Individual Case (CAS) - Discussion: 2021, Publication: 109th ILC session (2021)

Discussion by the Committee

Government representative, Minister of State for Economic Development – It is an honour and it is my personal privilege to make this opening statement before this esteemed Committee. I understand that this is the first time that matters relating to the Maritime Labour Convention, 2006, as amended (MLC, 2006) are being discussed in this Committee. I am also pleased to inform the Committee that the first report on the MLC, 2006 has been submitted by the Government of Maldives. While the report needs further work on completing the required information, we will be working with the relevant departments in the ILO to ensure that the report is compliant with our obligations under the Convention.

As you know, Maldives joined the MLC, 2006 with the noble intention of providing the necessary safeguards for seafarers and other stakeholders in the maritime sector. Let me also acknowledge the modest report of Maldives with respect to reporting on the Convention.

As a relatively new Member of the ILO, we have had significant challenges in aligning our domestic laws and regulations to comply with the provisions of ILO Conventions. I note that these challenges are particularly applicable to the MLC, 2006 due to the technical nature of the Convention. It is a very comprehensive instrument and countries like Maldives, with very limited technical capacity, struggle in aligning our domestic laws to meet the obligations under the Convention. We also need timely assistance in making the necessary reporting, as well as educating stakeholders on the implementation of the new legal framework necessitated by the MLC, 2006. In this regard, I am pleased to report to this Committee that Maldives has been working closely with the ILO and its regional offices in obtaining such assistance.

We hope that, under the current administration and with the technical assistance and support of the ILO and other development partners, we will be able to make good progress in developing our legal infrastructure to comply with the provisions of the Convention and ensure that we remain up to date on reporting back to the Members on progress being made in complying with the MLC, 2006.

With this, I will conclude, and look forward to the deliberations in this important Committee.

Worker members – This is the first time that our Committee examines the application of a Convention by the Republic of Maldives. Incidentally, this is also the first time we examine the application of the MLC, 2006.

The MLC, 2006 is a pioneering instrument designed to confront the many issues faced by workers in the most globalized of sectors: the shipping industry. Indeed, the Convention is unique in that it truly reflects the reality of the shipping industry and uses original approaches to gain widespread ratification. To date, 98 Member States, responsible for regulating conditions for seafarers on more than 90 per cent of the world’s gross tonnage of ships, have ratified the Convention.

Chief among the keys to the Convention’s success is the philosophy that underpins it: promoting decent work and a fair globalization. This translated into secure decent work for seafarers and a level playing field for shipowners. As a result, unscrupulous shipowners and inept flag States can no longer continue to engage in unfair competition by effectively sanctioning substandard working conditions.

Although the MLC, 2006 is a technical Convention, the life and well-being of the world’s 1.6 million seafarers depends on its proper application. Indeed, the Convention sets out seafarers’ right to decent conditions of work with regard to almost every aspect of their working and living conditions, including minimum age, employment agreements, hours of work, and social security. The Convention also provides that every foreign ship calling, in the normal course of its business or for operational reasons, in the port of an ILO Member State may be the subject of inspection in accordance with Article V, paragraph 4, for the purpose of reviewing compliance with the Convention.

Therefore, it is no surprise that the application of this Convention has significantly improved the lives of the world’s seafarers, a group of workers who are often out of sight, out of mind.

It is within this context that we examine Maldives’ application in law and in practice of the MLC, 2006, which it ratified in 2014, together with the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185). We note that Maldives 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.

The MLC, 2006 and Convention No. 185 are the only two Conventions which Maldives has ratified in addition to the core Conventions. This demonstrates the desire of the Government to protect seafarers’ rights and the importance it places on the MLC, 2006 as a maritime nation.

