Maritime Labour Convention, 2006 (MLC, 2006) - Canada (RATIFICATION: 2010)

CMNT_TITLE

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for Canada on 18 January 2017 and on 8 January 2019 respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020 respectively, 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 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

Article II, paragraphs 1(i), 4 and 5, of the Convention. Definitions and scope of application. Ships, inland waters, waters within or closely adjacent to sheltered waters or areas where port regulations apply. In its previous comments, the Committee noted that various provisions of the legislation implementing the MLC, 2006 exclude totally or partially ships engaged on near coastal voyages Class 1 and Class 2. The Committee considered that the concept of near coastal voyages, as defined in the case of Canada, goes clearly beyond the exclusion contained in Article II, paragraph 1(i), of the Convention. The Committee requested the Government to explain how the exceptions provided for near coastal voyages Class 1 and Class 2 could be justified under Article II, paragraph 1(i). The Committee notes the Government’s indication that, in consultation with seafarers and shipowners, it defined the term “Near coastal voyage, Class 2”, which is considered the equivalent of “closely adjacent to sheltered waters”. The Government further indicates that amendments to the Marine Personnel Regulations (MPR) expected in 2021 are anticipated to remove the Near-Coastal, Class 1 voyage from the list of voyages in Canadian legislation. The Committee requests the Government to adopt the necessary measures to ensure that the national provisions implementing the Convention apply to all ships falling within its scope of application and to provide information on any developments in this regard.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships engaged in drilling. The Committee notes that part 3 of the MPR implementing most of the provisions of the Convention does not apply to vessels capable of engaging in the drilling for, or the production of, oil or gas, which are not engaged in navigation (section 301(3)(c) of the MPR). The Committee recalls that under Article II(4), all ships “ordinarily engaged in commercial activities”, regardless of whether they are engaged in navigation, fall within the scope of the Convention. The Committee requests the Government to: i) specify whether the “vessels capable of engaging in the drilling for, or the production of, oil or gas not engaged in navigation” are considered as ships; and ii) explain why those vessels are excluded from the scope of application of the Convention.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee previously noted that some provisions of the MPR, for example sections 308 and 309, exclude from their application ships of less than 100 gross tonnage, including those engaged on international voyages and requested the Government to provide information in this regard. The Committee notes the Government’s information that “sections 308 and 309 of the Marine Personnel Regulations apply to all Canadian vessels that engage on unlimited voyages or international voyages. To extend the protections of the Convention to more vessels, Canada has elected to apply elements to Canadian vessels of 100 gross tonnage or more engaged on a voyage considered closely adjacent to sheltered waters”. The Government further indicates that with respect to section 309 of the MPR, amendments expected in 2021 will extend its application to all Canadian vessels engaged in voyages outside domestic waters. The Committee recalls that ships navigating in domestic waters other than “inland waters or waters within, or closely adjacent to, sheltered waters or waters where port regulations apply” fall within the scope of application of the Convention. It also recalls that Article II, paragraph 6, provides flexibility with respect only to the application of “certain details of the Code”, that is Standard and Guidelines, to a ship or particular categories of ships of less than 200 gross tonnage that do not voyage internationally, under certain requirements (determination of competent authority in consultation with shipowners’ and seafarers’ organizations; subject matter dealt with differently by national legislation, collective agreements or other measures). The Committee requests the Government to indicate the measures taken to guarantee that the provisions of the Convention are implemented with regard to all seafarers working on board all ships covered by the Convention and to provide information on any developments in this regard.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, noting that the Canada Shipping Act, 2001 (CSA) does not appear to contain provisions on types of work prohibited by reason of age, the Committee requested the Government to take the necessary measures to bring its legislation into line with Standard A1.1, paragraph 4 by ensuring that admission to hazardous work for seafarers is prohibited under the age of 18 years. The Committee notes the Government’s information that regulations amending the MPR expected in 2021 will provide additional clarity that hazardous work is prohibited for seafarers under 18 years of age. The Committee requests the Government to provide information on any developments in this regard. It also requests the Government to take the necessary measures to determine, after consultation with the shipowners’ and seafarers’ organizations concerned, the types of work which is likely to jeopardize the health or safety of seafarers under 18 years and is therefore prohibited for these persons.

Regulation 1.4 and Standard A1.4, paragraph 3. Recruitment and placement. Services operated by a seafarers’ organization. The Committee notes that under section 304(3) of the MPR, the requirement of license does not apply in respect of a seafarer recruitment and placement service operated by a trade union that has been certified under the Canada Labour Code by the Canada Industrial Relations Board as the bargaining agent for the employees in a bargaining unit. The Committee requests the Government to provide information on the implementation of Standard A1.4, paragraph 3 of the Convention (including with respect to the requirements of paragraph 5 of the Standard and the system of protection under paragraph 5(c)(vi)) with regard to seafarer recruitment and placement services operated by trade unions certified by the Canada Industrial Relations Board.

Regulation 2.1 and Standard A2.1, paragraphs 1(a) and 4. Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. Content. The Committee previously requested the Government to provide information on whether the SEA signed by the master provides concrete information on the identity of the shipowner. The Committee notes the Government’s information that in addition to the information required by section 91(2) of the CSA, section 308(2)(b) of the MPR requires the articles of agreement (SEAs) to contain the shipowner’s name and address. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreements. Content. The Committee noted that some of the particulars listed under Standard A2.1, paragraph 4, are not mentioned in section 308 of the MPR and requested the Government to indicate how it ensures compliance with Standard A2.1, paragraph 4(g), (h) and (i). The Committee notes the Government’s statement that anticipated amendments to the MPR expected in 2021 will provide greater clarity that all SEAs must contain all of the particulars required by Standard A2.1, paragraph 4(g), (h) and (i) of the MLC, 2006. The Committee requests the Government to provide information on any developments in ensuring full conformity with Standard A2.1, paragraph 4 of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. Noting that according to the Certification Guide for Seafarer Recruitment and Placement Service Providers (SRPS) and section 306(1)(c) of the MPR, every person recruited or placed by SRPS shall have the possibility to examine their contract of employment before joining a ship, the Committee requested the Government to indicate how Standard A2.1, paragraph 1(b) is implemented with regard to all seafarers covered by the Convention. The Committee notes the Government’s reference to section 91(1) and (2) of the CSA in which the Minister places an obligation on the vessel master to ensure each seafarer understands their rights and obligations under their employment contracts before or in the process of engagement. The Government further indicates that regulations amending the MPR will provide additional clarity ensuring that seafarers fully benefit from the protection offered by Regulation 2.1 and Standard A2.1, paragraph 1(b) of the Convention. The Committee requests the Government to provide information on any development in this regard.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee previously noted that sections 319-321 of the MPR are not in full conformity with the Convention insofar as: i) the working time regime applicable to ships engaged on near coastal voyages is different depending on whether they navigate in the waters of a country having ratified or not the Convention: ii) no system has been fixed by the competent authority in conformity with Standard A2.3, paragraph 2. The Committee also noted that the East Coast and Great Lakes Shipping Employees Hours of Work Regulations 1985, and the West Coast Shipping Employees Hours of Work Regulations contained exceptions to the provisions on hours of work, which were not in conformity with the Convention. The Committee notes the Government’s indication that the maritime labour certificate is considered a “Canadian maritime document” under the CSA and it is issued under the provisions of Article V and Title 5 of the MLC, 2006, hence all the requirements of Standard A2.3, paragraph 5 become conditions that must be respected. The Government further indicates that compliance with the hours of work and rest requirements contained in the MPR (sections 319-323) is required of all masters and crew subject to the MPR. The exceptions to the hours of work contained in the Labour Code and pursuant regulations do not permit contravention of the MPR. The Committee refers to its previous comments in which it detailed the inconsistencies between sections 319-321 of the MPR and the Convention and indicated that the exceptions contained in the above cited Regulations are not in conformity with the Convention. The Committee requests the Government to address these inconsistencies to ensure that its legislation gives full effect to Standard A2.3 with regard to all seafarers working on ships covered by the Convention, providing for legal certainty and predictability to all constituents.

