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Maritime Labour Convention, 2006 (MLC, 2006) - South Africa (Ratification: 2013)

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Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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 the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for South Africa on 18 January 2017 and on 8 January 2019 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 October 2020 and 26 October 2020, respectively, 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 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.
Article I of the Convention. General questions on application. Implementing measures. The Committee notes the Merchant Shipping Bill, 2020, published for public comments in Government Gazette No. 43073 of 6 March 2020, which, if adopted, would repeal the Merchant Shipping Act, 1951, as amended by the Merchant Shipping Amendment Act, No. 12 of 2015 (MSA). Noting that several sections of the MSA, as well as its implementing regulations, currently give effect to the provisions of the Convention, the Committee requests the Government to ensure that the new legislation will continue to reflect the provisions that give effect to the Convention. The Committee also hopes that the Government will take into account its comments formulated below to ensure the conformity of the new legislation with the requirements of the Convention, and reminds the Government that it may avail itself of the technical assistance of the Office in this regard. The Committee further requests the Government to provide a copy of any relevant new legislation or other regulatory instruments implementing the Convention once adopted.
Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. The Committee noted that, while section 2(1) of the MSA excludes masters, pilots or cadets from the definition of “seafarer”, a number of provisions of such Act apply to cadets or masters. Recalling that the Convention does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered under Article II, paragraph (f) of the Convention, the Committee requested the Government to consider amending the definition of “seafarer” contained in section 2(1) of the MSA.
The Committee notes that chapter 1, section 1 of the Merchant Shipping Bill, 2020, defines “seafarer” as any person who is employed or engaged or works in any capacity on board a ship to which this Act applies. Noting that such definition of “seafarer”, if adopted, would generally bring the legislation in conformity with Article II, paragraph (f) of the Convention, the Committee requests the Government to provide information on progress made in the adoption of this Bill.
Article III. Fundamental rights and principles. Concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), in relation to seafarers, the Committee has been raising the need to revise a number of provisions of the MSA, as amended, which provide for imprisonment of seafarers (involving compulsory labour) for certain offences. The Committee once again draws the Government’s particular attention to its comments under Convention No. 105.
Article VII. Consultations. Noting that the South African Transport and Allied Workers Union (SATAWU) and the South African Association of Ship Operators and Agents (SAASOA) are the organizations that the competent authority consults in matters relating to the implementation of the Convention, the Committee requested the Government to provide information on consultations held regarding the provisions of the Convention which specifically require them, such as Standard A1.1, paragraph 4 (types of work likely to jeopardize the health or safety of seafarers under 18), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.1, paragraph 5 (minimum notice periods for the early termination of a seafarers’ employment agreement), Standard A3.1, paragraph 2 (accommodation and recreational facilities), Regulation 4.3, paragraph 2 (national guidelines for the management of occupational safety and health on board ships).
The Committee notes that the Government's report does not contain information in this respect. The Committee also notes that the Merchant Shipping Bill, 2020, provides, among others, for the application of the labour laws to seafarers, the conditions of employment of seafarers and the health and well-being of seafarers on board a vessel. According to the Memorandum of Objects of the Merchant Shipping Bill, 2020, the draft Merchant Shipping Bill was presented and discussed in stakeholders meetings convened nationally by the Department throughout 2018-2019. The Committee therefore requests the Government to provide detailed information on the consultations held concerning the adoption of the Merchant Shipping Bill, 2020, its implementing regulations and any other national measures intended to give effect to the Convention, notably whether consultations have taken place with the shipowners' and seafarers' organizations concerned when required by the relevant provisions of the Convention.
Regulation 1.1 and Standard A1.1, paragraph 4. Prohibition of hazardous work for persons under the age of 18. The Committee previously noted that section 10(3)(a) of the Maritime Occupational Safety Regulations, 1994, provides that the safety officer shall ensure that the crew of the vessel comply with the provisions of the Code of Safe Working Practices for Merchant Seamen, which does not contain a prohibition of specific types of work for persons under the age of 18, but indicates under which conditions they may perform it. Noting that the “Regulations on hazardous work by children in South Africa” adopted on 15 January 2010 do not deal expressly with work on board seagoing ships, the Committee requested the Government to indicate the measures taken or envisaged to prohibit the work likely to jeopardize the health or safety of seafarers under the age of 18 and to adopt a list of the types of such work.