From the public data available, we understand that 81 ships fly the Maldivian flag and that there are roughly 650 seafarers in the merchant marine. With over US$2.8 billion in merchandise imports in 2019 and Maldives acting as a significant cruise hub, seafarers from all over the world also call at its ports. So, we welcome the submission of the first report of the Government during this session of the Conference, but regret the inexcusable delay and the fact that the Committee of Experts could not have an opportunity to comment on the Government’s report.

Despite the many innovative features of the MLC, 2006, including an elaborate inspection regime by port States, the usual oversight role taken by the Committee of Experts in reviewing Members States’ national implementation of the Convention remains a critical and essential part of effective application.

We recall that the very essence of the ILO supervisory system is the dialogue between its constituents at the national and international level. This dialogue is based on information provided on the application of Conventions in law and in practice. Failure to submit reports, comments or replies severely undermines the supervisory system and the very functioning of the ILO.

Even in the absence of the first report, the Committee examined the application of the Convention by Maldives. Unfortunately, the Committee of Experts was only able to make an observation based on an analysis of the Employment Act of 2008. The Committee of Experts concluded that while “crew of sea going vessels” are excluded from the provisions on working time, the rest of the provisions of the Act appear to apply to seafarers. Even if this were the case, the very detailed requirements of the MLC, 2006 relating to the working and living conditions of seafarers require specific and thorough implementation at the national level.

The MLC, 2006 provides that implementation of seafarers’ employment and social rights under the Convention may be achieved through national laws and regulations, through applicable collective bargaining agreements or through other measures or in practice, unless the Convention specifies otherwise by, for example, requiring countries to adopt national laws and regulations to implement certain provisions of the Convention.

Further, ships of ratifying Member States, including Maldivian-flagged vessels, are required to carry a Maritime Labour Certificate and a Declaration of Maritime Labour Compliance (DMLC) on board. The DMLC must not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. Flag States are also expected to ensure that national laws and regulations implementing the Convention’s standards are respected on smaller ships, including those that do not go on international voyages and are not covered by the certification system. This provision is especially important in the Maldivian context given the geographic composition of the country and its reliance on maritime transport. Also, without adequate national implementation of the Convention, it is unclear how Maldivian port State inspectors can carry out effective ship inspections in line with the MLC, 2006.

It is evident that the need for the proper transposition of the international labour standards at the national level is even more important when it comes to the MLC, 2006. It is therefore imperative that governments urgently put in place a process to ensure the adequate national implementation of the Convention in consultation with the social partners.

Finally, as we heard from the Chair of the Committee of Experts and the International Transport Workers’ Federation (ITF) at the first session of our Committee, at the peak of the COVID-19 pandemic, there were approximately 400,000 seafarers trapped working aboard ships due to the so-called crew change crisis caused by pandemic-related government border and travel restrictions. This crisis is still going on. There is still widespread non-compliance with the MLC, 2006, a vital instrument for the world’s seafarers. Our Committee needs to send a strong message that its effective implementation requires ratifying Member States to comply with their obligations, including those related to reporting and national implementation.

Employer members – As the Worker spokesperson has noted, this is the first time the Committee has discussed the application of the MLC, 2006 with respect to Maldives. Maldives has ratified all eight fundamental Conventions, as well as Convention No. 185. The MLC, 2006, which was ratified by Maldives in August 2014, was adopted at the 94th (Maritime) Session of the International Labour Conference in 2006. The Convention consolidates almost all earlier maritime instruments adopted since the inception of the ILO in 1919. It was the product of five years’ work carried out as a tripartite process involving governments, seafarers’ trade unions and shipowners’ organizations.

The Convention entered into force in August 2013 and so far has been amended on three occasions – in 2014, 2016 and 2018 – in order to keep up with the needs of the shipping sector. This arguably makes it the most up-to-date and dynamic of any ILO instrument. As of June 2021, it has been ratified by 98 countries representing more than 91 per cent of the world gross tonnage of ships.

