Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

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

Autre commentaire sur C186

Demande directe

2019
2016

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The Committee takes note of the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It notes that Palau, which joined the ILO in 2012, has not ratified other ILO Conventions. The Committee notes the measures taken, particularly through the adoption of legislation and regulations, for the implementation of the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Consultations. The Committee notes the Government’s indication that it would consult shipowners’ and seafarers’ organizations as needed for the implementation of the Convention, but that no official list of representative organizations was in place. The Committee draws the Government’s attention to the fact that a number of provisions of the Convention require consultations; this is the case, for example, in relation to the procedure of national determinations under Article II or for the implementation of Standard A1.1, paragraph 4, (types of work likely to jeopardize the health or safety of seafarers under 18); Standard A1.2, paragraph 2, (nature of the medical examination and certificate); Standard A2.1, paragraph 5, (minimum notice periods for the early termination of a seafarer’s employment agreement); Standard A3.1, paragraph 2, (accommodation and recreational facilities); and Regulation 4.3, paragraph 2, (national guidelines for the management of occupational safety and health on board ships). The Committee recalls that the Special Tripartite Committee established in accordance with Article XIII of the Convention adopted interim arrangements for consultation with shipowners’ and seafarers’ organizations, as provided for in Article VII, in cases where representative organizations do not exist within a Member. Until an official list of organizations is established, the Committee invites the Government to have recourse to these arrangements, where the Convention requires consultations.

Article II of the Convention. Scope of application. The Committee notes that Title 7 of the Palau National Code (PNC), entitled “Admiralty and Maritime”, provides for two registration regimes for ships. Chapter 7 of this Title explicitly excludes vessels engaged exclusively in domestic commerce, which may be registered under Chapter 1 of the same Title. According to the definitions of “domestic commerce” and “waters of the Republic” contained in section 602(n) and (uu) of Title 7 of the PNC, vessels registered under Chapter 1 may include those engaged in domestic commerce in waters extending to a 200 nautical miles exclusive economic zone. The main legislation applying the Convention, in particular Chapter 8 of Title 7 of the PNC and its implementing regulations, which apply to vessels registered under Chapter 7, do not apply to those vessels (sections 801(a) and 602(z) of Title 7 of the PNC). The Committee recalls that the MLC, 2006, defines a ship in Article II, paragraph 1(i) as “a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply”. Therefore, the Committee considers that vessels which are engaged in domestic commerce in waters extending to a 200 nautical miles exclusive economic zone do not fall within the exclusion contained in this provision of the Convention. The Committee requests the Government to provide information on the vessels registered under Chapter 1 of Title 7 of the PNC, and to indicate how conformity with the Convention is ensured for those vessels when they fall within its scope of application.

Article II. Seafarers. The Committee notes that Chapter 7 (Seafarers and the Maritime Labour Convention) of the Maritime Regulations of 2012 provides the following definition, in its subchapter 7.1: “A Seafarer shall mean any person who is employed or engaged or works in any capacity on board a ship and includes any member of the deck, engine and catering crew but shall exclude for example harbour pilot, port worker, guest entertainer, ship inspector, superintendent, repair technician, etc. The Ship Registry Administrator will use the criteria provided in the resolution concerning information on occupational groups (No. VII) adopted by the International Labour Conference at its 94th (Maritime) Session to determine whether a person is or is not a Seafarer”. The Committee recalls that, according to this resolution, 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. Noting that the exclusions contained in subchapter 7.1 are listed in a non-exhaustive manner, the Committee requests the Government to indicate whether and how it has applied the criteria contained in the ILC resolution when determining these exclusions.

The Committee also recalls that for a national determination to be made, in the event of doubt, that certain categories of persons are not to be regarded as seafarers for the purpose of the Convention, the specific procedure provided for in Article II, paragraphs 3 and 7, should be followed. Moreover, such determination may only concern “categories of persons” and not individual persons. The Committee therefore requests the Government to explain how it will ensure that the procedure of Article II is followed in the event of doubt as to whether certain categories of persons are to be regarded as seafarers for the purpose of the Convention.

