Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention du travail maritime, 2006 (MLC, 2006) - Chine (Ratification: 2015)

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 China has not submitted a declaration of acceptance of the amendments to the Code of the Convention approved in 2014 by the International Labour Conference and is therefore not bound by these amendments. Recalling its 2016 general observation, the Committee encourages the Government to accept the 2014 amendments. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for China on 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 its comments in 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, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. In its previous comments, the Committee noted the different definitions of “crew” and “seafarer” contained in the Announcement of the Ministry of Transport and the Ministry of Human Resources and Social Security on the Implementation of the Maritime Labour Convention, 2006 (hereinafter the Announcement on implementation of the MLC, 2006) and the Regulations of the People’s Republic of China on Seafarers (hereinafter, Regulations on seafarers). It requested the Government to indicate how it ensures that seafarers in charge of general and complementary services not directly related to navigation are also considered seafarers for the purpose of the Convention. The Committee notes the Government’s indication that, according to section 31 of the Maritime Law of the People’s Republic of China (Maritime Law), the term “crew” means the entire complement of the ship, including the shipmaster. The Committee requests the Government to indicate how the other national provisions giving effect to the Convention cover every seafarer as defined under Article II, paragraph 1(f).

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. National navigation. Coastal navigation and sheltered waters. In its previous comments, noting that the Regulations of the People’s Republic of China on the Working and Living Conditions of Seafarers (hereinafter, Regulations on seafarers’ conditions) only apply to seafarers working on board Chinese-flagged ships engaged in international navigation, the Committee requested the Government to indicate how it implements various provisions of the Convention with regard to seafarers working on ships engaged in national navigation. The Committee also requested the Government to provide information on the meaning of “waters with similar characteristics” in the Domestic Navigation Ship Inspection Technical Regulations in the context of the exclusion from the application of the requirements of Regulation 3.1. The Committee notes the Government’s information that section 2 of the Regulations on seafarers’ conditions, as amended, stipulates that these measures shall apply to the working and living conditions of seafarers on Chinese-flagged ships for both international and domestic “coastal” navigation. The Committee also notes the Government’s information that, according to General rule 13.1(4) of the Domestic Navigation Ship Inspection Technical Regulations, “sheltered navigation area” refers to an area of the sea surrounded by coasts and islands with good shielding conditions and small waves, where the distances between islands and between islands and coasts shall not exceed 10 miles. The Government indicates that it has adopted an examination-and-approval-based approach for the division of sheltered navigation areas. General rule 13.2 of the same Regulations specifies that the specific division of each sheltered navigation area shall be reported by the ship inspection agency to the competent authority for examination and approval. The Government further specifies that the expression “waters with similar characteristics” refers to waters featuring sheltered navigation areas or that of similar characteristics, but not yet finally approved and determined by the competent authority. The Committee requests the Government to provide information on the number of ships excluded from the application of the Convention pursuant to Article II, paragraph 1(i).

Article III. Fundamental rights and principles. In its previous comments, the Committee noted that China has not ratified 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). It requested the Government to provide information on the national provisions ensuring the right to freedom of association and the protection against acts of anti-union discrimination in respect of employment. The Committee notes the information provided by the Government on the legislation regulating freedom of association and the right to collective bargaining, as well as on collective agreements covering Chinese seafarers. The Committee takes note of this information.

Regulation 1.1 and Standard A1.1, paragraphs 2–4. Minimum age. Night work and hazardous work for cadets. Noting that the Regulations on seafarers’ conditions (which contain provisions on the work of trainees in compliance with the Convention) only applied to seafarers working on board ships engaged in international navigation, the Committee requested the Government to indicate the measures implementing Standard A1.1, paragraphs 2–4 with regard to trainees working on board Chinese ships engaged in national navigation. The Committee notes the Government’s information that the Regulations on seafarers’ conditions, as amended, also apply to domestic coastal navigation vessels. The Committee takes note of this information.