Regulation 2.4 and the Code. Entitlement to leave. In its previous comment, noting that section 184 of the Labour Code, which provides for a period of two weeks of paid leave per year, is not in conformity with Standard A2.4, paragraph 2, the Committee requested clarifications in this regard. The Committee notes the Government’s information that all employees covered by the Canada Labour Code, including those employed on ships, are entitled to a minimum of two weeks of annual vacation after one year of continuous employment. As of September 1, 2019, annual vacation entitlements increased to three weeks after five years and four weeks after ten years of continuous employment. The Government further indicates that employees covered by the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 or the West Coast Shipping Employees Hours of Work Regulations may be entitled to additional leave with pay where their employer establishes a lay-day plan (under which employees are entitled to leave with pay in exchange for longer standard hours of work – i.e. a higher threshold before overtime hours become payable). Hence, employees under a lay-day plan can accumulate up to 45 lay days with pay (or more, with a permit issued by the Minister of Labour). Referring to its previous comments, the Committee reiterates that section 184 of the Labour Code is not in conformity with Standard A2.4, paragraph 2, of the Convention, which provides for all seafarers a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave. Moreover, according to Guideline B2.4.1, paragraph 3, for seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis. With regard to the entitlement to leave under the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 and the West Coast Shipping Employees Hours of Work Regulations, the Committee observes that it is not clear what the annual leave per month is for seafarers covered by the Regulations. In this regard, the Committee recalls that compensatory leave of any kind should not be counted as part of annual leave with pay (Guideline B2.4.1, paragraph 4(d)). The Committee requests the Government to take the necessary measures without delay to bring the Labour Code and the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 and the West Coast Shipping Employees Hours of Work Regulations, in conformity with Standard A2.4, paragraph 2 giving due consideration to Guideline B2.4.1, paragraphs 3 and 4 (d) of the Convention.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes the Government’s information that seafarers are provided financial security for repatriation pursuant to section 328 of the MPR and that the same section specifies the conditions under which a seafarer is considered abandoned. The Government also indicates that anticipated amendments to the MPR expected in 2021 will provide greater clarity about the shipowner’s obligation to have an expeditious and effective financial security system to assist seafarers in the event of abandonment, as well as on the cases in which a seafarer is considered abandoned. The Committee notes that under section 328(2) of the MPR, “The authorized representative of a Canadian vessel shall have insurance or other financial arrangements sufficient to compensate crew members for any monetary loss that they may reasonably incur as a result of a failure of the authorized representative to meet its obligations to them under subsection 94(1) of the Act or subsection (1)”. Section 94(1) of the CSA concern payment by the authorized representative of the expenses for the return of crew when “crew member is left behind when a Canadian vessel sails or is shipwrecked”. The Committee observes that section 328(2) of the MPR is not in full conformity with Standard A2.5.2, insomuch as the latter requires the establishment of a system of financial security for abandonment, which is defined in wider terms than those provided under section 328(2) of the MPR. The Committee requests the Government to adopt the necessary measures to ensure full conformity with Standard A2.5.2. It requests the Government to provide information on the implementation of the detailed requirements of Standard A2.5.2.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2 (a). Repatriation. Circumstances. Prohibition of advance payment and to recover costs from seafarers. In its previous comments, the Committee observed that under section 94(1) of the CSA and section 328(1) of the MPR circumstances in which seafarers shall be entitled to repatriation do not fully coincide with those provided by Standard A2.5.1, paragraph 1. It also noted that section 328(1) of the MPR excludes the payment of costs of repatriation by the authorized representative in case of mutual agreement, which is not in conformity with the Convention. The Committee requested the Government to take the necessary measures to bring its legislation in full conformity with Standard A2.5.1, paragraphs 1 and 3 of the Convention, as well as to specify the maximum period of service on board ship following which a seafarer is entitled to repatriation (Standard A2.5.1, paragraph 2). The Committee notes the Government's information that anticipated amendments to the MPR expected in 2021 will fully align repatriation requirements for Canadian seafarers with those provided by Standard A2.5.1, paragraphs 1-3. The Committee requests the Government to adopt the necessary measures to ensure full compliance with these provisions of the Convention and to provide information on any developments in this regard.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning Levels. Food and catering. In its previous comments, the Committee requested the Government to indicate how the determination of the safe manning levels takes into account the requirements under Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee notes the Government's information that the provision of quality food for seafarers is addressed in both the MPR (sections 173, 227 and 329) and the Maritime Occupational Health and Safety Regulations (made under the Canada Labour Code) (hereinafter, MOHS, sections 80-85). Noting that the Government does not provide specific information on the question previously raised, the Committee requests the Government to indicate how the requirements on manning level take into account the need to have on board a ship’s cook or catering staff as required by Standard A2.7, paragraph 3. The Committee requests the Government to provide 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.

Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee previously noted that a number of provisions of the MOHS and the Crew Accommodation Regulations (CAR) provide for exceptions to the accommodation requirements which are not allowed under the Convention. It requested the Government to indicate the measures taken or envisaged to ensure compliance with Standard A3.1, paragraphs 20 and 21. The Committee notes the Government's information that Standard A3.1, paragraphs 20 and 21 have been fully implemented. In this regard, the Government indicates that the Maritime Labour Certificate is considered a “Canadian maritime document”, which under paragraph 20(1)(b) of the CSA may lose validity if “the term or condition attached to the document has been contravened.” The Government adds that the Maritime Labour Certificate states at the top of the document that it is issued under the provisions of Article V and Title 5 of the MLC, 2006. As a consequence, all of the requirements of Standard A3.1. paragraphs 20 and 21 must be met in order for the maritime labour certificate to be issued. While the Committee takes note of the Government's statement, it recalls that Standard A3.1, paragraph 1 calls for the adoption of laws and regulations to implement the accommodation standards detailed in Standard A3.1. Referring to its previous comments, which specify the inconsistencies between relevant legislation and the Convention, the Committee requests the Government to take the necessary measures to bring the Maritime Occupational Health and Safety Regulations and the Crew Accommodation Regulations in full compliance with Standard A3.1.

Regulation 4.2 and Standard A4.2.1, paragraph 3(a). Shipowners’ liability. Work-related sickness. In its previous comments, the Committee requested the Government to confirm whether and, if so, in what manner, section 239.1(2) of the Labour Code applied to all seafarers covered by the Convention, and whether the shipowner continued to pay full wages to the seafarer during periods of absence from work due to work-related illness or injury. The Committee notes the Government’s reply indicating that section 239.1(2) of the Labour Code provides a general requirement applicable to all federally regulated works, undertakings and businesses, primarily meant to bridge any gaps in coverage under existing provincial workers’ compensation schemes, and that with respect to seafarers, the applicable scheme is the Merchant Seamen Compensation Act, 1985 (MSCA). The MSCA, as indicated by the Government, provides coverage, in case of work accident, to every seaman (with the exception of pilots, apprenticed pilots and fishers) regardless of residency status, who are employed or engaged on a ship registered in Canada or chartered by demise to a person resident in Canada or having their principal place of business in Canada. The Government also indicates that the MSCA applies to seaman who are not covered by the Government Employees Compensation Act, 1985 (GECA) or by provincial or territorial workers' compensation legislation. The Committee observes that, while the GECA covers both accidents and diseases contracted in relation to work, coverage under the MSCA is limited to work accidents, and does not include occupational or industrial diseases. As regards the amount of the compensation paid to seafarers in case of suspension of wages due to work-related injury, the Committee notes that, according to section 38(9) of the MSCA (compensation in case of temporary total disability), compensation in case of work accident consists in a weekly payment equal to 75% of the seaman’s average weekly earnings. The Committee recalls that, according to Regulation 4.2, Standard A4.2.1(3)(a), the shipowner shall be liable for the payment of full wages to seafarers who suffer an employment-related injury or sickness, as long as the sick or injured seafarers remain on board or until the seafarers have been repatriated. The Committee requests the Government to indicate whether there are any measures in place providing for the payment of the 25% difference between the seafarer’s full wage and the amount of compensation due under the MSCA (e.g. whether it is paid by the shipowner) while the injured seafarer remains on board or is repatriated. The Committee also requests the Government to provide information on the coverage of seafarers for employment-related injury and sickness under provincial or territorial workers' compensation acts, and to specify the amount or level of compensation to which seafarers are entitled under the relevant provincial and territorial legislation. Finally, the Committee requests the Government to indicate the measures through which the coverage of occupational or industrial diseases, or employment-related sickness, is ensured, outside of the scope of the GECA and in the absence of provincial or territorial legislation to this effect.

Regulation 4.2 and Standard A4.2.1, paragraph 3(b). Shipowners’ liability. Non-work related sickness. In its previous comments, the Committee requested the Government to provide information on the protection available under Regulation 4.2 in case of non-work related illness occurring when seafarers are serving under a seafarer’s employment agreement or arising from their employment under such agreement, as well as to specify, both for employment-related and non-employment related sickness, the requirements implementing Standard A4.2.1, paragraphs 1(c) and 3, and the eventual limits to the liability of shipowners provided under Standard A4.2.1, paragraphs 2 and 4, of the Convention. The Committee notes the Government’s indications concerning the protection of seafarers in case of sickness under the Employment Insurance Act, 1996, which provides for wage replacement up to 15 weeks after a waiting period of one week. The Committee recalls that, under Standard A4.2.1, paragraphs 3 and 4, of the Convention, shipowners are liable for the payment of wages from the day of the commencement of the illness, until seafarers are repatriated or, if earlier, until they are entitled to cash benefits under the national legislation. It requests the Government to indicate whether wages continue to be paid to seafarers who are incapable of working due to illness during the 1-week waiting period before benefits are paid under the Employment Insurance Act.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee previously requested the Government to provide information on the implementation of the 2014 amendments to the Code (Standards A4.2.1, paragraphs 8-14 and A4.2.2). The Committee notes the Government’s indication that the MSCA ensures that merchant seamen injured in work-related accidents receive eligible health benefits and medical compensation. If the workplace injury or illness leads to a permanent disability, the seamen may be entitled to disability payments based on a percentage of previous wages. In the case of death, coverage includes burial costs as well as ongoing payments to children, spouses or other dependents. The federal Minister of Labour is responsible for the Act and the Labour Program adjudicates claims made under the Act. The Committee notes that with regard to the implementation of Standard A4.2.1, paragraph 8, the Government refers generically to various sections of the MSCA. The Committee requests the Government to provide more detailed information on how it gives application to the requirements of Standard A4.2.1, paragraph 8, as well as on the arrangements to settle claims relating to compensation (Standard A4.2.2, paragraph 3). The Committee notes the Government’s indication that the national legislation does not implement the requirements provided by Standard A4.2.1, paragraphs 9-11, 12 and 14. It requests the Government to take the necessary measures to bring national legislation in full conformity with the detailed requirements of Standard A4.2.1, paragraphs 9-11, 12 and 14 and Appendix A4-I, and to provide information on any developments in this regard.

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. The Committee previously requested the Government to provide information on the development of national guidelines on occupational safety and health on board, as required under Regulation 4.3, paragraph 2. It notes the Government's information that it develops national occupational health and safety guidelines in consultation with representative shipowners’ and seafarers’ organizations at the Canadian Maritime Advisory Council and through ad hoc working groups. The Committee requests the Government to provide copy of such guidelines.

