Solicitud directa (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Myanmar (Ratificación : 2016)

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Solicitud directa

2023
2019

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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that the amendments to the Code of the Convention approved by the International Labour Conference in 2018 entered into force for Myanmar on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes the Government’s information that: (i) the Ministry of Transport and Communications issued Notification (289/2021) on the recognition of seafarers as “Key Workers” in order to assist the needs of seafarers to facilitate the recognition and acceptance of the documentations of seafarers for the purpose of crew change and repatriation; and (ii) the Department of Marine Administration (DMA), during the COVID-19 pandemic, issued maritime guidelines and announcements on: the extension of the validity of statutory certificates, inclusive of MLC certificates for Myanmar ships engaged in international voyages and near coastal voyages; crew change procedures for foreign-flagged ships; extension of the validity of medical and other certificates for Myanmar seafarers working on ships engaged in international voyages; extension of seafarers’ employment agreements (SEAs); and measures to protect the health of seafarers. The Committee takes note of this information.

Article I of the Convention. General questions on application. Implementing measures. Draft Merchant Shipping Law. The Committee notes the Government’s indication that the draft Merchant Shipping Law (MSL), which will replace the Merchant Shipping Act (MSA) of 1 May 1923, has been entirely drafted and is expected to be promulgated in the near future. At the same time, regulations will be issued under the new MSL and will be promulgated soon. While welcoming this information, the Committee requests the Government to adopt the necessary measures to fully implement the Convention, taking into account the points raised below.

Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. Masters. In its previous comment, the Committee noted that section 2(8) of the MSA excludes from the definition of “seaman” masters, pilots and apprentices duly indentured and registered. In its reply, the Government clarifies that cadets are included in the new definition of seafarer. It further indicates that the draft MSL provides that “seafarer” means any person who is employed or engaged or works in any capacity on board a vessel but does not include “(b) any other person who is in the employment or engagement or work on board in any capacity as the Department may prescribe” (Chapter 1, Part I). The Committee observes that the exclusion under Chapter 1, Part I(b), of the draft MSL has a very broad scope that could lead to the exclusion of categories of persons that should be covered by the Convention. In this regard, the Committee recalls that the Convention allows categories of persons to be excluded from the definition of seafarer only in the event of doubt on whether they should be regarded as seafarers. The question shall be determined by the competent authority after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to adopt the necessary measures to ensure that any such exclusion will be adopted in conformity with the provisions of the Convention, and to provide information on any national determination made on the basis of Chapter 1, Part I(b), of the draft MSL.

The Committee further notes the Government’s information that section 1.5 of the Collective Bargaining Agreement (CBA) for the period January 2022 – December 2024 between the Myanmar Seamen’s Federation (MSF) representing Myanmar seafarers registered with the Seamen Division (SD) of the Maritime Administration, and the Myanmar Seafarer Employment Services Federation (MSESF) representing recruitment and placement services in Myanmar and shipping companies engaging Myanmar seafarers directly or through their legally appointed agents in Myanmar, requires owners and managers of the shipping company employing Myanmar seafarers to abide on the terms and conditions of the MLC, 2006. The Government indicates that, therefore, the definitions of seafarer, ship, and others used in the CBA shall have the same meaning as in Article II of the MLC, 2006. Noting that the CBA is only applicable to Myanmar seafarers registered with the Seamen Division, theCommittee requests the Government to indicate if there are Myanmar seafarers working on board foreign flagged ships who are not registered with the Seamen Division.

Article III. Fundamental rights and principles. With reference to its previous comment concerning the elimination of discrimination in relation to employment and occupation, the Committee notes the Government’s reply that under Part IV, section 27, of the draft MSL: (i) a seafarer shall have fundamental rights as prescribed in Article III; and (ii) there should be no discrimination between seafarers to achieve equal human rights. The Committee requests the Government to provide information on the adoption of the draft MSL or any legal texts adopted, in the context of the MLC, 2006, to guarantee the fundamental rights of seafarers in relation to the principles contained in the Equal Remuneration Convention, 1951 (No. 100) and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Regulation 1.1 and the Code. Minimum age. Night work. Hazardous work. In reply to its previous request, the Committee notes the Government’s indication that section 29 of draft MSL regarding the minimum age of seafarers, requires that no person under the age of 18 years shall be employed in any capacity on board any vessel, thus the question concerning night work for seafarers under 18 years becomes irrelevant. The Committee requests the Government to provide information on the adoption of section 29 of draft MSL.

