Maritime Labour Convention, 2006 (MLC, 2006) - Gambia (RATIFICATION: 2018)

CMNT_TITLE

The Committee notes the Government’s first 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 entered into force for The Gambia at the same time as the Convention. It notes that The Gambia has not submitted a declaration of acceptance of the amendments to the Code of the Convention approved in 2016 and 2018 by the International Labour Conference and is therefore not bound by these amendments. The Committee notes the efforts undertaken by the Government to implement the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

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

Article I. General questions on application. Implementing measures. The Committee notes that The Gambia’s main legislation relating to maritime issues is the Merchant Shipping Act, 2013 and the Maritime Labour Regulations, 2020 (hereafter the draft Regulations) which have yet to be finalized and adopted by the Parliament. The Committee notes with interest that the draft legislation represents a significant step forward towards the implementation of the MLC, 2006. Noting however that the draft legislation has yet to be adopted, the Committee requests the Government to adopt the necessary measures to fully implement the provisions of the Convention in law and in practice and to provide a copy of the legislation once adopted. The Committee further requests the Government to provide statistics on the number of seafarers who are nationals or residents of The Gambia or who work on board ships flying the Gambian flag.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee notes the Government’s indication that Regulation 1.1 of the draft Regulations provides that the employment, engagement or work on board a ship of any person under the age of 16 is prohibited. The Committee, however, observes that section 135(1) of the Merchant Shipping Act, 2013 provides that “a person under the age of sixteen years shall not be employed on a Gambian ship except- (a) upon work approved by the Administration on board school ship or training ship; and (b) where the Director-General certifies that he or she is satisfied, having due regard to the health and physical condition of the person and to the prospective and immediate benefit to him or her of the employment, that the employment will be beneficial to him or her”. The Committee recalls that Regulation 1.1 and Standard A1.1, paragraph 1, of the MLC, 2006 prohibit, without exception, the employment, engagement or work on board a ship covered by the Convention of any person under the age of 16 years. The Committee draws the attention of the Government to the need to avoid any inconsistencies in the applicable provisions so as to ensure full conformity with the Convention. The Committee requests the Government to take the necessary measures to harmonize its legislation in order to ensure its full conformity with Standard A1.1.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that, pursuant to Regulation 1.1(2) of the draft Regulations, the employment, engagement or work of seafarers under the age of 18 is prohibited where the work is likely to jeopardize their health or safety and, pursuant to Regulation 1.1(6) of the same Regulations, no seafarer under the age of 18 shall be employed or engaged or work as a ship’s cook. The Committee further observes that section 55 of the Labour Bill, 2020 provides that subject to the Children’s Act, 2005, a person shall not engage a child in any occupation or activity that is likely to be (a) harmful to the health, safety, education, morals or development of the child; or (b) prejudicial to his or her attendance at school or any other vocation or training program. The Committee notes that, pursuant to section 44 of the Children’s Act “going to sea” is considered hazardous work which poses a danger to the health, safety or morals of a child. The Committee observes however that the legislation does not contain the list of hazardous activities specific to the maritime sector. The Committee recalls that Standard A1.1, paragraph 4, of the Convention requires that the types of work which are likely to jeopardize the health and safety of seafarers under 18 years shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. The Committee requests the Government to take the necessary measures to adopt the list of types of work considered hazardous as required by Standard A1.1, paragraph 4 for which the employment, engagement or work of seafarers under the age of 18 is prohibited, taking into account the specific conditions of work and risks on board ships for young seafarers, and to provide detailed information on the consultations held in order to determine these.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that Regulation 2.1(1) and (2) of the draft Regulations requires that seafarers working on board a ship shall have a seafarers’ employment agreement (SEA) signed by both the seafarer and the shipowner or a representative of the shipowner and that both the shipowner and seafarer must have a signed original of the SEA in compliance with the requirements of the Convention. The Committee also observes that section 125(1) of the Merchant Shipping Act, 2013 provides that the owner of a Gambian ship or a person duly authorized by him or her shall enter into an Employment Agreement with every seafarer whom he or she engages and carries to sea as one of his or her crew and that section 125(2) provides that the master of a ship other than a Gambian ship shall enter into an employment agreement with every seafarer who he or she engages in The Gambia as one of his or her crew. Section 126 of the same Act provides that in the case of a non-Gambian ship, a SEA shall be signed by the master before the seafarer signs his or her name. The Committee notes that it is not clear from the provisions of the Merchant Shipping Act, 2013 whether in the case of a Gambian ship, the person authorized by the shipowner acts as a representative of the shipowner. The Committee also observes that in the case of a non-Gambian ship, the signature of the shipowner does not seem to be required. The Committee underlines the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II of the Convention. In accordance with Standard A2.1, paragraph 1, every seafarer must have an original agreement signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer). The Committee requests the Government to indicate how it is ensured that the seafarer’s employment agreement (SEA) is signed by the shipowner or shipowner’s representative as required under Standard A2.1, paragraph 1(a) of the Convention. The Committee further requests the Government to clarify whether, in the case of a non-Gambian ship, flagged under the registry of The Gambia, the master of the ship acts as a representative of the shipowner.