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A4.3, paragraph 2(d). The Committee notes the Government's information that there is an exception under Canada Labour Code (section 135(2)) that states that the employer is not required to establish a workplace health and safety committee for a workplace that is on board a ship in respect of employees whose base is the ship. In cases where the employer is not required to establish a workplace health and safety committee, such as workplaces with fewer than 20 employees or the workplace is on board a ship, the Canada Labour Code (section 136(1)) requires the employer to appoint a health and safety representative for that workplace. The Government also indicates that it is presently working to ensure full implementation of Standard A4.3, paragraph 2(d) articulating the requirements of a ship’s safety committee. Recalling that Standard A4.3, paragraph 2(d) requires the establishment of such a committee on board a ship on which there are five or more seafarers, the Committee requests the Government to indicate the measures taken to fully comply with this provision of the Convention.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. I. Employment injury benefits, invalidity benefits and survivors’ benefits. In its previous comments, the Committee noted that the scope of application of the MSCA does not cover all seafarers ordinarily resident in the Canadian territory. It requested the Government to indicate how it ensured that social security coverage as regards employment injury benefits, invalidity benefits and survivors’ benefits was granted to all seafarers ordinarily resident in its territory who work on board ships covered by the Convention, including those who work on ships which do not fly the Canadian flag, and to their dependants, in conformity with Regulation 4.5. The Committee notes the Government’s reply concerning the Canada Pension Plan (CPP), a contributory social insurance scheme that provides benefits in the event of retirement, disability and death, including benefits for the survivors of a contributor, who meet qualifying conditions. The Government indicates that a member of the crew of a ship is subject to the CPP if all three of the following conditions are met: i) the employer who has engaged the crew has a place of business in Canada; ii) the ship is operating under an agreement entered into in Canada with the crew; and iii) the crew member is a Canadian citizen or a permanent resident of Canada with a permanent place of residence in Canada. The Committee therefore notes that the status of ordinary residence in Canada of a seafarer per se does not grant the coverage under the CPP. The Committee further notes the Government’s indications concerning the coverage of work-related disability or death compensation under provincial or territorial workers’ compensation schemes. The Committee requests the Government to provide clarifications on the social security coverage of seafarers ordinarily resident in Canada who are not covered by the MSCA or the CPP, e.g. those working on board foreign-flagged ships with a non-Canadian shipowner. The Committee also requests the Government to provide information on: i) the coverage of seafarers and their survivors in case of permanent disability or death resulting from a work-related injury or sickness under provincial and territorial legislation; ii) the qualifying conditions for entitlement to benefits; and iii) the level of benefits.

II. Sickness, maternity and unemployment benefits. The Committee notes the information provided by the Government in reply to its previous comments concerning the notion of “insurable employment” and the conditions under which seafarers ordinarily resident in Canada become eligible for sickness, maternity and unemployment benefits. The Committee takes note of this information.

Regulation 4.5 and Standard A4.5, paragraphs 3, 4 and 8. Social security. Bilateral or multilateral agreements. The Committee notes the information provided by the Government in reply to its previous comments in relation to the bilateral and multilateral social security agreements concluded pursuant to Standard A4.5, paragraphs 3, 4 and 8. The Committee takes note of this information.

Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime labour compliance. In its previous comments, in relation to section 333(1) and (2) of the MPR, recalling that Regulation 5.1.3 also applies to ships of 500 GT or more flying the flag of a Member and operating from a port, or between ports, in another country, the Committee requested the Government to indicate whether any such ships operate in Canada. If so, it requested the Government to indicate how it ensures that Regulation 5.1.3 is applicable to those ships. The Committee notes the Government’s information that vessels subject to the MLC, 2006 engage on voyages between Canadian ports and operate in international waters. 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. In its previous comments, the Committee observed that the DMLC, Part I supplied by the Government only contains reference to sections of applicable legislation, without providing further details on the content of the relevant provisions. The Committee requested the Government to consider amending the DMLC, Part I, to better implement Regulation 5.1.3, paragraph 10. The Committee notes the Government’s information that the DMLC form is presently being updated to ensure it provides “concise information on the main content of the national requirements” and will be formally released in the fall of 2020. The Committee requests the Government to supply a copy of the DMLC, part I, once updated.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 14-17. Flag State responsibilities. End of validity and withdrawal of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee previously noted that section 16(4) of the CSA cited by the Government refers in general to a “Canadian maritime document” and does not take into account all the requirements of Standard A5.1.3, paragraph 14. It requested the Government to indicate how it gives effect to this provision of the Convention. The Committee notes the Government's indication that since the Maritime Labour Certificate is considered a “Canadian maritime document”, there is very broad authority for the Minister of Transport to suspend, cancel or refuse to renew a maritime labour certificate. Since the Maritime Labour Certificate states at the top of the document that it is issued under the provisions of Article V and Title 5 of the MLC, 2006, all of the requirements of Standard A5.1.3, paragraph 14 become conditions where the certificate ceases to be valid. The Government adds that anticipated amendments to the MPR expected in 2021 will provide even greater clarity by setting out the circumstances when a Maritime Labour Certificate ceases to be valid, which will align requirements with Standard A5.1.3, paragraph 14 of the Convention. The Committee requests the Government to provide information on the measures taken to ensure full conformity with Standard A5.1.3, paragraph 14 of the Convention. The Committee notes that the applicable legislation does not give effect to Standard A5.1.3, paragraphs 15-17. It requests the Government to take the necessary measures to ensure conformity with these provisions of the Convention.

Regulation 5.1.4 and the Code. Inspection and enforcement. In its previous comments, the Committee requested the Government to indicate how the requirements of Standard A5.1.4, paragraphs 5 and 7(c) (investigation on cases of non-compliance and detention of ships), are implemented in practice in cases of non-conformity with the provisions of the Convention. It also requested the Government to specify the frequency of inspections on ships flying its flag (Standard A5.1.4, paragraph 4) and the measures taken to give effect to Standard A5.1.4, paragraph 12 (obligation of inspectors to submit reports). The Committee notes the Government's information that detailed work instructions have been issued to marine safety inspectors providing guidance of their responsibilities under the MLC, 2006, the CSA, MPR, the Canada Labour Code, and the MOHS Regulations. If a marine safety inspector believes on reasonable grounds that provisions of the CSA or its regulations (which capture the requirements of the MLC, 2006) have been contravened by or in respect of a vessel, he/she may make a detention order against the vessel. Moreover, marine safety inspectors have the power to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of the Canadians regulations (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken. The Government further indicates that, regarding the frequency of inspections, as part of the Marine Safety Management System, there is a documented procedure that all Maritime Labour Certificates and DMLCs be valid for a period of five years and subject to an intermediate inspection between the second and third anniversary date of the certificate. Appropriate endorsements by Transport Canada Marine Safety and Security must be made to the certificate. With respect to the obligation of inspectors to submit reports, the Government indicates that as part of the Transport Canada Marine Safety Management System, there is a documented work instruction following completion of each MLC, 2006 inspection that requires: the delegated marine safety inspector preparing and submitting a report which is recorded in Transport Canada’s Ship Inspection Reporting System (SIRS); and two copies of the inspection be provided to the master - one copy for the master’s file and one copy to be posted on the ship’s notice board for the information of the seafarers and, upon request, sent to their representatives. The Committee takes note of this information, which addresses its previous comments.

Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee previously noted the Government’s reference to section 332 of the MPR on on-board complaint procedures and observed that the established procedure is limited to alleged breaches of relevant national legislation. It requested the Government to indicate how it ensures that the on-board procedures may be used by seafarers to lodge complaints related to any matter that is alleged to constitute a breach of the requirements of the Convention, including seafarers’ rights. The Committee notes the Government's information that, in addition to the on board complaints procedure under section 332 of the MPR, it provides a comprehensive on-board complaint procedure to all seafarers under section 127.1 of the Labour Code. The Committee observes, however, that section 332(11) of the MPR provides that “this section does not apply in respect of complaints to which section 127.1 of the Canada Labour Code applies”. The Committee requests the Government to clarify which provision implements Standard A5.1.5, paragraph 1, of the Convention.

Regulation 5.1.5, paragraph 2 and Standard A5.1.5, paragraphs 3 and 4. Flag State responsibilities. On-board complaint procedures. Victimization. Information on procedure. The Committee previously requested the Government to indicate how it gives effect to Regulation 5.1.5, paragraph 2 (prohibition of victimization), as well as to indicate how it gives effect to Standard A5.1.5, paragraph 4 (arrangements to ensure that seafarers are provided with copy of the on-board complaint procedures). The Government indicates that the Regulation 5.1.5, paragraph 2 is implemented by section 147 of the Labour Code (prohibition to dismiss, suspend, refuse to pay remuneration, bring or threaten to bring disciplinary action against the employee who acted as specified in section 147(a), (b) and (c)). Where an employer fails to meet her/his obligations under section 147, an employee may submit a complaint for investigation under section 133. With regard to the implementation of Standard A5.1.5, paragraph 4, the Government indicates that section 125(1)(d) of the Labour Code requires employers to post, among other things, a copy of the Labour Code and associated regulations, which contain the process to file a complaint, in a conspicuous place accessible to every employee. The Committee notes that the provisions cited by the Government appear to be limited to occupational safety and health (Part II). The Committee requests the Government to take the necessary measures to ensure that victimization of seafarers for filing a complaint under Regulation 5.1.5 is prohibited and penalized (Regulation 5.1.5(2)) and that all seafarers are provided with a copy of the on-board complaint procedures (Standard A5.1.5(4)).

Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. In its previous comment, noting that the applicable legislation (Canadian Transportation Accident Investigation and Safety Board Act) does not provide for the obligation in all cases to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Canadian flag, the Committee requested the Government to indicate how it gives effect to Regulation 5.1.6, paragraph 1. The Committee notes the Government's information that the MOHS Regulations outline the requirement of an employer to investigate accidents, occupational diseases or other hazardous occurrences affecting their employees (section 276). The Government also indicates that it is the federal Labour Program policy to investigate all hazardous occurrences that cause injuries that may result in death or serious body injuries. The Committee recalls that Regulation 5.1.6, paragraph 1 provides for the obligation to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Member's flag. The Committee requests the Government to take the necessary measures to fully comply with this provision of the Convention.

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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 Canada has previously ratified nine maritime labour Conventions that were denounced as a result of the entry into force of the MLC, 2006. 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 Canada on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. The Committee also notes the efforts undertaken by the Government and the social partners to implement the provisions 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 II, paragraphs 1(i), 4 and 5, of the Convention. Scope of application. Ships, inland waters, waters within or closely adjacent to sheltered waters or areas where port regulations apply. The Committee notes that various provisions of the legislation implementing the MLC, 2006, exclude totally or partially ships engaged on near coastal voyages Class 1 and Class 2 (see for example section 319 of the Marine Personnel Regulations (MPR) on hours of work). The Committee notes that, under the Vessel Certificates Regulations, near coastal voyage, Class 1 means a voyage “(a) that is not a sheltered waters voyage or a near coastal voyage, Class 2; (b) that is between places in Canada, the United States (except Hawaii), Saint Pierre and Miquelon, the West Indies, Mexico, Central America or the northeast coast of South America; and (c) during which the vessel engaged on the voyage is always (i) north of latitude 6°N, and (ii) within 200 nautical miles from shore or above the continental shelf”. It further notes that, under the same Regulations, near coastal voyage, Class 2 means a voyage “(a) that is not a sheltered waters voyage; and (b) during which the vessel engaged on the voyage is always (i) within 25 nautical miles from shore in waters contiguous to Canada, the United States (except Hawaii) or Saint Pierre and Miquelon, and (ii) within 100 nautical miles from a place of refuge”. The Committee recalls that the MLC, 2006, defines a ship in Article II, paragraph 1(i), as “a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply”. The Committee also recalls that the MLC, 2006, does not contain the concept of near-coastal voyages, which is included in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). The Committee considers that this concept, as defined in the case of Canada, goes clearly beyond the exclusion contained in Article II, paragraph 1(i), of the MLC, 2006. Therefore, the Committee requests the Government to provide explanations on how the exceptions provided in near coastal voyages Class 1 and Class 2 are justified under Article II(i) of the Convention, taking fully into account the Convention’s object and purpose of ensuring protection of all seafarers.

The Committee notes that some provisions of the MPR, for example sections 308 and 309, exclude from their application ships of less than 100 gross tonnage, including those engaged on international voyages. The Committee recalls that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those excluded under paragraph 4. Article II, paragraph 5, provides flexibility in the event of doubt as to the application of the Convention to a ship or particular category of ship after consultation with shipowners’ and seafarers’ organizations. Article II, paragraph 6, provides additional flexibility with respect only to the application of “certain details of the Code”, that is Standard and Guidelines, to a ship or particular categories of ships of less than 200 gross tonnage that do not voyage internationally, under certain requirements (determination of competent authority in consultation with shipowners’ and seafarers’ organizations; subject matter dealt with differently by national legislation, collective agreements or other measures). Recalling that the Convention does not contain a general or overall exclusion of ships below a certain gross tonnage, the Committee requests the Government to indicate how it ensures that the protection afforded by the Convention is guaranteed to all seafarers working on board ships within the meaning of the Convention.

