Maritime Labour Convention, 2006 (MLC, 2006) - Malaysia (Ratification: 2013)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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, 2016 and 2018 entered into force for the Republic of Malaysia on 18 January 2017, 8 January 2019 and 26 December 2020, 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 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and to its comments on the General Report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. In its previous comment, the Committee requested the Government to provide further information on the list of categories of persons not to be regarded as seafarers under section 2 of the Merchant Shipping Ordinance, 1952, as amended by the Merchant Shipping Ordinance (Amendment) Act 2016, and paragraph 7 of the Malaysian Shipping Notice, NPM 07/2013. The Committee notes the Government’s indication that (1) the definition of the term “seafarer” under the Merchant Shipping Ordinance has undergone consultations with seafarers’ and shipowners’ organizations; (2) the term “seafarer” includes almost every personnel on board under the requirements of the MLC, 2006, especially “general workers, entertainers, housekeepers, or medical staffs such as on cruise ships”; and (3) offshore personnel is covered under the existing offshore labour regulations such as the Employment Act 1955 (Act 265), the Occupational Safety and Health Act 1994 (Act 514) and Industrial Personnel Code of Practices. While noting this information, the Committee observes that under section 2 of the Merchant Shipping Ordinance, as amended, the following categories, inter alia, are excluded from the definition of seafarer: (a) a person not directly employed for the normal manning of the ship within the deck, engine or catering department; e) any person whose work is not part of the routine business of the ship; h) non-marine personnel, employed under outsourced service agreement. The Committee notes that these exclusions, as currently drafted, are not in conformity with the Convention as they refer to persons who are employed, engaged or work in any capacity on board a ship to which the Convention applies. The Committee accordingly requests the Government to take the necessary measures to ensure that these categories of persons are considered seafarers for the purpose of the Convention. The Committee further requests the Government to indicate whether any additional determinations have been made pursuant to section 5 of NPM 07/2013, including information on the consultations held with the relevant social partners.

Article III. Fundamental rights and principles. In its previous comment, noting that Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee requested the Government to indicate how it has satisfied itself that its laws and practice respect the fundamental rights to freedom of association, in particular as regards seafarers’ rights. The Committee notes the Government’s indication that paragraph 42 of MSN 7/2013 via Appendix 2 of the Guidelines of Seafarer Employment Contract stipulates that seafarers are free to join any associations without any restrictions from shipowners and from the Government through the Maritime Department of Malaysia (MARDEP). The Committee takes note of this information.

Article VI, paragraphs 3 and 4. Substantial equivalence. In its previous comments, the Committee requested the Government to provide information with respect to the adoption of substantial equivalences. The Committee notes the Government’s information that, as indicated in the Declaration of Maritime Labour Compliance (DMLC), Part I, no substantial equivalence has been granted. The Committee takes note of this information and requests the Government to inform on any developments in the future regarding the adoption of substantial equivalence measures.

Article VII. Consultations with shipowners’ and seafarers’ organizations. In its previous comments, the Committee requested the Government to indicate whether under various provisions of the Convention, determinations were made after consultations with shipowners’ and seafarers’ organizations. The Committee notes the Government's indication that MARDEP has organized various consultation sessions with shipowners’ and seafarers’ organizations, as a form of predetermination program before promulgating any ad hoc or new requirements concerning seafarers in Malaysia. The Committee takes note of this information.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. In its previous comments, the Committee requested the Government to indicate the steps taken to give full effect to Standard A1.1, paragraph 1. The Committee notes the Government’s reference to section 73 of the Merchant Shipping Ordinance, as amended, which provides that the minimum age for employment of seafarer on board any Malaysian ship is sixteen years. The Committee notes that this is further confirmed by the requirements reflected in the DMLC, Part I. The Committee takes note of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, the Committee noted that section 73(2)(b) of the Merchant Shipping Ordinance, as amended, states that the Director of Marine may exempt seafarers between 16 and 18 from the prohibition of hazardous work when they undergo an approved training programme on board ship subject to any condition that may be determined by the Director of Marine and requested the Government to amend its legislation to give full effect to Standard A1.1, paragraph 4. The Committee notes the Government’s indication that a new legislation will be drafted to give full effect to the requirements of the Convention. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of any new text once adopted. The Committee further requested the Government to provide information on the relevant legislation establishing the list of types of hazardous work prohibited to seafarers under the age of 18. The Committee notes in this regard that the Government refers to the list of types of hazardous work mentioned in the DMLC, Part I annexed to NPM 09/2016. The Committee requests the Government to indicate whether such list was adopted after consultation with the shipowners’ and seafarers’ organizations.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate and right of appeal. In its previous comment, the Committee requested the Government to indicate the measures taken to amend the Merchant Shipping (Medical Examination) Rules 1999 and the Medical and Eyesight Standard (Rules) Rules in order to fully implement Standard A1.2, paragraph 5, in particular by ensuring the right of appeal also for new entrant seafarers in their first examination. In its reply, the Government indicates that these Rules are being amended. The Committee requests the Government to provide information on any progress in this regard to provide a copy of any relevant text as soon as adopted.

Regulation 1.4 and the Code. Recruitment and placement. In its previous comments, the Committee requested the Government to provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers pursuant to Standard A1.4, paragraph 5. The Committee notes the information provided by Government in this respect. The Committee also notes that section 121 of the Merchant Shipping Ordinance, as amended, regulates the issuance of a licence to private employment agencies supplying seafarers to serve on board ships, but does not give effect to the requirements of Standard A1.4, paragraph 5. The Committee requests the Government to take the necessary measures to give effect to the detailed requirements of Standard A1.4, paragraph 5.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. In its previous comment, the Committee noted that section 91(3) of the Merchant Shipping Ordinance, as amended, allows agreements to forgo the minimum annual leave with pay in cases determined by the Director of Marine. It requested the Government to provide information on any specific exceptions provided for by the Director of Marine in application of this provision. In its reply, the Government indicates that, according to seafarers’ and shipoweners’ organizations, no official complaints have been recorded for this matter. The Government further indicates that no specific exception has been authorized by the Director of Marine with regard to annual leave. The Committee requests the Government to provide information on any eventual exceptions authorized pursuant to section 91(3) of the Merchant Shipping Ordinance, as amended.

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

Regulation 2.5 and Standard A2.5.1. Repatriation. In its previous comments, the Committee noted that seafarers on board a Malaysian ship shall be entitled to repatriation at no cost in accordance with section 92(1) of the Merchant Shipping Ordinance, as amended. However, it noted that the Government did not provide information on the conditions for the existence of the right to repatriation, including the maximum period of service on board a ship, or on the entitlements to be accorded by shipowners for the repatriation of seafarers. Noting that the Government provides no information in this regard, the Committee requests the Government once again how it implements the requirements of Standard A2.5.1, paragraphs 1 and 2.