Regulation 1.3, paragraph 2. Training and qualifications. Personal safety on board ship. The Committee notes that, in reply to its previous comments, the Government refers to documents that have not been annexed to its report. The Committee therefore reiterates its previous request.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that, in reply to its previous comments, the Government indicates that paragraph 10 (h) and (i) of Notification 1/2017 provides that every seafarer recruitment and placement services (SRPS) shall perform their services only to shipowners who have established a mechanism for insurance or P&I coverage for the protection of seafarers’ rights under the SEA, and SRPS shall place seafarers on board the ship which has an insurance covered throughout their services. The Committee notes that this provision does not give full effect to Standard A1.4, paragraph 5(c)(vi), which requires that SRPS operating in the Member’s territory shall establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the SEA to meet its obligations to them. This system of protection is to be distinguished from the financial security required to shipowners under Standards A2.5.2 and A4.2.1 of the MLC, 2006. The Committee requests the Government to adopt without delay the necessary measures to give effect to this provision of the Convention.

Regulation 1.4 and Standard A1.4, paragraph 7. Recruitment and placement. Investigation of complaints. In reply to its previous comment, the Committee notes the Government’s reference to the Procedure for Disciplinary Section of Quality Management System of the DMA. Noting that the Government has not annexed such document to its report, the Committee requests it to supply it with its next report.

Regulation 1.4, paragraph 3 and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes that, in reply to its comments, the Government indicates that the relevant requirements will be reflected in the forthcoming subsidiary legislation under new MSL. The Committee requests the Government to take the necessary measures without delay to give full effect to Standard A1.4, paragraphs 9 and 10, and to transmit copy of any relevant texts adopted.

Regulation 2.1 and the Code. Seafarers’ employment agreements. In reply to its previous comment, the Committee notes the Government’s indication that section 28 of the draft MSL addresses Standard A2.1, paragraph 1(a) and (b). This section provides that the owner or master of every Myanmar vessel for international voyage and near coastal voyage of 200 gross tonnage (GT) and above, trading from one country to another, shall enter into a SEA in such form and manner as may be prescribed in terms and conditions (of the CBA) with every seafarer whom he engages, and shall submit a copy thereof to the shipping master. The same applies to the owner or master of every Myanmar vessel of 200 GT and above, trading coastal voyages. The same section indicates that the DMA shall prescribe the requirements for the matters relating to the SEA for other vessels, and that the duration of any SEA shall not exceed 12 months. The Committee observes that section 28 of the draft MSL does not cover all the requirements of Standard A2.1 and excludes from its scope part of the ships covered by the Convention. In this regard, the Committee recalls that: (i) Regulation 2.1 applies to all ships covered by the Convention, without limitations of tonnage; and (ii) the Convention does not contain the notion of coastal voyages and also applies to ships navigating in territorial waters, the only exclusions in relation to the navigational area being those mentioned in Article II, paragraph 1(i). The Committee further recalls that the duration of the SEA should be distinguished from the maximum of period of service on board, which should be of less than 12 months. The Committee requests the Government to take the necessary measures to review the draft MSL to ensure that it fully complies with all the detailed requirements of Standard A2.1 with respect to all seafarers working on all Myanmar ships covered by the Convention.

Regulation 2.1 and Standard A2.1, paragraphs 1(e), 3 and 6. Seafarers’ employment agreement. Record of employment. Termination. Shorter notice period for urgent reasons. In reply to its previous comment, the Committee notes the Government’s indication that the relevant requirements will be reflected in the forthcoming subsidiary legislation under the draft MSL. The Committee requests the Government to provide information on any measures taken to ensure conformity with Standard A2.1, paragraphs 1(e), 3 and 6, and to supply copy of any relevant texts adopted.

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 above-mentioned questions, indicating in each case the applicable national provisions.

Regulation 2.2 and the Code. Wages. In reply to its previous comment, the Committee notes the Government’s reference to section 53 of the draft MSL, which provides that the Ministry may prescribe matters in accordance with the MLC, 2006, including wages, such as the account of seafarer’s wages and deductions before payment or prior to discharge due to any reasons, and allotment notes of seafarer’s wages to the family or the next of kin. In this regard, the Government indicates that subsidiary legislation will be issued under section 53 of draft MSL. The Committee further notes that section 11 of the CBA, which has a limited scope of application, provides that any seafarer to whom the agreement applies shall be allowed an allotment note, payable at monthly intervals, of up to 80 per cent of basic wages after allowing for any deductions as specified in section 10. The Committee requests the Government to take without delay the necessary measures to give full effect to all the requirements of Standard A2.2 with respect to all seafarers covered by the Convention, and to transmit copy of any legal texts and other measures adopted.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that, in reply to its previous comments, the Government indicates that the relevant requirements will be reflected in the subsidiary legislation issued under the draft MSL. It also notes that section 5.1 of the CBA, which has a limited scope of application, provides that except for the master and the chief engineers, the working hours for earning the basic wages shall be eight hours per day from Monday to Friday, thus a total of 44 working hours per week. For those who stand sea watch, or port watch, the working hours shall be eight hours per day, staggering of working hours at the master’s discretion. The Committee recalls that Regulation 2.3 and the Code apply to all seafarers, including masters and chief engineers. Referring to its previous comments, the Committee requests the Government to take the necessary measures without delay to give full effect to the detailed requirements of Regulation 2.3 and the Codein respect of all seafarers working on board Myanmar flagged ships, and to transmit copy of any relevant texts adopted.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that, in reply to its previous comment, the Government indicates that the relevant requirements will be reflected in the subsidiary legislation issued under the draft MSL. The Committee observes that section 12(1) of the CBA, which has a limited scope of application, provides that each seafarer shall, on termination of employment for whatever reason, be entitled to leave pay as specified in Appendix 2-1, but not less than four days per month, for each completed month of service and pro rata for any part of the month. Section 12(2) provides that seafarers shall be granted shore leave to benefit their health and well-being and with the operational requirements of their positions. The Committee requests the Government to take without delay the necessary measures to ensure full conformity with the requirements of Regulation 2.4 and Standard A2.4 in respect of all seafarers working on board Myanmar flagged ships, and to transmit copy of any relevant texts adopted.