As Conventions go, the MLC, 2006 is unique in its structure. It comprises three different but related parts: the Articles, the Regulations and the Code. The Articles and Regulations set out the core rights and principles and the basic obligations of Members ratifying the Convention. The Articles and Regulations can only be changed by the Conference in the framework of article 19 of the Constitution of the ILO. The Code contains the details for the implementation of the Regulations. It comprises Part A (mandatory Standards) and Part B (non-mandatory Guidelines). The Code can be amended through the simplified procedure set out in Article XV of the Convention. Since the Code relates to detailed implementation, amendments to it must remain within the general scope of the Articles and Regulations. The Regulations and the Code are organized into general areas under five Titles: Title 1: Minimum requirements for seafarers to work on a ship; Title 2: Conditions of employment; Title 3: Accommodation, recreational facilities, food and catering; Title 4: Health protection, medical care, welfare and social security protection; and Title 5: Compliance and enforcement.

There are three underlying purposes of the Convention: first, to lay down, in its Articles and Regulations, a firm set of rights and principles; second, to allow, through the Code, a considerable degree of flexibility in the way Members implement those rights and principles; and third, to ensure, through Title 5, that the rights and principles are properly complied with and enforced.

I have spent some time on this introduction in order to emphasize how important the MLC, 2006 is to global maritime activities. That so much work has gone into its creation, amendment and upkeep makes cases of non-reporting all the more significant.

We note with pleasure Maldives’ announcement that it has just sent its first report, and indeed the Committee of Experts has noted it has taken four consecutive years for this to happen. The delay in submitting its first report is most concerning to the Employer members. First reports are particularly important to the reporting process as they are expected to provide detailed information on all implementation aspects and thus to enable supervisory bodies to make a first in-depth assessment of the state of application after ratification. Without a first report providing complete information, there can be no ILO supervision of a ratified Convention. Let me stress again that, under article 22 of the Constitution, governments of Member States have an obligation to send reports on the application of ratified Conventions to the ILO and to communicate copies of their reports to representatives of employers’ and workers’ organizations. Compliance with this obligation is of the essence to ensure proper supervision by the ILO Committee of Experts and the tripartite Committee on the Application of Standards.

Employer members take note that the Committee of Experts, as a temporary makeshift solution, examined the application of the Convention on the basis of publicly available information. The Committee of Experts noted the following:

In its report on Convention No. 185, the Government mentions that, following Law No. 35/2015 (First Amendment to Maldives Maritime Navigation Act), the power to make regulations related to maritime labour was delegated to the Minister.

The Government also indicates that the High Court of the Republic of Maldives in Case No. 2010/HC-A/62, emphasized the need for a specific legal regime for seafarers.

The Maldives Maritime Navigation Act No. 69/78, as amended, is not available in English and only a few Maldivian laws are available in English.

It emerges from this that no regulations have been completed yet and the analysis of the implementation of the Convention has mainly been based on the Employment Act of 2008, which does not seem to be fully compliant with the MLC, 2006.

The Employer members also note with surprise that there has been no technical assistance from the Office regarding the application by Maldives of the MLC, 2006. The International Chamber of Shipping (ICS) has also noted that it has been very difficult to engage with Maldives. Maldives has not attended meetings and it has not responded to requests from the ILO. The Employer members wish to stress once more, that countries should only ratify ILO Conventions when they have assured themselves that they have both the ability to implement and the ability to report on the application in law and in practice of a Convention.

The ILO should clarify this expectation in implementing its ratification campaigns, such as on the MLC, 2006, and offer pre-ratification assistance if necessary. Ratifying without even having the capacity to report on implementation of a Convention, let alone to implement the Convention, in the long term undermines confidence in the validity of international commitments under ratified ILO Conventions.

Having said this, the Employer members urge the Government: to send, at its earliest convenience, all further information necessary to support its first report on the application of the MLC, 2006, providing to the Committee of Experts detailed information on the implementation of the Convention; to take all necessary measures to ensure its national legislation and practice are compliant with the Convention and to provide information on any developments in this regard; and, lastly, to request technical assistance from the Office, if need be, with a view to better meeting its commitments under the MLC, 2006.