Referring to sections 87(1)(a) and 92(2) of the Merchant Shipping Ordinance, as amended, the Committee also requested the Government to provide information on the grounds and procedures by which a seafarer can be found to be in serious default. In its reply, the Government refers to section 114 of the Merchant Shipping Ordinance, as amended and to the Crew Contract of Agreement which contains the list of potential disciplinary defaults by a seafarer. The Committee takes note of this information.

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 reply to specific questions on the implementation of these provisions of the Convention. The Committee notes the Government's indication that NPM 8/2016 reproduces the 2014 amendments to the Code of the Convention. It is addressed to shipowners, shipping agencies, Recognized Organizations (ROs) and Seafarer Organizations. It also notes the copy of the London P&I Club insurance. It further notes that NPM 09/2016 provides information on the content of the 2014 amendments and applies to all Malaysian ships ordinarily engaged in commercial activities wherever they are, to all other ships ordinarily engaged in commercial activities while they are in Malaysian waters, and to all seafarers serving on board such ships. The Committee takes note of this information.

Regulation 2.7 and the Code. Manning levels. Food and catering. In its previous comments, the Committee requested the Government to provide information on how the requirements on food and catering have been taken into account when determining manning levels. The Committee notes the information submitted by the Government in this regard which addresses its previous request.

Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comment, the Committee requested the Government to provide information on the national provisions implementing Regulation 3.1 and Standard A3.1. The Committee notes the Government’s indication that the MARDEP is preparing a draft amendment of section 131 of the Merchant Shipping Ordinance, as amended concerning ship’s accommodation. In this regard, the Committee recalls that Standard A3.1 calls on Members to adopt laws and regulations requiring that ships that fly its flag: (a) meet the minimum standards for accommodation and recreational facilities set out in Standard A3.1, paragraphs 6-17; and (b) are inspected in conformity with Standard A3.1, paragraph 18, to ensure initial and ongoing compliance with those standards. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 3.1 and Standard A3.1.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. In its previous comments, the Committee noted that there was no relevant national legislation giving effect to this provision of the Convention. It requested the Government to indicate the measures taken or envisaged to comply with this requirement. In its reply, the Government indicates that MARDEP is in process of developing legislation to give effect to Standard A3.2, paragraph 2(b) of the Convention. The Committee hopes that the implementing national legislation will be adopted in the near future and requests the Government to provide copy of any new text once available.

Regulation 4.1 and the Code. Medical care on board and ashore. In its previous comment, the Committee requested the Government to provide information on the implementation of Regulation 4.1, paragraphs 2-3 and Standard A4.1, paragraph 1(c) and (d). The Committee notes that the Government refers to the sample employment contract annexed to the MSN 07/2013, which addresses its previous request.

The Committee also requested the Government to provide information on the implementation of the requirement of Standard A4.1, paragraph 4(d). The Committee notes the Government’s indication that MARDEP will collaborate with P&I BlueMed and the International Radio Medical Centre to extend their services to domestic ships and to companies that have restricted access to shore medical advice. The Committee requests the Government to indicate how it ensures that medical advice by radio or satellite communication is available 24 hours a day free of charge to all ships irrespective of the flag they fly, as required by Standard A4.1, paragraph 4(d). Noting the absence of information on this point in the Government’s report, the Committee reiterates its request to provide information on the application of Regulation 4.1, paragraph 3 (access to the Member’s medical facilities on shore).

Regulation 4.2, paragraph 1 and Standard A4.2.1. Shipowners’ liability. In its previous comments, the Committee requested the Government to indicate the measures adopted or envisaged to implement the requirements of Regulation 4.2 and Standard A4.2.1. The Committee notes that section 131(3) of the Merchant Shipping Ordinance, as amended, provides that the owner shall provide the following benefits to all seafarers engaged on a Malaysian ship: (a) medical care; (b) sickness benefit; and (c) employment injury benefit. It also notes the Government’s indication that the limitation of the shipowner’s liability to pay wages in whole or in part will be further stated in the Collective Bargaining Agreement via the upcoming agenda under the Tripartite Committee Meeting of Malaysia. The Committee requests the Government to indicate whether and how under section 131(3) of the Merchant Shipping Ordinance, as amended, the shipowner is liable to pay the costs and expenses provided for by Standard A4.2.1, paragraphs 1(a), (c) and (d). Recalling that any limitations to the shipowner’s liability pursuant to Standard A4.2.1, paragraphs 2 and 4 may only be established through laws or regulations, the Committee requests the Government to indicate any information in this regard.

Regulation 4.2 and Standard A4.2.1 and Standard A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. The Committee requested the Government to indicate the measures adopted or envisaged to implement the requirements of the amendments of 2014 to the Code of the Convention. The Committee notes the Government’s reference to NPM 09/2016 which refers to the requirements of the 2014 amendments and addresses its previous request.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. In its previous comment, the Committee requested the Government to provide information on the laws, regulations and other measures adopted to implement Standard A4.3. Noting the absence of information in the Government’s report on the measures adopted to implement this Standard, the Committee requests the Government to take the necessary measures to give effect to Regulation 4.3, paragraph 3 and Standard A4.3.

The Committee also requested the Government to provide details on the national provisions implementing Standard A4.3, paragraph 2(d). In its reply, the Government refers to the DMLC, Part I, stating that shipowners shall specify the authority of the ship’s seafarers appointed or elected safety representatives to participate in ship’ safety committee meetings. The Committee, however, observes that the DMLC, Part I annexed to NPM 09/2016 does not refer to the relevant national legal provisions. The Committee recalls that under Standard A4.3, paragraph 2(d), a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. The Committee therefore requests the Government to indicate the laws, regulations and other measures giving effect to Standard A4.3, paragraph 2(d).

Regulation 4.5 and the Code. Social security. In its previous comment, the Committee requested the Government to provide information on the implementation of Regulation 4.5 and Standard A4.5. In its reply, the Government refers to section 108 of the Merchant Shipping Ordinance, as amended. The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide social security protection to all seafarers ordinarily resident in its territory, including those working on board ships flying a foreign flag. The resulting protection shall not be less favourable than that enjoyed by resident shoreworkers. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The Committee accordingly requests the Government to provide statistics on the number of seafarers resident in Malaysia who work on ships flying a foreign flag, as well as information on any bilateral or multilateral agreements covering social security of those seafarers.