Regulation 2.5 and the Code. Repatriation. With reference to its previous comment, the Committee notes the Government’s indication that the requirements of Standard A2.5.1 will be reflected in the subsidiary legislation issued under the new MSL. The Committee also notes that the Government provides no information on the provisions implementing Standard A2.5.2, and that the annexes mentioned in its report have not been supplied. The Committee requests the Government to take the necessary measures without delay to give effect to the detailed requirements of Standards A2.5.1 and A2.5.2 in respect of all seafarers working on board Myanmar flagged ships, and to transmit copy of any relevant texts adopted. It also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.7 and the Code. Manning levels. The Committee notes the Government’s reference, in reply to its previous comment, to section 14 of the draft MSL, which provides that every Myanmar vessel, whether at sea or in any port or any other place, shall be manned by such number of seafarers with such qualifications as may be prescribed. In this context, the Government indicates that subsidiary legislation will be adopted. Referring to its previous comments, the Committee requests the Government to take the necessary measures to give effect to Standard A2.7 with regard to all ships flying its flag, and to transmit copy of any relevant texts adopted.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that the Government provides no information in relation to the legal value of Marine Guidance 3/2013, which includes the requirements of Standard A3.1. It further notes the Government’s information that section 53 of the draft MSL provides, inter alia, that the Ministry may prescribe matters related to accommodation and recreation facilities, including the requirements of the MLC, 2006. Subsidiary legislation will be issued in this respect. The Committee also notes that while section 30(1) of the CBA, which has a limited scope of application, provides that accommodation, recreational facilities and food and catering should be in conformity with Title 3 of the MLC, 2006, Standard A3.1 explicitly requires the adoption of laws or regulations to give effect to its requirements. The Committee requests the Government to take the necessary measures without delay to give effect to the detailed requirements of Standard A3.1, with regard to all ships flying its flag, and to transmit copy of any relevant texts adopted.

Regulation 3.2 and Standard A3.2, paragraphs 2(c), 3–4. Food and catering. Training. The Committee notes the Government’s indication, in reply to its previous comment, that: (i) under section 53 of the draft MSL, the Ministry may prescribe matters related to food and catering, including the requirements of the MLC, 2006; (ii) subsidiary legislation will be issued in this respect; and (iii) Marine Guidance 6/2021 prescribes the System and Syllabus of Maritime Education and Training, Examination and Certification of Seafarers including for the ship’s cook for the requirements of Standard A3.2, paragraphs 2(c), 3 and 4. The Government also lists different training courses proposed to ship’s cooks. While noting this information, the Committee observes that the Government does not provide copy of the above-mentioned documents. The Committee accordingly requests the Government to supply all relevant texts giving effect to Regulation 3.2 and Standard A3.2.

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee notes that, in reply to its previous comment, the Government indicates that the medical report form and the requirements for medicine chest and medical equipment will be prescribed in subsidiary legislation issued under the new MSL. The Committee requests the Government to take the necessary measures without delay to give effect to all the requirements of Standard A4.1, and to transmit copy of any relevant texts adopted.

Regulation 4.2 and Standard A4.2.1. Shipowners’ liability. The Committee notes the Government’s indication, in reply to its previous comment, that the relevant requirements of Standard A4.2.1, paragraphs 2–5 will be included in the subsidiary legislation issued under the new MSL. The Committee requests the Government to take the necessary measures without delay to give effect to the requirements of Standard A4.2.1, and to transmit copy of any relevant texts adopted.