Regulation 1.1. Standard A1.1, paragraph 4. Hazardous work prohibited for seafarers under 18 years. The Committee notes that the Government does not provide information on the general prohibition of employment of seafarers under 18 where the work is likely to jeopardize their health or safety. It further notes that, under section 10(1)(iv) of the Canadian Labour Standards Regulations, an employer may employ a person under the age of 17 years “if the work in which he is to be employed is not work under the Canada Shipping Act that he is prohibited by reason of age from doing”. The Committee notes that the Canada Shipping Act, 2001 (CSA) does not appear to contain provisions on types of work prohibited by reason of age. It recalls that under Standard A1.1, paragraph 4, the employment, engagement or work of seafarers under the age of 18 shall be prohibited where the work is likely to jeopardize their health or safety. The types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned. Referring also to its comments under the Worst Forms of Child Labour Convention, 1999 (No. 182), the Committee requests the Government to take the necessary measures to bring its legislation into line with this provision of the Convention by ensuring that admission to hazardous work for seafarers is prohibited under the age of 18 years. It also requests the Government to take the necessary measures to determine, after consultation with the shipowners’ and seafarers’ organizations concerned, the types of work which is likely to jeopardize the health or safety of seafarers under 18 years and is therefore prohibited for these persons.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarer’s employment agreement (SEA). Examine and seek advice on the SEA before signing. The Committee notes the Government’s information that, according to the Certification Guide for Seafarer Recruitment and Placement Service Providers (SRPS) and section 306(1)(c) of the MPR, every person recruited or placed by SRPS shall be informed of their rights and obligations under their contract of employment before or in the process of engagement and proper arrangements shall be made for them to examine their contract of employment before and after they are signed and for them to receive a copy of the contract. The Committee recalls that Standard A2.1 also applies to seafarers who are not recruited or placed by SRPS. It requests the Government to indicate how Standard A2.1, paragraph 1(b), of the Convention is implemented with regard to all seafarers covered by the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1(a) and 4. Signing of the SEA by both the seafarer and the shipowner. Matters to be included in the SEA. The Committee notes that section 91 of the CSA refers to articles of agreement between “the master and a crew member”. Section 308 of the MPR provides that, for the purpose of section 91(1) of the CSA, “the master of a Canadian vessel shall enter into articles of agreement if the vessel (a) engages on unlimited voyages or international voyages, other than inland voyages; or (b) is of 100 gross tonnage or more and engages on near coastal voyages, Class 1, other than inland voyages”. The Committee understands that, under the abovementioned provisions, the master is considered as a representative of the shipowner for the purpose of signing the articles of agreement. It recalls that under Standard A2.1, paragraph 1(a), of the Convention, each Member shall adopt laws or regulations requiring that all seafarers working on ships that fly its flag covered by the Convention have a SEA signed by both the seafarer and the shipowner or a representative of the shipowner. The Committee requests the Government to provide information on whether in practice the SEA signed by the master provides concrete information on the identity of the shipowner. The Committee also notes that some of the particulars listed under Standard A2.1, paragraph 4, are not mentioned in section 308 of the MPR, in particular the termination of the agreement and the conditions thereof, the health and social security protection benefit and the seafarer’s entitlement to repatriation. The Committee requests the Government to indicate how it ensures that SEAs also contain the particulars required by Standard A2.1, paragraph 4(g), (h) and (i).

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that section 319 of the MPR differentiates between the working time regime applicable to: (a) Canadian vessels engaged on near coastal voyages Class 1 or near coastal voyages, Class 2, while they are in any waters other than those of a foreign State that has ratified the Convention; and (b), (i) Canadian vessels engaged on near coastal voyages, Class 1 or near coastal voyages, Class 2 while the vessels are in the waters of a foreign State that has ratified the Convention, (ii) Canadian vessels engaged on unlimited voyages and (iii) foreign vessels in Canadian waters.

The Committee observes that the working time regime applicable to ships engaged on near coastal voyages is different depending on whether they navigate in the waters of a country having ratified or not the Convention. In this regard, it recalls that the Convention does not provide for any such difference and therefore a Member is bound to implement its provisions with respect to all ships to which the Convention applies, regardless of whether they navigate in the waters of a ratifying or non-ratifying State.

The Committee also notes that the working time regime applicable to ships under (a) above, which follows the regime of minimum hours of rest (section 320 of the MRP), is not in conformity with the limits set out in Standard A2.3, paragraph 5, of the Convention. With regard to ships under (b) above, the Committee observes that, under section 321(1) of the MPR the master shall ensure that the master and every crew member: “(a) do not work more than 14 hours in any 24-hour period or more than 72 hours in any 7-day period; or (b) have at least 10 hours of rest in every 24-hour period and 77 hours of rest in every 7 day period”. The Committee observes that no system has been fixed by the competent authority (hours of work or hours of rest) in conformity with Standard A2.3, paragraph 2. The Committee recalls that under this provision of the Convention, each Member shall, within the limits set out in paragraphs 5–8 of the same Standard, fix either a maximum number of hours of work or a minimum number of hours of rest. The Committee requests the Government to indicate the measures taken or envisaged to fix either a maximum number of hours of work or a minimum number of hours of rest, which respects the limits set in Standard A2.3, paragraph 5, and applies to all seafarers working on ships covered by the Convention.

Standard A2.3, paragraphs 13 and 14. Exceptions to the schedule of hours of work or hours of rest. The Committee notes that under the Government refers to the East Coast and Great Lakes Shipping Employees Hours of Work Regulations 1985, and the West Coast Shipping Employees Hours of Work Regulations. These Regulations apply to persons employed on a ship that is operated by an undertaking or a business that comes within the legislative authority of Parliament and that is engaged in shipping from any port in the Province of British Columbia (West Coast Regulations) or from any East Coast or Great Lakes Port (East Coast and Great Lakes Regulations). The Regulations therefore appear to apply to seafarers covered by the Convention, unless they refer to ships navigating in areas in which port regulations apply, which are excluded by the scope of application of the Convention (Article II, paragraph 1(i)). These Regulations provide for exceptions to provisions on hours of work contained in the Labour Code and contemplate the possibility of modifying the work schedule and calculating hours of work as an average. The Committee recalls that no exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6, are allowed other than those provided by paragraphs 13 and 14 of the same Standard. The Committee requests the Government to clarify whether these Regulations apply to seafarers and ships covered by the Convention and, if so, to indicate how it implements Regulation 2.3 in this regard.

Regulation 2.4 and the Code – Entitlement to leave. With regard to the implementation of this Regulation, the Government refers to section 184 of the Labour Code which provides generally for a period of two weeks of paid leave per year. The Committee notes that this section is not in conformity with Standard A2.4, paragraph 2, of the Convention, which provides for a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave. The Committee requests the Government to indicate how it gives effect to Standard A2.4, paragraphs 1 and 2.