Article III. Fundamental rights and principles. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, as is the case of Palau, the Committee would have expected to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. The Committee notes that the Government simply indicates that the Republic of Palau does not allow child labour, forced or compulsory labour, or discrimination in respect of employment and occupation, and that where a collective bargaining agreement forms all or part of the seafarer’s employment agreement the collective bargaining agreement must be on board the ship with relevant provisions in English. It also notes that sections 854–857 of Title 7 of the PNC recognize the freedom of association of seafarers and their employers, as well as their right to bargain collectively, and that section 858 prohibits discrimination as to terms and conditions of employment of seafarers on the basis of race, colour, gender or creed. Noting that these provisions only partially address the fundamental rights referred to in Article III, the Committee considers that the information available is not sufficient to establish that Palau has properly satisfied itself that its laws and regulations respect these fundamental rights. The Committee therefore requests the Government to provide more information in relation to this matter, in particular as regards: (i) protection against acts of anti-union discrimination; (ii) prohibition of forced labour; and (iii) elimination of any discrimination in respect of employment and occupation made on the basis of political opinion, national extraction or social origin.

The Committee also notes that section 860(a)(3) of Title 7 of the PNC provides that it shall be unlawful for any person or labour organization to promote or to engage in any strike or picketing, or any boycott or like interference with the internal order or operation of a vessel, unless the procedures of conciliation, mediation and arbitration under section 861 have been followed to conclusion. Section 861(b)(3) provides that, in the event that a dispute cannot be resolved by conciliation or mediation, either party may submit the matter to an independent arbitrator or arbitrators for a final determination, as provided by regulation, and that if the parties cannot agree upon a choice of arbitrator or arbitrators, the matter shall be finally determined by the Minister or his Special Agent, acting as sole arbitrator. Section 861(c) adds that any arbitration award may be enforced, if necessary, by any court of competent jurisdiction. The Committee notes that these sections provide for compulsory arbitration as a prerequisite to engaging in industrial action, which may eventually impede the exercise of the right to take industrial action. The Committee requests the Government to indicate how it has satisfied itself that these provisions respect the fundamental right to freedom of association.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee notes that while paragraph 7.3(a) of the Maritime Regulations clearly states that the employment, engagement or work on board a vessel of any person under the age of 16 shall be prohibited, section 826 of Title 7 of the PNC provides for a number of possible exceptions in the case of “vessels on which only members of the same family are employed, school ships, or training ships”. The Committee also notes that these exceptions are not reflected in the DMLC, Part I, which only indicates that section 826 of Title 7 of the PNC sets a minimum age of 16 years. The Committee further notes that subchapter 1.1 of the Maritime Regulations indicates that if there is any inconsistency between the provisions in these Regulations and the provisions in the PNC, the provisions in the latter shall, in relation to vessels documented under these Regulations, prevail and apply in place of the provisions in these Regulations, to the extent of the inconsistency. 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 requests the Government to review this provision of the PNC so as to ensure that it does not contain any possible exception to this minimum age.

Standard A1.2, paragraph 1. Medical examination prior to beginning work. The Committee notes that while paragraph 7.4(a) of the Maritime Regulations provides that the Ship Registry Administrator shall require that, prior to beginning work on a vessel, a seafarer holds a valid medical certificate attesting that he or she is medically fit to perform the duties they are to carry out at sea, section 836 of Title 7 of the PNC, paragraph(c)(4), refers to seafarers’ loss of certain entitlements if at the time of their engagement they refused to be medically examined. This provision implies that there may be cases where a seafarer may be engaged despite the absence of a medical examination. The Committee recalls that Standard A1.2, paragraph 1, does not allow for exceptions to the requirement of medical examination prior to beginning work on a ship. The Committee therefore requests the Government to explain how it ensures that effect is given to this provision of the Convention in all cases.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ record of employment. The Committee notes that paragraph 7.7(e)(1) of the Maritime Regulations indicates that each person employed on board a vessel registered under these Regulations, other than those persons such as certain hotel staff personnel on passenger vessels who are not assigned or required to perform vessel safety or pollution related shipboard duties, shall be given a Seafarer’s Identification and Record Book issued by the Ship Registry Administrator in accordance with the ILO Seafarers’ Identity Documents Convention, 1958 (No. 108), containing a record of his employment on board the vessel. The Committee recalls that Standard A2.1, paragraph 1(e), provides that all seafarers shall be given a document containing a record of their employment on board the ship. The Committee requests the Government to explain why this category of seafarers is excluded from paragraph 7.7(e)(1) of the Maritime Regulations and how effect is given to this requirement of the Convention for this category of seafarers.