Regulation 4.2, Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes the Government’s indication, in reply to its previous comment, that the DMA inspects the financial security certificate submitted by shipowners issued by a P&I company, and verifies whether insurance policies and contents of the certificate meet the requirements of Appendix A4-I of the MLC, 2006. The Committee also notes the Government’s information that the requirement of a financial security certificate is provided in paragraph 2 of Directive 2/2020 of the DMA, and that the contents of the certificate and posting requirements are reflected in the DMLC, Part I. The Government further indicates that the provisions concerning shipowners’ liability and financial security will be reflected in the subsidiary legislation issued under the new MSL. The Committee requests the Government to take the necessary measures to give effect to all the requirements of Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2, and to transmit a copy of any relevant texts adopted. It also requests the Government to provide a copy of a model certificate of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3 and the Code. Health and safety protection and accident prevention. In reply to its previous comment, the Committee notes the Government’s reply that the requirements under Regulation 4.3 will be issued as regulations under the new MSL, following the MLC, 2006 guidance. The Committee requests the Government to take the necessary measures without delay to give effect to the requirements of Regulation A4.3 and Standard A4.3, and to provide copy of any relevant texts adopted.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. In reply to its previous comment, the Committee notes the Government’s indication that the requirements in Regulation 4.4 will be issued as regulations under the new MSL following the MLC, 2006 guidance. The Committee requests the Government to take the necessary measures without delay to give effect to all the requirements of Regulation A4.4 and Standard A4.4, and to provide copy of any relevant texts adopted.

The Committee notes that, according to the Government, there are currently no shore-based facilities operating in the country and there are no plans for the development of seafarer welfare facilities in its territory. Recalling the significance of access to shore-based welfare facilities for seafarers’ well-being, the Committee requests the Government to provide information on future developments regarding the establishment of welfare facilities.

Regulation 4.5 and the Code. Social security. In reply to its previous comment, the Committee notes the Government’s indication that the requirements of Regulation 4.5 will be provided for under the national CBA. The Committee recalls, however, that the CBA has a limited scope of application. The Committee requests the Government to take the necessary measures without delay to give effect to the requirements of Regulation 4.5 and the Code, in particular to ensure that all seafarers ordinarily resident in Myanmar are entitled to benefits from social security protection in the three branches specified and that the resulting protection is not less favourable than that enjoyed by shoreworkers (Regulation 4.5, paragraph 3). The Committee also reiterates its request to the Government to indicate any bilateral or multilateral arrangements in which Myanmar participates in relation to social security protection of seafarers.

Regulation 5.1.2 and the Code. Authorization of recognized organizations. Referring to its previous comment, the Committee notes that the Government provides a list of recognized organizations (ROs) authorized to perform renewal, additional inspections and issue or endorse Maritime Labour Certificates. The Committee also notes that Notification 2/2015 (National guidance for the oversight and monitoring of recognized organizations) refers to standards under Part 3 of the Code for Recognized Organizations (RO Code) of the International Maritime Organization (IMO) for assessing ROs. 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 (DMLC), Part I. Content. DMLC, part II. With reference to its previous comment, the Committee notes that the Government does not supply a revised copy of the DMLC, Part I, nor an example of a DMLC, Part II. Noting that the Government is in the process of adopting the MSL, the Committee requests it to revise the DMLC, Part I to reflect the national requirements embodying the relevant provisions of the Convention (including a reference to the relevant national legal provisions), and to supply a copy thereof once approved. It further requests the Government to supply an example or examples of Part II of the DMLC, which have been prepared by a shipowner and certified by the competent authority in conformity with Standard A5.1.3, paragraph 10(b).

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that, in reply to its previous comments, the Government indicates that the requirements of Standard A5.1.4, paragraphs 3, 6, 10, 11 and 17 are prescribed in Directive 4/2021 on Qualification and Training requirements for flag State surveyors and MLC inspectors. The Government also indicates that their status and conditions of service ensure that they are independent of changes of government and of improper external influences. Moreover, the source of any complaint will be treated as confidential and reflected in the subsidiary legislation issued under the new MSL. The Committee further notes that Marine Guidance (2/2013) contains information and guidance on inspection reports and records in line with the Convention. The Committee requests the Government to provide information on any provisions issued under the new MSL, which give application to the requirements of Standard A5.1.4. It also requests the Government to indicate how it gives effect to Standard A5.1.4, paragraph 16 (compensation for any loss or damage from the wrongful exercise of inspectors’ powers).

Regulation 5.1.5 and the Code. On-board complaints. The Committee notes that, in reply to its previous comments, the Government indicates that the relevant requirements will be reflected in the subsidiary legislation issued under the new MSL. The Committee requests the Government to take the necessary measures without delay to give effect to the requirements of Regulation 5.1.5 and the Code, and to provide copy of any relevant texts adopted.

[The Government is asked to reply in full to the present comments in 2026.]