Regulation 1.4 and the Code. Recruitment and placement. The Committee previously noted that under section 43 of the Regulations on seafarers’ conditions, crew service agencies may not charge seafarers for providing employment opportunities, except for seafarers who obtain health certificates, passports or other travel documents and other fees required by national legislation. It requested the Government to provide details on the scope of “other fees”. The Committee notes the Government’s information that: i) sections 36 and 37 of the Regulations on Seafarers stipulate that an institution engaging in the dispatch of seamen may undergo the relevant formalities for applying for participating in training, taking examinations and receiving certificates on behalf of seamen, and shall publicize its services and corresponding charging rates; and ii) section 63 of the same Regulations stipulates that, in order to apply for taking examination for the seamen’s certificate of competence, one shall pay examination costs in accordance with the relevant provisions of the State. The Committee takes note of this information.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. In its previous comments, the Committee requested the Government to indicate the legislative measures adopted to implement Standard A2.1, paragraph 1(b). The Committee notes the Government’s information that section 41 of the Regulations on Seafarers’ Conditions stipulates that an employment agreement shall be reached by the shipowner and the seafarer through consultation and shall come into force after both parties sign or seal the agreement. The Government states that in China, the pre-signature consensus embodies the fact that both parties have the opportunity to review and consult on the content before signing. While noting that there are not national provisions giving effect to this requirement of the Convention, the Committee requests the Government to adopt the necessary measures to fully comply with Standard A2.1, paragraph 1(b).

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. In its previous comments, the Committee, noting that the seafarer’s service record supplied by the Government included a field on “performance evaluation”, requested the Government to indicate the measures taken to ensure full compliance with Standard A2.1, paragraphs 1(e) and 3. The Committee notes the Government’s information that, according to the Announcement on Items Recorded in the Crew Service Book (Announcement No. 2 of the Maritime Safety Administration, 2013), the shipowner is required to delete as of today the column “Job Performance” in the Crew Service Book. The Committee requests the Government to provide a copy of such Announcement.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee previously requested the Government to indicate the measures taken to fully comply with Standard A2.1, paragraph 6. The Committee notes the Government’s information that sections 36–38 of the Labour Law of the People’s Republic of China explicitly stipulate that, where the employing unit forces the labourer to work by resorting to acts in serious violation of the law, the labourer may terminate the labour contract at any time without prior notice. Noting that the provisions cited by the Government do not address the requirement of Standard A2.1, paragraph 6, the Committee requests the Government to take the necessary measures to ensure that the need of the seafarer to terminate without penalty the seafarer’s employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account by relevant legislation and collective agreements.

