Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention du travail maritime, 2006 (MLC, 2006) - Bénin (Ratification: 2011)

The Committee notes the 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 entered into force for Benin on 18 January 2017. It also notes that the Government’s report was received before the entry into force of these amendments. Following a second review of the information and documents available, the Committee draws the Government’s attention to the matters raised below. If considered necessary, the Committee may come back to other matters at a later stage.

Article I of the Convention. General questions on application. Implementing measures. The Committee noted, in its previous direct request, that the relevant legislation in Benin, and particularly Act No. 2010-11 of 7 March 2011 issuing the Maritime Code in the Republic of Benin, had been drawn up before the adoption of the MLC, 2006, and that as a consequence the Government recognized the need to bring the national legislation into conformity with the Convention. The Committee notes the Government’s indication that there has not been any specific progress since and that the labour administration, the administration of the merchant navy and the National Social Security Fund have decided to establish a new planning for the content of the Roadmap for the implementation of the Convention. Recalling the need to give effect to the MLC, 2006, as soon as possible, the Committee once again requests the Government to provide all the measures that have been adopted or are being prepared at the national level with a view to giving effect to the Convention.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. Nothing that the Government does not report any progress in the determination of the scope of application of the national measures that are in force, the Committee once again draws the Government’s attention to the points raised in its previous direct request, which read as follows. The Committee notes that section 5 of the Maritime Code defines a seafarer as “any person who enters an undertaking with the shipowner or his representative to serve on board the ship”. The legislation in Benin accords real importance to registration on the crew list for recognition as a seafarer (section 2 of the General Regulations respecting seafarers). This definition does not cover in full the definition in Article II, paragraph 1(f) of the Convention, “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”. The Committee once again requests the Government to adopt the necessary measures to ensure that all seafarers covered by Article II benefit from the protection afforded by the Convention.

Regulation 1.1 and the Code. Minimum age. Noting that the Government does not report progress in the implementation of the provisions of the Convention respecting the minimum age of persons who work on ships, the Committee once again draws the Government’s attention to the points raised in its previous direct request, which read as follows. The Committee notes that the legislation in force does not clearly prohibit work on board a ship by any person under the age of 16. Although the Maritime Code establishes the minimum age of 18 years, section 7 of the General Regulations respecting seafarers allows exceptions on the sole condition that the parents (or their representative) give their permission. With regard to the restrictions on working on board ship for seafarers under the age of 18 envisaged by the MLC, 2006, in Standard A1.1, paragraphs 2, 3 and 4 (night work and work likely to jeopardize health or safety), the Committee notes that the legislation currently in force does not give full effect to these provisions. The Committee once again requests the Government to adopt the necessary measures rapidly to ensure the conformity of the legislation with Regulation 1.1 of the Convention.

Regulation 1.2 and the Code. Medical certificate. The Committee noted previously that, according to the information provided by the Government, seafarers must be medically fit to perform their duties in order to board the ship (section 213 of the Maritime Code and section 6 of the General Regulations respecting seafarers of 1998). However, the Committee notes that the legislation in force does not specify the nature of the medical examination or the medical certificate required, nor the right to a further examination (Standard A1.2, paragraphs 1, 2, 3 and 5). The requirements relating to the qualifications and independence of the persons authorized to issue medical certificates are not available (Standard A1.2, paragraph 4). The Committee requests the Government to adopt the necessary measures to ensure that its legislation is in conformity with Regulation 1.2 of the Convention.