The Committee also notes the Government’s statement that as for moving forward under Standard A4.5, paragraph 6, MARDEP is in the midst of exploring various benefits under section 131(2)(o) of the Merchant Shipping Ordinance, as amended. The Committee requests the Government to provide information on any development in this regard.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. In its previous comment, the Committee requested the Government to provide information regarding the implementation of Standard A5.1.2, paragraph 4. The Committee notes that the Government provides the list of the authorized ROs as well as instructions for ROs (including reference to Maritime Labour Certificates) and a model for ROs’ and third parties’ surveyor audits. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance. In its previous comment, the Committee noted that the DMLC, Part I annexed to NPM 07/2013, did not contain the necessary reference to the national legal provisions. It requested the Government to amend it. In its reply, the Government indicates that the current DMLC, Part I will be amended accordingly following the latest amendments to the Code of the Convention of 2018. Noting that the DMLC, Part I, annexed to NPM 09/2016 still does not contain the necessary reference to the national legal provisions, the Committee hopes that the process of amending the DMLC, Part I will be completed in the very near future embodying the provisions of the Convention by providing a reference to the relevant national legal provisions in addition to the information on the main content of the national requirements. It requests the Government to provide a copy of the revised DMLC, Part I, as soon as it is available.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee requested the Government to provide information on the measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4, as well as on the implementation of Standard A5.1.4, paragraph 7(c). In its reply, the Government indicates that section 131(e) of the Merchant Shipping Ordinance, as amended, is supported and supplemented by internal MARDEP guidelines and RO Instructions. The Government also indicates that the Accredited Quality Management System is used as a benchmark for inspectors’ skills and refers to internal MARDEP guidelines of auditor qualifications and to the model for ROs’ and third parties’ surveyor audits. The Committee takes note of this information.

[The Government is asked to reply in full to the present comments in 2024.]

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with serious concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

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

The Committee takes note of the Government’s first report on the application of the Convention. It notes that Malaysia had not ratified any Convention on maritime labour prior to 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, 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 Malaysia on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. 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.

Consultations with shipowners’ and seafarers’ organizations. The Committee recalls that ratifying Members are required, under various provisions of the Convention, to make determinations after consultations with shipowners’ and seafarers’ organizations. The Committee notes that on several occasions, the Government has adopted laws and regulations with a view to implementing the Convention but has not indicated if these had been adopted after such consultations. The Committee requests the Government to indicate how it gives effect to the Convention’s requirements regarding consultations.

Article II paragraph 1(f). Definition of the term “seafarer”. The Committee notes that section 3(d) of the Merchant Shipping Ordinance (Amendment) Act 2016 (hereafter the Act of 2016) while reproducing the definition of seafarer contained in the Convention, excludes from its scope of application a list of categories of persons. This list includes, among others: (a) a person not directly employed for the normal manning of the ship within the deck, engine or catering department; and (h) non-marine personnel, employed under outsourced service agreements. A similar exclusion to the latter is provided for in paragraph (vii) of Malaysian Shipping Notice, NPM 07/2013 (Notice No. 7). The Committee requests the Government to indicate whether the determination concerning the list of categories of persons not to be regarded as seafarers has been made after consultations with the shipowners’ and seafarers’ organizations concerned, as required by Article II, paragraphs 3 and 7 of the Convention.

Regarding the two categories mentioned above – a person not directly employed for the normal manning of the ship within the deck, engine or catering department and non-marine personnel employed under outsourced service agreements – the Committee recalls that under the terms of the resolution concerning information on occupational groups adopted by the 94th (Maritime) Session of the International Labour Conference in 2006, “Persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board”. The Committee requests the Government to indicate on which grounds these categories of persons were excluded from the definition of “seafarer”, taking into account the abovementioned resolution. In addition, the Committee recalls that the fact that a person works under an outsourced agreement is irrelevant for the definition of “seafarer” as long as such person is employed or works in any capacity on board a ship to which the Convention applies. The Committee requests the Government to adopt the necessary measures to ensure that all persons falling within the definition of seafarer contained in Article II, paragraph (1)(f) benefit from the protection of the Convention.

Moreover, the Committee notes that section 5 of Notice No. 7 provides that if a shipowner deems that there is any other category of persons, in addition to the list of categories already excluded, who should not be considered as seafarers for the purpose of the Convention, an application should be submitted to the Director of Marine. The Committee requests the Government to indicate whether any additional determination has been made on the basis of this provision, and if so, to provide information on whether these determinations referred to specific persons or specific categories of person and if they were made after consultations with the shipowners’ and seafarers’ organizations. The Committee further requests the Government to ensure that any determination is made on a horizontal basis and applies to the whole sector and not to individual shipowners.