Regulations 2.1 and 2.2 and Standards 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 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours standard. In its previous comments, the Committee requested the Government to provide information on the normal working hours’ standard for seafarers over 18 years. The Committee notes the Government’s indication that section 36 of the Labour Law provides for a working hour system under which labourers shall work for no more than eight hours a day and no more than 44 hours a week on the average. Section 38 provides that the employer shall guarantee that employees have at least one day off in a week. The Government indicates that it practices both standard working hour system and comprehensive working hour calculation system for “the majority of Chinese seafarers”. In accordance with the Labour Law and other laws and regulations, seafarers under the standard working hour system shall work for no more than eight hours a day and no more than 40 hours a week on the average, have at least one day off in a week and overtime work shall not exceed three hours a day and thirty-six hours a month. The Government further indicates that seafarers who are authorized to adopt the comprehensive working hour calculation system shall have the same total actual working hours as those under the statutory standard working hour system within the comprehensive working hour period (week, month, quarter and year). At the same time, enterprises should adopt appropriate arrangements by which seafarers follow the same work and rest schedule and adopt flexible working hours to ensure the right to rest and leave of the seafarers under the comprehensive working hour calculation system. The Committee requests the Government to clarify whether for seafarers under the statutory standard working hour system and those under the comprehensive working hour calculation system, hours worked in excess of the normal hours of work are charged with overtime compensation. Noting that the Government refers to Chinese seafarers, the Committee requests the Government to confirm whether the same working time system applies to all seafarers working on board Chinese-flagged ships regardless of their nationality.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition to forgo annual leave. In its previous comments, the Committee requested the Government to indicate whether any agreement to forgo the minimum annual leave with pay is prohibited under national legislation and, if so, to indicate the applicable national provisions. The Committee notes the Government’s reference to various sections of the Regulations of Paid Annual Leave of Employees. It also notes the Government’s indication that paid annual leave is a legal right given to the employees under the Regulations and it is illegal to reach any agreement to forgo minimum paid annual leave according to the Regulations. The Government also indicates that, where the work needs truly make it impossible to arrange annual leave for employees, the employer shall pay annual leave wages. The Committee notes that the provisions of the Regulations of Paid Annual Leave of Employees referred to by the Government do not clearly stipulate that any agreement to forgo annual leave with pay is prohibited. The Committee requests the Government to take the necessary measures to fully enforce Standard A2.4, paragraph 3 with respect to all seafarers covered by the Convention.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. In its previous comments, the Committee requested the Government to indicate the measures taken to guarantee the seafarers’ right to shore leave. The Committee notes the Government’s information that, taking into account of the crucial importance of shore leave for seafarers’ mental and physical health and ship safety, pursuant to section 121 of the Maritime Traffic Safety Law of the People’s Republic of China (Maritime Traffic Safety Law), revised in 2021, it is necessary to amend the Regulations on Seafarers’ Conditions and the Collective Agreement for Chinese Seafarers to incorporate the requirements associated with seafarers’ shore leave. The Committee requests the Government to provide copy of such amendments, once adopted.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. The Committee previously noted that, under section 32 of the Regulations on seafarers’ conditions, “When a seafarer is working at a ship and has one of the following circumstances, he may require repatriation: … (6) The seafarers have been on the same ship for more than twelve months in a row.” The Committee requested the Government to indicate the measures taken to bring its legislation into conformity with Standard A2.5.1, paragraph 2(b) of the Convention on this point. The Committee notes the Government’s information that Announcement No.16 of the Ministries of Transport, Human Resources and Social Security of the People’s Republic of China on Properly Making Shift Arrangements for Crew on Chinese-flagged Ships engaged in International Navigation during the COVID-19 Pandemic, clearly stipulates that the term of the crew’s labour contract or boarding agreement may be extended with the written consent of the crew and the signing of supplementary contracts or agreements. The total continuous service period of a seafarer on board shall not exceed twelve months. The Committee also notes the Government’s information that section 11 of the Collective Agreement for Chinese Seafarers of 2020 stipulates that a seafarer’s continuous period of service on board a ship shall generally not exceed eight months. If the ship’s port call or sailing route makes it inconvenient for crew replacement, the period of service may be advanced or postponed for two months, as appropriate. The crew who fails to disembark after working on the ship for ten months shall be deemed as overdue. In case of extended service of the crew on board, the shipowner shall pay additional overtime allowance to the crew from the eleventh month. The Committee recalls that under Standard A2.5.1, paragraph 2(b), the maximum duration of service periods on board following which a seafarer is entitled to repatriation shall be less than 12 months. It considers that, from the combined reading of Standard A2.4, paragraphs 2 and 3, on annual leave and Standard A2.5.1, paragraph 2(b), the maximum continuous period of shipboard service without leave is in principle 11 months. The Committee recalls that in its 2020 General Observation it considered that the extreme fatigue of seafarers who have been on board beyond the default 11 months maximum period of service on board not only constitutes a situation clearly hazardous for the safety and health of the seafarers concerned, but also profoundly endangers the safety of navigation in general. The Committee accordingly requests the Government to indicate the measures taken to bring all relevant legislation, including section 32 of the Regulations on seafarers’ conditions, in full compliance with Standard A2.5.1, paragraph 2(b), as well as to ensure that in practice seafarers on board Chinese-flagged ships are not requested to continue working beyond the default 11 months maximum period of service on board derived from the provisions of the Convention.

Regulation 2.5 and Standard A2.5.2. Financial security. Abandonment. In its previous comments, the Committee, recalling that China is not bound by the 2014 amendments, requested the Government to provide information on any progress regarding the adoption of provisions to ensure conformity with the amendments. It also requested the Government to provide up-to-date statistical information on the number of ships engaged in national and international navigation in respect of which financial insurance certificates have been issued in accordance with Standard A2.5.2. The Committee notes the Government’s information that China has been vigorously promoting the ratification of the 2014 amendments. Pending approval of the amendments, section 121 of the Maritime Traffic Safety Law shall be followed. The Committee notes that under section 121 “in the case of any discrepancy between any international treaty concluded or acceded to by China and this Law, the international treaty shall prevail, except for any article on which China has declared reservations”. The Government indicates that, under section 14 of the same Law, one of the conditions to obtain a maritime labour certificate is that the owner, operator or manager has provided corresponding financial guarantee for the expenses of repatriation of crew members and those to be paid according to the legislation regulating injuries, diseases or death of crew members during the period of employment on the vessel. The Government further indicates that up to June 2021, there were 1,190 Chinese-flagged ships, including 1,023 ships engaged in international navigation and 167 engaged in domestic coastal navigation, with financial guarantee for crew repatriation required by the Convention. The Committee takes note of this information and encourages the Government to provide any updates concerning the implementation of the 2014 amendments to the Code.