Regulation 2.1 and Standard A2.1, paragraph 5. Seafarers’ employment agreement. Minimum notice period for termination.The Committee notes that Regulation 2.1(7) of the draft Regulations establishes a minimum period of 30 days to be given by the seafarers and the shipowners for the early termination of a seafarer’s employment agreement in conformity with the requirements of the Convention. The Committee further notes that section 126(4) of the Merchant Shipping Act, 2013 stipulates that an agreement made to employ a seafarer under this section shall be terminated by (a) mutual consent of the parties thereto; (b) death of the seafarer; or (c) wreck, loss or total unseaworthiness of the ship; d) dismissal of the seafarer after the requisite notice has been given to him or her by the ship owner; and (e) where the agreement relates to employment for a particular period, on the expiration of that period and if the period expires during a voyage, on the arrival of the ship at the next port of call after the expiry of the period. The Committee observes that while the shipowner seems to be granted the right to dismiss the seafarer after the requisite notice has been given to him or her by the shipowner, it is not clear whether this provision ensures the right of the seafarer to terminate the seafarer’s employment agreement without the shipowner’s consent after giving the shipowner the requisite notice. Consequently, the Committee requests the Government to confirm that the seafarer has a right to early termination of his/her SEA in the case the shipowner is given the minimum 30 day notice established under the national provisions in accordance with Standard A2.1, paragraph 5.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that Regulation 2.1(9) of the draft Regulations provides that seafarers shall be given a certificate of discharge in accordance with section 132 of the Merchant Shipping Act 2013 as amended containing a record of their employment on board the ship. The Committee observes that while section 132(2) of the Act stipulates that a certificate of discharge shall not contain any statement as to the wages of the quality of work of the discharged seafarer, section 133(1) provides that “[w]hen a seafarer is discharged from a Gambian ship, the master of the ship shall make and sign a “performance report” in which the master shall report on the conduct, ability and sobriety of the seafarer who is being discharged” and section 133(2) that the master before whom the discharge of a seafarer is being made shall if the seafarer so desires give the seafarer a copy of the performance report relating to him or her. The Committee recalls that Standard A2.1, paragraph 3, provides that the document to be given to seafarers, containing a record of their employment on board the ship, shall not contain any statement as to the quality of the seafarer’s work. The Committee requests the Government to indicate the measures taken to ensure full compliance with Standard A2.1, paragraphs 1(e) and 3.

