Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Repetition

The Committee notes the Government’s first report on the application of the Convention. It also notes that the Government has previously ratified eight maritime labour Conventions which were denounced as a consequence of the entry into force of the Maritime Labour Convention, 2006 (MLC, 2006). Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article II, paragraphs 1(f) and (i), and 4 of the Convention. Seafarers and ships. The Committee notes that, pursuant to Marine Notice MLC-001 (Rev. 01/14) the Government, following consultations, has decided that several categories of persons are not to be regarded as seafarers for the purpose of the Convention. The Committee notes in particular that guest entertainers have been included in this list, without any reference to the duration of their stay on board. The Committee requests the Government to indicate how the decision to exclude this category of persons takes account of the fact that, according to the resolution concerning information on occupational groups, adopted by the International Labour Conference, “persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of this Convention regardless of their position on board”. It further notes that, under the MLC-001, cadets, trainees and operations assistants enrolled in a maritime university and sent on board to complete the sea time required for graduation, may upon application and satisfactory review of their contractual or similar arrangements, be exempted from Regulations 1.4 (Recruitment and placement); 2.1 (Seafarers’ employment agreements); 2.2 (Wages); 4.2 (Shipowners’ liability); 4.5 (Social security); and Standards A2.4 (Entitlement to leave); and A2.5, paragraph 2(b) of the Convention. The Committee recalls that the Convention does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered by the Convention. The Committee also recalls, in this regard, that according to the definition of seafarer included in Article II of the Convention, cadets “who are employed or engaged or work in any capacity [including for educational reasons] on board a ship to which this Convention applies” are to be regarded as seafarers. The Committee accordingly requests the Government to explain how it ensures that the protection afforded by the Convention is applied to cadets whose work falls within the definition in Article II, paragraph 1(f), of the Convention. Finally the Committee notes that according to section 230 of the Liberian Maritime Law, RLM-107 (Title 21 of the Liberian Code of Laws of 1956) (hereafter RLM-107), “Before the master of any Liberian vessel of 75 tons or more shall sail from any port, there shall be in force shipping articles with every seaman on board his vessel except with persons who are apprenticed to, or servants of himself or the vessel’s owner, who are not deemed to be seafarers”. The Committee, recalling the definition of seafarer included in Article II of the Convention, requests the Government to indicate the measures adopted to revise this provision in order to ensure that any person who is employed or engaged or works in any capacity on board a ship is covered by the Convention.

The Committee also notes that according to the MLC-001, “Application of MLC to Mobile Offshore Accommodation Units and other similar mobile offshore units, such as non-self-propelled barges, will be considered on a case by case basis”. The Committee requests the Government to explain the basis on which these case by case determinations may be made, and if they require consultation with the shipowners’ and seafarers’ organizations concerned.

Article VI, paragraphs 3 and 4. Substantial equivalences. The Committee notes the Government’s indication that substantial equivalent provisions have been adopted regarding Standard 2.1 – Seafarers’ Employment Agreement (SEA). According to the sample Declaration of Maritime Labour Compliance (DMLC) Part I provided by the Government, substantial equivalence applies in particular to Standard A2.1, paragraph 1(a), according to which SEAs shall be signed by both the seafarer and the shipowner or a representative of the shipowner, and Standard A2.1, paragraph 4(b), under which the SEA should contain the shipowner’s name and address. The Committee recalls that the Government must satisfy itself that the alternative solution proposed “is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned” and “gives effect to the provisions of Part A of the Code concerned” as required by Article VI, paragraph 4, of the Convention. The Committee notes in that regard the explanation provided by the Government in the sense that where the SEA is signed by the employer or its representative and does not contain the name and address of the shipowner, the Administration may, in the DMLC Part I, accept measures which are substantially equivalent to these provisions if they ensure that the shipowner takes responsibility for all the terms and conditions in the SEA. The Committee further notes that in the sample DMLC Parts I and II provided by the Government, substantial equivalence was granted by the Administration under the statement that the shipowner, which had not signed the SEA, “agreed to ensure that it will comply with all the terms and conditions in the SEAs”. The Committee recalls that while the Member’s obligation is principally to “satisfy itself”, this does not imply total autonomy, since it is incumbent on the Committee of Experts to determine not only whether the necessary procedure of “satisfying itself” has been carried out, but also whether it has been carried out in good faith in such a way as to ensure that the objective of implementing the principles and rights set out in the Regulations is adequately achieved in some way other than that indicated in Part A of the Code. Recalling the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II and the fact that under Standard A2.1, paragraph 1, every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer), the Committee considers that a general statement by the shipowner included in the DMLC Part I is not substantially equivalent to the requirements of Standards A2.1, paragraph 1(a) and A2.1, paragraph 4(b), and contrary to the purpose of the Convention. Indeed, under the arrangement proposed by the Government, the shipowner is not a party to the SEA. Furthermore, seafarers are not in a position to identify who is the shipowner at the time of signing the SEA. In addition, as the DMLC is not attached to the SEA, seafarers will lack the means to prove that the shipowner has agreed to comply with the terms of the agreement. The Committee therefore requests the Government to adopt the necessary measures to ensure that any substantial equivalence applied in this regard is conducive to the full achievement of the general objective and purpose of Standards A2.1, paragraphs 1(a) and 4(b), and gives effect to those provisions as required by Article VI, paragraph 4, of the Convention.