Regulation 2.6 and the Code. Seafarer compensation for the ship’s loss or foundering. In its previous comments, observing that the Government referred to social insurance for unemployment, the Committee requested the Government to indicate whether seafarers working on board Chinese-flagged ships are paid for the period during which they remain unemployed following the ship’s foundering or loss an indemnity at the same rate as the wages payable under the employment agreement. The Committee notes the comprehensive information provided by the Government, including the indication that, based on China’s existing legal system, seafarers have the same legal remedies for recovering indemnities for unemployment, personal injury or death and loss of property caused by the loss or foundering of the ship as they have for recovering arrears of wages. The Government also indicates that the Shipowner Mutual Assurance Association also guarantees the liability for payment of compensation for injuries, illnesses, and deaths of any affiliate ship’s crew. The Committee recalls that under Standard A2.6, paragraph 1 in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from such event. In this regard, it observes that: i) the obligation of the shipowner under Standard A2.6, paragraph 1 is not subject to a complaint by the seafarer; and ii) the insurance of the Shipowner Mutual Assurance Association appears to cover the financial security under Standards A4.2.1 and A4.2.2 but not the compensation for unemployment under Standard A2.6, paragraph 1. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A2.6 and Guideline B2.6.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee previously noted that, while section 12 of the Regulations on seafarers’ conditions provides that a ship with ten or more persons should be equipped with a ship’s cook – in conformity with Standard A3.2, paragraph 5 – the two examples of minimum safety manning certificates supplied by the Government (regarding manning of ten and more seafarers) did not contemplate a ship’s cook in the manning of the ships concerned. It requested the Government to indicate the measures taken to review its practice regarding minimum safety manning certificates in order to take into consideration Regulation 3.2 and the Code. The Committee notes the Government’s information that, based on the special requirements indicated in the “Remarks column” of the Certificate of Minimum Safe Manning of Ships for International Navigation annexed to the revised Minimum Safe Manning Regulations of the People’s Republic of China (Order No. 43 of 2018), a ship operating with a prescribed manning of more than ten (including ten) should at least carry one extra qualified cook on board. The Committee recalls that Regulation 2.7 and the Code also apply to ships engaged in national navigation. It requests the Government to take the necessary measures to ensure consistency between section 12 of the Regulations on seafarers’ conditions (requirement of a ship’s cook for ships with a manning of more than ten) and the minimum safety manning requirements for all ships covered by the Convention.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Dispute settlement. The Committee requested the Government to indicate whether any mechanisms exist to investigate and resolve any complaints or disputes regarding the minimum safety manning levels (Guideline B2.7.1). The Committee notes the Government’s indication that, pursuant to sections 1 and 2 of the Provisions on Maritime Administrative Reconsideration (H.Z.F [2019] No.209), citizens, legal persons or other organizations may apply for administrative reconsideration under the Minimum Safe Manning Regulations if they consider that the specific administrative actions of maritime administrative agencies infringe upon their legitimate rights. While taking note of this information, the Committee recalls that under Guideline B2.7.1, paragraph 2, representatives of shipowners’ and seafarers’ organizations should participate, with or without other persons or authorities, in the operation of the machinery for investigation and settlement of disputes concerning the manning levels on a ship. The Committee requests the Government to indicate how it has given due consideration to Guideline B2.7.1, paragraph 2.

Regulation 3.1 and Standard A3.1, paragraphs 7(d), 14 and 15. Accommodation and recreational facilities. Heating. Access to space on open deck. Offices. In its previous comments, the Committee requested the Government to indicate the national provisions implementing the requirements of an appropriate heating system (Standard A3.1, paragraph 7(d)), spaces on open deck for time off duty (Standard A3.1, paragraph 14), and offices for use by deck and engine departments (Standard A3.1, paragraph 15). The Committee notes the Government’s information on the provisions of the International Navigational Ship Inspection Technical Regulations, revised in 2019, and the National Navigational Ship Inspection Technical Regulations, revised in 2020, which give effect to the requirements of Standard A3.1, paragraph 7(d) and Standard A3.1, paragraph 15. The Committee takes note of this information.