The Employers trust that the Government will take all necessary steps and make all the necessary efforts to comply with its agreed commitments.

Worker member, Maldives – Maldives ratified the MLC, 2006 in 2014, a year after Maldives ratified all eight core Conventions of the International Labour Organization in 2013. Until now, no legislation or regulation has been passed to enact the Conventions into law. Maldives promulgated a new Constitution with many fundamental rights guaranteed in 2008 and became a Member State of the ILO in 2009.

The only legislation on the maritime industry is the Maldives Maritime Navigation Act No. 69 of 1978. This law was amended in 2015, as Law No. 35/2015 (First Amendment). The 2015 amendment obliges the Transport Minister to draw up 27 new regulations regarding the maritime-related areas within three months after the amendment has been passed. This includes the Regulations on Safety, Health and Welfare of Crew Members. The amendment also obliges the Minister to propose a Regulation on Implementation of International Conventions and Treaties that Maldives has ratified, under section 5(b)(25) of the law.

However, we have not seen, nor have we been consulted on, the drafting of any regulation related to the maritime industry. Neither a law nor a regulation has been promulgated to enact the MLC, 2006. Moreover, there is no established social dialogue platform of any kind in Maldives where workers can be represented and raise their concerns. Workers working in the maritime industry, the crews of seagoing vessels, are excluded from the only piece of legislation that protects individual employees’ basic rights in Maldives.

The majority of our domestic transport sector workforce has undocumented migrants from Bangladesh without any form of agreements with the employers in most cases.

The Employment Act of 2008 has been amended various times. The last amendment, the sixth amendment, was made during the peak of the pandemic in September 2020. Workers’ organizations requested to amend section 34 of the law and to include the transport sector workers in the law. However, the amended law still excludes the workers from basic rights such as working hours, overtime payments and working on public holidays. Sadly, the amendment is mainly about easing the redundancies of workers without justifiable or fair reasons, and postponement of a minimum wage in Maldives.

The Employment Act does not cover matters related to trade union recognition, collective agreements, grievance and dispute procedures, and other issues related to trade union and collective bargaining rights. Workers associations are still registered under the Associations Act, 2003, as of today. Moreover, the Freedom of Peaceful Assembly Act, 2013, abolishes the rights of workers to exercise fundamental rights, such as freedom of assembly as guaranteed by the Constitution.

Without the right to strike, without collective bargaining rights, there is no way that workers through their unions could challenge the employers to ensure that every redundancy is necessary, justified, and unavoidable. Instead, employers – including the Government as an employer – could unilaterally declare redundancies. Hundreds of unjustified, unnecessary redundancies went unchallenged.

In the years prior to the pandemic, the Committee of Experts made several recommendations and requests to the Government of Maldives in relation to Case No. 3076 involving the violation of 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) in Maldives. The ILO Committee on Freedom of Association has made several recommendations. Again and again, we saw concerns raised about the failure of the Government to report.

We note that the Government just submitted its first report on the MLC, 2006, during this session of the Conference. We very much regret the long delay and the fact that the Committee of Experts could not have an opportunity to comment on the Government’s report.

The Committee of Experts has repeatedly expressed its concerns with the lack of progress of the Government in establishing, in both national law and practice, a sound legal framework to fulfil its obligations under international labour standards, including the fundamental Conventions, Recommendations, and Protocols.

In June 2013, the ILO provided technical assistance to the Government to establish the Industrial Relations Act, a legal framework that would help redress the tremendous imbalance of power between employers and workers, protect fundamental human rights in accordance with international labour standards, and ensure a decent, fair process with which employers and workers resolve their conflicting interests and which, if working well, establishes the mutual respect needed to work together.

