Demande directe (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

Convention du travail maritime, 2006 (MLC, 2006) - Philippines (Ratification: 2012)

Autre commentaire sur C186

Demande directe

2018
2014

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General questions on application. Implementing measures. The Committee notes the Government’s first report on the Convention. It also notes that, in addition to the fundamental Conventions, the Philippines has previously ratified five of the 37 maritime labour Conventions, all of which were automatically denounced on the entry into force of the Convention for the Philippines. The Committee notes that currently the Convention is implemented through two legal regimes, one covering seafarers working on ships engaged in domestic voyages and the other covering seafarers working on ships engaged in international voyages. The implementing legislation includes the following: Department Order of the Department of Labor and Employment No. 129 of 2013 concerning rules and regulations governing the employment and working conditions of seafarers on board ships engaged in domestic shipping (hereinafter “DOLE DO No. 129 of 2013”); applicable provisions in the Labor Code; Department Order of the Department of Labor and Employment No. 130 of 2013 concerning rules and regulations governing the employment of Filipino seafarers on board ships engaged in international voyage (hereinafter “DOLE DO No. 130 of 2013”); and Department Order of the Department of Labor and Employment No. 130-A of 2013 concerning guidelines on the authorization of recognized organizations to conduct inspection and certification of Philippines-registered ships engaged in international voyages pursuant to the Convention, (hereinafter “DOLE DO No. 130-A of 2013”); Rules and Regulations Governing the Recruitment and Employment of Seafarers 2003 (hereinafter “POEA Rules”) as well as various Memorandum Circulars and Advisories. The Committee understands that these Circulars and Advisories are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. The Committee also notes in this connection that for seafarers working on ships registered in the Philippines engaged in international voyages, Rule IV, Section 2 of DOLE DO No. 130 of 2013, provides that the terms and conditions of employment must be governed by the Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-board Ocean-Going Ships (Memorandum Circular of the Philippine Overseas Employment Administration (POEA) No. 10 of 2010, hereinafter “POEA Standard Terms and Conditions”). The Committee notes that section IV(1) of Memorandum Circular of MARINA No. 137 of 1998, which applies to all Philippines-registered ships engaged in international trade, provides that “[s]eagoing ships shall be completely manned by Filipino seafarers” and that “no foreign officers shall be allowed onboard unless approved by the [MARINA]”.

The Committee notes the Government’s indication that a “Magna Carta of Seafarers”, which, when adopted, will be a comprehensive law implementing the Convention and applicable to all Filipino seafarers and ships, is currently under consideration by the Congress of the Republic of the Philippines. The Committee notes in that respect that the Government provided a preliminary version of the draft Magna Carta and minutes dated 10 December 2013 of a meeting of the Technical Working Group of the Maritime Industry Tripartite Council which is developing the provisions of the law.

In view of the fact that the on-board documents issued by a flag State provide prima facie evidence of compliance for ships when entering foreign ports, and noting also that shipowners’ use of private seafarer recruitment and placement services is one of the matters to be certified, the Committee stresses the urgency for the Government to move forward and adopt the legislation to which it has referred in order to fully implement the Convention. The Committee requests the Government to transmit a copy of the Magna Carta of Seafarers once it is adopted and to continue to provide information on the progress made in this regard.

General questions on application. Implementing measures. Information in the Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes that the current version of the Declaration of Maritime Labour Compliance (DMLC), Part I, refers to the general principles and standards provided for in DOLE DO No. 130 of 2013, but not to the laws or regulations providing for specific requirements and standards related to the subjects contained in the DMLC, Part I. Even where they are mentioned, the reference includes only their names and not their main content. For example, on hours of work or rest, the DMLC merely indicates “DOLE DO 130-13, Rule VI, Section 2 on Terms and Conditions of Employment. The terms and conditions of employment of seafarers shall be governed by the POEA SEC”, and the content of the relevant parts are not indicated.

The Committee recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC, Part I, drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that paragraph 1 of Guideline B5.1.3 provides guidance with respect to the statement of national requirements, including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices.

Similarly, the Committee notes that the example of an approved DMLC Part II, which is intended to identify the measures adopted by shipowners to implement the national requirements, also mainly contains references to other documents. For example, with respect to minimum age, the relevant measure is indicated as “Company Procedures Manual”, without specific details on the measure. The Committee notes that it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters unless all of these referenced documents are carried on board ship and easily accessible to all concerned. Accordingly, the Committee is of the view that the DMLC, Part I, does not appear to fulfil the purpose for which it, along with the DMLC, Part II, is 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 ship.