Regulation 4.1 and Standard A4.1, paragraphs 1(c) and (d). Medical care on board and ashore. Right to visit a doctor or dentist in ports of call. Services provided free of charge. In its previous comments, the Committee noted the Government’s reference to section 24 of the Regulations on seafarers’ conditions providing that the shipowner should ensure free medical care and health protection to the seafarers working on the ship, including basic dental treatment, and provide timely reasonable medical care facilities. It requested the Government to specify whether: i) seafarers have the right to visit a qualified medical doctor or dentist in ports of call, where practicable (Standard A4.1, paragraph 1(c)); and ii) to the extent consistent with national law and practice, medical care is provided free of charge when the seafarer is landed in a foreign port (Standard A4.1, paragraph 1(d)). The Committee notes the Government’s reference to section 33 of the Collective Agreement of Chinese Seafarers of 2020, according to which, in the event that a seafarer suffers injury or illness during service on board, the shipowner shall timely arrange necessary treatment (including hospitalization) according to law until full recovery or the end of the hospitalized treatment, and pay the expenses of medical treatment and accommodation of the seafarer. The Committee requests the Government to indicate the provisions establishing that all seafarers covered by the Convention, i.e. not only Chinese seafarers, working on board Chinese-flagged ships have the right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable, and that medical care is provided free of charge to seafarers.

Regulation 4.1, paragraph 3. Medical care aboard and ashore. Access to onshore medical facilities for seafarers on board foreign ships. In its previous comments, the Committee requested the Government to provide information on the progress made in the adoption of the Regulations on Human Life Search and Rescue at Sea, which require medical institutions to provide maritime medical consultation and medical assistance to wounded and sick people at sea. The Committee notes the Government’s information that the Maritime Traffic Law has incorporated the relevant content. In particular, section 78 of the Law provides that after a maritime accident or distress occurs, the relevant local people’s government shall organize a medical institution in a timely manner to provide emergency medical relief for the persons concerned. In addition, section 5.8 of the National Maritime Search and Rescue Emergency Plan issued by the China Maritime Search and Rescue Centre stipulates that maritime search and rescue agencies at all levels shall, together with local health authorities, designate local medical institutions with proper medical technology and qualifications to provide maritime medical assistance. When a medical institution lacks adequate resources, it may request support through the China Maritime Search and Rescue Centre. According to the Government, from 2018 to 2020, a total of 1,552 injured or sick seafarers were rescued. The Committee takes note of this information.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care aboard and ashore. Minimum requirements. Medical advice by radio or satellite. In its previous comments, the Committee, noting that under section 25 of the Regulations on seafarers’ conditions the shipowner should ensure that the ship has the ability to obtain medical guidance through radio or satellite communications, requested the Government to specify whether it ensures that medical guidance through satellite communication is available 24 hours a day free of charge and to indicate the relevant national provisions. The Committee notes the Government’s information that, at present, the China Maritime Search and Rescue Centre and all provincial maritime search and rescue centres, arrange personnel to be on duty 24 hours a day and coordinate relevant medical institutions to provide round-the-clock free medical advice at the ship’s request. The Committee requests the Government to clarify whether the China Maritime Search and Rescue Centre and the local centres provide medical guidance, including the onward transmission of medical messages by radio or satellite communication, to all ships irrespective of the flag that they fly.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that under section 22 of the Regulations on Seafarers, when a seafarer gets sick or is injured when working on board a ship, her/his employer shall give prompt treatment; where a seaman is missing or dead, the employer shall properly deal with the problems arising therefrom in a timely manner. It also notes the Government’s reference to the provisions of the Regulations on Employment Injury Insurance, under which if an employee suffers from employment injury, the employer shall adopt measures to ensure that such employee receives timely care and treatment. The Committee requests the Government to indicate the provisions implementing the requirements of Standard A4.2 in relation to non-employment-related sickness.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. In its previous comments, while recalling that China is not bound by the 2014 amendments, the Committee noted the that provisions to ensure conformity with the 2014 amendments need to be added in the Regulations on seafarers’ conditions and requested the Government to provide information on any progress made in this regard. The Committee notes the Government’s information that, pending approval of the amendments, section 121 of the Maritime Traffic Safety Law shall be followed (prevalence of international treaties in the case of any discrepancy with this Law). The Committee encourages the Government to provide information on any developments concerning implementation of Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2.