The Committee notes that section 3.1.2 of Marine Notice MLC-004 (Rev. 12/13) stipulates that the Administration may, for ships under 500 gross tonnage, permit the location of sleeping rooms below the load line after taking into account substantially equivalent provisions. The Committee requests the Government to explain how the possibility to use substantial equivalence regarding seafarers’ accommodation facilities comply with the requirements of Article VI, paragraphs 3 and 4, of the Convention.

Regulation 1.1 and the Code. Minimum age. The Committee notes section 326(2) of RLM-107, which states that “persons under the age of 16 shall not be employed or work on Liberian vessels registered under this Title, except on vessels upon which only members of the same family are employed, school ships or training ships”. Recalling that Standard A.1, paragraph 1, prohibits the employment, engagement or work of seafarers under the age of 16 and that no exceptions are permitted in this respect, the Committee requests the Government to take steps to amend its legislation to give full effect to this provision of the Convention. The Committee also notes that RLM-107 states under section 326(4) that “persons of not less than fourteen (14) years of age may occasionally take part in the activities on board such vessels during school holidays, subject to the conditions that the activities in which they are engaged: (a) are not harmful to their health or normal development; (b) are not such as to prejudice their attendance at school; and (c) are not intended for commercial profit”. The Committee recalls that Standard A1.1, paragraph 1, prohibits the employment, engagement or work of seafarers under the age of 16 and that no exceptions are permitted in this respect. The Committee requests the Government to take steps to amend its legislation to give full effect to this provision of the Convention.

Night work. The Committee notes that Marine Notice MLC-002 (Rev. 12/13) states under section 1.1.3 that “Night is defined as a period of at least nine (9) consecutive hours starting no later than midnight and ending no earlier than 5 a.m. Where seafarers under the age of 18 years are engaged at night, the beginning and end of this period shall be determined by the shipowner”. The Committee notes that this provision does not define “night” in a specific manner in national law and practice as required under Standard A1.1. The Committee requests the Government to indicate the measures taken to precisely define the nine-hour period that constitutes night with respect to work for seafarers under the age of 18. The Committee further notes that, under section 1.1.2 of the MLC 002, exceptions to the prohibition of night work are possible: “(a) when the seafarer is engaged in a training programme established by the shipowner and accepted by the Administration; or (b) when the Administration has determined that the work performed due to its specific nature or under a recognized training programme is not detrimental to their health and well-being”. The Committee requests the Government to indicate if any such exceptions have been authorized by the competent authority and, regarding point (b), if such authorizations were given after consultation with the shipowners’ and seafarers’ organizations concerned as required by Standard A1.1, paragraph 3(b).

Hazardous work. The Committee notes section 3.3.4 of Marine Notice MLC 005 (Rev. 12/13) which states that “The shipowner shall determine the types of work which are potentially hazardous and likely to jeopardize the health and safety of young seafarers under the age of 18 years”. It recalls that Standard A1.1, paragraph 4, of the Convention provides that the employment, engagement, or work of seafarers under the age of 18 shall be prohibited where the work is likely to jeopardize their health or safety. The types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. Noting that section 3.3.4 of MLC-005 gives the shipowner the responsibility to determine the types of work which are potentially hazardous and likely to jeopardize the health and safety of young seafarers under the age of 18 years, the Committee requests the Government to indicate the measures adopted to give full effect Standard A1.1, paragraph 4 of the Convention.

