CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Marshall Islands (RATIFICATION: 2007)

General questions on application. Implementing measures. Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee notes, in this respect, the Government’s indication that it has a dedicated maritime website containing the national legislation and other instruments (which it also lists in its report) implementing the Convention, including the Republic of the Marshall Islands Maritime Act, 1990 (MI-107), the Republic of the Marshall Islands Maritime Regulations, (Rev. 8/14) (MI-108), various marine notices (MN) and marine guidelines (MG). The Committee understands that their MN, which are subject to revision, are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. The Committee notes that the Government also provided a copy of the Declaration of Maritime Labour Compliance (DMLC) Part I and an example of an approved DMLC Part II and a Maritime Labour Certificate. The Committee also notes that, on many matters, the Government refers to the DMLC Parts I and II as providing sufficient information on national implementation. In that respect, the Committee observes that, while the DMLC Part I that was submitted sets out national information in connection with some matters, it mainly contains reference to the implementing legislation or MN or MG. For example, in connection with seafarers’ employment agreements, the DMLC Part I provides the following information “Maritime Act, 1990, as amended (MI-107) §830 – Grounds for discharge, Maritime Act, 1990, as amended (MI-107) §853 – Contracts for seafaring labor, Maritime Regulations (MI-108) §7.45.1 – Seafarer Employment Agreements. Maritime Regulations (MI-108) §7.45”.

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

Similarly, the Committee notes that the example of an approved DMLC Part II, which is intended to identify the measures adopted by shipowners to implement the national requirements, also mainly contains references to other documents. For example, in connection with hours of rest, it states that: “(Regulation 2.3) IMS chapter reference: 11.32.00 – Detail hours of rest and working hours requirements”.

Unless all of these referenced documents are carried on board ship and easily accessible to all concerned, the Committee notes that it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters. The Committee considers that the DMLC Part I does not appear to fulfil the purpose for which it, along with the DMLC Part II, is required under the Convention which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ship.

The Committee requests the Government to consider amending the DMLC Part I to better implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention but that it also provides, to the extent necessary, concise information on the main content of the national requirements. It also suggests that the Government instruct its inspectors to review DMLC Part IIs to ensure that they provide more information on the ways in which the national requirements are to be implemented between inspections.

General questions on application. Scope of application. Article II, paragraphs 1(f) and (i), 3 and 5. Article VI, paragraphs 3 and 4. Seafarers and ships. Substantial equivalence. The Committee notes the Government’s information concerning the framework for tripartite consultations with the shipowners’ and seafarers’ organizations concerned. In this connection, the Committee notes that the Government has recognized the RMI Harbor Pilots Association as the social partner to represent seafarers where tripartite dialogue is necessary on ILO maritime issues. The Government also indicates that the employer/shipowner counterpart on ILO issues is the RMI Vessel Owners’ ILO Committee, an independent group of employers (shipowners, operators, managers, etc.). Finally, the Government indicates that, where cases of doubt existed as to whether any categories of persons or ships are to fall under the scope of the Convention, the competent authority (the “Administrator”) entered into consultation with its tripartite partners requesting them to consider ILO resolution VII (Information on Occupational Groups) in their deliberations. The Government specifies that the results of these deliberations are set out in MN No. 2-011-33 (Rev. 8/14) (entitled Maritime Labour Convention, 2006 Inspection and Certification Program), as Administrator determinations. It further indicates that there was full consensus and all social partners were in agreement with the final determinations.

The Committee takes due note of the Government’s explanation concerning the tripartite consultations. It notes, in connection with the application of paragraphs 1(f) and 3 of Article II of the Convention that paragraphs 4.4 and 4.5 of MN No. 2-011-33 (Rev. 8/14) state that:

… the Administrator considers 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, to have been provided with social protections that substantially meet the Convention requirements. In all cases, the burden of proof shall rest with the shipowner/operator who shall show through documentation during the inspection process that these requirements have been met. (See Annex III of this Notice). Notwithstanding, the Administrator shall make determinations under Resolution VII on a ship-by-ship basis ...

The Committee notes that a number of determinations have been made as set out in the annex to this MN.