Article III. Fundamental rights and principles. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, as is the case of Malaysia concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee would have expected to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights to freedom of association and the effective recognition of the right to collective bargaining referred to in Article III. The Committee notes that the Government has not provided information in this regard. The Committee notes that the Committee on Freedom of Association has examined a number of complaints against the Government of Malaysia which concern serious violations of the rights to freedom of association and collective bargaining both in law and in practice, including restrictions to the rights of foreign workers. The Committee therefore requests the Government to provide information indicating how it has satisfied itself that its laws and practice respect the fundamental rights to freedom of association and collective bargaining, in particular as regards seafarers’ rights to: (i) establish and join organizations of their own choosing; (ii) trade unions’ right to elect their representatives, adopt their internal rules and organize their programme of activities without interference from the public authorities; (iii) protection against acts of anti-union discrimination; and (iv) collective bargaining.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that section 12(iv) of Notice No. 7 provides that the “DMLC Part I shall be completed by the Director of Marine and will contain … record of substantially equivalent provisions under paragraphs 3 and 4 of Article VI of the Convention as applicable”. The Committee notes however, that the Government has not referred to the adoption of any substantial equivalence in its report. The Committee recalls that Article VI, paragraph 3, of the Convention provides that “a Member which is not in position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A”. The Committee recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4 of the Convention, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the MLC, 2006. Ratifying Members, therefore, should assess their national provisions from the point of view of substantial equivalence, identifying the general object and purpose of the provision concerned (in accordance with Article VI, paragraph 4(a)) and determining whether or not the proposed national provision could, in good faith, be considered as giving effect to provisions of Part A of the Code as required by Article VI, paragraph 4(b). The Committee requests the Government to provide detailed information, as explained above, with respect to the adoption of substantial equivalence(s), including concrete examples, and to ensure that any use of such possibility will be clearly regulated and follow the procedure of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age of seafarers. The Committee notes that section 73(1) of the Act of 2016 provides that subject to the Children and Young Persons (Employment) Act 1966 [Act 350], the minimum age for employment of seafarers on board any Malaysian ship is 16 years, as required by the Convention. The Committee further notes, however, that section 3 of Act 350 authorizes the work of children of 14 to 16 years of age “when they are employed on any vessel under the personal charge of their parents or guardian”. Similarly, section 90 of the Merchant Shipping Ordinance 70/1952 (as amended) (MSO 70/1952) provides that no child under the age of 14 years shall be employed or work in any capacity, upon any small craft which is, or should be, licensed under any written law providing for the licensing of small craft, or in any ship, except in any case where the craft or ship is under the personal charge of the parent or legal guardian of the child. The Committee recalls that Standard A1.1, paragraph 1, provides that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited and that no exceptions are permitted in this respect. Therefore, the Committee requests the Government to take the necessary steps to give full effect to this provision of the Convention. For transparency reasons, the Committee requests the Government to provide data on the number of children working in this sector from 14 to 16 years of age.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age for work likely to jeopardize the health or safety of seafarers. The Committee notes that section 73(2)(b) of the Act of 2016 states that any seafarer of the age of 16 years and below the age of 18 years shall not be allowed to engage in any work that is likely to jeopardize their health or safety. However, under paragraph 3 of this section, the Director of Marine may give an exemption to any person undergoing an approved training programme on board a ship subject to any condition that may be determined by the Director of Marine. The Committee recalls, in this respect, that Standard A1.1, paragraph 4, prohibits the employment, engagement or work of seafarers under the age of 18 for hazardous work, without exception. The Committee requests the Government to amend its legislation to give full effect to this provision of the Convention. Furthermore, the Committee notes that the Government provides a list of hazardous work to be likely to jeopardize the health of seafarers under the age of 18 without indicating the relevant legal source nor whether such list was adopted after consultations with the shipowners’ and seafarers’ organizations. The Committee therefore requests the Government to provide information on this matter.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate and right of appeal. The Committee notes that, according to section 15 of Merchant Shipping (Medical Examination) Rules 1999 and Medical and Eye Sight Standard (Rules), all serving seamen found permanently unfit or fit only for restricted service have a right of appeal to an independent medical referee appointed by the Director. The Committee notes, however, that according to this provision “there is no right of appeal for new entrants at their first examination”. The Committee recalls that Standard A1.2, paragraph 5, requires that all seafarers that have been refused a certificate or have had a limitation imposed on their ability to work have a right of appeal, without exception, including first-time applicants. The Committee requests the Government to indicate the measures taken or envisaged to amend the Rules in order to fully implement this provision of the Convention.

Regulation 1.3, paragraph 1. Training and qualifications. The Committee notes that section 74(1) of the Act of 2016 provides that every seafarer shall hold a certificate that verifies the competency and qualification of the seafarer to work on a ship. The Committee notes, however, that section 77 of the same Act provides that the Director of Marine may, in circumstances of exceptional necessity and if, in his opinion, it does not cause danger to person, property or environment, issue a dispensation permitting a specified seafarer to serve in specified ship in a capacity for which he does not hold the appropriate certificate, for a period not exceeding six months. The Committee recalls that Regulation 1.3, paragraph 1, does not allow for exceptions to the requirement of training and qualification certification prior to beginning work on a ship. The Committee therefore requests the Government to ensure full conformity with this provision of the Convention.

Regulation 1.4 and Standard A1.4. Recruitment and placement. The Committee notes that the Government has not provided information on the implementation of this Regulation. The Committee recalls that under Standard A1.4, paragraph 5(a), Members that have private recruitment and placement service operating in their territories must, in their laws and regulations or other measures, prohibit seafarer recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified. The Committee therefore requests the Government to provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers, as well as on the laws, regulations or other measures providing for the minimum requirements concerning the functioning of private seafarer recruitment and placement services pursuant to Standard A1.4, paragraph 5 of the Convention.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s indication that under section 91(3) of the Act of 2016, any agreement to forgo the minimum annual leave with pay is prohibited except in cases as determined by the Director of Marine. The Committee recalls that Standard A2.4, paragraph 3, stipulates that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave, for example for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to provide information on any specific exception provided for by the Director of Marine in application of section 91(3) of the Act of 2016.

Regulation 2.5 and Standard A2.5.1. Repatriation. The Committee notes that section 92(1) of the Act of 2016 provides that seafarers on board a Malaysian ship shall be entitled to repatriation at no cost. The Committee notes however, that the Government has not provided information on the conditions for the existence of the right to repatriation, including the maximum period of service on board a ship nor on the entitlements to be accorded by shipowners for the repatriation of seafarers. The Committee therefore requests the Government to indicate how it implements the requirements of Standard A2.5.1, paragraphs 1 and 2.

Moreover, the Committee notes that under section 92(2) of the Act of 2016, the owner of a Malaysian ship is prohibited from requiring the seafarers to make an advance payment at the beginning of their employment for the cost of repatriation, and also for recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found to be in serious default of the seafarer’s employment obligations in accordance with the seafarer employment contract, national laws or regulations, or applicable collective agreements. The Committee further notes in this regard that section 87(1)(a) of the same Act stipulates that an owner may, on the grounds of misconduct or breach of the express “or implied” conditions of the seafarer employment contract, after due inquiry dismiss the seafarer without notice. Observing that from the joint reading of these two provisions it could flaw that the breach of an implied provision of a contract could allow the shipowner to recover the cost of repatriation, the Committee requests the Government to indicate on which grounds and by which procedures a seafarer can be found to be in serious default.

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 and requirements on food and catering. The Committee notes that the Government has provided no information on the implementation of this requirement. The Committee recalls that Standard A2.7, paragraph 3, provides that, when determining manning levels, the competent authority shall take into account all of the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to provide information on how the requirements on food and catering are taken into account when determining manning levels.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s reference, in relation to Standard A3.1, to section 131(2) of the Act of 2016 according to which “the Minister may make rules for matters relating to the inspection of any ship”. The Committee recalls that Standard A3.1, paragraph 3, provides that the inspections required under Regulation 5.1.4 shall be conducted when: (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered. The Committee requests the Government to provide information on the national provisions implementing this requirement of the Convention, including any rules adopted by the Minister in this regard.