Regulation 2.3 and Standard A2.3, paragraph 3. Seafarers’ normal working hours. The Committee notes that paragraph 7.9(b) of the Maritime Regulations indicates that the normal hours of work in port and at sea shall be eight per day. It further notes that no other provision in the relevant legislation refers to weekly rest and rest on public holidays. It recalls that Standard A2.3, paragraph 3, provides that each Member acknowledges that the normal working hours’ standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. The Committee requests the Government to indicate how it is ensured that the normal working hours standards for seafarers include one day of rest per week and rest on public holidays, as required by this provision of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 2. Minimum paid annual leave. The Committee notes that, while paragraph 7.10(a) of the Maritime Regulations states that the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment, section 833 of Title 7 of the PNC, to which paragraph 7.10(a) refers, provides for minimum paid annual leave which is not in conformity with the minimum requirements of the Convention. Section 833 provides that: (a) every master and seafarer shall be entitled, after 12 months of continuous service on a vessel or for the same employer, to receive an annual vacation allowance equivalent to not less than 12 days base wages, in the case of masters and officers; and not less than eight days base wages, in the case of other members of the crew; and (b) every seafarer shall be entitled to a minimum of five paid holidays per year. The Committee recalls that Standard A2.4, paragraph 2, provides that: (i) subject to any collective agreement or laws or regulations providing for an appropriate method of calculation that takes account of the special needs of seafarers in this respect, the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment; and (ii) the manner in which the length of service is calculated shall be determined by the competent authority or through the appropriate machinery in each country. Since the Maritime Regulations indicate that if there is any inconsistency between the provisions in these Regulations and the provisions in the PNC, the provisions in the latter prevail to the extent of the inconsistency, the Committee requests the Government to review section 833 of Title 7 of the PNC so as to ensure conformity with the Convention. Moreover, it requests the Government to indicate the manner in which the length of service is calculated, as required by Standard A2.4, paragraph 2.

Regulation 2.4 and Standard A2.4, paragraph 3. Authorization to forgo annual leave. The Committee notes that paragraph 7.10(b) of the Maritime Regulations provides that any agreement between the shipowner and the seafarer to forgo the minimum annual leave with pay shall be prohibited, unless authorized by the Ship Registry Administrator. 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 authority.

Regulation 2.5 and Standard A2.5, paragraphs 1 and 2. Entitlement to repatriation. The Committee notes that paragraph 7.11(f) of the Maritime Regulations, which largely reproduces the content of section 844 of Title 7 of the PNC, states that a seafarer shall forfeit his right of repatriation in case of: (1) entering into a new agreement with the same owner after his discharge; (2) entering into a new agreement with another owner within one week after his discharge; (3) criminal offences under Sections 847 (barratry; drunkenness; neglect of duty), 849 (desertion), and 850 (incitement of seafarer to revolt or mutiny) of Title 7 of the PNC; or (4) unjustifiable repudiation of the Shipping Articles; or (5) failure of the seafarer to request repatriation within one week from the time that he is in condition to be repatriated. The Committee notes that the Convention does not provide for cases of forfeiture of the entitlement to repatriation when the circumstances foreseen in Standard A2.5, paragraph 1, are met. The only case where this entitlement may lapse is where the seafarers concerned do not claim it within a reasonable period of time, in accordance with Guideline B2.5.1, paragraph 8, and as provided for under subparagraph (5) above. The Committee therefore requests the Government to review paragraph 7.11(f) of the Maritime Regulations and section 844 of Title 7 of the PNC to ensure conformity with the Convention.

Regulation 2.6 and Standard A2.6, paragraph 1. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes that subchapter 7.12 of the Maritime Regulations and section 824(d) of Title 7 of the PNC provide for compensation in the case of unemployment arising from the vessel’s loss or foundering, which shall not be less than 15 days basic wage or the basic wages until the expiration of the period for which the seafarer was engaged, whichever shall be the least, unless the seafarer is employed as a seafarer during this period or has refused substantially equivalent seagoing employment. The Committee recalls that Guideline B2.6.1, paragraph 1, provides that the indemnity against unemployment resulting from a ship’s foundering or loss should be paid for the days during which the seafarer remains in fact unemployed at the same rate as the wages payable under the employment agreement, with a possible limitation of the total indemnity payable to two months’ wages. The Committee requests the Government to indicate how it has given due consideration to this provision when implementing Standard A2.6.

