, taking into account the objectives of the Convention and the physical features of the country, which areas could be considered as “sheltered waters” and what distance away from those waters could be considered as “closely adjacent to sheltered waters”. The Committee therefore requests the Government to provide information on: (i) how it has taken into account the above-mentioned criteria when defining waters “closely adjacent to sheltered waters”; and (ii) the number of ships excluded from the application of the Convention as a result of this definition.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that, according to regulation 11 of the Merchant Shipping (Maritime Labour Convention) Regulations 2013, private seafarer recruitment and placement services operating on the Island, whose primary purpose is the recruitment and placement of seafarers or that recruit and place a significant number of seafarers, must establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that may be incurred as a result of the failure of such service or the relevant shipowner under the seafarer’s employment agreement to meet its obligations to the seafarer. The Committee requests the Government to provide information on how the system of protection operates in practice.

Regulation 1.4 and Standard A1.4, paragraph 7. Recruitment and placement. Investigation of complaints. The Committee notes the Government’s reply indicating the detailed procedure to be followed upon receipt of an MLC, 2006, complaint relating to a recruitment and placement company. The Committee takes note of this information.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. The Government indicates that it is in the process of updating national regulations in relation to the 2018 amendments to the Code of the Convention. The Committee draws the Government’s attention to the following questions included in the report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions, and to provide a copy of all relevant new legislation or other regulatory instruments implementing the 2018 amendments.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee notes the Government´s reply and that MLN 2.3 has been revised on 23 June 2022 to only allow exceptions to the minimum hours of rest that have been produced as part of a collective agreement. The Committee takes note of this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.1, paragraphs 1–3. Repatriation. Circumstances. Prohibition of advance payment and to recover costs from seafarers. The Committee notes that, in reply to its previous comments, the Government indicates that it reviews all collective bargaining agreements and expects that the specific circumstances and standard of proof required to find a seafarer in serious default of their employment obligations are detailed within. Should a seafarer consider that the definitions of serious default measures specified have not been applied correctly, they may launch a complaint procedure, following which the authority would contact the shipowner and request evidence detailing the circumstances that caused the seafarer to be in “serious default of their employment obligations”. The Committee takes note of this information.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes Technical Advisory Note 011-16 of 15 December 2016, as well as the Government´s reply that the documentation accepted as evidence of financial security to be provided by shipowners would typically be a Certificate of Financial Security issued by a Protection & Indemnity Club (P&I) insurance company or club including the information contained in Appendix A2-I of the Convention. The Committee takes note of this information.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. While noting that Regulation 83(1) of the Merchant Shipping (MS) Regulations 2013 provides that a ship operating with a prescribed manning of 6 or more seafarers, and which is engaged in voyages of more than 3 days, or more than 36 hours from a safe port, must carry a fully qualified cook, the Committee notes that the example of a minimum safe manning document issued under the requirements of the Large Yacht Code (LY2) that was provided by the Government with its second report does not mention the requirement of a ship’s cook, even though a minimum crew of 7 is required. The Committee also notes that Manx Shipping Notice (MSN) 054, of September 2022, which advises on the Red Ensign Group Yacht Code and includes the National Annex for yachts constructed to LY1, LY2 or LY3, does not implement the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee recalls that the requirements for safe manning, as set out under Standard A2.7, apply to all ships under the Convention. The Committee accordingly requests the Government to indicate the measures taken to ensure that, when determining manning levels, account is taken of all the requirements of Regulation 3.2 and Standard A3.2 regarding food and catering for all ships that fly its flag, including commercial yachts. The Committee also requests the Government to indicate how it has taken due account of the provisions of Guideline B2.7 (dispute settlement).

Regulation 3.1, paragraph 2. Accommodation and recreational facilities. Scope of application. The Government indicates in its reply to the Committee’s previous comment that the Red Ensign Group Yacht Code - Part A, specifically chapters 21A and 21B, implements substantially equivalent arrangements to the seafarer accommodation requirements of the MLC, 2006, for large commercial yachts, although there are no yachts currently registered in the Isle of Man that make use of such an arrangement. The Committee notes that the Code has been developed jointly by the United Kingdom, its relevant overseas territories and crown dependencies, and international industry representatives, and that it is intended to cater exclusively to the yachting sector. The Government also indicates that previous versions of the Red Ensign Group Yacht Code, namely the Code of Practice for the Safety of Large Commercial Sailing or Motor Vessels (LY1) and the Large Commercial Yacht Code (LY2) apply to large commercial yachts constructed before 20 August 2013, whereas the Large Commercial Yacht Code (LY3) applies to yachts constructed on or after 20 August 2013 up to and including 31 December 2018. A yacht complying with the crew accommodation requirements of LY1 or LY2 must also comply with regulation 75 (recreational facilities) and regulation 76 (open deck spaces) of the MS Regulations 2013, as LY1 and LY2 do not make substantially equivalent provisions in these two areas. The Committee takes note of this information.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum requirements. Medical advice by radio or satellite. The Committee notes that, in reply to its previous comment, the Government indicates that telemedical advice is provided free of charge to all ships who require it and refers to Marine Guidance Notice 623 (M+F) issued by the UK Maritime and Coastguard Agency. The Committee takes note of this information, which addresses its previous request.

Regulation 4.2, Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee takes note of the Government´s reply to its previous request that the documentation that would be accepted with respect to financial security that must be provided by shipowners would typically be a certificate of financial security issued by a P&I insurance company or club. The Committee also notes the Government´s indication that other documentation may be accepted on a case-by-case basis, as long as it includes the information in Appendix A4-I of the Convention, for instance documentation showing evidence of financial security by way of a social security scheme or national fund. The Committee takes note of this information.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. In reply to the Committee‘s previous request concerning the ways in which comparable benefits are provided to non-resident seafarers working on board Isle of Man vessels in the absence of adequate coverage in the applicable branches of social security, the Government indicates that, while it has not taken measures in this regard, it will keep the matter under consideration. The Committee accordingly requests the Government to provide information on any developments regarding the implementation of Standard A4.5, paragraph 6.

Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. In reply to the Committee’s previous comment, the Government indicates that detailed information about investigations into marine casualties is available on the Isle of Man Ship Registry website. While noting this information, the Committee observes that, as indicated in the Annual Summary of Casualties, Accidents and Incidents on Isle of Man Registered Vessels 2021, all reports received that are “Very Serious Marine Casualties” as defined by the IMO Casualty Investigation Code are investigated and have a report published. The Committee accordingly requests the Government to provide detailed information on how it ensures compliance with Regulation 5.1.6, paragraph 1, regarding any serious marine casualty leading to injury or loss of life that involves a ship that flies its flag.