Noting the absence of information on several provisions of this Standard, the Committee requests the Government to indicate how it implements the following requirements: (i) accommodation (Standard A3.1, paragraph 6(a)–(f)); (ii) the availability of individual sleeping rooms for each seafarer (Standard A3.1, paragraph 9(a)); (iii) the minimum floor area in single berth seafarers’ sleeping rooms (Standard A3.1, paragraph 9(f)); (iv) the minimum floor area on passenger ships and special purpose ships (Standard A3.1, paragraph 9(i)); (v) the minimum floor area on ships other than passenger ships and special purpose ships (Standard A3.1, paragraph 9(k)); (vi) the floor area for seafarers performing the duties of ship’s officers on passenger ships and special purpose ships (Standard A3.1, paragraph 9(l)); (vii) adjoining sitting rooms (Standard A3.1, paragraph 9(m)); (viii) the fact that the clothes locker should be a minimum of 475 litres (Standard A3.1, paragraph 9(n)); and (ix) hospital accommodation (Standard A3.1, paragraph 12).

As regards the implementation of Standard A3.1, paragraphs 10, 11, 12, 13, and 18, the Government refers to section 131 of the Act of 2016 which does not appear to be relevant in this context. The Committee requests the Government to provide detailed information clarifying the measures taken to implement these requirements of the Convention.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. The Committee recalls that Standard A3.2, paragraph 2(b), provides that the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions. The Committee notes that the Government indicates that no effect is given to this provision of the Convention. The Committee therefore requests the Government to indicate the measures taken or envisaged to comply with this requirement of the Convention.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that section 103(1)(a) of Act 2016 provides that the shipowner shall provide adequate health protection and medical care for seafarers employed on board the ship. The Committee notes, however, that this section does not stipulate that this protection shall be provided, in principle, free of charge as required by Regulation 4.1, paragraph 2. The Committee requests the Government to indicate how effect is given to this requirement of the Convention.

Concerning the circumstances in which a seafarer must be permitted by the shipowner or master to visit a qualified medical doctor or dentist without delay in ports of call, the Committee notes that section 103(1)(b) of the Act of 2016 states that the owner of every Malaysian ship and any foreign ship within Malaysian waters shall provide the seafarer the right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Government further refers in this regard to section 131(2)(u) of the Act of 2016 according to which “the Minister may adopt the necessary rules for matters relating to the medical requirements on board a ship or of seafarers, or medical expenses while serving on board a ship”. The Committee requests the Government to indicate if the Minister has adopted rules implementing Standard A4.1, paragraph 1(c).

Concerning the implementation of Regulation 4.1, paragraph 2, and Standard A4.1, paragraph 1(d), the Committee notes the Government’s statement that shipowners must bear the cost of medical care provided to seafarers when landed in a foreign port. The Committee recalls that under Standard 4.1, paragraph 1(d), Members shall ensure that, to the extent consistent with national law and practice, medical care and health protection services while a seafarer is on board or landed in a foreign port are provided free of charge to seafarers. Noting that the Government has not indicated the legal provision implementing this requirement, the Committee requests the Government to provide that information.

The Committee notes that the Government has not provided information on the measures adopted to give effect to Regulation 4.1, paragraph 3 regarding the obligation to ensure that seafarers on board ships in Malaysian territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee requests the Government to provide information in this regard.

Noting the absence of information on the legal provisions ensuring that medical advice by radio or satellite communication is provided as required by Standard A4.1, paragraph 4(d), the Committee requests the Government to indicate the measures taken to provide the services foreseen under Standard A4.1, paragraph 4(d).

Regulation 4.2, paragraph 1 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. The Committee notes the Government’s reference to section 124 of the Act of 2016 concerning the obligation for the shipowner to make a report to the competent authorities in cases of birth, death, accident or incident of a missing person occurring on board as well as the obligation to notify the death to the seafarer’s next of kin. The Committee notes, however, that these provisions are not related to the implementation of the requirements of Regulation 4.2. The Committee observes that the Government has not adopted legal provisions requiring shipowners to provide seafarers with material assistance and support with respect to the financial consequences, including burial expenses, of sickness, injury or death occurring while serving under seafarers’ employment agreements or arising from their employment under such agreements. The Committee requests the Government to indicate the measures adopted or envisaged to give effect to the requirements of Regulation 4.2 and Standards A4.2.1 and A4.2.2.

Regulation 4.2. Standard 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 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 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government has referred to section 131 of the Act of 2016 related to the Minister’s power to make rules to implement matters related to safety and health. The Committee notes that the Government has not provided information on the laws and regulations and other measures adopted to implement Standard A4.3 on health and safety protection and accident prevention. The Committee requests the Government to indicate the measures adopted in this regard. Concerning the requirement that ships with five or more seafarers on board must have a safety committee which includes seafarer representatives, the Committee notes that the Government has referred to the ship management system without providing any details on the applicable national provisions. The Committee requests the Government to indicate how it gives effect to Standard A4.3, paragraph 2(d).

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Malaysia declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit and employment injury benefit. The Committee notes, however, that the Government has not provided information on the measures taken with a view to ensure that seafarers ordinarily resident in Malaysia and, to the extent provided for in its national law, their dependants, have access to social security protection. Furthermore, the Government has not provided information on its obligation, under Standard A4.5, paragraph 6, to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers on board ships that fly its flag, in the absence of adequate social security coverage. The Committee requests the Government to provide detailed information on the effect given to all the requirements contained in Regulation 4.5 and Standard A4.5.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s indication that the inspection and certification of compliance with the Convention has been delegated to a number of recognized organizations listed in the report. The Committee notes, however, that the Government has not provided examples of the agreements with such organizations. The Committee accordingly requests the Government to provide copies of such agreements. The Committee further notes that the Government has not provided information regarding the relevant provision implementing its obligation to review the competence and independence of recognized organizations, including information on any system established for oversight and communication of relevant information to authorized organizations, required under Standard A5.1.2, paragraph 4. The Committee requests the Government to indicate the measures taken to give effect to this requirement of the Convention.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance (DMLC). The Committee notes that the DMLC, Part I, included as an annex to Notice No. 7, only contains concise information on the main content of the national requirements embodying the relevant provisions of the Convention on the list of 14 matters to be inspected. The form does not contain, however, the necessary reference to the national legal provisions. The Committee recalls that the DMLC, Part I, must identify the national requirements, as contained in the legislation. The Committee therefore requests the Government to review the DMLC, Part I, in order to ensure that it identifies the national requirements embodying the provisions of the Convention by providing a reference to the relevant national legal provisions in addition to the information on the main content of the national requirements.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee notes the Government’s statement that the Accredited Quality Management System warrants that inspectors have a status and conditions of service ensuring that they are independent of changes of government and of improper external influences. The Committee notes that the Government has not provided any reference to the relevant national provisions. It requests the Government to indicate the measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4 and to provide a copy of the rules applied concerning the functioning of the Accredited Quality Management System.

