Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention du travail maritime, 2006 (MLC, 2006) - Kiribati (Ratification: 2011)

Autre commentaire sur C186

Demande directe

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that no other Conventions on maritime labour had previously been ratified by Kiribati. 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 Kiribati on 18 January 2017. It notes the efforts undertaken by the Government to implement 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.

General questions on application. Implementing measures. The Committee notes the Government’s reference to the draft Maritime Act 2016 and the draft Merchant Shipping Regulations 2016 (hereafter, the draft Regulations) which are yet to be adopted by the Parliament. While acknowledging that these drafts represent important steps towards the implementation of the Convention, the Committee notes that some draft provisions need to be revised in order to ensure full conformity with the Convention, as explained in detail below. The Committee hopes that the Government will make concrete progress in the implementation of the Convention in the near future and requests it to provide information in this regard.

Article II of the Convention, paragraphs 1(f), 2, 3 and 7. Scope of application. Seafarers. The Committee notes that according to section 3(1) of the draft Regulations, a seafarer is defined as any person who is employed in any capacity on board a ship to which these Regulations apply. The Committee also notes that this definition contains a list of persons who are not considered seafarers, including, among others: (i) scientists, researchers, divers, specialist off-shore technicians etc. 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 performing 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; (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 (as also contained in section 3(3) of the draft Regulations). Concerning 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 draft Regulations takes into account this resolution.

Article II, paragraph 6. Scope of application. Ships under 200 gross tonnage. The Committee notes that section 4 of the draft 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 “these 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”, that is Standards and Guidelines and not to the Regulations. The Committee therefore requests the Government to indicate the measures taken to revise section 4 of the draft Regulations to ensure full conformity with the provisions of Article II, paragraph 6, thereby restricting the use of this flexibility in relation to Standards and Guidelines of the Convention.

Article VI, paragraphs (3) and (4). Concept of substantial equivalence. The Committee notes that Marine Circular No. 23/2013, which provides information to shipowners on the procedure for certification under the MLC, 2006, states that, when requesting certification, the shipowner has to carry out a gap analysis of the vessel and company policies and advise whether there are any substantial equivalencies or exemptions it would wish to be granted by the Kiribati Ship Registry. While noting that such possibility for the shipowner to request substantial equivalence is not contained in the draft 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 paragraphs 3 and 4 of Article VI, 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 MLC, 2006. 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 paragraph 4 of Article VI. The Committee requests the Government to provide detailed information, as explained above, with respect to the adoption of substantial equivalence(s) 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 4(1) of the draft Regulations provides that “the employment, engagement or work on board a ship of any person under the age of 16 is prohibited”, section 115(1) and (2) of the Employment and Industrial Relations (EIR) Code, 2015 states that the minimum age of 14 applies to maritime work. 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. Observing that the legislation currently in force is not in conformity with the Convention, the Committee requests the Government to take the necessary steps, including the revision of section 115(1) and (2) of the EIR Code, to give full effect to this provision of the Convention.

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 of age. The Committee notes that section 4(3) of the draft Regulations provides that the activities or work likely to jeopardize the health or safety of seafarers under the age of 18 are those that shall be determined as likely to jeopardize their health or safety by the competent authority after consultation with the shipowners’ or seafarers’ organizations, in accordance with relevant international standards. Noting that the Government has not provided information on the adoption of this list, the Committee requests the Government to indicate the measures taken to give effect to this requirement of the Convention.

Regulation 1.3, paragraphs 1 and 2. Training and qualifications. The Committee notes that section 88 of the draft Maritime Act 2016 provides that training and certification on ships of more than 300 gross tonnage are determined in accordance with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) provisions; certification for service on ships of less than 300 gross tonnage shall comply with section 100 of this Act, which provides that the Minister may make regulations in this respect. The Committee recalls that Regulation 1.3 does not allow for exceptions to the requirement of training or certification to work on a ship. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure full compliance with these requirements of the Convention. The Committee further notes that there are no provisions in the national legislation which require seafarers to successfully complete training for personal safety on board ship. The Committee therefore requests the Government to indicate how it ensures that seafarers are not permitted to work on a ship unless they have successfully completed training for personal safety on board ship, in conformity with Regulation 1.3, paragraph 2.

Regulation 2.3, paragraph 2, and Standard A2.3, paragraph 2. Hours of work and hours of rest. While noting that the Declaration of Maritime Labour Compliance (DMLC), Part I, refers to the minimum hours of rest regime, the Committee notes that section 9(4) of the draft 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.

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 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 3.1, paragraph 2 and the Code. On-board recreational facilities. Ships constructed before entry into force of the Convention in Kiribati. The Committee notes that the DMLC, Part I, states that ships constructed before the entry into force of the Convention would be exempted from complying with requirements of on-board recreational facilities provided for under the MLC, 2006. The Committee recalls that the possible exception contained in Regulation 3.1, paragraph 2, only concerns requirements which relate to ship construction and equipment; it does not cover however all on-board recreational facilities. With particular reference to Standard A3.1, paragraph 17, the Committee requests the Government to indicate how it ensures that on-board recreational facilities are made available to seafarers on all ships flying its flag, whether constructed before or after the entry into force of the Convention.

Regulation 4.1 and Standard A4.1, paragraph 2. Standard medical report form. The Committee notes that, while section 17(4) of the draft 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 indicates that such standard medical report form has not been adopted yet. The Committee requests the Government to adopt such document as required by Standard A4.1, paragraph 2, and provide a copy.

