Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention du travail maritime, 2006 (MLC, 2006) - Kenya (Ratification: 2014)

Autre commentaire sur C186

Demande directe

2022
2021
2018

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

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that Kenya previously ratified four maritime Conventions, which were denounced following the entry into force of the Convention for Kenya. It further notes that Kenya has not submitted a declaration of acceptance of the amendments to the Code of the Convention adopted in 2014 by the International Labour Conference and is therefore not bound by these amendments. The Committee notes the efforts undertaken by the Government for the implementation of the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article I. General questions on application. Implementing measures. The Committee notes the Government’s indication that draft Merchant Shipping (Maritime Labour) Regulations, 2014 are in preparation to complete the national measures giving effect to the Convention. In this respect, the Committee reminds the Government that it may avail itself of the technical assistance of the Office and requests the Government to provide a copy of all relevant new legislation or other regulatory instruments implementing the Convention once they are adopted.

Article II, paragraph 1(f). Scope of application. Seafarer. The Committee notes that section 2, Part I, of the Merchant Shipping Act, concerning interpretation, indicates that seafarer includes every person employed or engaged in any capacity on board a ship save the case of master, pilot or apprentice duly contracted or indentured or registered. Masters. The Committee recalls that, in accordance with Article II, paragraph 1(f), the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. While pilots can be excluded from this definition, masters should be covered by the Convention. The Committee requests the Government to provide information on any measures adopted to amend the legislation in order to give full effect to this provision of the Convention.

Cadets. The Committee notes that section 2, Part I of the Merchant Shipping Act excludes apprentices from the definition of seafarers. Recalling the definition of seafarers mentioned above, the Committee considers that obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets are to be regarded as seafarers for the purpose of the Convention. The Committee underlines that the protection afforded by the Convention is particularly important for the more vulnerable categories of persons, such as cadets. The Committee therefore requests the Government to adopt the necessary measures in order to ensure that cadets and apprentices are regarded as seafarers and that they enjoy the protection provided for by the Convention. The Committee is certainly aware of the reported and anticipated shortage of qualified officers to effectively man and operate ships engaged in international trade and the difficulties encountered to ensure that cadets meet the minimum mandatory seagoing service which forms part of the requirements prescribed in the Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) for certification. In these circumstances, the Committee recalls that, as foreseen in Article VI, paragraph 3, of the Convention, Governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Article II, paragraphs 1(i), 5 and 6. Scope of application. Ship. The Committee notes that section 2(1), Part I, of the Merchant Shipping Act indicates that sailing vessels do not include pleasure vessels, but does not provide a description of the latter. The Committee further notes that section 165(3) of the Merchant Shipping Act empowers the minister to exempt any ship from any requirements of the regulations and the Director-General to grant other exemptions from any such requirements with respect to any ship. The Committee recalls that Article II, paragraph 6, of the MLC, 2006, provides that “where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details of the Code referred to in Article VI, paragraph 1, to a ship or particular categories of ships flying the flag of the Member, … such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations concerned and may only be made with respect to ships of less than 200 gross tonnage not engaged in international voyages”. The Committee requests the Government to indicate what provisions have been made to ensure that all ships ordinarily engaged in commercial activities are covered by the Convention. The Committee also requests the Government to provide information on any decisions taken under section 165(3) of the Merchant Shipping Act and to specify whether any determinations were made after consultation with shipowners’ and seafarers’ organizations with respect to the application of the Convention to all categories of ships.