Regulation 4.3, paragraph 2. Health and safety protection and accident protection. National guidelines. In its previous comments, the Committee requested the Government to provide information on the development, after consultation with representative shipowners’ and seafarers’ organizations, of national guidelines for the management of occupational safety and health to protect seafarers that live, work and train on board ships flying its flag. The Committee notes the Government’s information that the Occupational Health and Safety Protection and Accident Prevention Standard for Seafarers (JT/T 1079-2016) is a national guideline for occupational safety and health management formulated after consultation with shipowners’ and seafarers’ representative organizations. The Committee takes note of this information.

Regulation 4.4 and Standard A4.4, paragraph 3. Access to shore-based welfare facilities. Welfare boards. Noting the Government’s information that there were plans for consideration by the relevant welfare agencies and port companies involving shore-based welfare committees, the Committee requested the Government to provide further information on any developments in the establishment of welfare boards pursuant to Standard A4.4, paragraph 3. The Committee notes the Government’s information that it has always attached importance to seafarers’ use of onshore welfare facilities and promoted the establishment of welfare committees. At present, it is promoting the formulation of standards for the construction of onshore welfare facilities, and has submitted a draft regarding a “transportation industry standard”, which will be promulgated and implemented. The Government indicates that the establishment of a welfare committee is one of the core topics of the next national tripartite coordination mechanism for maritime labour relations. The Committee takes note of this information.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. In its previous comments, the Committee requested the Government to confirm whether social security legislation covers seafarers working on board Chinese-flagged ships. It also requested the Government to indicate the legal provisions under which seafarers ordinarily resident in China who work on board ships flying a foreign flag are protected in case of ill health; unemployment; old age; employment injury; and maternity. The Committee notes from the Government’s information that seafarers working on Chinese-flagged ships, regardless of their nationality, are employed in China and thus the employers who sign employment contracts with them shall be liable for social security obligations under the Social Insurance Law. The Government indicates that seafarers who usually live in China but work on ships flying foreign flags may apply for permanent residence status, participate in basic medical insurance for urban residents and social pension insurance for urban residents and enjoy social insurance benefits, in accordance with the relevant legislation. The Committee understands that resident seafarers who work on-board ships flying the foreign flag are not granted the same social security coverage as resident shoreworkers. The Committee requests the Government to take the necessary measures to ensure that the social security coverage in the branches specified for all seafarers resident in China (regardless of the flag of the ships on which they work) is not less favourable than that enjoyed by resident shoreworkers. Noting the absence of information in this regard, the Committee requests the Government to provide information on the modalities related to affiliation to social security schemes, payment of contributions and benefits, as well as on coverage of medical expenses beyond 16 weeks for morbid conditions occurring outside the territory of China.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. In its previous comments, the Committee requested the Government to clarify whether the relevant social security legislation is also applicable to seafarers who do not reside in China working on board Chinese-flagged ships. The Committee notes the Government’s information that the Social Insurance Law and the Regulation on Seamen shall be applicable to the seafarers who do not live in China but work on Chinese ships, and the employers who sign employment contracts with them shall be liable for social security obligations. The Committee takes note of this information.

Regulation 5.1.2 and Standard A5.1.2, paragraph 2. Flag State responsibilities. Authorization of recognized organizations. Minimum powers. The Committee previously requested the Government to specify whether authorized recognized organizations have the power to require the rectification of deficiencies identified in seafarers’ working and living conditions and to carry out inspections in this regard at the request of a port State. The Committee notes the Government’s information that at present, the China Classification Society (CCS) is authorized by the Maritime Safety Administration (MSA) to carry out inspections of maritime labour conditions on Chinese-flagged ships on international voyages in accordance with section 2 of the Measures for the inspection of maritime labour conditions. The Government also indicates that: (a) section 11 of the Measures stipulates that the inspection of maritime labour conditions shall be carried out by two or more inspectors, and the inspection agency shall issue a report after each inspection, record the deficiencies found, require rectification and indicate the prescribed time limit for correction; and (b) section 14 of the Measures provides that if deficiencies are found on board Chinese-flagged ships engaged in international voyages through inspections conducted by port State authorities, the MSA shall be responsible for responding to the inquiries of the port state authorities and timely notifying the competent authority. The Committee takes note of this information.

