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

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

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006), and welcomes the important steps taken by the Government and social partners towards the full implementation of the Convention. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 entered into force for Australia on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. Based on its second 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) and 4. Definitions and scope of application. Ships. In its previous comments, the Committee requested the Government to clarify the application of the MLC, 2006, to ships that fly its flag but do not fall within the definition of “regulated Australian vessels”.

The Committee notes the Government’s indication that in Australia, maritime safety is regulated by two main pieces of legislation, the Navigation Act 2012 and the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. Commercially operated vessels to which the Navigation Act 2012 applies are defined as regulated Australian vessels. The Navigation Act 2012, through its subordinate regulations (Marine Orders) applies the MLC, 2006, to all Regulated Australian Vessels.

Commercially operated vessels to which the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 applies are defined as domestic commercial vessels (DCVs). Regarding the scope of application of the MLC, 2006, the Government considers that the Convention applies only to those DCVs in the survey categories 1A, 1B, 1“B extended”, 2A, 2B and 2“B extended”, excluding those vessels that are certified to operate only in the Great Barrier Reef. It is considered that the Great Barrier Reef constitutes sheltered waters and those vessels in the categories D and E operate within inland waters or sheltered waters and vessels in categories “C restricted” and C operate in waters closely adjacent to sheltered waters.

From the information provided by the Government, the Committee understands that DCVs navigating within or beyond 200 nautical miles are subject to the MLC, 2006, except those operating in sheltered waters and waters closely adjacent to sheltered waters. The Committee further notes the Government’s indication that the application of the MLC, 2006, to DCVs of less than 24 metres in length (closely aligned to 200 gross tonnage in size) is impracticable because of their size, construction and equipment requirements. The Government seems also to exclude from the application of the MLC, 2006, the “remaining Domestic Commercial Vessels” as it indicates that “they are constructed, operated and manned in accordance with domestic laws and they make up just a very small subset (approximately 400) of a fleet of approximately 27,000 vessels”. Consequently, the Committee requests the Government to clarify the categories of ships which are excluded from the application of the Convention.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. In its previous comments, the Committee requested the Government to provide information with respect to the obligation under Standard A1.4, paragraph 5(c)(vi), regarding protection in the event of a failure by a shipowner to meet its obligations to the seafarer. The Committee notes the Government’s indication that the most recent revision of Marine Order 11 (Living and working conditions on vessels) came into effect on 1 May 2015. Schedule 1 of Marine Order 11 makes it a condition of registration that a seafarer recruitment and placement service must “(vii) when placing a seafarer on a vessel – to the extent practicable ensure that the owner of the vessel is insured to protect seafarers from being stranded in a foreign port; and (viii) ensure that [the service provider] has in place insurance to compensate a seafarer for any monetary loss the seafarer incurs, caused by the service provider failing to meet a legal obligation to the seafarer”. The Committee recalls that Standard A1.4, paragraph 5(c)(vi), of the Convention, requires a system of protection, such as an insurance arrangement, to ensure that seafarers can be duly compensated for any monetary loss caused by the failure of a recruitment and placement services or the relevant shipowner to meet the requirements of the MLC, 2006, and their obligations under the seafarer’s employment agreements to them. The Committee requests the Government to clarify whether the insurance referred to in Schedule 1 of Marine Order 11(viii) encompasses the obligation carried out by the service provider to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service as well as the monetary loss they may incur if the shipowner under the seafarers’ employment agreement fails to meet his/her obligations to the seafarers (Standard A1.4, paragraph 5(c)(vi), of the Convention).