Regulation 2.5 and the Code. Repatriation. The Committee notes the Government’s information that under section 94 (1) of the CSA, “subject to the regulations and except in the case of desertion or mutual agreement, if a crew member is left behind when a Canadian vessel sails or is shipwrecked, the authorized representative shall ensure that arrangements are made to return the crew member to the place where they first came on board or to another place to which they have agreed, and pay the expenses of returning the crew member as well as all expenses, including medical expenses, that the crew member reasonably incurs before being returned”. The Government also refers to section 328(1) of the MPR, according to which “except in the case of desertion or mutual agreement, before a Canadian vessel is disposed of or is transferred to the flag of a foreign State or when a Canadian vessel is totally unseaworthy, the vessel’s authorized representative shall (a) ensure that arrangements are made to return every crew member to the place where they first came on board or to another place to which they have agreed; and (b) pay the expenses of returning every crew member as well as all expenses, including medical expenses, that the crew member reasonably incurs before being returned”. The Committee notes that, under these provisions, circumstances in which seafarers shall be entitled to repatriation do not coincide with those provided by Standard A2.5, paragraph 1, which include termination of the employment contract and cases in which the seafarer is no longer able to carry out her/his duties. The Committee requests the Government to indicate how it ensures that seafarers on ships that fly its flag are entitled to repatriation in the circumstances indicated in Standard A2.5, paragraph 1, of the Convention. It also requests the Government to specify the maximum period of service on board ship following which a seafarer is entitled to repatriation (Standard A2.5, paragraph 2).

The Committee further notes that section 328(1) of the MPR excludes the payment of costs of repatriation by the authorized representative in case of mutual agreement. The Committee observes that this possibility is not provided for by the MLC, 2006, thus this provision is not in conformity with the Convention. The Committee requests the Government to take the necessary measures to bring its legislation in full conformity with 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 2.7 and the Code. Manning levels. The Government indicates that under section 202(1) of the MPR, the authorized representative of a Safety Convention vessel shall ensure that the vessel meet the safe manning requirements established for the vessel by the Administration in accordance with International Maritime Organization (IMO) Resolution A.890 (21), Principles of Safe Manning, or any other resolution that replaces it. The Committee requests the Government to indicate how the determination of the safe manning levels takes into account the requirements under Regulation 3.2 and Standard A3.2 concerning food and catering (Standard A2.7, paragraph 3).

Regulation 3.1 and the Code. Accommodation and recreational facilities. Applicable legislation and exemptions. The Committee notes that the main legislation implementing this Regulation is the Maritime Occupational Health and Safety Regulations (MOHS). It notes that under section 152(1) of the MOHS, the requirement on lighting does not apply, inter alia, to vessels of less than 500 gross tonnage. The Committee observes that such exemption is not allowed under the Convention.

The Committee notes that sections 28(1) and 29 of the MOHS, which implement Standard A3.1, paragraph 9, provide for requirements for minimum floor area for sleeping room “as far as practicable”. It further notes that section 30 of the MOHS provides that “If it is not possible to provide individual sleeping quarters to employees … an officer must not share their sleeping quarters with more than one other person …” The Committee notes that the Convention only allows for exceptions to the requirement of an individual sleeping room in the cases provided under Standard A3.1, paragraphs 9(a) and (h).

The Committee further notes that section 47 of the MOHS provides for separate sanitary facilities for men and women, as far as practicable, and for the possibility of common sanitary facilities for men and women. The Committee observes, however, that no exception is allowed by the Convention regarding the requirement of separate sanitary facilities (Standard A3.1, paragraph 11(a)).

The Committee notes that the Government also refers to the Crew Accommodation Regulations (CAR), which provide that some ships, including ships under 300 tons, net registered tonnage, may be exempted from the requirements of these Regulations (section 3(2)). Section 6(3) of the CAR on lighting requirements also provides for possible exemptions for ships of less than 500 gross tonnage. The Committee observes that such exemptions are not allowed under the Convention.

The Committee recalls that Standard A3.1, paragraph 21, of the Convention states that “any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarer’s health and safety”. It further recalls that Standard A3.1, paragraph 20, provides for the possibility to exclude ships of less than 200 gross tonnage from the application of a number of specific provisions of Regulation 3.1 under the conditions regulated under the same paragraph (consultations with the shipowners’ and seafarers’ organizations concerned and reasonability of the exception). The Committee requests the Government to indicate the measures taken or envisaged to ensure that all exemptions to the application of the Regulation are made within the limitations provided for under Standard A3.1, paragraphs 20 and 21.

Regulation 4.2 and the Code. Shipowners’ liability. Sickness. The Committee notes that the Government refers to section 239.1(2) of the Labour Code, according to which “Every employer shall subscribe to a plan that provides an employee who is absent from work due to work related illness or injury with wage replacement, payable at an equivalent rate to that provided for under the applicable workers’ compensation legislation in the employee’s province of permanent residence.” It notes that the Labour Code covers “a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada” (section 2(a)). The Committee requests the Government to confirm whether and, if so, in what manner, section 239.1(2) of the Labour Code applies to all seafarers covered by the Convention, as well as to confirm whether during the period in which the seafarer is absent from work due to work-related illness or injury, the shipowner continues to pay full wages to the seafarer. It also requests it to provide information on the protection available under Regulation 4.2 in case of non-employment related sickness occurring when seafarers are serving under a seafarer’s employment agreement or arising from their employment under such agreement, as well as to specify, both for employment-related and non-employment related sickness, the requirements implementing Standard A4.2.1, paragraphs 1(c) and 3, and the eventual limits to the liability of shipowners provided under Standard A4.2.1, paragraphs 2 and 4, of the Convention.

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 4.3, paragraph 2. National guidelines on occupational safety and health on board ships. The Committee notes that this Regulation is mainly implemented through the MOHS. It also notes that the Government does not provide information on the development of national guidelines on occupational safety and health on board as required under Regulation 4.3, paragraph 2. The Committee requests the Government to provide information on the effect given to this provision of the Convention. The Committee notes that, while the provisions of the MOHS refer to a “policy committee, or, if there is no policy committee, the workplace committee or the health and safety representative”, there is no information on the requirements for the establishment of such a committee on board a ship on which there are five or more seafarers (Standard A4.3, paragraph 2(d)). The Government is requested to indicate how it gives effect to this provisions of the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10, of the Convention, the Government has specified all nine branches of social security provided under Standard A4.5, paragraph 1.