Regulation 1.2 and the Code. Medical certificate. The Committee notes the Marine Notice MLC-002 which prescribes the nature of the medical examination and certificates. Noting that the Government has provided no information on consultations regarding these requirements, the Committee requests the Government to indicate whether these requirements were adopted following consultations with the shipowners’ and seafarers’ organizations concerned, as required by Standard A1.2, paragraph 2, of the Convention.

Regulation 1.4. Standard A1.4, paragraph 7. Investigation of complaints. While noting the legislative provisions concerning private seafarers’ recruitment and placement services, the Committee notes that no information has been provided by the Government concerning existing machinery and procedures for investigating complaints about their activities, as required under Standard A1.4, paragraph 7, of the Convention. The Committee accordingly requests the Government to provide information on the manner in which it implements this provision of the Convention.

Regulation 2.1. Standard A2.1, paragraph 1. Seafarers’ employment agreements (SEA). The Committee notes that section 3.1.2 of Marine Notice MLC 003 (Rev. 12/13) establishes the requirement for every seafarer to have a SEA signed by both the seafarer and the shipowner or a representative of the shipowner. The Committee also notes, however, that Regulation 10.320(2) of the Liberian Maritime Regulations, RLM-108 (RLM-108) stipulates that “every seafarer, other than the master, joining a vessel to commence employment on board shall sign the shipping articles prior to the vessel’s departure …”. The Committee requests the Government to clarify the legal status of the SEA and the shipping articles and to explain the relationship between the two documents. The Committee also requests the Government to provide information on the manner in which it ensures that masters have a SEA in conformity with Standard A2.1, paragraph 1.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes section 10.341(1) of the RLM-108 which states that “The limits on hours of work or rest shall be as follows: (a) Maximum hours of work shall not exceed: (i) 14 hours in any 24-hour period; and (ii) 72 hours in any seven-day period; or (b) Minimum hours of rest shall not be less than: (i) ten hours in any 24 hour period; and (ii) 77 hours in any seven-day period”. It further notes Marine Notice MLC-003 which states under section 3.3.1 that “The Administration has provided for the minimum hours of rest of not less than 10 hours in any 24-hour period; and 77 hours in any seven-day period, however with proper notice to the Administration, shipowners may choose to apply the maximum hours of work of not more than 14 hours in any 24-hour period; and 72 hours in any seven-day period, but shall not implement both on the same vessel”. The Committee recalls that Standard A2.3, paragraph 2, stipulates that each Member shall fix either a maximum number of hours of work or a minimum number of hours of rest and that it should not be interpreted as to give shipowners or masters the choice of regimes concerning maximum hours of work and minimum hours of rest. The Committee accordingly requests the Government to explain how it ensures that the maximum hours of work or minimum hours of rest are fixed in accordance with Standard A2.3 of the Convention and not subject to selective application by shipowners or masters.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that section 3.5.4 of Marine Notice MLC-003 stipulates that “Any agreement which provides that seafarers agree in advance to forgo annual leave in return for pay shall be prohibited, except in cases provided by the Administration” reproducing the language of Standard A2.4, paragraph 3. The Committee notes in this regard the Government’s indication that the Administration takes into account the following elements when permitting a seafarer to forgo minimum annual leave: (a) evidence that the seafarer requested the shipowner to forgo the minimum annual leave with pay (such as a request to continue working on board for a period exceeding 11 months); (b) evidence that the shipowner agreed to the request; (c) the reason for forgoing minimum annual leave with pay; and (d) a proper risk assessment carried out by the shipowner taking into account the ship’s trading pattern, the seafarer’s record of rest hours, fatigue and other identified hazards. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to provide the legal basis for the criteria listed in the report of the Government as elements taken into account by the Administration to authorize seafarers to forgo their annual leave. The Committee also requests the Government to communicate statistical information on the number of such authorizations issued by the Administration.