Regulation 2.2 and Standard A2.2, paragraph 5. Wages. Allotments. In its previous comments, the Committee noted that while Marine Order 11 provides that the shipowner may charge a reasonable amount for providing the allotment service, there are no provisions referring to the currency exchange rate. The Committee requested the Government to provide information with respect to any requirements it has adopted to ensure that the currency exchange rate is at the prevailing market rate or the official published rate and not unfavourable to the seafarers. The Committee notes the Government’s indication that at this time, all Australian flagged vessels are registered on the Australian Ship Register and, as such, engage Australian residents as seafarers. Hence, it has not been contemplated that an Australian seafarer, living in Australia and working on an Australian vessel would be paid in a currency other than Australian dollars. The Government indicates that this may not be the case when a vessel is registered on the Australian International Ship Register and will commence the process to ensure that the requirements of Standard A2.2, paragraph 5, are fully implemented in legislation. The Committee therefore requests the Government to indicate the measures envisaged to bring its legislation into conformity with this requirement of the Convention (Standard A2.2, paragraph 5).

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. In its previous comments, the Committee noted that there were no provisions specifically mandating shore leave and therefore requested the Government to provide information with respect to measures taken to ensure that shore leave is granted to seafarers. In this respect, the Committee notes with interest the Government’s indication that the most recent revision of Marine Order 11 came into effect on 1 May 2015 and that section 30 states that “Subject to the operational requirements of a seafarer’s work on board a vessel, the master of a vessel must ensure that when the vessel is in port each seafarer on board the vessel is, if requested by the seafarer, granted leave to go to shore.”

Regulation 2.5, paragraph 2. Repatriation. Financial security. In its previous comments, the Committee noted that while Marine Order 11 provides that a seafarer is entitled to repatriation, at no cost to the seafarer in certain circumstances which are listed there is no provision with respect to the financial security that a shipowner must demonstrate to ensure that seafarers are duly repatriated in the event a shipowner fails to do so. The Committee requested the Government to provide information with respect to the kind of financial security that is required for repatriation of seafarers working on ships flying its flag and to provide a copy of an example of the kind of documentation that is accepted or issued with respect to this financial security. The Committee notes that section 34A(1) of the revised Marine Order 11 henceforth provides that “a master or owner of a vessel must not take the vessel to sea if the vessel does not have on board documentary evidence of financial security to meet liability arising from abandonment of any seafarer of the vessel” and section 34A(3)(a) states in particular that, in this respect, abandonment is taken to have occurred if the owner of the vessel has not, among other circumstances, complied with any repatriation requirement mentioned in sections 31–33.

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. It notes that the revised version of Marine Order 11 came into effect on 1 May 2015 and gives effect to the requirements of Standard A2.5.2. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (b) 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); (c) 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 (d) 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 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment indemnity. In its previous comments, the Committee noted that the Seafarers Rehabilitation and Compensation Act 1992 and Marine Order 11 do not specifically address compensation of seafarers in the case of unemployment resulting from a ship’s loss or foundering. The Committee also noted that while section 119 of the Fair Work Act may encompass a situation where a ship has been lost or has foundered, this Act may not apply to all seafarers’ employment relationships. The Committee requested the Government to provide information with respect to any rules that have been made to ensure that the indemnity against unemployment is provided by shipowners in the case of a ship’s loss or foundering. The Committee notes the Government’s indication that the requirements set out in Standard A2.6, paragraph 1, are applied by section 119 of the Fair Work Act 2009 on all ships to which that Act applies and that currently there are no Australian flagged ships to which the Fair Work Act 2009 does not apply. The Government indicates that the only ships to which the Fair Work Act 2009 may not apply are ships registered on the Australian International Ship Register, which are engaged in international voyages. The Government states that there are currently no Australian ships registered in the Australian International Shipping Register. For these ships, the Government indicates that the requirements set out in Standard A2.6, paragraph 1, will be included in any registered collective agreement that is negotiated between the owner and the seafarers’ representatives. The Committee requests the Government to provide information on any development regarding the inclusion of the requirements set out in Standard A2.6, paragraph 1, in any registered collective agreement in case of the registry of ships in the Australian International Shipping Register in the future.