Regulation 4.2 and Standard A4.2.1, paragraphs 1 and 3. Shipowners’ liability. The Committee notes that the Government provided a copy of the 1977 edition of the Workmen’s Compensation Ordinance and of its subsequent amendments up to 1994. However, the Government refers in its report to a Workmen’s Compensation Act, 1998. The Committee requests the Government to clarify whether there have been legislative changes in 1998 in relation to the Workmen’s Compensation Act and, if so, to provide a copy of the amendments.

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. 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 do 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 Standard A4.4, paragraphs 2 and 3. Access to shore-based welfare facilities. The Committee notes the Government’s indication that there is no plan for the development of seafarer welfare facilities in Kiribati nor plans to encourage the establishment of welfare boards. The Committee requests the Government to indicate the measures taken to promote the development of welfare facilities at appropriate ports of Kiribati as well as the establishment of welfare boards, as provided for in section 20(1) and (5) of the draft Regulations and in conformity with Standard A4.4, paragraphs 2 and 3, of the Convention.

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that in accordance with Standard A4.5(2) and (10), the Government 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. However, it notes that in section 21(3) of the draft Regulations, the provisions state that the three branches covered are medical care, sickness benefit and “unemployment injury benefit”. The Committee requests the Government to review this draft provision to clarify whether the third branch covered is employment injury benefit (which would be in compliance with the declaration submitted at the time of ratification) or unemployment benefit. The Committee further notes that the Government does not provide information on the main benefits related to the protection provided. The Committee requests the Government to indicate the main benefits provided under national legislation in the branches concerned (medical care, sickness benefit and employment injury benefit). The Committee further notes that section 21(6) of the draft Regulations provides that “the competent authority shall establish fair and effective procedures for the settlement of disputes to cover all disputes relevant to the claims of the seafarers concerned, irrespective of the manner in which the coverage is provided”. The Committee requests the Government to provide information on the measures taken in application of this provision.

Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee notes the Government’s indication that the inspection of compliance with the Convention has been delegated to the inspectors employed by a number of recognized organizations listed in the report. 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 examples and to specify the functions that those organizations have been authorized to carry out.

Regulation 5.1.3 and Standard A5.1.3, paragraph 5. Interim maritime labour certificate. The Committee recalls that the Convention provides that a maritime labour certificate can be issued on an interim basis in three cases: (a) to new ships on delivery; (b) when a ship changes flag; or (c) when a shipowner ceases to assume the responsibility for the operation of a ship. It notes that the draft Regulations only refer to two cases in which an interim maritime labour certificate can be issued and does not address the circumstance when the shipowner assumes responsibility for the operation of a ship which is new to that shipowner. The Committee requests the Government to indicate how it ensures compliance with this requirement of the Convention.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. DMLC. The Committee notes that the DMLC, Part I, form available on the Kiribati Ship Registry website, only 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. The form does not contain however the necessary reference to the national legal provisions. Moreover, in certain instances, the form contains information that departs from the substantive content of the (draft) national legislation. One example is that under the definition of night work, the DMLC, Part I, indicates that night work is from 9 p.m. till 6 a.m. However, section 4(4) of the draft Regulations provides that “night” means a period of at least nine hours starting no later than midnight ship’s time and ending no earlier than 5 a.m. ship’s time. Another example is that the DMLC, Part I, contains information on the financial security to be provided under Regulations 2.5 and 4.2, for which no corresponding provisions of the national legislation could be found. The Committee recalls that the DMLC, Part I, must identify the national requirements, as contained in the legislation. The Committee therefore requests the Government to review the DMLC, Part I, upon adoption of the draft Regulations, in order to ensure that it would identify the national requirements embodying the relevant national legal provisions and the information on the main content of the national requirements.

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

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: a copy of the Draft Shipping (STCW Convention, 2010) Regulation, 2016 (Regulation 1.3); a copy of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest (Standard A2.3, paragraph 12); 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); a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it; an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2.1, paragraph 1(b)); an example of a document (e.g. Part II of the DMLC outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the relevant national guidelines (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment (Regulation 5.1.1, paragraph 5); information on the budgetary allocation during the period covered by this report for the administration of your country’s inspection and certification system and the total income received during the same period on account of inspection and certification services (Standard A5.1.4, paragraph 3); a copy of the annual reports on inspection activities, in English, French or Spanish, that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see guidance in Guideline B5.1.4, paragraphs 7 and 8); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5; see guidance in Guideline B5.1.4, paragraph 3), a copy of your country’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag; a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7; the following statistical information for the period covered by this report: the number of foreign ships inspected in port; number of more detailed inspections carried out according to Standard A5.2.1, paragraph 1; the number of cases where significant deficiencies were detected; the number of detentions of foreign ships due, wholly or partly, to conditions on board ship that are clearly hazardous to the safety, health or security of seafarers, or constitute a serious or repeated breach of the requirements of MLC, 2006 (including seafarers’ rights); a copy of a document, if any, that describes the onshore complaint-handling procedures (Standard A5.2.2, paragraph 6).

[The Government is asked to reply in full to the present comments in 2019.] -- Following the modifications to the reporting cycle adopted by Governing Body, the CEACR decided to postpone this request to 2020.