Regulation 1.4 and the Code. Recruitment and placement. In its previous comment, the Committee noted the Government’s indication that there is no public seafarer recruitment and placement service operating in its territory. However, it confirmed the existence of three private agencies, of which two are operational, and specified that section 276 of the Maritime Code entrusts the Directorate of Maritime Affairs with competence to supervise the operation of private agencies. The Committee nevertheless noted that this section is very general and principally addresses the role of the administration in the settlement of individual disputes between a shipowner and a seafarer. It is also necessary to note that no legislation gives effect to the provisions of the MLC, 2006, respecting machinery and procedures for complaints concerning the activities of private recruitment placement services. The Committee therefore requested the Government to adopt the necessary measures to give full effect to the requirements of the Convention respecting the recruitment and placement of seafarers. The Committee notes the Government’s indication in its second report that a draft Order issuing rules for the approval of employment agencies for seafarers is under preparation, as well as a list of specifications for private employment structures. The Committee recalls that under Standard A1.4, paragraph 5(b), no fees or other charges should be borne directly or indirectly by the seafarer. The Committee requests the Government to provide a copy of the Order and the list of specifications, as well as any other measures adopted or under preparation to give effect to the other provisions of Regulation 1.4 and Standard A1.4.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. In its previous comment, the Committee noted the Government’s indications recognizing that Benin has not up to now adopted national policies that encourage career and skill development and employment opportunities for seafarers domiciled in the national territory. The Committee notes the Government’s explanation that seafarers in Benin are currently trained in subregional schools based in the Republic of Côte d’Ivoire (Regional Academy of Maritime Sciences and Technologies) and Ghana (Regional Maritime University). The Committee also notes the Government’s indication that consideration is still being given to the adoption of a specific policy to take into account the development of the careers and skills of seafarers. The Committee requests the Government to provide precise and detailed information on any measures that have been adopted or are envisaged to give effect to Regulation 2.8 of the Convention.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. In its previous comment, the Committee requested the Government to provide information on the evaluation of needs for seafarers’ welfare facilities in ports in Benin, in accordance with the requirements of Standard A4.4, paragraphs 2 and 3. The Committee notes the Government’s indication that there was previously a seafarers’ welfare committee, but that the committee was not sufficiently dynamic to give satisfaction to seafarers. With a view to making up for this shortcoming, seafarers established an association for their welfare. The Committee notes the Government’s indication that it undertakes, in the framework of the planned reforms in the sector, to ensure the establishment of the welfare council and its operation in accordance with the provisions of the Convention.

Regulation 4.5 and the Code. Social security. In its previous comments, the Committee noted that, in accordance with Standard A4.5, paragraphs 2 and 10, the Government declared, at the time of the ratification of the MLC, 2006, six of the nine branches of social security envisaged by the Convention: old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit. With regard to the coverage of old-age benefit, family benefit and maternity benefit, section 268 of the Maritime Code and section 73 of the General Regulations respecting seafarers provide for coverage by the statutory general scheme. However, the Committee noted that exceptions are possible with the agreement of the parties, under arrangements that are not specified. The Committee requested the Government to provide additional information on the actual conditions for the coverage of seafarers ordinarily resident in its territory by the statutory general social security scheme. The Committee notes the Government’s indication that there are no explicit provisions in the Social Security Code providing for the coverage of seafarers ordinarily resident in the territory of Benin. The Committee also notes the specification by the Government that social security coverage is ensured specially within the framework of the bilateral and multilateral social security agreements to which Benin is a party. The Committee recalls that Standard A4.5, paragraph 3, provides that each Member which has ratified the Convention shall take steps according to its national circumstances to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory. The Committee requests the Government to provide the list of all the bilateral and multilateral agreements in force which are likely to give effect to the Convention and to provide detailed explanations on the conditions for the implementation of these agreements. The Committee once again requests the Government to adopt the necessary measures to ensure for seafarers who are ordinarily resident in the territory of Benin the protection envisaged in Standard A4.5, paragraph 3, of the Convention.

In its previous comment, the Committee noted that section 119 of the General Regulations respecting seafarers provides for the provision of compensation to the dependants of a deceased seafarer. The Committee requested the Government to provide additional information on the conditions in practice for the provision of this survivors’ allowance. Noting that the Government has not replied to this comment, the Committee once again requests it to provide detailed information on the conditions in practice for the provision of this survivors’ allowance.