The Committee further notes, in connection with paragraphs 1(i) and 5 of Article II regarding the definition of a ship and the application of the Convention to a ship or a particular category of ship, that section 2.4 of MN No. 2-011-33 (Rev. 8/14) states that:

The Administrator considers units engaged in exploration, exploitation, and/or processing of sea-bed mineral resources, including production, storage and offloading, maintenance, construction or accommodation units, when on location for the purpose of conducting or supporting operations subject to the jurisdiction of a host coastal State, to be installations and not ships. Units flagged and certified in accordance with the RMI Mobile Offshore Drilling Unit Standards (MI-293) and/or other relevant applicable national laws and regulations where the subject matter is dealt with differently are considered to substantially meet the requirements of the MLC, 2006, 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 dry-docking and therefore are not subject to certification in these circumstances. Unit operators are encouraged, however, to voluntarily seek inspection and certification under the provisions of the Convention to the extent practicable, in accordance with procedures established by the Administrator …

The Committee understands that the Government has made determinations with respect to situations of doubt as to whether a ship or category of ships is to be considered a ship for the purpose of the Convention. The Committee understands from the above quoted MN that mobile offshore drilling units are considered ships when navigating, but not otherwise, and that other requirements, which specifically apply to these units/ships, are considered substantially equivalent. The Committee also understands that certain personnel on board these units, who appear to be related to technical offshore resource exploitation activities, have been determined to be categories of persons who are not seafarers.

The Committee recalls that the question of exclusion of persons or ships and making a determination, after consultation in the event of doubt, as to the application of the Convention is addressed in Article II. The Committee also recalls, in that respect, that under paragraphs 3 and 4 of Article VI, the concept of substantial equivalence relates only to ships and seafarers that are covered by the Convention and refers to a decision that may be taken by a Member when it finds that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code and instead decides to implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent. A Member exercising the flexibility under paragraph 3 is required to satisfy itself that the requirements in paragraph 4(a) and (b) are met. The Committee recalls that substantial equivalence relates only to the requirements in Part A of the Code in Titles 1–4 and is not applicable to Title 5. The Committee notes that it is not clear from the information provided whether any substantial equivalences have been adopted under Article VI. In that respect, the Committee notes that the DMLC Part I indicates that no substantial equivalences have been expressly adopted, despite the text of the MN No. 2-011-33 (Rev.8/14) which states otherwise. Moreover, it appears that substantial equivalence is being applied to MoUs in connection with the requirements in Title 5. The Committee therefore requests that the Government clarify whether any substantial equivalence(s) have been adopted.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that section 803(b) of the Maritime Act excludes masters from the definition of a seafarer and section 810 provides that: “Any contractual provision to the contrary notwithstanding, the shipowner, with or without good cause may at any time, terminate the employment of and dismiss the Master.” The Committee notes that the Maritime Regulations, which appear to more specifically implement the provisions of the Convention do not exclude masters from the definition of the term “seafarer” in section 1.03, paragraph 17 and provide in section 1.03, paragraph 19 that the term “seafarer’s employment agreement” includes both a contract of employment and articles of agreement. The Committee notes that the Regulations contain separate provisions with respect to seafarer employment agreements (paragraph 1 of section 7.45 Conditions of Employment) and articles of agreement (section 7.46 Shipping Articles), with the master excluded from the definition of a seafarer in the latter case. The Committee also notes that paragraph 1 (g) and (h) of section 7.45 establishes minimum notice periods for early termination of a seafarer’s employment agreement and also for cases where a seafarer may request termination without notice. The Committee understands that these notice periods would also apply to early termination of a master’s seafarers’ employment agreement; however, the relationship between these provisions in the Regulations and section 810 of the Maritime Act, and between the provisions on seafarers’ employment agreements and articles of agreement, is not clear.

The Committee also notes that paragraph 1(b) of section 7.45 of the Maritime Regulations permits the Administrator to, at its sole discretion, determine that conflicting provisions in a collective agreement are substantially equivalent provided that it is not a lesser standard than the Maritime Act or Regulation. The Committee notes this information and refers to its comments above with respect to the concept of substantial equivalence. The Committee requests that the Government clarify the relationship between seafarers’ employment agreements and the articles of agreement under the Maritime Regulations and provide information regarding the minimum notice period for termination of the employment agreements for ships’ masters. The Committee also requests that the Government provide information with respect to any substantial equivalences it has adopted regarding collective agreements.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that MN7-0510-2 (Rev. 11/13), at paragraphs 1.5 and 1.6, appears to provide for possible exceptions to the minimum hours of rest (which may be permitted by a collective agreement in accordance with paragraph 13 of the Convention) based on amendments to a Convention adopted by the International Maritime Organization (IMO). However, it is not clear whether compensatory leave, as required under paragraph 13 of Standard A2.3, is provided for. In addition the MN appears, in paragraph 4.2, to place the responsibility for keeping records of daily hours of rest (see paragraph 12 of Standard A2.3) on the seafarer concerned. The Committee requests the Government to provide information on the application of paragraph 13 of Standard A2.3, and to clarify who is responsible for keeping the records of seafarers daily hours of rest or work on board ship, in accordance with paragraph 12 of Standard A2.3.