The Committee recalls that Standard A5.1.4, paragraph 7(c), provides that inspectors, issued with clear guidelines as to the tasks to be performed and provided with proper credentials, shall be empowered to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (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 Committee notes the Government’s reference in this regard to section 131 of the Act of 2016 indicating that “the Minister may make rules on matters relating to the inspection of any ship”. The Committee accordingly requests the Government to provide detailed information on the measures taken to implement these requirements of the Convention.

With regard to the legal provisions or principles under which compensation must be paid for any loss or damage from the wrongful exercise of the inspectors’ powers, the Government refers to section 131 of the Act of 2016 according to which the Minister may adopt the necessary rules to implement the relevant provisions of the Regulations. The Committee requests the Government to indicate if the Minister has adopted such rules implementing Standard A5.1.4, paragraph 16.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee takes note of the Government’s first report on the application of the Convention. It notes that Malaysia had not ratified any Convention on maritime labour prior to 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, 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 Malaysia on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. 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.

Consultations with shipowners’ and seafarers’ organizations. The Committee recalls that ratifying Members are required, under various provisions of the Convention, to make determinations after consultations with shipowners’ and seafarers’ organizations. The Committee notes that on several occasions, the Government has adopted laws and regulations with a view to implementing the Convention but has not indicated if these had been adopted after such consultations. The Committee requests the Government to indicate how it gives effect to the Convention’s requirements regarding consultations.

Article II paragraph 1(f). Definition of the term “seafarer”. The Committee notes that section 3(d) of the Merchant Shipping Ordinance (Amendment) Act 2016 (hereafter the Act of 2016) while reproducing the definition of seafarer contained in the Convention, excludes from its scope of application a list of categories of persons. This list includes, among others: (a) a person not directly employed for the normal manning of the ship within the deck, engine or catering department; and (h) non-marine personnel, employed under outsourced service agreements. A similar exclusion to the latter is provided for in paragraph (vii) of Malaysian Shipping Notice, NPM 07/2013 (Notice No. 7). The Committee requests the Government to indicate whether the determination concerning the list of categories of persons not to be regarded as seafarers has been made after consultations with the shipowners’ and seafarers’ organizations concerned, as required by Article II, paragraphs 3 and 7 of the Convention.

Regarding the two categories mentioned above – a person not directly employed for the normal manning of the ship within the deck, engine or catering department and non-marine personnel employed under outsourced service agreements – the Committee recalls that under the terms of the resolution concerning information on occupational groups adopted by the 94th (Maritime) Session of the International Labour Conference in 2006, “Persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board”. The Committee requests the Government to indicate on which grounds these categories of persons were excluded from the definition of “seafarer”, taking into account the abovementioned resolution. In addition, the Committee recalls that the fact that a person works under an outsourced agreement is irrelevant for the definition of “seafarer” as long as such person is employed or works in any capacity on board a ship to which the Convention applies. The Committee requests the Government to adopt the necessary measures to ensure that all persons falling within the definition of seafarer contained in Article II, paragraph (1)(f) benefit from the protection of the Convention.

Moreover, the Committee notes that section 5 of Notice No. 7 provides that if a shipowner deems that there is any other category of persons, in addition to the list of categories already excluded, who should not be considered as seafarers for the purpose of the Convention, an application should be submitted to the Director of Marine. The Committee requests the Government to indicate whether any additional determination has been made on the basis of this provision, and if so, to provide information on whether these determinations referred to specific persons or specific categories of person and if they were made after consultations with the shipowners’ and seafarers’ organizations. The Committee further requests the Government to ensure that any determination is made on a horizontal basis and applies to the whole sector and not to individual shipowners.

Article III. Fundamental rights and principles. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, as is the case of Malaysia concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee would have expected to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights to freedom of association and the effective recognition of the right to collective bargaining referred to in Article III. The Committee notes that the Government has not provided information in this regard. The Committee notes that the Committee on Freedom of Association has examined a number of complaints against the Government of Malaysia which concern serious violations of the rights to freedom of association and collective bargaining both in law and in practice, including restrictions to the rights of foreign workers. The Committee therefore requests the Government to provide information indicating how it has satisfied itself that its laws and practice respect the fundamental rights to freedom of association and collective bargaining, in particular as regards seafarers’ rights to: (i) establish and join organizations of their own choosing; (ii) trade unions’ right to elect their representatives, adopt their internal rules and organize their programme of activities without interference from the public authorities; (iii) protection against acts of anti-union discrimination; and (iv) collective bargaining.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that section 12(iv) of Notice No. 7 provides that the “DMLC Part I shall be completed by the Director of Marine and will contain … record of substantially equivalent provisions under paragraphs 3 and 4 of Article VI of the Convention as applicable”. The Committee notes however, that the Government has not referred to the adoption of any substantial equivalence in its report. The Committee recalls that Article VI, paragraph 3, of the Convention provides that “a Member which is not in position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A”. The Committee recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4 of the Convention, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the MLC, 2006. Ratifying Members, therefore, should assess their national provisions from the point of view of substantial equivalence, identifying the general object and purpose of the provision concerned (in accordance with Article VI, paragraph 4(a)) and determining whether or not the proposed national provision could, in good faith, be considered as giving effect to provisions of Part A of the Code as required by Article VI, paragraph 4(b). The Committee requests the Government to provide detailed information, as explained above, with respect to the adoption of substantial equivalence(s), including concrete examples, and to ensure that any use of such possibility will be clearly regulated and follow the procedure of Article VI, paragraphs 3 and 4.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age of seafarers. The Committee notes that section 73(1) of the Act of 2016 provides that subject to the Children and Young Persons (Employment) Act 1966 [Act 350], the minimum age for employment of seafarers on board any Malaysian ship is 16 years, as required by the Convention. The Committee further notes, however, that section 3 of Act 350 authorizes the work of children of 14 to 16 years of age “when they are employed on any vessel under the personal charge of their parents or guardian”. Similarly, section 90 of the Merchant Shipping Ordinance 70/1952 (as amended) (MSO 70/1952) provides that no child under the age of 14 years shall be employed or work in any capacity, upon any small craft which is, or should be, licensed under any written law providing for the licensing of small craft, or in any ship, except in any case where the craft or ship is under the personal charge of the parent or legal guardian of the child. The Committee recalls that Standard A1.1, paragraph 1, provides that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited and that no exceptions are permitted in this respect. Therefore, the Committee requests the Government to take the necessary steps to give full effect to this provision of the Convention. For transparency reasons, the Committee requests the Government to provide data on the number of children working in this sector from 14 to 16 years of age.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age for work likely to jeopardize the health or safety of seafarers. The Committee notes that section 73(2)(b) of the Act of 2016 states that any seafarer of the age of 16 years and below the age of 18 years shall not be allowed to engage in any work that is likely to jeopardize their health or safety. However, under paragraph 3 of this section, the Director of Marine may give an exemption to any person undergoing an approved training programme on board a ship subject to any condition that may be determined by the Director of Marine. The Committee recalls, in this respect, that Standard A1.1, paragraph 4, prohibits the employment, engagement or work of seafarers under the age of 18 for hazardous work, without exception. The Committee requests the Government to amend its legislation to give full effect to this provision of the Convention. Furthermore, the Committee notes that the Government provides a list of hazardous work to be likely to jeopardize the health of seafarers under the age of 18 without indicating the relevant legal source nor whether such list was adopted after consultations with the shipowners’ and seafarers’ organizations. The Committee therefore requests the Government to provide information on this matter.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate and right of appeal. The Committee notes that, according to section 15 of Merchant Shipping (Medical Examination) Rules 1999 and Medical and Eye Sight Standard (Rules), all serving seamen found permanently unfit or fit only for restricted service have a right of appeal to an independent medical referee appointed by the Director. The Committee notes, however, that according to this provision “there is no right of appeal for new entrants at their first examination”. The Committee recalls that Standard A1.2, paragraph 5, requires that all seafarers that have been refused a certificate or have had a limitation imposed on their ability to work have a right of appeal, without exception, including first-time applicants. The Committee requests the Government to indicate the measures taken or envisaged to amend the Rules in order to fully implement this provision of the Convention.

