Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention du travail maritime, 2006 (MLC, 2006) - Iles Marshall (Ratification: 2007)

Autre commentaire sur C186

Demande directe

2022
2017
2014

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The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for the Republic of the Marshal Islands (RMI) on 8 January 2019 and 26 December 2020, respectively.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers' Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006 by Marshall Islands during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. 1. The Committee notes that, in reply to its previous comments, the Government indicates that the national determinations in Annex 1 of MN 2-011-33 (Rev Aug/2021) are applied on a ship-by-ship basis when an individual vessel requests a DMLC, Part I. Further categories of persons not listed in Annex 1 would only be exempted after tripartite consultations and their publication in MN 2-011-33. The Committee notes the two examples of national determinations (listed as “substantial equivalencies”) included in the examples of DMLC, part I, supplied by the Government. The Committee takes note of this information.

2.The Committee requested the Government to provide more information on the exclusion of certain categories of workers from the definition of seafarer, in particular: (i) personnel under the employ or contract of the charterer of a yacht; and (ii) ranks such as riggers, riggers foreman, offshore construction managers, surveyors, divers, technicians, medics and so forth, who are working onboard the vessel for extended periods as part of the normal working complement (see Annex 1 of MN 2-011-33). The Committee notes that the Government has not provided sufficient information in this regard. The Committee recalls the definition of seafarer contained in Article II, paragraph 1 (f) of the Convention and stresses that persons who are employed or engaged or work in any capacity onboard a ship covered by the Convention, including yachts, and in particular those who work “for extended periods as part of the normal working complement” should benefit from the protection afforded by the Convention. The Committee therefore requests the Government to adopt the necessary measures to ensure that the persons under (i) and (ii) of Annex 1 of MN 2-011-33 are considered seafarers in the legislation implementing the Convention.

3. The Committee notes that, in reply to its previous comments on the meaning of paragraph 4.4 of MN 2-011-33 (referring to “any person engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship who is contractually provided with social protections by either the shipowner/operator or third party that are equivalent to or are greater than those required by the MLC, 2006…”), the Government indicates that this national determination applies to offshore industrial personnel as they are not part of a vessel’s normal working complement. It further states that: (i) it considers Mobile Offshore Units (MOUs) to be installations, not ships, thus not required to be certified under the MLC, 2006; they are, however, required under RMI legislation to meet most of the Convention requirements, including providing their maritime crew with the MLC, 2006 social protection; and (ii) the above ensures that the industrial personnel working on board, who are employed by third parties (oil companies, drillers etc.) are afforded social protection equivalent or greater than that of the marine crews. Referring to its previous comments, the Committee observes that the wording itself of paragraph 4.4 of MN 2-011-33 “engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship” appears to include categories of persons who are seafarers for the purpose of the Convention (Article II, paragraph 1(f)) and not personnel working on other "installations".While noting the Government's explanation, the Committee requests the Government to take the necessary measures to ensure that paragraph 4.4 of MN 2-011-33, by its drafting and its implementation in practice, covers only persons excluded from the scope of application of the Convention pursuant to national determinations in line with the provisions thereof. It also requests the Government to provide examples of national determinations based on paragraph 4.4 of MN 2-011-33.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. 1. Navigational area.The Committee notes that, in reply to its previous request to review the definition of “waters of the Republic” in section 902(4)(iii) of MI-107, the Government refers to the letter of informal opinion of the ILO of 7 July 2011 on the text “inland waters or waters within, or closely adjacent to, sheltered waters” (Article II(1)(i)). The Government also indicates, inter alia, that: a) the definition in paragraph 902(4)(iii) of MI-107 (“waters of the Republic”) must be read in conjunction with paragraph 902(1) of the same according to which, the Domestic Watercraft chapter (Chapter 9) “shall apply to any vessel operating exclusively within the waters of the Republic which is not duly and properly documented or registered elsewhere”; b) this system provides a registration and documentation process for small craft, such as fishing vessels, that would not otherwise be regulated, including under the MLC, 2006; and c) the Maritime Administrator is confident that the ships excluded from the application of the MLC, 2006, are only those which navigate exclusively in RMI inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply. Recalling that vessels covered by Chapter 9 of MI-107 which are excluded from the main legislation applying the Convention, include ships operating in waters extending to a 200 nautical miles exclusive economic zone, the Committee reiterates that those ships do not fall within the exclusion contained in Article II, paragraph 1(i). The Committee requests the Government to adopt the necessary measures to ensure that the protection afforded by the Convention is guaranteed to all seafarers working on board all ships within the meaning of the Convention, including those engaged in domestic commerce in waters extending to a 200 nautical miles exclusive economic zone.