More than anything, employers and workers’ unions have needed to work together, especially in this pandemic, the worst global health crisis in 100 years. Instead, workers in the private sector are left exposed and unprotected, and employers are allowed to act unilaterally to shift as much of the burden of this crisis onto workers as possible. Many employers are doing that.

We urgently need laws that protect the rights of workers and trade unions. We need to have laws that rebalance the great inequality of power and wealth in our society. We need laws and regulations that establish and protect the collective bargaining rights needed by the workers, including the seafarers, without distinction of nationality, to deliver decent work, better wages, and lift families out of poverty. We need collective bargaining for social justice, and more than ever before, we need the internationally recognized labour standards promoted by the ILO to be implemented in law and in practice to weather this storm together, and build back better.

Worker member, Japan – Maldives ratified the MLC, 2006 in 2014 to ensure that every seafarer has the right to a safe and secure workplace. However, until now, no legislation has been passed to make the provisions of the Convention effective nationally. Likewise, no report has been submitted by the Government on the application of the Convention for the fourth consecutive year, just until now. We understand that the Government has just submitted the report, which is too late for the Committee of Experts and us to comment on, to our deep regret.

We want to call on the Government of Maldives to adopt without further delay the necessary measures to give effect to the provisions of the Convention.

Mr Juan Somavia, in a 2006 speech as ILO Director-General when the MLC, 2006 was adopted, said that “quality shipping cannot be achieved without decent conditions for those who work and live on the ship”. It means that the human dimension of the industry must be valued in the same way as the physical and environmental dimension.

But the situation we are facing gives us a different story in Maldives. The Committee of Experts also noted that section 34(a) of the Employment Act of 2008 excludes the “crew of sea going vessels” – a category of workers in the maritime industry – from the provisions on working time.

Excluding these workers from the safeguards of the current Employment Act on working time exposes them to long working hours, which can negatively affect their mental, social and physical well-being. Long working hours is also a significant contributory factor to many accidents in the maritime industry.

Let me also note that the majority of the Maldivian domestic transport sector workforce are undocumented migrants from Bangladesh who are, in most cases, not covered by any formal employment arrangement. Hence, they are not covered by any form of labour protection related to working hours.

The ratification of the Convention is one thing, but unless it is coupled with the relevant laws to implement the Convention, the ratification loses its value. The Government is urged to ensure that the workers in the maritime industry, particularly the so-called “crew of sea going vessels”, are adequately protected under Maldives’ country legislation according to the MLC, 2006, which the Government ratified.

Observer, International Transport Workers’ Federation (ITF) – I speak on behalf of the ITF, the National Trade Union Congress of Singapore, the Australian Council of Trade Unions and the Commonwealth Trade Union Group.

The examination of the MLC, 2006 by our Committee for the first time is – dare I say – a special moment for the world’s 1.6 million seafarers. It took over five years of international tripartite consultation to develop an instrument designed to achieve near universal ratification. We managed to embed in international law strong labour standards for seafarers and a unique enforcement mechanism in an industry that is notorious for poor employment practices, including abandonment and forced labour.

Despite the Convention’s innovations, the review of national implementation of the MLC, 2006 by the Committee of Experts, and indeed our own Committee, remains fundamental to its proper application in law and in practice. From this perspective, today is a special day.

It is extremely concerning that there appear to be no national implementation measures in Maldives eight years after ratification. This has an adverse impact on seafarers working on board Maldivian-flagged vessels and the thousands of seafarers that call at Maldivian ports every year.

In terms of reporting, we welcome the Government’s statement that it has just submitted its first report – albeit five years after the original deadline – and we also trust that the social partners were consulted in this regard.

The Committee of Experts have noted that while seafarers are excluded from the provisions on working time of the Employment Act of 2008, the rest of the Act appears to apply to them. This is not good enough for seafarers. Indeed, section 34 of the Employment Act excludes seafarers from Chapter 4, which covers hours of work, dismissal, wages and financial benefits, and entitlement to leave. Other provisions on the minimum age of work also appear not to be in line with the MLC, 2006, for example, in relation to ships’ cooks where the MLC, 2006 requires that seafarers be at least 18 years of age.