Regulation 1.3, paragraph 1. Training and qualifications. The Committee notes that section 74(1) of the Act of 2016 provides that every seafarer shall hold a certificate that verifies the competency and qualification of the seafarer to work on a ship. The Committee notes, however, that section 77 of the same Act provides that the Director of Marine may, in circumstances of exceptional necessity and if, in his opinion, it does not cause danger to person, property or environment, issue a dispensation permitting a specified seafarer to serve in specified ship in a capacity for which he does not hold the appropriate certificate, for a period not exceeding six months. The Committee recalls that Regulation 1.3, paragraph 1, does not allow for exceptions to the requirement of training and qualification certification prior to beginning work on a ship. The Committee therefore requests the Government to ensure full conformity with this provision of the Convention.

Regulation 1.4 and Standard A1.4. Recruitment and placement. The Committee notes that the Government has not provided information on the implementation of this Regulation. The Committee recalls that under Standard A1.4, paragraph 5(a), Members that have private recruitment and placement service operating in their territories must, in their laws and regulations or other measures, prohibit seafarer recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified. The Committee therefore requests the Government to provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers, as well as on the laws, regulations or other measures providing for the minimum requirements concerning the functioning of private seafarer recruitment and placement services pursuant to Standard A1.4, paragraph 5 of the Convention.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s indication that under section 91(3) of the Act of 2016, any agreement to forgo the minimum annual leave with pay is prohibited except in cases as determined by the Director of Marine. The Committee recalls that Standard A2.4, paragraph 3, stipulates that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave, for example for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to provide information on any specific exception provided for by the Director of Marine in application of section 91(3) of the Act of 2016.

Regulation 2.5 and Standard A2.5.1. Repatriation. The Committee notes that section 92(1) of the Act of 2016 provides that seafarers on board a Malaysian ship shall be entitled to repatriation at no cost. The Committee notes however, that the Government has not provided information on the conditions for the existence of the right to repatriation, including the maximum period of service on board a ship nor on the entitlements to be accorded by shipowners for the repatriation of seafarers. The Committee therefore requests the Government to indicate how it implements the requirements of Standard A2.5.1, paragraphs 1 and 2.

Moreover, the Committee notes that under section 92(2) of the Act of 2016, the owner of a Malaysian ship is prohibited from requiring the seafarers to make an advance payment at the beginning of their employment for the cost of repatriation, and also for recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found to be in serious default of the seafarer’s employment obligations in accordance with the seafarer employment contract, national laws or regulations, or applicable collective agreements. The Committee further notes in this regard that section 87(1)(a) of the same Act stipulates that an owner may, on the grounds of misconduct or breach of the express “or implied” conditions of the seafarer employment contract, after due inquiry dismiss the seafarer without notice. Observing that from the joint reading of these two provisions it could flaw that the breach of an implied provision of a contract could allow the shipowner to recover the cost of repatriation, the Committee requests the Government to indicate on which grounds and by which procedures a seafarer can be found to be in serious default.

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 and requirements on food and catering. The Committee notes that the Government has provided no information on the implementation of this requirement. The Committee recalls that Standard A2.7, paragraph 3, provides that, when determining manning levels, the competent authority shall take into account all of the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to provide information on how the requirements on food and catering are taken into account when determining manning levels.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s reference, in relation to Standard A3.1, to section 131(2) of the Act of 2016 according to which “the Minister may make rules for matters relating to the inspection of any ship”. The Committee recalls that Standard A3.1, paragraph 3, provides that the inspections required under Regulation 5.1.4 shall be conducted when: (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered. The Committee requests the Government to provide information on the national provisions implementing this requirement of the Convention, including any rules adopted by the Minister in this regard.

Noting the absence of information on several provisions of this Standard, the Committee requests the Government to indicate how it implements the following requirements: (i) accommodation (Standard A3.1, paragraph 6(a)–(f)); (ii) the availability of individual sleeping rooms for each seafarer (Standard A3.1, paragraph 9(a)); (iii) the minimum floor area in single berth seafarers’ sleeping rooms (Standard A3.1, paragraph 9(f)); (iv) the minimum floor area on passenger ships and special purpose ships (Standard A3.1, paragraph 9(i)); (v) the minimum floor area on ships other than passenger ships and special purpose ships (Standard A3.1, paragraph 9(k)); (vi) the floor area for seafarers performing the duties of ship’s officers on passenger ships and special purpose ships (Standard A3.1, paragraph 9(l)); (vii) adjoining sitting rooms (Standard A3.1, paragraph 9(m)); (viii) the fact that the clothes locker should be a minimum of 475 litres (Standard A3.1, paragraph 9(n)); and (ix) hospital accommodation (Standard A3.1, paragraph 12).