2. Mobile Offshore Units. The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator has adopted a substantial equivalence with respect to “units engaged in exploration, exploitation, and/or processing of sea-bed mineral resources …” (MOUs), which are considered to be “installations and not ships” (paragraph 1.4 of MN 2-011-33). Under the same paragraph, “Units flagged and certified in accordance with the RMI Mobile Offshore Unit Standards (MI-293) and/or other relevant applicable national laws and regulatory requirements where the subject matter is dealt with differently are considered to substantially meet MLC, 2006 requirements and thus are not subject to certification under the Convention in these circumstances. These units also are deemed to be substantially compliant with MLC, 2006 when underway for purposes of relocation or drydocking, and therefore are not subject to certification in these circumstances. ...” The Committee further notes that MI-293 (rev Aug/2020) provides that some MOUs may “embark upon international voyages under their own power” (section 3). Considering that the MLC, 2006 applies to all ships ordinarily engaged in commercial activities, the Committee requests the Government to clarify how the MLC, 2006 is applied to MOUs navigating in areas not excluded by the scope of the Convention.

Article III. Fundamental rights and principles. 1. Non-discrimination. The Committee notes that, in reply to its previous comments, the Government refers to Article II, paragraph 12(1) and (2) of the RMI Constitution containing generally applicable provisions on equality and non-discrimination. The Committee takes note of this information.

2. Freedom of association. Observing that the Government provides no information in reply to the points raised in its previous comments, the Committee reiterates its request.

Regulation 1.2 and Standard A1.2, paragraph 1. Medical Certificate. Examination prior to beginning work. The Committee notes that, in reply to its previous comments, the Government indicates that section 836(3)(d) of MI-107 (seafarers’ loss of certain entitlements in case of refusal to be medically examined) needs to be removed as it was previous to the entry into force of the MLC, 2006. The Committee requests the Government to confirm that such provision is not implemented in practice and to inform the Office as soon as it has been repealed.

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

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes that, in reply to its previous comments, the Government indicates that the normal working hours and holidays are enshrined in RMI legislation and must be addressed in the seafarers’ employment agreement (SEA). Work/rest hours and holidays are ensured by the Administrator through the MLC, 2006 inspection and certification process, annual Flag State inspections, and special marine safety inspections, which include examining seafarer rest/work hour records and SEAs. While noting the Government’s information, the Committee observes again that there is no national provision explicitly stating that the normal working hours’ standard for seafarers includes one day of rest per week and rest on public holidays (Standard A2.3, paragraph 3). It also recalls that Guideline B2.2.2, paragraph 1(b) provides that for the purpose of calculating overtime, the number of normal hours per week covered by the basic pay or wages should be prescribed by legislation, if not determined by collective agreements, but should not exceed 48 hours per week. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A2.3, paragraph 3, indicating how it has given due consideration to Guideline B2.2.2, paragraph 1(b).

Regulation 2.4 and Standard A2.4, paragraph 3. Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Possible exceptions to the prohibition to forgo paid annual leave. Maximum period of service on board.The Committee notes that, in reply to its comments in relation to paragraph 5.2 of MN 7-052-2 (circumstances in which a seafarer may serve on board a vessel for a period of 11 months or more), the Government indicates that the prohibition to forgo annual leave is clearly articulated in MN 7-052-2. Moreover, annual leave must be addressed in the SEA, which is reviewed during the inspection process. The Committee notes that under paragraph 3.2 of MN 7-052-2, seafarers have the right to be repatriated at least once in a 12-month period. According to the footnote thereto, “seafarers onboard RMI vessels are entitled to annual leave with pay for each completed month of employment. Thus, a full 12 months of service would be required to accumulate a minimum of 30 days paid annual leave”.The Committee considers that the circumstances in which a seafarer may serve on board a vessel for a period of 11 months or more pursuant paragraph 5.2(1) and (4) of MN 7-052-2 (seafarers serving a full 12 months to qualify for the minimum 30 days paid leave; and seafarers who mutually agreed in writing to extend their time on board) potentially allow all seafarers to stay on board for more than 11 months, thus constituting a broad authorization to forgo annual leave, which would defeat the purpose of Regulation 2.4. The Committee requeststhe Government to take the necessary measures to ensure that: (i) any exceptions to the prohibition of agreements to forgo the minimum annual leave are only authorized by the competent authority in exceptional circumstances, in order to guarantee the right of seafarers to enjoy a period of annual leave for the benefit of their health and well-being, and to prevent fatigue, vessel unseaworthiness and all risks related thereto; (ii) seafarers are repatriated at no cost to themselves in the circumstances specified in the Convention, with strict respect of the default 11 months maximum period of service on board derived from the provisions of the Convention (Regulation 2.5 and Regulation 2.4).