Regulation 2.2 and Standard A2.2, paragraph 1. Wages. Regular payment. The Committee notes that Regulation 2.2(1) and (2) of the draft Regulations provide that seafarers must be paid at no greater than monthly intervals and that they must be given a monthly account of the payments due and the amounts paid, including wages and additional payments. The Committee however observes that pursuant to section 140(1) of the Merchant Shipping Act, 2013, the master or owner of a Gambian ship shall pay to each seafarer belonging to that ship his or her wages, if demanded, within 2 days after the arrival of the ship at the port where the crew is to be discharged, or upon the seaman’s discharge, whichever happens first. Also, pursuant to section 140(2) of the same Act, the master of a Gambian ship shall before paying off or discharging a seaman, deliver at the time and in the manner provided by this Act, a full and true account of the seaman’s wages and of all deductions to be made from it for any reasons whatever. The account shall be delivered to the seafarer not less than 24 hours before his or her discharge or paying off. The Committee recalls that pursuant to Standard A2.2, paragraph 1 of the Convention, seafarers must be paid at no greater than monthly intervals and in full for their work in accordance with their employment agreements and any applicable collective agreement. It also notes that pursuant to Standard A2.2, paragraph 2, seafarers are entitled to an account each month indicating their monthly wage and any authorized deductions. Observing that the provisions of the Merchant Shipping Act, 2013 and the draft Regulations are in contradiction, the Committee draws the attention of the Government to the need to avoid any inconsistencies in the applicable provisions and requests the Government to harmonize its legislation to ensure full conformity with Regulation 2.2 and the Code.

Regulation 2.3 and Standard A2.3, paragraph 2. Hours of work and hours of rest. The Committee notes the Government’s reference to Regulation 2.3(1) and (3) of the draft Regulations, pursuant to which seafarers' work shall be subject to, either, the maximum hours of work (14 hours in each 24-hour period and 72 hours in each sevenday period) or the minimum hours of rest (ten hours in each 24-hour period and 77 hours in each seven-day period). Recalling that Standard A2.3, paragraph 2 should not be interpreted as to giving shipowners or masters the choice of regimes,the Committee accordingly requests the Government to indicate the measures taken or envisaged to ensure that the maximum hours of work or minimum hours of rest are fixed in accordance with Standard A2.3, paragraph 2 of the Convention and are not subject to selective application by shipowners.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Maximum period of service on board. The Committee notes that section 158 of the Merchant Shipping Act, 2013 and Regulation 2.4 of the draft Regulations give effect to the requirements contained in Regulation 2.4 and the Code with respect to the number of days seafarers are entitled to annual leave. The Committee however notes that section 158 of the Merchant Shipping Act, 2013 provides that a seafarer is entitled after 12 months of continuous service with a Gambian shipping company or for the same employer, to an annual leave with pay or to a proportionate part of the annual leave with pay, the duration of which shall be not less than 30 days and Regulation 2.5(1)(d) of the draft Regulations provides that seafarers have a right to be repatriated at no cost to themselves in any event after serving a period of 12 months on board. The Committee notes, in this respect, that the concept of paid annual leave is assumed to be an uninterrupted period that is to be taken annually. The Committee further draws the Government’s attention to the fact that this requirement is linked to the requirement in paragraph 2(b) of Standard A2.5, of the Convention, regarding the maximum duration of onboard service – of less than 12 months – following which an entitlement to repatriation arises. In this regard, it observes that from the combined reading of Standard A2.4, paragraph 3, on annual leave, and Standard A2.5.1, paragraph 2(b), on repatriation, it flows that the maximum continuous period of shipboard service without leave is, in principle, 11 months. The Committee therefore requests the Government to take the necessary measures to ensure conformity with Standard A2.4, paragraph 3 and Standard A2.5.1, paragraph 2.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes that section 212 of the Merchant Shipping Act, 2013 provides for relief to be accorded to distressed seafarers who have been left behind outside of The Gambia or shipwrecked and that Regulation 2.5(2) of the draft Regulations requires ships registered in The Gambia to provide a financial security for repatriation of seafarers. The Committee however notes that these provisions do not cover circumstances under which a seafarer shall be deemed to have been abandoned pursuant to Standard A2.5.2, paragraph 2. 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 requests the Government to adopt the necessary measures to give effect to Standard A2.5.2. 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 Standard A2.7, paragraph 3. Manning levels. The Committee notes that section 172(1) of the Merchant Shipping Act, 2013 provides that a Gambian ship exceeding one thousand gross tons trading from and beyond the waters of The Gambia shall carry on board a duly certificated ship’s cook and that Regulation 3.2(5) of the draft Regulations provides that ships operating with a prescribed manning of 12 or less, by virtue of the size of the crew or the trading pattern, may not be required to carry a fully qualified cook. The Committee recalls that Regulation 2.7 applies to all ships that fly the flag of a Member and, with respect to the requirement for ships to carry a fully qualified cook, the only exception allowed applies to ships operating with a prescribed manning of less than ten. The Committee requests the Government to indicate the measures taken or envisaged to give effect to this requirement of the Convention. The Committee further requests the Government to provide a copy 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 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee notes the Government’s indication that the draft Regulations provide for the development of national policies to encourage the career and skill development and employment opportunities for seafarers, which have yet to be developed. The Committee requests the Government to provide an update on the development of the national policies and to provide a copy of the Regulations once adopted.