As regards the implementation of Standard A3.1, paragraphs 10, 11, 12, 13, and 18, the Government refers to section 131 of the Act of 2016 which does not appear to be relevant in this context. The Committee requests the Government to provide detailed information clarifying the measures taken to implement these requirements of the Convention.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. The Committee recalls that Standard A3.2, paragraph 2(b), provides that the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions. The Committee notes that the Government indicates that no effect is given to this provision of the Convention. The Committee therefore requests the Government to indicate the measures taken or envisaged to comply with this requirement of the Convention.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that section 103(1)(a) of Act 2016 provides that the shipowner shall provide adequate health protection and medical care for seafarers employed on board the ship. The Committee notes, however, that this section does not stipulate that this protection shall be provided, in principle, free of charge as required by Regulation 4.1, paragraph 2. The Committee requests the Government to indicate how effect is given to this requirement of the Convention.

Concerning the circumstances in which a seafarer must be permitted by the shipowner or master to visit a qualified medical doctor or dentist without delay in ports of call, the Committee notes that section 103(1)(b) of the Act of 2016 states that the owner of every Malaysian ship and any foreign ship within Malaysian waters shall provide the seafarer the right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Government further refers in this regard to section 131(2)(u) of the Act of 2016 according to which “the Minister may adopt the necessary rules for matters relating to the medical requirements on board a ship or of seafarers, or medical expenses while serving on board a ship”. The Committee requests the Government to indicate if the Minister has adopted rules implementing Standard A4.1, paragraph 1(c).

Concerning the implementation of Regulation 4.1, paragraph 2, and Standard A4.1, paragraph 1(d), the Committee notes the Government’s statement that shipowners must bear the cost of medical care provided to seafarers when landed in a foreign port. The Committee recalls that under Standard 4.1, paragraph 1(d), Members shall ensure that, to the extent consistent with national law and practice, medical care and health protection services while a seafarer is on board or landed in a foreign port are provided free of charge to seafarers. Noting that the Government has not indicated the legal provision implementing this requirement, the Committee requests the Government to provide that information.

The Committee notes that the Government has not provided information on the measures adopted to give effect to Regulation 4.1, paragraph 3 regarding the obligation to ensure that seafarers on board ships in Malaysian territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee requests the Government to provide information in this regard.

Noting the absence of information on the legal provisions ensuring that medical advice by radio or satellite communication is provided as required by Standard A4.1, paragraph 4(d), the Committee requests the Government to indicate the measures taken to provide the services foreseen under Standard A4.1, paragraph 4(d).

Regulation 4.2, paragraph 1 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. The Committee notes the Government’s reference to section 124 of the Act of 2016 concerning the obligation for the shipowner to make a report to the competent authorities in cases of birth, death, accident or incident of a missing person occurring on board as well as the obligation to notify the death to the seafarer’s next of kin. The Committee notes, however, that these provisions are not related to the implementation of the requirements of Regulation 4.2. The Committee observes that the Government has not adopted legal provisions requiring shipowners to provide seafarers with material assistance and support with respect to the financial consequences, including burial expenses, of sickness, injury or death occurring while serving under seafarers’ employment agreements or arising from their employment under such agreements. The Committee requests the Government to indicate the measures adopted or envisaged to give effect to the requirements of Regulation 4.2 and Standards A4.2.1 and A4.2.2.

Regulation 4.2. Standard 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 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 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government has referred to section 131 of the Act of 2016 related to the Minister’s power to make rules to implement matters related to safety and health. The Committee notes that the Government has not provided information on the laws and regulations and other measures adopted to implement Standard A4.3 on health and safety protection and accident prevention. The Committee requests the Government to indicate the measures adopted in this regard. Concerning the requirement that ships with five or more seafarers on board must have a safety committee which includes seafarer representatives, the Committee notes that the Government has referred to the ship management system without providing any details on the applicable national provisions. The Committee requests the Government to indicate how it gives effect to Standard A4.3, paragraph 2(d).

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Malaysia declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit and employment injury benefit. The Committee notes, however, that the Government has not provided information on the measures taken with a view to ensure that seafarers ordinarily resident in Malaysia and, to the extent provided for in its national law, their dependants, have access to social security protection. Furthermore, the Government has not provided information on its obligation, under Standard A4.5, paragraph 6, to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers on board ships that fly its flag, in the absence of adequate social security coverage. The Committee requests the Government to provide detailed information on the effect given to all the requirements contained in Regulation 4.5 and Standard A4.5.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s indication that the inspection and certification of compliance with the Convention has been delegated to a number of recognized organizations listed in the report. The Committee notes, however, that the Government has not provided examples of the agreements with such organizations. The Committee accordingly requests the Government to provide copies of such agreements. The Committee further notes that the Government has not provided information regarding the relevant provision implementing its obligation to review the competence and independence of recognized organizations, including information on any system established for oversight and communication of relevant information to authorized organizations, required under Standard A5.1.2, paragraph 4. The Committee requests the Government to indicate the measures taken to give effect to this requirement of the Convention.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance (DMLC). The Committee notes that the DMLC, Part I, included as an annex to Notice No. 7, only contains concise information on the main content of the national requirements embodying the relevant provisions of the Convention on the list of 14 matters to be inspected. The form does not contain, however, the necessary reference to the national legal provisions. The Committee recalls that the DMLC, Part I, must identify the national requirements, as contained in the legislation. The Committee therefore requests the Government to review the DMLC, Part I, in order to ensure that it identifies the national requirements embodying the provisions of the Convention by providing a reference to the relevant national legal provisions in addition to the information on the main content of the national requirements.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee notes the Government’s statement that the Accredited Quality Management System warrants that inspectors have a status and conditions of service ensuring that they are independent of changes of government and of improper external influences. The Committee notes that the Government has not provided any reference to the relevant national provisions. It requests the Government to indicate the measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4 and to provide a copy of the rules applied concerning the functioning of the Accredited Quality Management System.

The Committee recalls that Standard A5.1.4, paragraph 7(c), provides that inspectors, issued with clear guidelines as to the tasks to be performed and provided with proper credentials, shall be empowered to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (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 Committee notes the Government’s reference in this regard to section 131 of the Act of 2016 indicating that “the Minister may make rules on matters relating to the inspection of any ship”. The Committee accordingly requests the Government to provide detailed information on the measures taken to implement these requirements of the Convention.

With regard to the legal provisions or principles under which compensation must be paid for any loss or damage from the wrongful exercise of the inspectors’ powers, the Government refers to section 131 of the Act of 2016 according to which the Minister may adopt the necessary rules to implement the relevant provisions of the Regulations. The Committee requests the Government to indicate if the Minister has adopted such rules implementing Standard A5.1.4, paragraph 16.

[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.