In addition, the Committee notes that Department Order of DOLE No. 132 13 concerning guidelines on maritime occupational safety and health (hereinafter “DOLE DO No. 132-13”), which applies to all Philippines-registered ships engaged in both domestic and international voyages, covers matters under Regulation 3.1 despite its title. This Department Order, however, is not mentioned in the DMLC Part I. Point 3 of DOLE Labour Advisory No. 4 of 2013 lists recognized organizations authorized to issue a “Certificate of inspection of crew accommodation for ships engaged in international voyages” and indicates that the applicable provisions of Title 3, Regulation 3.1, of the Convention shall govern the issuance of the certificate, but not DOLE DO No. 132-13.The Committee requests the Government to consider improving the DMLC, Part I, when it adopts the Magna Carta for Seafarers, to which it has referred, to better implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, 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 also requests the Government to clarify whether DOLE DO No. 132-13 may be used as crew accommodation standards for the purpose of inspection and, as applicable, of certification, with respect to both ships engaged in domestic and international voyages. The Committee invites the Government to consider the inclusion of the reference to DOLE No. 132-13 as it contains specific standards on crew accommodation when revising the DMLC Part I.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that Part VI, Rule II, section 5, of the POEA Rules provides that seafarers who are subject to a pending disciplinary process may be disqualified from the maritime employment programme. In this connection, the Committee recalls its direct request published in 2010 on the Philippines’ application of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), in which it noted the Government’s explanation, in its report on Convention No. 179, that this provision was intended to acquire jurisdiction over accused seafarers and not to deprive them of a means of livelihood. However, in the same direct request, the Committee noted the Government’s earlier statements in its report of 2007 that under the POEA Rules, the POEA had the discretion, on the basis of the evidence presented, to determine whether or not a seafarer should be placed on the watch list. The Committee indicated that it found such a practice problematic, since the placement of a seafarer on such a watch list would occur while a disciplinary process was still pending, and not as a result of a final ruling of a judicial body with the necessary guarantees of due process. The Committee requests the Government to clarify whether steps have been taken to avoid the possibility that such a “watch list” could be used by private recruitment and placement services, contrary to paragraph 5(a) of Standard A1.4 of the Convention.

Regulation 4.5 and the Code. Social security. The Committee recalls that the obligation under paragraphs 2 and 3 of Standard A4.5 is for each Member to take steps according to its national circumstances to provide at least three branches of social security to all seafarers ordinarily resident in its territory. It notes that, on ratification, in accordance with paragraph 10 of Standard A4.5, the Government specified that the following branches of social security are provided to seafarers ordinarily resident in the Philippines: medical care; sickness benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit; and survivors’ benefit.

The Committee also notes that Rule VIII, Section 1, of DOLE DO No. 130 of 2013 provides that all seafarers must be entitled to compensation and benefits under the POEA standard employment contract and benefits provided for by the Welfare Fund for Overseas Workers, Pag-IBIG Fund, PhilHealth, Employee’s Compensation Law, and the Social Security Law and other applicable laws. The Committee notes that this provision covers Filipino seafarers working on Philippines-registered ships. The Committee observes that the Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-board Ocean-Going Ships, contained in Memorandum Circular of the POEA No. 10 of 2010, does not appear to address the question of social security for seafarers who are ordinarily resident in the Philippines who are working on ships flying the flag of another country. It notes that, in relation to Standard A4.5, paragraphs 3 and 7 of the MLC, 2006, the Government refers in its report to bilateral agreements with various countries on social security, but copies were not provided. The Committee requests the Government to provide information on how social security protection is provided to seafarers, who are ordinarily resident in the Philippines, when they are working on ships flying the flag of another country. It also requests the Government to transmit copies of the bilateral agreements on social security.

Regulation 5.1 and the Code. Flag State responsibilities. The Committee requests the Government to provide copies of the following practical documents concerning flag State inspection for ships engaged in domestic voyages, if they have been adopted: Manual Implementing Department Order No. 129 of 2013; DOLE Manual of Inspection and Certification issued by the Bureau of Working Conditions; and Operational Guidelines provided for under section 4 of the Memorandum of Agreement between the DOLE and the Department of Transportation and Communications of 5 February 2014 concerning the implementation of the Convention.

[The Government is asked to reply in detail to the present comments in 2016.]