Regulation 2.5 and the Code. Repatriation. The Committee notes that under section 3.6.7 of Marine Notice MLC-003 read in conjunction with section 330 of the RLM-107, shipowners may require seafarers to pay repatriation costs in the following cases: “(1) unjustified failure to report on board at such times and dates as may be specified by the Master; (2) incompetence to perform duties for which the seaman has represented himself as qualified; (3) theft, embezzlement or wilful destruction of any part of the vessel, its cargo or stores; (4) serious insubordination or wilful disobedience or wilful refusal to perform assigned duties; (5) mutiny or desertion; (6) habitual intoxication, quarrelling or fighting; (7) possession of dangerous weapons, narcotics or contraband articles; (8) intentional concealment from the shipowner or Master at or prior to engagement under the Shipping Articles of a condition which resulted in sickness or injury; (9) assistance to stowaways; and (10) wilful violation of the laws of the Republic of Liberia or applicable local criminal laws.” The Committee also notes the Government’s indication that “a seafarer shall forfeit his right to repatriation in case of: (1) desertion; (2) entering into a new agreement with the same owner after his discharge; (3) entering into a new agreement with another owner within one week after his discharge; (4) criminal offenses under sections 346, 348, and 349 of the RLM-107; and (5) unjustifiable repudiation of the shipping articles”. The Committee recalls that Standard A2.5, paragraph 3, of the Convention prohibits shipowners from requiring that seafarers make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from the seafarer’s wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to adopt the necessary measures to ensure that any provision in the national legislation depriving seafarers of this right is limited to the circumstances allowed under the Convention (for example, minimum periods of service). The Committee also recalls that while the shipowner may recover the cost of the repatriation, under the limited circumstances provided for under Standard A2.5, paragraph 3 (that is, where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective agreements, to be in serious default of the seafarer’s employment obligations), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. The Committee underlines that pursuant to the amendments to the Code approved by the International Labour Conference at its 103rd Session in 2014 that resulted in the inclusion of Standard A2.5, paragraph 2, of the Convention, Members shall require a financial security system to assist abandoned seafarers for ships flying its flag. It notes that a seafarer is deemed abandoned, among other reasons, when the shipowner fails to cover the cost of their repatriation. In light of the above, the Committee requests the Government to provide information on how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. With regard to the possibility provided by the Convention to recover the cost of the repatriation from the seafarer, the Committee underlines that it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. The Committee therefore requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarer’s employment obligations”. With regard to the place of repatriation, the Committee notes that section 3.6.1(2) of Marine Notice MLC 003 provides that seafarers shall be repatriated, at the shipowner’s option, to the port in which the seafarer was engaged or where the voyage commenced or a port in the seafarer’s own country; or to another port agreed upon between the seafarer and the shipowner or master. The Committee recalls that, under Guideline B2.5, paragraph 7, seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. The Committee requests the Government to explain how it has given due consideration to this provision when implementing Standard A2.5. Furthermore, noting the absence of any information in this respect, the Committee requests the Government to explain how it implements the remaining provisions of Standard A2.5, including: (i) seafarers’ entitlement to repatriation when the employment agreement is terminated by (a) the shipowner; or (b) the seafarer for justified reasons (Standard A2.5, paragraph 1(b)); (ii) the precise entitlements to be accorded by shipowners for repatriation including the items of expense to be covered and other arrangements to be made by shipowners (Standard A2.5, paragraph 2(c)); and (iii) how it facilitates the repatriation of seafarers serving on ships which call at its ports or pass through its territorial or internal waters, as well as their replacement on board (Standard A2.5, paragraph 7).

Regulation 2.6 and the Code. Seafarers’ compensation for the ship’s loss or foundering. The Committee notes section 3.7.1 of Marine Notice MLC-003, which states that shipowners shall provide for adequate compensation to each seafarer in the case of unemployment arising from the ship’s loss or foundering, which shall not be less than 15 days basic wage or the basic wages until the expiration of the period for which the seafarer was engaged, whichever shall be least; provided the seafarer is not employed as a seafarer during this period or has not refused substantially equivalent seagoing employment. The Committee recalls that, under Guideline B2.6, paragraph 1, the indemnity against unemployment resulting from a ship’s foundering or loss should be paid for the days during which the seafarer remains effectively unemployed at the same rate as the wages payable under the employment agreement, but the total indemnity payable to any one seafarer may be limited to two months’ wages. The Committee accordingly requests the Government to indicate how it has given due consideration to this provision when implementing Standard A2.6.