Regulation 3.1, paragraph 2 and Standard A3.1. Ship construction and equipment. Ships constructed on or after entry into force of the Convention in Palau. The Committee notes that Marine Notice 12-019 (Accommodations, Recreation Facilities, Food, Catering and Water) mirrors the provisions of Regulation 3.1. However, paragraph 2.2 of the Marine Notice indicates that “the requirements of this Marine Notice that relate to ship construction and equipment shall apply, to the extent reasonably possible, to ships constructed on or after the entry into force of the Maritime Labour Convention, 2006”. The Committee notes that the inclusion of the words “to the extent reasonably possible” in this paragraph introduces possible limitations to the application of the Marine Notice to ships constructed on or after the entry into force of the MLC, 2006. In this respect, the Committee recalls that Standard A3.1, paragraph 21, provides that any exemptions with respect to the requirements of Standard A3.1 may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to indicate how it ensures that any exemptions granted in application of Marine Notice 12-019 are limited to those permitted in Standard A3.1.

Regulation 4.1, paragraph 3. Access to medical facilities on shore for seafarers on board ships in the Palauan territory who are in need of immediate medical care. The Committee notes that no information is available on the implementation of this Regulation which provides coastal and port States with responsibilities for ensuring that seafarers on board ships voyaging in their waters or visiting their ports who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee requests the Government to indicate how effect is being given to Regulation 4.1, paragraph 3.

Standard A4.1, paragraph 2. Standard medical report form. The Committee notes that, while paragraph 7.16(a)(6) of the Maritime Regulations provides for the use of a standard medical report form, the contents of which shall be kept confidential and shall only be used to facilitate the treatment of seafarers, the Government has not provided an example of such document, as requested in the report form. The Committee requests the Government to indicate whether the competent authority has adopted a standard medical report form, as required in this Standard; and, in the affirmative, to provide an example.

Standard A4.1, paragraph 4(d). Medical advice to be provided, free of charge, 24 hours a day to all ships. The Committee notes that the Government’s report does not provide information on the implementation of this Standard which refers to services to be provided “to all ships irrespective of the flags that they fly” and is therefore an obligation directed to coastal States (as is the case of Palau). The Committee requests the Government to indicate how it gives effect to its obligation to provide for a system using satellite or radio or similar forms of communication to provide medical advice, free of charge, 24 hours a day to all ships, as required by Standard A4.1, paragraph 4(d).

Standard A4.2, paragraph 1(b). Compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard. The Committee notes that paragraph 7.17(d)–(h) of the Maritime Regulations provides for such compensation. However, it notes that commencement and termination of the shipowner’s obligation to provide the benefit of compensation in the event of the death or long-term disability of seafarers is related to the signing on and off the Shipping Articles. Since paragraph 7.27(b)(3) of the Maritime Regulations indicates that any of the hotel staff is not required to sign Shipping Articles, this category of seafarers may be excluded from the benefits of compensation under Regulation 7.17. The Committee therefore requests the Government to explain how it ensures that all seafarers benefit from the protection provided for in Standard A4.2, paragraph 1(b).

Standard A4.2, paragraph 5. Possible exclusion of the shipowner’s liability. The Committee notes that paragraph (c)(4) of section 836 of Title 7 of the PNC provides for an exception to seafarers’ entitlement to the corresponding benefits in cases of sickness or injury when the seafarer refuses medical treatment for such sickness or injury or is denied such treatment because of misconduct or default. The Committee notes that, as a consequence to this exception, shipowners would not be liable to bear costs in such cases. Since this exception does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2, paragraph 5, the Committee requests the Government to explain how it gives full effect to this provision of the Convention.

Regulation 4.5, paragraph 2. Branches of social security. The Committee recalls that Regulation 4.5, paragraph 2, provides that each Member undertakes to take steps, according to its national circumstances, individually and through international cooperation, to achieve progressively comprehensive social security protection for seafarers. The Committee notes that, at the time of ratification, the Government has specified the following branches of social security: medical care, old-age benefit and survivors’ benefit. The Committee requests the Government to provide information on steps taken to extend protection to other branches, paying particular attention to the sickness and employment injury benefits since those branches are listed in Guideline B4.5, paragraph 1.

Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee notes that subchapter 7.20 (social security) of the Maritime Regulations mainly describes the requirements of the Convention, without indicating the manner in which Palau will ensure its effective application. Moreover, the Committee notes the Government’s indication that that there are no ordinarily resident seafarers in Palau and that it has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. The Committee recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6, provides that Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to explain how it will ensure effective implementation of Standard A4.5, and in particular to provide information on any measures adopted to give effect to Standard A4.5, paragraph 6.