Employment injury benefits, invalidity benefits and survivors’ benefits. The Committee notes that the Government refers to the Merchant Seamen Compensation Act, which provides for employer’s compensation for permanent total disability, permanent partial disability, temporary total disability and temporary partial disability resulting from injury for accident arising out of and in the course of employment, as well as for survivors’ benefits. The Committee notes that the Act applies to “every person, except pilots, apprenticed pilots and fishers, employed or engaged on (a) a ship registered in Canada under the Canada Shipping Act, 2001, or (b) a ship chartered by demise to a person resident in Canada or having their principal place of business in Canada, when the ship is engaged in trading on a foreign voyage or on a home-trade voyage, and, if so ordered by the Governor in Council, includes a seaman engaged in Canada and employed on a ship that is registered outside Canada and operated by a person resident in Canada or having their principal place of business in Canada when that ship is so engaged”. The Committee therefore observes that the Act does not cover all seafarers ordinarily resident in its territory, who work on board ships covered under the Convention. The Committee reminds that, under Standard A4.5, paragraph 3, each Member shall take steps according to its national circumstances to provide the social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The resulting protection shall be no less favourable than that enjoyed by shoreworkers resident in their territory. The Committee requests the Government to indicate how it ensures that social security coverage in the branches mentioned above (employment injury benefits, invalidity benefits and survivors’ benefits) is granted to all seafarers ordinarily resident in its territory who work on board ships covered by the Convention, including those who work on ships which do not fly the Canadian flag, and to their dependants in conformity with Regulation 4.5.

Sickness, maternity and unemployment benefits. The Committee notes the Government’s information that seafarers may be eligible to receive sickness, maternity and paternity and unemployment benefits under the Employment Insurance. The Committee observes that under the eligibility criteria for these benefits, inter alia, the employee shall be employed under “insurable employment”. The Committee requests the Government to explain the notion of “insurable employment” and clarify the conditions under which seafarers ordinarily resident in Canada become eligible for the abovementioned benefits. It also requests the Government to specify whether the shipowner’s liability in case of sickness is terminated by the effect of affiliation to sickness insurance.

Regulation 4.5 and Standard A4.5, paragraphs 3, 4 and 8. Bilateral or multilateral agreements. The Committee requests the Government to provide information on whether any bilateral or multilateral agreements have been concluded giving effect to Standard A4.5, paragraphs 3, 4 and 8, as well as on whether shipowners’ and, if applicable, seafarers’ contributions to social security schemes are monitored to verify that contributions are made (Guideline B4.5, paragraphs 6 and 7).

Regulation 5.1.3 and the Code – Maritime labour certificate and declaration of maritime labour compliance. The Committee notes that under section 333(1) and (2) of the MPR, every Canadian vessel of 500 gross tonnage or more that is engaged on an international voyage, other than an inland voyage, shall hold a Maritime Labour Certificate or an Interim Maritime Labour Certificate. The authorized representative of every Canadian vessel of 500 gross tonnage or more that is engaged on an international voyage, other than an inland voyage, shall hold a Declaration of Maritime Labour Compliance. Recalling that Regulation 5.1.3 also applies to ships of 500 GT or more flying the flag of a Member and operating from a port, or between ports, in another country, the Committee requests the Government to indicate whether any such ships operate in Canada. If so, it requests the Government to indicate how it ensures that Regulation 5.1.3 is applicable to those ships. The Committee notes the examples of the DMLC, Parts I and II, supplied by the Government. It observes that the DMLC, Part I, only contains reference to sections of applicable legislation, without providing further details on the content of the relevant provisions. The Committee recalls that Standard A5.1.3, paragraph 10(a), provides that the DMLC, Part I, 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 requests the Government to consider amending the DMLC, Part I, to better implement Regulation 5.1.3, paragraph 10. The Committee notes that, with regard to the circumstances in which a maritime labour certificate ceases to be valid, the Government refers to section 16(4) of the CSA. The Committee notes that this provision refers in general to a “Canadian maritime document” and does not take into account all the requirements of Standard A5.1.3, paragraph 14. The Committee requests the Government to indicate how it gives effect to this provision of the Convention.

Regulation 5.1.4 and the Code – Inspection and enforcement. The Committee notes the Government’s reference to sections 216, 217 and 219 of the CSA, under which the Minister may appoint any person to investigate a violation of the provisions of the Act following a complaint by an individual who has reasonable grounds to believe that a person or a vessel has contravened the provisions of the CSA. Under section 222, if a marine safety inspector believes on reasonable grounds that a contravention to a relevant provision has been committed in respect of a vessel or that the vessel is not seaworthy, the inspector may detain the ship. Mandatory detention is provided in various cases, including in cases in which the ship is unsafe or unfit to carry crew members or when persons on board are exposed to serious danger. The Committee observes that it is not clear whether detention may also take place in cases in which deficiencies constitute a serious breach of the requirements of the Convention concerning seafarers’ rights (for example, non-payment of wages or repeated violation of provisions on hours of work/rest). The Committee requests the Government to indicate how the requirements of Standard A5.1.4, paragraphs 5 and 7(c) (investigation on cases of non-compliance and detention of ships), are implemented in practice in cases of non-conformity with the provisions of the Convention. It also requests the Government to specify the frequency of inspections on ships flying its flag (Standard A5.1.4, paragraph 4) and the measures taken to give effect to Standard A5.1.4, paragraph 12 (obligation of inspectors to submit reports).

Regulation 5.1.5 and the Code – On-board complaint procedures. The Committee notes the Government’s reference to section 332 of the MPR on on-board complaint procedures. It observes that the established procedure is limited to alleged breaches of relevant national legislation and does not cover breaches of any of the requirements of the Convention, including seafarers’ rights. The Committee requests the Government to indicate how it ensures that the on-board procedures may be used by seafarers to lodge complaints related to any matter that is alleged to constitute a breach of the requirements of the Convention, including seafarers’ rights. It also requests the Government to indicate how it gives effect to Regulation 5.1.5, paragraph 2 (prohibition of victimization), and to Standard A5.1.5, paragraph 4 (arrangements to ensure that seafarers are provided with copy of the on-board complaint procedures).

Regulation 5.1.6 – Marine casualties. The Committee notes the Government’s reference to the Canadian Transportation Accident Investigation and Safety Board Act according to which this Board is in charge of investigating, inter alia, marine occurrences in Canada. Under section 14(1) of the Act, “[T]he Board may, and if so requested by the Governor in Council shall, investigate any transportation occurrence”. The Committee observes that the applicable legislation does not seem to provide for the obligation to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Canadian flag, as required under Regulation 5.1.6, paragraph 1. The Committee requests the Government to indicate how it gives effect to this provision of the Convention.

[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.