Regulation 5.1.3, paragraph 1(b). Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. Scope of application. In its previous comments, the Committee requested the Government to ensure that legislation implementing Regulation 5.1.3 also applies to ships of 500 gross tonnage or over flying the flag of a Member and operating from a port, or between ports, in another country. Noting that the Government appears to refer to foreign-flagged ships, the Committee requests it to clarify whether any Chinese-flagged ships of 500 gross tonnage and over exist, which operate from a port or between ports in another country. If so, it requests the Government to ensure that Regulation 5.1.3 is applicable to those ships.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 5 and 6. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. Interim Maritime Labour Certificate. In its previous comments, the Committee requested the Government to provide information on the cases in which an interim certificate may be issued. The Committee understands, based on the Government’s translated information, that under section 25 of the Measures for the inspection of maritime labour conditions, when a ship that has passed the temporary inspection requires the competent authority to issue a temporary maritime labour certificate, the shipowner submits the following materials: (1) information form of temporary maritime labour certificate; (2) a copy of the compliance certificate regarding seafarer accommodation (if applicable); (3) information required for the Declaration of Maritime Labour Compliance (DMLC); and (4) the supporting materials according to which the shipowner agrees to assume the responsibility for maritime labour conditions according to law. The Committee takes note of this information. Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. In its previous comments, noting that the DMLC, Part I, supplied by the Government, contained reference to the applicable legislation and to its content without mentioning the relevant sections of the legislation, requested the Government to indicate any steps taken to revise it to ensure that it fully serves its purpose. The Committee notes the Government’s information that in China, the Convention is jointly implemented by the Ministry of Human Resources and Social Security and the Ministry of Transport. Either party may initiate the revision of Part I of the DMLC. However, the single modification of a document may result in the replacement of all the certificates issued, which is not conducive to the management of certificate issuance. While noting the practical difficulties indicated by the Government, the Committee reiterates the importance of including in the DMLC, Part I, the sections of the provisions listed therein, in order to help the concerned authorities to identify effectively the national requirements implementing the Convention. The Committee requests the Government to take the necessary measures to amend the DMLC, Part I, to ensure full conformity with Standard A5.1.3, paragraph 10(a) and to indicate a timeline in this regard.

Regulation 5.1.4 and Standard A5.1.4, paragraphs 3, 5, 10 and 11. Flag State responsibilities. Inspection and enforcement. Investigation and remedy. Independence and confidentiality. In its previous comments, the Committee requested the Government: i) to provide information on the measures adopted to regulate the procedure of presenting and handling complaints; and ii) to indicate how the independence of maritime labour inspectors and the confidentiality of the sources of grievance of complaints are guaranteed. The Committee notes the Government’s information that the Procedures of the Maritime Safety Administration of the People’s Republic of China on Handling Complaints of Seafarers (HCY [2018] No.1) (MSA Procedures on Handling Complaints of Seafarers) regulate the procedures for handling complaints, investigation and confidentiality of crew on ship and on shore. The Government also indicates that the labour inspectors shall enforce the Regulations of the People’s Republic of China on Labour Inspection (Order No. 423 of the State Council on November 1, 2004) and the Administrative Measures of Labour Inspectors (No. 448 [1994] of the Ministry of Labour) in carrying out the inspections of maritime labour conditions. Section 55 of the Regulations on seafarers’ conditions provides that the maritime administrative agency conducting inspections may question the parties concerned, consult and copy relevant documents, and keep confidential the matters concerning the units or individuals under investigation. The Committee takes note of this information.

Regulation 5.1.4 and Standard A5.1.4, paragraph 7. Flag State responsibilities. Inspection and enforcement. Powers of inspectors. In its previous comments, the Committee requested the Government to provide information on whether the grounds which may be invoked by inspection officers for detention are those provided in Standard A5.1.4, paragraph 7(c). The Committee notes the Government’s information that section 6.1 of Part D-Flag State Supervision and Inspection of the “Procedures for Ship Safety Supervision” (HCB [2017] No.372) provides that if the ship safety inspector, based on professional judgment, deems that the deficiencies on board the ship constitute a significant danger to the ship’s safety, seafarers’ health and marine environment, the ship may be detained according to procedures. Under section 6.2 of the procedures, the ship safety inspector shall inform the master of the ship’s detention, remedial measures should be taken, and the ship shall be prohibited from leaving the port until the deficiencies are remedied. The Committee observes that the above-mentioned provisions do not refer to deficiencies constituting a serious breach of the requirements of the Convention. The Committee requests the Government to take all the necessary measures to ensure that, in conformity with Standard A5.1.4, paragraph 7(c), inspectors are empowered to detain a ship until necessary actions are taken when they have grounds to believe that deficiencies constitute a serious breach of the requirements of the Convention (including seafarers’ rights).