Standard A5.1.2, paragraphs 1 and 3. Authorization of recognized organizations. The Committee notes that paragraph 7.22(b) of the Maritime Regulations provides that recognized organizations, surveyors and inspectors may be authorized, on a case-by-case basis, by the Ship Registry Administrator to perform inspections or to issue the Maritime Labour Certificates or to do both. The Committee recalls that Standard A5.1.2 provides for the competent authority to review the competency and independence of the organization to be recognized (paragraph 1) and for the establishment of a system to ensure the adequacy of work performed by recognized organizations, which includes information on all applicable national laws and regulations and relevant international instruments (paragraph 3(a)), as well as procedures for communication with and oversight of such organizations (paragraph 3(b)). It requests the Government to provide information on how effect is given, in the case provided for in paragraph 7.22(b) of the Maritime Regulations, to the specific requirements of Standard A5.1.2, paragraphs 1 and 3, taking into account the corresponding Guideline B5.1.2.

Standard A5.1.4, paragraphs 3, 6, 11(a) and 17. Status and conditions of service of inspectors. The Committee recalls that this Standard provides for measures to be adopted to guarantee that inspectors have a status and conditions of service ensuring that they are independent of changes of government and of improper external influences. It notes that the Government indicates that Flag Inspectors shall be in compliance with the requirements of the Palau Flag Administration and each Inspector is approved and authorized after careful review of its credentials, experience, and professional endeavours. The Committee therefore requests the Government to specify the content of the requirements to which it refers and which would ensure conformity with the provisions of paragraphs 3, 6, 11(a) and 17 of Standard A5.1.4.

Standard A5.1.4, paragraph 7(c). Power of the inspectors. The Committee notes that paragraph 7.24(a)(1) of the Maritime Regulations provides that, where there are grounds to believe that deficiencies constitute a serious breach of the MLC, 2006, (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, an inspector shall, with the authorization of the Ship Registry Administrator, prohibit a vessel from leaving port until necessary corrective actions are taken. The Committee recalls that Standard A5.1.4, paragraph 7(c) does not subject this power of the inspector to any previous authorization. It requests the Government to indicate the measures taken to ensure that the inspector is empowered to take any measures provided for in this Standard, including to prohibit a ship from leaving port until necessary actions are taken.

Standard A5.1.4, paragraph 11(b). Obligations of the inspectors and sanctions. The Committee recalls that this Standard provides that inspectors shall, subject to appropriate sanctions or disciplinary measures, not reveal, even after leaving service, any commercial secrets or confidential working processes or information of a personal nature which may come to their knowledge in the course of their duties. The Committee notes the Government’s indication that the Palau Ship Registry has the procedures to keep complaints confidential. In the absence of more specific information, the Committee requests the Government to indicate how effect is given to this provision, including what sanctions may be imposed in case of breach of these obligations.

Standard A5.1.4, paragraph 16. Compensation in case of wrongful exercise of the inspectors’ powers. The Committee recalls that this Standard provides that compensation shall be payable in accordance with national laws and regulations for any loss or damage suffered as a result of the wrongful exercise of the inspectors’ powers. The burden of proof in each case shall be on the complainant. It notes that the Government indicates that Palau does not have provisions on this matter but that such provisions will be developed as a result of this report. The Committee requests the Government to provide information on any measures taken in this respect.

Regulation 5.1.6, paragraphs 1 and 2. Marine casualties. The Committee notes that, according to paragraphs 6.3(a)(1) and (3) of the Maritime Regulations, the Ship Registry Administrator shall conduct a full investigation of a marine casualty only when such casualty is classified as a very serious marine casualty. For a less serious casualty, the Ship Registry Administrator may conduct an office-based investigation by correspondence and telephone to seek further details on the accident and may proceed to conduct a full investigation if there are important lessons to be learned. Since a very serious casualty means a casualty to a vessel which involves total loss of the ship, loss of life, or severe pollution, as defined in paragraph 6.1(h) of the Maritime Regulations, the Committee concludes that an official inquiry would only be optional for the Ship Registry Administrator in the case of serious marine casualty leading to injury. The Committee recalls that Regulation 5.1.6, paragraphs 1 and 2, provides that each Member shall hold an official inquiry into any serious marine casualty leading to injury or loss of life that involves a ship that flies its flag. The final report of an inquiry shall normally be made public. Members shall cooperate with each other to facilitate the investigation of serious marine casualties. The Committee requests the Government to take the necessary measures to ensure that an official inquiry is held into any serious marine casualty leading to injury.

[The Government is asked to reply in full to the present comments in 2018.]