Regulation 5.1 and the Code. Flag State responsibilities. In its previous comment, the Committee noted the Government’s indication that measures would have to be adopted to bring the national legislation into conformity with Regulation 5.1 of the Convention. The Committee also noted that the Government referred to Order No. 26 MEPTP/MM of 13 June 1969 approving classification societies with a view to controlling and classifying ships in Benin. However, the Committee noted that this Order does not take into account all of the requirements of the MLC, 2006, particularly in terms of reviewing authorized organizations and the competences and means of action recognized for such authorized organizations. The Committee requested the Government to provide additional information on the conditions for the approval of authorized organizations, and a complete list of such organizations. The Committee notes the Government’s indication in its second report that Order No. 26 MEPTP/MM of 13 June 1969 approving classification societies with a view to controlling and classifying ships in Benin is the only text in force addressing this matter. The Government indicates that the only company approved since then is the Bureau Veritas. Noting the Government’s commitment to take the necessary measures to ensure the implementation of Regulation 5.1 of the Convention, the Committee requests it to provide information on all the measures adopted or under preparation for this purpose.

Regulation 5.2 and the Code. Port State responsibilities. In its previous comment, the Committee noted that Benin has adhered since 29 June 2007 to the Abuja Memorandum of Understanding (MoU) on port State control. The Committee also noted that the Abuja MoU refers, among the relevant instruments providing a basis for its provisions respecting inspections by the port State, to the MLC, 2006. However, the Committee recalled that the obligation to give full effect to the provisions of the MLC, 2006, in their own legislation rests with the national authorities. The Committee drew the Government’s attention to the need to adopt the necessary measures in the near future to ensure the conformity of the national legislation with the Convention. The Committee notes that the Government has not replied to its comments concerning the responsibilities incumbent upon Benin in accordance with the provisions of the Convention respecting inspections by the port State. The Committee therefore once again requests the Government to take the necessary measures to ensure that the national legislation is in conformity with Regulation 5.2.1 of the Convention.

In its previous comment, the Committee requested the Government to provide information on procedures for dealing with complaints by seafarers on shore and the number of complaints lodged and resolved. The Committee notes the statistical information provided by the Government concerning complaints by seafarers dealt with on shore by the Directorate of the Merchant Navy, even in the absence of the adoption of laws, regulations or other appropriate measures. The Committee once again requests the Government to adopt the necessary measures to ensure that the national legislation is in conformity with Regulation 5.2.2.

Additional documentation and information required. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: a copy in English, French or Spanish, or a translation in English, as required by Standard A5.1.3, paragraph 12, of the maritime labour certificate and Part I of the Declaration of Maritime Labour Compliance (DMLC) and one or more copies of a Part II of the DMLC drawn up by a shipowner and accepted by your country for the certification of one or more ships; the standard wording in medical certificates (Standard A1.2, paragraph 10); an example of the approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); an example of a seafarers’ employment agreement (Standard A2.1, paragraph 2(a)); a copy in English of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest (Standard A2.3, paragraph 12); for each type of ship, a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1); an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see also Guideline B4.1.2, paragraph 1); a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraph 4(a); see also Guideline B4.1.1, paragraphs 4 and 5); an example of a document (e.g. Part II of the DMLC) outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a copy of a report or review prepared by a welfare board, if any, on welfare services (Regulation 4.4); a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment (Regulation 5.1.1, paragraph 5); an example or examples of authorizations given to recognized organizations (Regulation 5.1.1, paragraph 5; Regulation 5.1.2, paragraph 2); if available in your country, a copy, in English, of the national interim maritime labour certificate (Regulation 5.1.3); a copy in English, French or Spanish of the annual reports on inspection activities issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see also Guideline B5.1.4, paragraphs 7 and 8), together with a summary in English, French or Spanish if the document is not in one of those languages; a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7, with an indication of the content in English, French, or Spanish if the guidelines are not in one of those languages; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5; see also Guideline B5.1.4, paragraph 3), with an indication of the content in English, French or Spanish if the documentation is not in one of those languages; a copy of your country’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag, with a translation into English, French or Spanish if the procedures are not in one of those languages (Regulation 5.1.5); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7, with an indication of the content in English, French or Spanish if the guidelines are not in one of those languages; a copy of a document, if any, that describes the on-shore complaint-handling procedures (Regulation 5.2.2).