Regulation 1.1 and Standard A1.1. Minimum age. The Committee notes that section 56 of the Employment Act prohibits employment of children between 13 and 16 years of age, but subject to exceptions. The Committee further notes that under section 12 of the Employment (General) Rules, 2014, on employment of a child below 16 years “(1) No person shall employ a child who has not attained the age of sixteen years without the prior written permission of an authorized officer.” It also notes that, according to section 53 of the Employment Act, the employment of seafarers under 18 years of age seems not to be expressly prohibited where the work is likely to jeopardize their health or safety. The Committee recalls, in this respect, that Regulation 1.1 prohibits the employment, engagement or work of seafarers under the age of 16 years, and Standard A1.1, paragraph 4, prohibits the employment of seafarers under the age of 18 years in hazardous work, without exception. The Committee requests the Government to clarify how the national legislation gives effect to the absolute prohibitions provided for in the Convention. As regards the elaboration of the list of hazardous work, pursuant to Standard A1.1, paragraph 4, the types of work to be considered hazardous shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to indicate the measures taken to adopt the list of such types of work after consultation with shipowners’ and seafarers’ organizations.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that there are no public or private recruitment and placement services operating in its territory. The Committee also notes the Government’s indication that there are around 300 seafarers who are nationals or residents or otherwise domiciled in the country. The Committee requests the Government to provide information on the manner in which those seafarers have been recruited. The Committee notes that the Government has not provided information on the measures adopted or envisaged with regard to the use of recruitment and placement services that operate in countries that have not ratified the Convention, by shipowners of ships flying the Kenyan flag. The Committee therefore requests the Government to indicate how it gives effect to Standard A1.4, paragraphs 9 and 10.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that sections 119 and 122 of Merchant Shipping Act lay down that a crew agreement has to be drawn in a prescribed form, including a number of particulars, and that the Registrar of Seafarers shall cause the agreement to be read over and explained to each seafarer or otherwise ascertain that each seafarer understands the agreement before signing it. The Committee also notes that the crew agreement has to be signed in triplicate by the master and the seafarer, and a copy sent to the shipowner, the Registrar and the master. The Committee recalls that under Standard A2.1, paragraph 1(a), each Member shall adopt laws or regulations requiring that all seafarers working on ships that fly its flag covered by the Convention have a seafarers’ employment agreement (SEA) signed by both the seafarer and the shipowner or a representative of the shipowner; and that under Standard A2.1, paragraph 1(b), seafarers shall be given an opportunity to examine and seek advice on the agreement before signing, as well other facilities necessary to ensure that they enter into the agreement on a free and informed manner. The Committee requests the Government to provide information on whether according to national law it is considered that the master is the legal representative of the shipowner and if it is not, to indicate the measures taken to ensure that the SEA is signed by the shipowner or a representative. It further requests the Government to indicate how the national legislation gives full effect to Standard A2.1, paragraph 1(b), of the Convention. The Committee also requests the Government to take the necessary measures to ensure that the seafarer concerned has a signed original of the SEA in accordance with Standard A2.1, paragraph 1(c), of the Convention. The Committee also requests the Government to provide information on how sections 123 and 125 of the Merchant Shipping Act give effect to the requirements set up in Standard A2.1, paragraph 1(d), (information on conditions of employment easily obtained on board) and (e) (record of employment), of the Convention. With regard to minimum notice periods, the Committee notes that neither the Merchant Shipping Act nor the Employment Law give effect to the detailed requirements of Standard A2.1, paragraphs 5 and 6, of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure the full conformity of the national legislation with Standard A2.1, paragraphs 5 and 6 of the Convention.

Regulation 2.2 and the Code. Wages. The Committee notes, in relation to wages, that while section 136 of the Merchant Shipping Act requires the master to pay wages to seafarers, it does not indicate that the payments should be made at no greater than monthly intervals and in accordance with any applicable collective agreement, as required by Standard A2.2, paragraph 2. The Committee further notes that while section 119(3) of the Merchant Shipping Act recognizes seafarers’ rights to allot wages, there is no provision ensuring that any charge for the service of allotments shall be reasonable in amount (Standard A2.2, paragraph 4). The Committee requests the Government to indicate the measures taken to give full effect to these provisions of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that the Government has adopted a system of hours of rest. The Committee observes that the national legislation does not indicate the normal working hours standard for seafarers, nor does it include measures that have been adopted for seafarers under the age of 18. Recalling the principle of eight-hours per day with one day of rest per week and rest on public holidays, the Committee requests the Government to adopt the necessary measures in the near future to ensure the conformity of its legislation with the requirements provided in Standard A2.3, paragraph 3, and Standard A1.1, paragraph 2, of the Convention. Furthermore, the Committee recalls the requirements of Standard A1.1, paragraph 2, which prohibits night work of seafarers under the age of 18. The Committee further requests the Government to explain how the guidance provided in Guideline B2.3.1 will be given due consideration in the national measures adopted in the future.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that the Merchant Shipping Act does not require shipowners to give seafarers appropriate shore leave. It also notes that national legislation does not seem to prohibit agreements to forgo the minimum annual leave with pay. Recalling that any agreement to forgo the minimum annual leave with pay is prohibited under paragraph 3 of Standard A2.4, the Committee requests the Government to indicate the measures taken to give effect to Regulation 2.4, paragraph 2, and Standard A2.4, paragraph 3, of the Convention.