Regulation 3.1, paragraph 2. Accommodation and recreational facilities. Scope of application. In its previous comments, the Committee recalled that for ships built before the entry into force of the MLC, 2006, the prescriptions for the construction and equipment of ships set forth in the Accommodation of Crews Convention (Revised), 1949 (No. 92), and Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), shall continue to apply to the extent that they were applicable prior to that date, under the law or practice of the Member concerned (Regulation 3.1, paragraph 2). In this respect, the Committee requested the Government to indicate the measures envisaged to give effect to the following provisions (for ships constructed prior to 20 August 2013, date of entry into force of the MLC, 2006, for Australia): Article 7 (ventilation); Article 9(1) (natural lighting) and (3) (emergency lighting); Article 10(23) (tables or desks); Article 13(7) (washbasins and tub baths) and (8) (water closets); and Article 15(2) (room for the deck department and room for the engine department) of Convention No. 92 as well as Article 9(1)(a) (washbasin), and Article 11(3) (emergency lighting) of Convention No. 133. The Committee notes with interest the Government’s indication that section 6(6) of revised Marine Order 11 states that: “a vessel that was constructed before 21 August 2013 is taken to comply with Divisions 6, 7, 8, 9 and 10 and paragraph 61(1)(b) if it complies with: (a) Marine Orders – Part 14: Accommodation, Issue 1 as in force on 30 June 2013; (b) section C1 of the NSCV; or (c) ILO Conventions No. 92 and No. 133”. The Committee notes that that the provisions of Divisions 6, 7, 8, 9 and 10 and paragraph 61(1)(b) of Marine Order 11 give effect to the requirements of Conventions Nos 92 and 133 for vessels constructed before 21 August 2013.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee also requested the Government to provide information with respect to any inspections that are carried out when seafarer accommodation on a vessel has been substantially altered when the vessel is one that must also be inspected for certification (Standard A3.1, paragraph 3). The Committee notes the Government’s indication that section 86(e) of revised Marine Order 11 provides that a substantial alteration made to the vessel’s structure or equipment to which Title 3 of the Maritime Labour Convention applies constitutes a criterion for revocation of a maritime labour certificate (MLC). The Government indicates that should the shipowner require re-certification, the criterion for a maritime labour certificate to be issued, pursuant to section 82 of Marine Order 1, is that the issuing body inspects the vessel for the matters mentioned in Appendix A5-I of the MLC, 2006.

Regulation 3.1 and Standard A3.1, paragraph 9. Accommodation and recreational facilities. Sleeping rooms. The Committee further requested the Government to indicate how it implements the requirements of Standard A3.1, paragraph 9(k), of the Convention. The Committee notes that, while the detailed requirements of Standard A3.1, paragraph 9, regarding sleeping rooms and minimum floor area requirements have not been reproduced in revised Marine Order 11, section 41(1), provides that “the owner of a vessel must ensure that sleeping rooms of the vessel comply with: (a) paragraph 9 of MLC, 2016 Standard A3.1; and (b) Schedule 4”.

Regulation 3.1 and Standard A3.1, paragraph 18. Accommodation and recreational facilities. Frequent inspections. In its previous comments, the Committee noted the Government’s indication that AMSA was in the process of reproducing in Marine Order 11 the requirement provided for under Standard A3.1, paragraph 18, that the competent authority shall require frequent inspections to be carried out on board ships to ensure that seafarer accommodation is clean, decently habitable and maintained in a good state of repair. The Committee requested that the Government keeps it informed of the progress made in this regard. The Committee notes with interest the Government’s indication that section 53 of revised Marine Order 11 states that: “The master of a vessel must ensure that: (a) seafarer accommodation is inspected weekly to ensure that it is clean, fit for human habitation without posing risks to seafarer health and safety and maintained in a good state of repair; and (b) a report of each inspection is recorded and kept on board”. The Committee takes note that section 53 of Marine Order 11 complies with the requirement of Standard A3.1, paragraph 18.