Regulation 3.1 and Standard A3.1, paragraph 20. Accommodation and recreational facilities. Exemptions for ships of less than 200 gross tonnage. The Committee notes that Regulation 3.1(7) of the draft Regulations provides that the administration may, after consultation with the shipowners’ and seafarers’ organizations, exempt ships of less than 200 gross tonnage from certain requirements as specified below provided that all of the following conditions are met (a) the exemption must be expressly permitted with respect to the requirement concerned; (b) the exemption must be reasonable, taking account of the size of the ship and the number of persons on board; (c) the exemption can be clearly justified on strong grounds due to particular circumstances; and (d) the exemption is subject to the need to protect the seafarers’ health and safety. The Committee requests the Government to provide information on any exemption granted by the Administration under the above-mentioned provisions of the draft Regulations and to indicate if they were made after consultation with the shipowners’ and the seafarers’ organizations concerned.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that the draft Regulations do not give effect to the requirements of the 2014 amendments to the Code of the Convention. Recalling that such provisions require the adoption of laws and regulations, the Committee requests the Government to indicate the measures adopted to give effect to Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indication that no shore-based welfare facilities for seafarers have yet been established in the country. Recalling the significance of access to shore-based welfare facilities for the seafarers’ well-being, the Committee would be grateful if the Government would provide information on any measures taken to promote the development of shore-based welfare facilities in appropriate ports in The Gambia.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, The Gambia declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit, old-age benefit, employment injury benefit, invalidity benefit and survivors’ benefit. The Committee notes that schedule III of the draft Regulations specifies the invalidity and survivors’ benefits to which seafarers are entitled. The Committee understands that the other social security benefits that seafarers are entitled to are guaranteed under the provisions of the Social Security and Housing Finance Corporation (SSHFC) Act 2015, the Labour Bill, 2020 and the Injuries Compensation Act, 1990. The Committee requests the Government to provide detailed information on the manner in which seafarers who are ordinarily resident in The Gambia and for those who are ordinarily resident in The Gambia but work on a ship flying a foreign flag are affiliated in practice to the funds operated under the SSHFC, the Labour Bill, 2020 and the Injuries Compensation Act, 1990.

Title 5. Compliance and enforcement. The Committee notes that the working and living conditions prescribed by the MLC, 2006 are not being certified nor inspected as the draft Regulations have yet to be adopted and implemented in practice. The Committee observes the competent authority has not commenced issuing maritime labour certificates and Declarations of Maritime Labour Compliance (DMLC) as these documents have yet to be finalized. The Committee further observes that the Government has not yet started to conduct port state control inspections regarding compliance with the MLC, 2006. The Committee therefore requests the Government to ensure that the new Maritime Labour Regulations will be adopted in the near future and will give full effect to the requirements of Title 5 of the Convention both in law and in practice.

Regulation 5.1.6 and the Code. Flag State responsibilities. Marine casualties. The Committee notes that Regulation 5.1.6 of the draft Regulations provides that the Minister shall hold an official inquiry into any serious casualty, leading to injury or loss of life, that involves a ship that flies the flag of The Gambia in accordance with section 482 of the Merchant Shipping Act, 2013, according to which the Minister may cause a preliminary inquiry into the casualty and whether or not such a preliminary inquiry was held, the Minister may cause a marine inquiry. The Committee recalls that, in accordance with Regulation 5.1.6, an official inquiry into any serious casualty “shall be held” in all cases. Noting that according to section 482 of the Merchant Shipping Act, 2013 official inquiries are optional, the Committee requests the Government to indicate the measures taken to give full effect to this requirement of the Convention.