Regulation 2.5 and the Code. Repatriation. The Committee notes that section 194 (1) of the Merchant Shipping Act stipulates the circumstances in which a seafarer has a right to repatriation. The Committee notes however that this provision does not include all the cases foreseen in the Convention. The Committee further notes that the maximum period of service on board following which a seafarer is entitled to repatriation has not been established in the legislation. The Committee therefore requests the Government to indicate the measures taken to give full effect Standard A2.5.1, paragraphs 1 and 2 of the Convention. The Committee notes that sections 195 and 196 of the Merchant Shipping Act contain provisions specifying the circumstances in which a seafarer can be expected to pay for the cost of his or her repatriation (Standard A2.5.1, paragraph 3). The Committee notes that section 196 provides that a seafarer may recover expenses incurred in respect of repatriation from the employer unless the employer proves either that, under the terms of his or her employment, they are to be borne by the seafarer, or that the seafarer would not have been left behind but for his or her own wrongful act or neglect. Recalling that Standard A2.5.1, paragraph 3, of the Convention prohibits shipowners from requiring that seafarers make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from their wages except where the seafarer has been found to be in serious default of seafarer’s employment obligation, in accordance with national laws, regulations or other measures or applicable collective bargaining agreements, the Committee requests the Government to indicate the measures taken or envisaged to ensure full compliance with this provision of the Convention. The Committee further notes that section 194 of the Merchant Shipping Act lays down some entitlements to be accorded by shipowners for repatriation, but it does not include those relating to the destination of repatriation and the mode of transport in accordance with the provisions of Standard A2.5.1, paragraph 2(c), of the Convention. The Committee requests the Government to indicate how effect is given to this provision of the Convention. Finally, noting the absence of provisions requiring ships to provide financial security to ensure that seafarers are dully repatriated in accordance with the Convention, the Committee requests the Government to indicate the measures adopted to ensure the conformity with Regulation 2.5, paragraph 2 of the Convention.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. The Committee notes that under section 166 of the Maritime Shipping Act three or more seafarers can complain to the master if they consider the provisions or water on board not in accordance with safety regulations under that Act, who shall investigate the complaint. The Committee further notes that the Government did not provide information on how, when determining manning levels, the competent authority takes into account the requirements set out in Regulation 3.2 and Standard A3.2 with respect to food and catering. The Committee requests the Government to indicate how effect is given to Standard A2.7, paragraph 3 of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s indication that the draft Merchant Shipping (Maritime Labour) Regulations, 2014 will give effect to Regulation 3.1 and the Code and that, pending the adoption of those Regulations, the requirements of the Convention are directly being followed regarding crew accommodation. The Committee notes that the provisions of the Merchant Shipping Act are of a general nature and not cover all the requirements of Regulation 3.1 of the Convention. The Committee requests the Government to provide detailed information on the progress made in the adoption of the draft Regulations and indicate any other measure taken to give effect to the requirements of Regulation 3.1 and Standard A3.1. The Committee notes that the Merchant Shipping (Small Vessel Safety) Regulations, 2012 deals with ship construction and section 14 of the First Schedule provides for exemptions on crew accommodation on matters which go beyond those included in Standard A3.1, paragraphs 7(b), 11(b) and 13, and paragraph 9(f) and (h)–(l), inclusive, with respect to floor area only (Standard A3.1, paragraph 20). The Committee recalls that any exemptions with respect to the requirement of Standard A3.1 may be made only where they are expressly permitted and only for particular circumstances (Standard A3.1, paragraph 21), after consultation with the shipowners’ and seafarers’ organizations concerned (Standard A3.1, paragraph 20). The Committee requests the Government to indicate the measures taken to review the Maritime Shipping (Small Vessel Safety) Regulations, 2012, in order to ensure that exemptions from the requirements regarding accommodation and recreational facilities are only permitted in accordance to and in full compliance with Standard A3.1.