Regulation 2.7. Manning levels. The Committee notes the regulatory provisions implementing minimum manning requirements, as contained in the RLM-107 and Marine Notice MLC-003, as well as the sample minimum manning documents provided by the Government. The Committee also notes the Government’s indication that all ships with a prescribed manning of ten or more seafarers are required to carry a ship’s cook. The Committee further notes, however, that neither the regulations nor the sample documents appear to contain provisions concerning the catering staff or the ship’s cook. It recalls, in that respect, that under Standard A2.7, paragraph 3, when determining manning levels, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to explain how it implements this provision of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the accommodation requirements, as set forth in Marine Notice MLC-004 (Rev. 12/13). It notes, however, that while many of the requirements of the Convention are contained in the Notice’s provisions, a number of exceptions have been set out for ships of less than 3,000 gross tonnage. In addition, under section 3.16 of the Notice, the Administration is authorized to grant exceptions to ships of less than 200 gross tonnage. The Committee recalls that, under Standard A3.1, paragraphs 19 and 20, the competent authority may permit fairly applied variations and applicable exemptions only after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to specify whether it has held consultations with respect to the adoption of variations or exemptions to the accommodation requirements under Marine Notice MLC-004.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes Marine Notice MLC-005 (Rev. 12/13) which contains the provisions for occupational safety and health policy on board ships. It recalls that, under Standard A4.3, paragraph 3, the laws and regulations implementing Regulation 4.3 and the Code shall be regularly reviewed in consultation with the representatives of the shipowners’ and seafarers’ organizations. Noting the absence of any legislation or information in this respect, the Committee requests the Government to indicate how it ensures that these provisions will be regularly reviewed in consultation with the representatives of the shipowners’ and seafarers’ organizations.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indications that it has one shore-based welfare facility and that it is working with the welfare board to extend seafarer facilities to all four Liberian seaports. In addition, it notes section 3.4 of the Marine Notice MLC-005 which states that seafarers shall be granted shore leave, taking due account of the operational requirements of their positions, to access shore-based welfare facilities. The Committee requests the Government to explain how it ensures that welfare facilities in its territory are available for the use of all seafarers, irrespective of nationality, race, colour, sex, religion, political opinion or social origin, and irrespective of the flag State of the ship on which they are employed or engaged or work, as required under Standard A4.4, paragraph 1. Furthermore, welcoming the Government’s indication that it is working with the welfare board to extend seafarer welfare facilities to its four ports, the Committee requests it to provide updated information concerning any progress with this initiative.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Liberia declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 1, 2 and 10 are: old-age benefit, employment injury benefit and invalidity benefit. The Committee notes the Government’s reference to section 3.5 of the Marine Notice MLC-005 which partially reproduces the language found in Standard A4.5 without indicating, however, the manner in which Liberia will give effect to those provisions. The Committee also notes that under section 3.5.2 of the same Marine Notice, shipowners that employ seafarers on board their ships that are from a country or territory that is not a party to the MLC, 2006, must ensure the seafarers are provided with the health and social security protection benefits required under MLC Regulation 4.5 during the period of employment with the shipowner. The Committee further notes the model collective bargaining agreement for Indian seafarer officers (1 January 2015 to 31 December 2017) annexed to the Government’s report which, while setting out many terms and conditions of employment, is silent as to the social security protections specified above. The Committee accordingly requests the Government to explain the manner in which it provides the branches of social security protection it has specified to all seafarers ordinarily resident in its territory, as required under Standard A4.5, paragraph 3. It further requests the Government to explain whether it has given consideration to the various ways in which comparable benefits will be provided to non-resident seafarers working on ships that fly its flag in the absence of adequate coverage in those branches in conformity with Standard A4.5, paragraph 6, whether or not seafarers come from a country which has ratified the Convention.

Regulation 5.2 and the Code. Port State responsibilities. Noting the absence of any information on this point, the Committee requests the Government to provide information concerning its onshore complaint-handling procedure.

Regulation 5.3 and the Code. Labour-supplying responsibilities. The Committee notes the Government’s indication that, as regards its machinery for inspecting and investigating complaints regarding recruitment and placement services, seafarers can file complaints to the Administration through their union for immediate investigation and action. The Committee recalls, in this connection, that the obligation under Regulation 5.3 and the Code is to ensure the implementation of the Convention’s requirements regarding the recruitment and placement of seafarers as well as the social security protection of seafarers that are its nationals or are resident or are otherwise domiciled in its territory. Noting the absence of details in this regard, the Committee requests the Government to provide further details concerning the system for the inspection and monitoring and enforcement of its labour-supplying responsibilities.