Regulation 5.1.4 and Standard A5.1.4, paragraph 12. Flag State responsibilities. Inspection and enforcement. Reporting on inspections. The Committee previously requested the Government to indicate the measures taken to give effect to the requirements to submit the inspection report to the competent authority and furnish it to the master and post another copy on the ship’s notice board for information of the seafarers and, upon request, to send the report to their representatives. The Committee notes the Government’s information that the inspection report is entered into the inspection information system. The Government also refers to section 33 of the Measures for inspection of maritime labour conditions providing that the original of the Maritime Labour Certificate or Interim Maritime Labour Certificate shall be kept available on board and the copy shall be posted in a conspicuous position that can be reached by the seafarers on board. The Committee recalls that the requirement of Standard A5.1.4, paragraph 12: i) applies to all ships covered by the Convention and not only to certified ships; and ii) concerns the reports of each inspection and not the Maritime Labour Certificate. The Committee requests again the Government to take all necessary measures to ensure full conformity with Standard A5.1.4, paragraph 12.

Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. In its previous comments, the Committee noted that, while section 57 of the Regulations on seafarers’ conditions regulates complaint-handling procedures on board, the procedure does not include the name of a person(s) on board who can, on a confidential basis, provide seafarers with impartial advice on their complaint and assist them in following the complaint procedures. Noting that the competent authority had not yet established on-board complaint procedures, the Committee requested the Government to provide information on the progress made on the establishment of such procedures in accordance with Regulation 5.1.5 and the Code. The Committee notes the Government’s information that the MSA Procedures on Handling Complaints of Seafarers regulate the procedures for handling complaints, investigation and confidentiality requirements of seafarers on board and onshore. The Committee requests the Government to provide a copy of the Procedures.

Regulation 5.1.6. Flag State responsibilities. Marine casualties. In its previous comments, the Committee noted the Government’s information that under the Regulations on the Investigation and Handling of Maritime Traffic Accidents, “marine accidents” include “maritime traffic accidents which cause losses in property and human lives” but do not appear to comprise accidents involving personal injury. It requested the Government to take the necessary measures to ensure that an official inquiry is held into any serious marine casualty leading to injury. The Committee notes the Government’s information that under section 80 of the Maritime Traffic Law, maritime traffic accidents occurred to vessels and offshore facilities shall be reported to the MSA and be subject to investigations. Section 81 provides that marine traffic accidents are classified into particularly serious accidents, major accidents, relatively large accidents and general accidents on the basis of the consequences of damage caused. The personal injury and death standards for accident levels shall be determined in accordance with the provisions of the relevant laws and administrative regulations on work safety. The Government finally indicates that since May 2017, in the 495 accidents investigated, there were 70 people injured and 778 dead or missing. The Committee observes that according to the information provided by the Government it is not possible to determine whether it is compulsory to hold an official inquiry into any serious marine casualty leading to injury involving Chinese-flagged ships. The Committee requests again the Government to clarify its obligation in this regard, referring to the relevant provisions.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. In its previous comments, the Committee requested the Government to provide detailed information on how it ensures compliance with the requirements of Regulation 5.2.2 and Standard A5.2.2. The Committee notes the Government’s information that the MSA Procedures on Handling Complaints of Seafarers provide that seafarers of Chinese-flagged and foreign ships berthed in ports within the territory of China may make complaints to the MSA through on-site, Internet or other means for acts that violate the MLC, 2006, and jeopardize the interests of seafarers. The MSA, that accepts and handles complaints, shall safeguard the confidentiality of the complainants, and shall not disclose the content of the complaint and other relevant information. The Committee notes the Government’s information that during the reporting period, there were 115 onshore complaints, including 73 involving foreign ships, all of which were resolved. No complaints were reported to the ILO Director-General. The Committee takes note of this information and will examine the content the of the MSA Procedures on Handling Complaints of Seafarers upon transmission by the Government.