Regulation 3.2 and the Code. Food and catering. The Committee notes that the Merchant Shipping Act and the legislative texts in force provided by the Government do not give effect to all of the requirements of Regulation 3.2 and the respective provisions of the Code. The Committee notes the Government’s reference to the draft Regulations that will give effect to the provisions related to food and catering. The Committee requests the Government to indicate the measures adopted to give effect to the provisions of the Convention, and to ensure that: (i) ships that fly its flag meet the minimum standards with respect to food and drink supplies, having regard to the duration and nature of the voyage (Standard A3.2, paragraph 2(a)); (ii) all ships operating with a prescribed manning of more than ten carry a fully qualified cook (Standard A3.2, paragraph 5); (iii) in circumstances of exceptional necessity, the limitation of a dispensation permitting a non-fully qualified cook to service in a specified ship only until the next convenient port of call or for a period not exceeding one month (Standard A3.2, paragraph 6); and (iv) documented inspections are carried out in scheduled frequency, in accordance with the ongoing compliance procedure under Title 5 (Standard A3.2, paragraph 7).

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that sections 117 and 167 of the Merchant Shipping Act contain some rules respecting medical care on board ship and ashore. The Committee notes that section 6 of the Merchant Shipping (Occupational Safety) Regulations provides that a portable first aid kit have to be carried on board Kenyan ships employing more than five seafarers in the event medicine and medical appliances are not easily available. In the absence of more detailed provisions, the Committee requests the Government to ensure that the national legislation gives full effect to the requirements of Regulation 4.1 and Standard A4.1, in particular seafarers’ access to prompt and adequate medical care while working on board, provided free of charge, as comparable as possible to that available for workers ashore and right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Committee also notes that the Kenya Maritime Authority has issued an International Medical Guide for Ships. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to conform to the provisions of Standard A.4.1, paragraph 4(a), of the Convention (obligation to carry a medicine chest, medical equipment and a medical guide). The Committee notes the Government’s indications on the operation of a system of satellite or radio communication in order to provide medical advice, as available. The Committee requests the Government to provide information on the legislation that establishes this system and the measures taken to provide the services free of charge in accordance with Standard A4.1, paragraph 4(d), of the Convention.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes the Government’s reference to section 167 of the Maritime Shipping Act, which provides for medical and other expenses during voyage: (1) Where a person, while employed in a Kenyan ship, receives outside Kenya any surgical or medical treatment or such dental or optical treatment, including the repair or replacement of any appliance, as cannot be postponed without impairing efficiency, the reasonable expenses thereof shall be borne by the persons employing him. (2) Where a person dies while employed in a Kenyan ship and is buried or cremated outside Kenya, the expenses of his burial or cremation shall be borne by persons employing him.” The Committee further notes that the Government has provided one example of financial security in the event of sickness, injury or death of seafarers. However, in the absence of more detailed statutory provisions, the Committee requests the Government to indicate the measures taken or envisaged to give effect to the requirements of Regulation 4.2 and the Code (shipowner liability, including financial security, in respect of sickness and injury of the seafarers occurring between the date of commencing duty and the date upon which they are deemed duly repatriated, or arising from their employment between those dates).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indication that there is only one shore-based welfare facility in its territory. The Committee requests the Government to provide information on the evaluation of needs for seafarers’ welfare facilities in ports in Kenya, in accordance with the requirement of Standard A4.4, paragraphs 2 and 3 of the Convention. In particular, it requests the Government to indicate whether the possibility of establishing a welfare board has been envisaged with a view to ensuring that welfare facilities and services are appropriate for the needs of seafarers.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security as being provided to seafarers ordinarily resident in Kenya: medical care, sickness benefit, old-age benefit, employment injury benefit, and maternity benefit. In this regard, the Committee notes that the National Social Security Fund, National Hospital Insurance Fund, Health Act and WIBA are relevant, and provide the invalidity benefit and the survivors’ benefit in addition to the abovementioned branches. Recalling that Standard A4.5, paragraph 3, requires a member to undertake steps according to its national circumstances to provide the complementary social security protection referred to in paragraph 1 of this Standard to all seafarers ordinarily resident in its territory, including those working on ships operating under the flag of another country, the Committee requests the Government to provide detailed information on the national measures adopted or envisaged to give full effect to the provisions of the Convention. The Committee also requests the Government to indicate any bilateral or multilateral arrangements in which Kenya participates in relation to social security protection, including the maintenance of rights acquired or in the course of acquisition (Regulation 4.5, paragraph 2 and Standard A4.5, paragraphs 3, 4 and 8).

Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes that the Merchant Shipping Act and the other national measures in force provided by the Government do not give effect to the detailed requirements of Regulation 5.1. Noting the Government’s indications that the draft Regulations will give effect to Regulation 5.1, the Committee requests the Government provide information on the adoption of the draft Regulations and any other measures adopted to give effect to these requirements of the Convention.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s reference to the International Maritime Organization Code on Recognized Organizations. It also notes an agreement concluded with one recognized organization provided by the Government which, however, does not contain a reference to the MLC, 2006. The Committee draws the Government’s attention to the lack of legislation establishing a system to ensure the adequacy of work performed by recognized organizations, and procedures for communication with and oversight of such organizations. The Committee requests the Government to provide detailed information on the national measures adopted to give effect to Regulation 5.1.2 and Standard A5.1.2, including an example of an agreement with a classification society relevant for the MLC, 2006. The Committee requests the Government to provide a current list of recognized organizations, specifying the functions that they have been authorized to carry out (Standard A5.1.2, paragraph 4).

Regulation 5.1.3 and the Code. Flag State responsibilities. Declaration of Maritime Labour Compliance. The Committee notes the Government’s indication that it has conducted one MLC, 2006 inspection and so far has not issued maritime labour certificates. The Committee notes that the Government has provided a draft of Maritime Labour Certificate, a copy of two samples DMLC, Part I and an example of DMLC, Part II. The Committee recalls that Standard A5.1.3, paragraph 10(a), 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 Guideline B5.1.3, paragraph 1, 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. The Committee requests the Government to indicate the measures taken or envisaged to amend its DMLC in order to give full effect to this provision of the Convention.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that sections 409 et seq. of the Maritime Shipping Act provide that inspections shall be carried out to conform with registration and maritime safety, but not to maritime labour, requirements by surveyors of ships and inspectors that are appointed by the Director-General of the Kenya Maritime Authority “as he deems fit”. The Committee also notes that this discretionary basis for appointment might be in contradiction with the Government’s indication that inspectors are permanent and pensionable employees and therefore independent of changes of government and of improper external influences. The Committee also notes the Flag State Maritime Labour Survey Form and the Guidelines for On-Board Complaint Procedures for Kenyan Ships. The Committee requests the Government to provide detailed information on the national measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4, in particular measures taken to ensure: (i) the inspectors’ training, competence, terms of reference, guidelines, powers, status and independence necessary or desirable to perform inspections effectively (Standard A5.1.4, paragraphs 3, 6, 11(a) and 17); (ii) the intervals at which inspections have to be carried out (Standard A5.1.4, paragraph 4); (iii) the procedures for receiving and investigating complaints (Standard A5.1.4, paragraphs 5, 10, 11(b) and 12); and (iv) and the penalties to be imposed in case of deficiencies under the Convention (Standard A5.1.4, paragraph 7(c)).

Regulation 5.1.6 and the Code. Flag State responsibilities. Marine casualties. The Committee notes that section 425 of the Maritime Shipping Act provides that the report of the inquiry shall make available to the seafarer’s next of kin and “in any case, to any person requesting it who appears to the Director General to be interested.” The Committee recalls that, in accordance with Regulation 5.1.6, an official inquiry into any serious casualty shall be held in all cases and that the final report of the inquiry shall normally made public. The Committee requests the Government to indicate the measures taken or envisaged to give effect to this provision of the Convention.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes that Kenya participates in the Indian Ocean Memorandum of Understanding (MOU) on Port State Control. The Committee notes that, while section 2 of the Indian Ocean MOU refers to the MLC, 2006, it has not been amended to include the requirements set out in the MLC, 2006, among those that are to be inspected in port. The Committee requests the Government to provide information concerning a possible revision of the Indian Ocean MOU in order to fulfil the requirements of the Convention.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that the Government indicates that measures are yet to be adopted to implement this Regulation and notes that the Government has provided copy of an on-shore complaint form. The Committee therefore requests the Government to indicate the measures taken to give effect to the detailed requirements of Regulation 5.2.2 and Standard A5.2.2.