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions. The Committee also noted in its previous comments that the provisions of Marine Order 11 allowing possible exemptions to the requirements specified under Standard A3.1 did not specify that the exemptions can be granted only after consultation of the shipowners’ and seafarers’ organizations concerned. The Committee notes with interest that sections 41(2), 41(3), 51(2), 54(2) and 58(2) of revised Marine Order 11, which implement, respectively, paragraphs 9(a) and (f), 9(m), 10(a), 11(b) and 15 of Standard A3.1, provide for possible exemptions, as permitted under the Convention, and that section 7 of revised Marine Order 11 addresses the concern previously raised by the Committee. Section 7(2) provides that “AMSA may give an exemption only if it: (a) is satisfied that giving the exemption would not contravene the Maritime Labour Convention; and (b) has consulted in accordance with any requirements for consultation, mentioned in the Maritime Labour Convention, that apply to the exemption”.

Regulation 4.1, paragraph 3. Medical care on board ship and ashore. Access to on shore medical facilities for seafarers on board foreigner ships. In its previous comments, the Committee noted that the provisions of Marine Order 11 that require the owner of a vessel to ensure that a seafarer in need of immediate medical care is transported to shore and given access without delay to medical facilities on shore refer to a flag State obligation. The Committee recalled that Regulation 4.1, paragraph 3, refers to a port State obligation and provides that each Member shall ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee requested the Government to provide information on how it ensures full implementation of Regulation 4.1, paragraph 3. The Committee notes the Government’s indication that there is no impediment in Australian law or practice to seafarers, including Australian residents and non residents, accessing medical facilities on shore in Australia. In the absence of more detailed information, the Committee requests the Government to specify the measures adopted to ensure that seafarers on board ships voyaging in Australian waters or visiting Australian ports are given access to medical facilities on shore when in need of immediate medical or dental care and to provide information on how it has given due consideration to Guideline B4.1.4 regarding medical assistance to other ships and international cooperation.

Regulation 4.2 and Standard A4.2.1, paragraphs 8–14 and Standard A4.2.2. Shipowners’ liability. Financial security. 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 above-mentioned 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 4.5 and Standard A4.5, paragraph 8. Social security. Bilateral or multilateral agreements. The Committee requested the Government to provide information on how application of the Seafarers Rehabilitation and Compensation Act 1992 is secured in practice to seafarers employed on vessels flying the flag of another country both in the presence and absence of a bilateral agreement.

The Committee notes the Government’s indication that the presence or absence of a bilateral social security agreement does not have any impact on the ability of a seafarer residing in Australia to receive workers’ compensation benefits if their employer is covered by the Seafarers Rehabilitation and Compensation Act 1992.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. In its previous comments the Committee requested that the Government consider amending the Declaration of Maritime Labour Compliance (DMLC), Part I, to implement Regulation 5.1.3, paragraph 10, giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements. The Committee notes the Government’s indication that it has decided to leave the text of the DMLC, Part I, unchanged since providing the detail required would make the form overly cumbersome. The Government indicates that it is now a requirement that Marine Order 11 is carried on board each ship to ensure that the necessary information referred to in the DMLC, Part I, is carried on board a ship and it is accessible to seafarers and inspectors. The Committee notes however that the DMLC, Part I, also contains references to other documents, in addition to Marine Order 11. The Committee recalls that Standard A5.1.3, paragraph 10(a), states that the DMLC drawn up by the competent authority 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 also recalls that Guideline B5.1.3, paragraph 1, provides guidance with respect to the statement of national requirements including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases, a reference will not provide enough information on national requirements, where they relate to matters for which the MLC, 2006, envisages some differences in national practices. The Committee considers that the DMLC, Part I, does not appear to fulfil the purpose for which it is required under the MLC, 2006, which is to help all persons concerned such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements are being properly implemented on board ship. The Committee requests the Government, once again, to ensure that the DMLC, Part I, fully implements the requirements of Standard A5.1.3, paragraph 10.