Further, the detailed MLC, 2006 requirements relating to seafarers’ employment agreements, accommodation, medical care, and protection against abandonment, among other things, are not covered in the Employment Act. The same applies for remedy mechanisms, including those relating to on-board and shore-based complaints procedures. Regarding flag State and port State inspections, it is unclear whether there are any national procedures that would ensure effective enforcement.

We understand that in 2015 the Minister for Economic Development was given power to make regulations in relation to maritime labour, but that no action has been taken. However, we are heartened by the Government’s request for ILO technical assistance in this regard. We trust that the Government will transpose the MLC, 2006 into national legislation, in consultation with the social partners, without delay.

Government representative – Thank you, delegates, for your valuable contributions and recommendations. The Government of Maldives stands ready to work closely with the ILO and our partners in implementing the provisions of the MLC, 2006, and to ensure that our reporting obligations under the Convention are updated and compliant in the future.

We will make every effort to ensure that the technical and administrative set-ups necessary for implementing the Convention are established at both the Maritime Administration of Maldives and the Maldives Transport Authority, with meetings at the Ministry of Economic Development. We also take note of the recommendations made by the Committee and the constituents. We look forward to a constructive engagement with the relevant departments of the ILO in the coming weeks and months as we commence our work towards full implementation of the Convention.

Employer members – We have listened carefully to the discussion and thank all the speakers who have taken the floor and we thank again the Government representative for engaging with the Committee and providing us with up-to-date information on this case.

We reiterate that the MLC, 2006 provides international standards for the world’s genuinely great global industry. We repeat that first reports are vital to provide the basis to start a timely dialogue between the Committee of Experts and the ILO Member States on the application of a ratified Convention, and we reiterate that before ratifying Conventions, it is important for governments to make sure that they not only have in place the capacity to implement the respective Conventions, but also the capacity to meet their regular reporting obligations.

In that regard, the Employer members invite the Government of Maldives to take all necessary measures to ensure compliance of its legislation and practice with the MLC, 2006; to provide full information regarding the application in law and in practice of the Convention in Maldives; and to avail itself of technical assistance from the ILO as soon as possible.

Worker members – We thank the Government of Maldives for its comments. We also thank the speakers who took the floor for their contribution to the discussion.

As we have heard today, the effective application of the MLC, 2006 requires thorough national implementation in consultation with the social partners. To this end, all the workers of Maldives have signalled their intention to cooperate meaningfully with the Government.

We note that the Convention seeks to be “firm on rights and flexible on implementation”, meaning that the MLC, 2006 sets out the basic rights of seafarers to decent work, but leaves a large measure of flexibility to ratifying countries as to how they will implement these standards for decent work in their national laws. This flexibility should allow the Government to implement the Convention as relevant to its shipping sector. Of course, any such flexibility must be exercised in consultation with the social partners, with any determinations that are made reported to the ILO.

We also recall the importance of Article 3 of the Convention regarding fundamental principles and rights at work. The Government must satisfy themselves that the provisions of their national legislation respect fundamental rights, in the context of the MLC, 2006, and report to the Committee of Experts accordingly.

We support the Government’s request for ILO technical assistance and hope that this can be arranged before the next session of the Conference. In this regard, we note that the report form for the MLC, 2006 has helpfully been modified to take into account the amendments to the Code of the Convention.

As a general point, we also note that several maritime-related instruments will either be abrogated or withdrawn at this year’s session of the Conference with the remaining ones subject to the same treatment by 2030. As per the Special Tripartite Committee’s request, we call on the Office to promote the ratification of the MLC, 2006 on a priority basis with Member States bound by these Conventions and to follow up with technical assistance as appropriate.

Conclusions of the Committee

The Committee requests the Government to avail itself of the ILO technical assistance to effectively implement these conclusions.