Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention du travail maritime, 2006 (MLC, 2006) - Canada (Ratification: 2010)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that Canada has previously ratified nine maritime labour Conventions that were denounced as a result of the entry into force of the MLC, 2006. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Canada on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. The Committee also notes the efforts undertaken by the Government and the social partners to implement the provisions of the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

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

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

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

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

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

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

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

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

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

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

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

The Committee further notes that section 328(1) of the MPR excludes the payment of costs of repatriation by the authorized representative in case of mutual agreement. The Committee observes that this possibility is not provided for by the MLC, 2006, thus this provision is not in conformity with the Convention. The Committee requests the Government to take the necessary measures to bring its legislation in full conformity with the Convention.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.7 and the Code. Manning levels. The Government indicates that under section 202(1) of the MPR, the authorized representative of a Safety Convention vessel shall ensure that the vessel meet the safe manning requirements established for the vessel by the Administration in accordance with International Maritime Organization (IMO) Resolution A.890 (21), Principles of Safe Manning, or any other resolution that replaces it. The Committee requests the Government to indicate how the determination of the safe manning levels takes into account the requirements under Regulation 3.2 and Standard A3.2 concerning food and catering (Standard A2.7, paragraph 3).

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

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

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

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

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

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

Regulation 4.2 and Standards A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

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

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

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

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

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

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

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

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

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

[The Government is asked to reply in full to the present comments in 2019.] -- Following the modifications to the reporting cycle adopted by Governing Body, the CEACR decided to postpone this request to 2020.