Regulation 2.5 and Standard A2.5.1, paragraphs 1-3. Repatriation. Circumstances. Prohibition of advance payment and to recover costs from seafarers.The Committee notes that, in reply to its previous comments, the Government indicates that though fundamental, the right to paid repatriation is not absolute. The Government further indicates that the Administrator: (i) has reviewed paragraph 844 of MI-107 (loss of right to repatriation) and “is satisfied that any narrow provision in the national legislation depriving seafarers of an entitlement to repatriation is limited to circumstances not disallowed under the Convention”; and (ii) believes that there is nothing in Standard A2.5.1 which prohibits additional limits to repatriation being imposed nationally where the Convention is silent. For example, Standard A2.5.1, paragraph 1, does not address cases where a seafarer engages in unjustifiable action that is either wilful and/or criminal. In this case, national legislation fills in the existing gap, as no shipowner should be required to pay to repatriate a seafarer and then try to recover repatriation costs. The Government further indicates that the RMI procedures and standard of proof for seafarer criminal offenses or unjustifiable repudiation of the Shipping Articles are found in RMI Rules for Marine Investigations (MI-260). The Administrator follows these rules, which provide for the appointment of an Investigations Review Board, when dealing with an alleged misconduct by the seafarer. While taking note of this information, the Committee recalls that Standard A2.5.1, paragraph 1, and Guideline B2.5.1, paragraph 1, define the circumstances in which seafarers are entitled to repatriation, thus repatriation should take place when one of those circumstances is met. Moreover, when “criminal offenses” and “unjustifiable repudiation of the Shipping Articles” (section 844(d) and (e) of MI-107), qualify as “serious default of seafarers’ employment obligations” under Standard A2.5.1, paragraph 3, the shipowner shall pay for repatriation in first instance and may recover the cost of repatriation from the seafarer’s wages or other entitlements, after the "seafarer has been found" in such a serious default. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A2.5.1, paragraphs 1-3 of the Convention.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security.The Committee notes that, in reply to its previous comments, the Government refers to MN 7-052-3, Liability Insurance for Seafarers Abandonment, Death and Long-Term Disability, and to MN 2-023-1, Proof of Liability Insurance, which together with paragraph 7.52 of MI108, give application to Standard A2.5.2. The Committee takes note of this information.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee notes that in reply to its previous comments on the application of Standard A2.7, paragraph 3, the Government refers to MN 7-044-1, Accommodations, Recreational Facilities, Food, Catering and Water. It notes that section 15.7 of MN 7-044-1 mostly reproduces Standard A3.2, paragraph 5. It also takes note of the example of minimum safety manning certificate, that includes a cook for a manning of more than 10 persons. The Committee further notes that section 3 of MN 7-044-1 provides that “… RMI MSMCs [i.e. Minimum Safe Manning Certification] may not specify a manning requirement for cooks. However, where a cook or cooks are employed on board, the MLC, 2006 and the MSMC require that they must be trained and qualified as above.” While taking note of this information, the Committee observes that the national legislation does not require ships with a manning of more than 10 to carry on board a qualified ship’s cook.Referring to Standard A2.7, paragraph 3 and Standard A3.2, paragraph 5, the Committee requests the Government to adopt the necessary measures to comply with this requirement of the Convention. In addition, the Committee requests the Government to indicate how, when determining manning levels pursuant to Standard A2.7, paragraph 3, the competent authority takes into account all other requirements within Regulation 3.2 and Standard A3.2, concerning food and catering.

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions.The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator reviews all applications for a DMLC, Part I. The Government also refers to MN 2-011-33, paragraph 5 (Procedures for Shipowners to Obtain Certification), which includes the steps to be followed when exemptions are required. The Government finally indicates that the wording "The requirements … that relate to ship construction and equipment shall apply, to the extent reasonably practicable, to ships…” in MN 7-044-1 is necessary because there are vessel types (namely yachts) that are covered by the MLC, 2006, but were not adequately considered in its Title 3. The Committee requests the Government to provide examples of exemptions granted from the application of the provisions of Standard A3.1, including those concerning yachts covered by the Convention, as well as copies of the relevant DMLC, part I, where applicable.

Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator has reviewed MI-107, paragraph 836(3)(c), and considers refusing medical treatment and being denied treatment because of misconduct or default as wilful acts and as such, subcategories of paragraph 836(3)(a) of MI-107 (exclusion from benefits due to wilful act). Therefore, the Administrator considers the exception in MI-107, paragraph 836(3) as corresponding to the exclusions listed in Standard A4.2.1, paragraph 5. Referring to its comments under Standard A1.2, the Committee considers denying medical care as contrary to the fundamental right of seafarers to health protection and medical care, as enshrined in Article IV of the Convention and Regulation 4.1. The Committee requests the Government to take the necessary measures to bring paragraph 836(3) of MI-107 infull conformity with Standard A4.2.1, paragraph 5.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that, in reply to its previous request, the Government refers to MN 7-052-3, Liability Insurance for seafarer Abandonment, Death and Long-Term Disability and MN 2-023-1, Proof of Liability Insurance. While observing that MN 7-052-3 mostly gives application to Standard A4.2.1, paragraphs 8-14 and to Standard A4.2.2, the Committee notes paragraph 2.1 of MN 7-052-3 which provides for certificates of financial security to be carried on board by RMI-flagged vessels that are required to be MLC, 2006 certified or have opted for voluntary certification under MLC, 2006. The Committee recalls that Standard A4.2.1, paragraph 11 (certificate to be carried on board) applies to all ships covered by the Convention. It requests the Government to take the necessary measures to ensure that all RMI-flagged ships covered by the Convention carry on board documentary evidence of financial security as required under Standard A4.2.1, paragraph 11. It also requests the Government to provide information on the application of Standards A4.2.1, paragraph 8(c) and A4.2.2, paragraph 3.

Regulation 4.4 and Standard A4.4, paragraph 2. Development of shore-based welfare facilities in appropriate ports. Noting the Government's information in its previous reports that there are no shore-based seafarer welfare facilities operating in RMI, the Committee requests the Government to provide information on plans for the development of those facilities in appropriate ports, as determined after consultations with shipowners' and seafarers' organizations concerned.

Regulation 4.5 and Standard A4.5, paragraphs 1-3. Social security. Branches. Protection for seafarers ordinarily resident in its territory. The Committee notes that, in reply to its previous comments on social security coverage in the branches specified, the Government refers to MG 7-045-1, item 10, which implements MI-107 and MI-108. The Committee notes that item 10 of MG 7-045-1 relates to shipowners’ liability (Regulations 2.6 and 4.2) and does not give application to Regulation 4.5. In this regard, the Committee recalls that while Regulations 2.6 and 4.2 concern a short-term shipowner’s obligation covering all seafarers working on board ships flying the Member’s flag, Regulation 4.5 provides for a long-term coverage for all seafarers ordinarily resident in the Member’s territory (Standard A4.5, paragraph 3). The Committee requests the Government to take the necessary measures to ensure that seafarers ordinarily resident in its territory and their dependents are covered by social security protection in the branches of medical care, sickness benefit, unemployment benefit, employment injury benefit and survivor’s benefit, and that the resulting protection is no less favourable than that enjoyed by shoreworkers resident in the RMI territory. It requests the Government to provide information regarding the benefits enjoyed by seafarers in the five branches specified.

The Committee notes that, in reply to its previous comments, the Government indicates that there are currently no steps in place to extend protections to family benefit or maternity benefit. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content.The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator has once again reviewed the DMLC, Part I, and does not intend to expand the information beyond what is currently referenced. The reason for this is that the shipowner should refer to and read the requirements fully as set out in RMI law and regulations and not rely on summarized information. While noting the Government's explanation, the Committee reiterates the importance of including in the DMLC, Part I, when the relevant legislation is cited without mentioning its content, concise information on the main content of the national requirements, as required under Standard A5.1.3, paragraph 10, in order to help the concerned authorities to identify effectively the national requirements implementing the Convention. The Committee again requests the Government to take the necessary measures to amend the DMLC, Part I, to ensure full conformity with Standard A5.1.3, paragraph 10(a).

[The Government is asked to reply in full to the present comments in 2025.]