Regulation 2.7 and the Code. Manning levels. The Committee notes that MN 7-038-2 (Rev. 7/14) sets out the requirement for safe manning. The Committee recalls that, under paragraph 3 of Standard A2.7, the competent authority is to take into account the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee notes that one example of a safe manning document that it reviewed, for yachts, refers to a cook, but there did not appear to be any references in the other documents to the requirements under Regulation 3.2 and Standard A3.2. The Committee requests the Government to provide information with respect to the implementation of paragraph 3 of Standard A2.7 in the determination of manning levels.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. Noting the Government’s indication that the seafaring/maritime profession is not currently a preferred career choice, the Committee requests the Government to provide detailed information concerning its national policies that encourage career and skill development and employment opportunities for seafarers.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the MG 7-046-1(2013) entitled Guidance on Seafarer Employment Agreements (SEAs) explains the regulations concerning health and social security for seafarers. It notes, in this respect, that section 2.23 lays out the requirement for liability insurance and requires proof of satisfactory third party liability insurance. While taking due note of the third party liability insurance, which includes protection and indemnity insurance (through P&I) clubs, the Committee notes that it is not clear whether such coverage will encompass long-term disability, as called for under the Convention. The Committee requests the Government to identify its national laws and regulations which ensure the compensation in the event of long-term disability of seafarers due to an occupational injury, illness or hazard.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes MG 2-11-3(2009), entitled Guidelines on the Basic Elements of a Shipboard Occupational Health and Safety Program, which recommends that companies set policies and objectives, and develop procedures for managing the Shipboard Occupational Health and Safety Program (SOHSP). The Committee further notes the appendices to the MG which set out detailed guidance for seafarer training, worker protection programmes, record keeping, auditing and the express acknowledgment that workers and their representatives participate in the development of the occupational health and safety programme and conduct of training and education. While taking due note of the comprehensive information contained in these Guidelines, the Committee notes that it is not clear whether shipowners’ and seafarers’ organizations were involved in the development and promulgation of the Guidelines, as called for under paragraph 2 of Regulation 4.3 of the Convention nor do they stipulate that the laws and regulations will be regularly reviewed in consultation with these organizations, as called for under paragraph 3 of Standard A4.3. The Committee accordingly requests the Government to indicate whether the Guidelines set out in MG 2-11-3(2009) were developed after consultation with the representative shipowners’ and seafarers’ organizations, as well as whether such organizations will participate in regular reviews of the applicable laws and regulations, as required under the Convention. In addition, noting that provision for these programmes on board ships was not included in the example of a DMLC Part II, the Committee requests the Government to provide information as to how it ensures that such programmes and the requirements for a ship safety committee, for ships on which there are five or more seafarers, are in place on board ships flying its flags.

Regulation 4.5 and the Code. Social security. The Committee recalls that, in accordance with paragraphs 2 and 10 of Standard A4.5, at the time of ratification of the MLC, 2006, the Government specified the following branches of social security: medical care; sickness benefit; unemployment benefit; employment injury benefit; and survivors’ benefit. The Committee further notes the Government’s indication that these benefits are provided by shipowners or third parties to all seafarers working on board ships flying the flag of the Marshall Islands, regardless of residency, and is at a higher level than that provided to shore workers in the Marshall Islands. The Committee requests the Government to provide more information with respect to the arrangement it has made to provide social security protection to all seafarers ordinarily resident in its territory when they work on ships that fly the flag of another country, as well as the arrangements it has referred to with respect to non-resident seafarers working on ships flying its flag.

Regulation 5.1. Flag State responsibilities. The Committee notes the Government’s designation of recognized organizations (ROs) under section 5.0 of MN No. 2-011-33 (Rev. 8/14) and the indication that the competent authority is in the process of implementing IMO Resolution MSC.349(92) (the new “RO Code”), with full compliance expected by 1 January 2015. The Committee also notes that section 6.2.1 of MN No. 2-011-33 (Rev. 8/14) concerning the inspection and certification requirements for “Existing Vessels – Change of Flag”, is unclear as it appears to envisage the application of a range of standards, including those set out in Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), for ships constructed before the entry into force of the Convention for the Marshall Islands as well as in the case of ships that change their flag to that of the Marshall Islands. The Government is requested to provide information with respect to the measures it has adopted to implement Regulation 5.1.2 and the Code relating to the authorization of recognized organizations. The Committee also requests the Government to provide information clarifying the requirements that apply to inspection and certification in the case of ships constructed before the entry into force of the MLC, 2006 for the Marshall Islands (covering the Convention requirements in general, and those relating to ship construction and equipment in the context of Regulation 3.1) as well as in the case of ships that change their flag to that of the Marshall lslands.

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