The Committee notes that, while the Declaration of Maritime Labour Compliance (DMLC), Part I, submitted by the Government states that any work that is likely to jeopardize the health and/or safety of young persons is prohibited and measures must be put in place to protect young persons from this type of work and refers to articles 110 and 111 of the Merchant Shipping Act, such articles do not contain such a prohibition. The Committee has not found any provision in the relevant legislation containing a prohibition of employment of seafarers under 18 years of age where the work is likely to jeopardize their health and safety. The Committee also notes that, according to Sections 94 and 95 of the Merchant Shipping Bill, 2020, the owner or master of a South African ship must not permit a young person to perform any work (a) that is inappropriate for a person of that age; (b) that places the young person’s well-being, education, physical or mental health, or spiritual, moral or social development at risk; in the case of ships engaged in coastwise traffic, it is prohibited to employ children under the age of 18 years in any capacity on board the ship. However, the proposed Bill does not contain the list of hazardous activities on board seagoing ships, which is required under of Standard A1.1, paragraph 4 of the Convention, and that must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards. The Committee therefore requests the Government to adopt the necessary measures to prohibit work that is likely to jeopardize the health and safety of seafarers under 18 years of age and to indicate whether it has adopted a list of types of hazardous work prohibited for young persons, taking into account the specific conditions of work and risks on board ships, after consultations with the shipowners’ and seafarers’ organizations concerned, as required by the Convention.
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 with interest the adoption of the Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2017, which give effect to most of the provisions of Regulation 1.4 and the Code. The Committee further notes that the DMLC, Part I, submitted by the Government, indicates that shipowners using services based in States not party to the MLC, 2006 must ensure, as far as practicable, that these services meet the requirements of the Convention. The Committee notes this information, which addresses its previous request.
Regulation 2.1 and the Code. Seafarers’ employment agreements. Masters. The Committee previously noted that the provisions of the MSA which implement Regulation 2.1 do not cover masters and requested the Government to indicate how effect is given to this Regulation in the case of masters. The Committee notes that the Government does not provide information in this regard. The Committee asks the Government to indicate how it ensures that it complies with this provision of the convention with respect to masters.
Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee noted that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalled that any signatory of the seafarers’ employment agreement (SEA) other than a shipowner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the shipowner and requested the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner's representative as required by Standard A2.1, paragraph 1(a). The Committee notes that the Government does not provide any information in its report and that the Merchant Shipping Bill, 2020, does not address this issue. The Committee therefore asks the Government to indicate how it complies with this provision of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 1(c). Seafarers’ employment agreements. Signed Original. The Committee noted that section 103(c) of the MSA provides that when the crew is first engaged the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master, and requested the Government to indicate how effect is given to Standard A2.1, paragraph 1(c). The Committee notes that the Government does not reply to this request. The Committee therefore asks the Government to indicate the measures taken to ensure that the shipowner and seafarer concerned shall each have a signed original of the SEA.
Regulation 2.1 and Standard A2.1, paragraph 2. Seafarers’ employment agreement. Documents available in English. The Committee previously noted the absence of information on the application of this provision, and requested the Government to indicate how effect is given to this requirement of the Convention. The Committee notes that the Government submitted a standard form, in English, of a copy of an agreement with foreign going ships for framing and displaying. The Committee also notes that according to MSA Section 102(3)(l), crew agreements shall contain, inter alia, reference to any collective bargaining agreement and that the MSA Section 109 foresees that the master of a South African ship shall at the beginning of every voyage or engagement cause a legible copy of the agreement with the crew (omitting the signatures) to be framed and displayed in some conspicuous place on board the ship which is accessible to the crew, and shall cause it to be kept so framed and displayed during its currency. The Committee notes this information, which addresses its previous request.
Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ record of employment. The Committee previously noted that section 113(2) and (4) of the MSA provides that, upon the discharge of a seafarer, the master shall issue to the seafarer a certificate of his/her discharge and that when the master declines to express an opinion on the conduct, character and ability of the seafarer, the discharge shall be made before a proper officer, to whom he/she shall furnish a report stating that he/she so declines, and, if the seafarer so desires, the proper officer shall give to him/her or endorse on his/her certificate of discharge a copy of such report. Noting the form for seafarers’ Record Book and Certificates of Discharge contained in the Merchant Shipping (Seamen’s Documents) Regulations, 2000, includes a “report of character”, the Committee recalled that Standard A2.1, paragraph 3, provides that the document to be given to seafarers containing a record of their employment on board the ship shall not contain any statement as to the quality of the seafarers’ work. Noting that the Government provides no information on how it ensures conformity with this provision of the Convention, the Committee once again requests the Government to indicate how conformity with Standard A2.1, paragraph 3, is ensured.
Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee previously noted that section 102(3) of the MSA, which provides for the particulars to be contained in the agreement with the crew, does not include the particulars specified in Standard A2.1, paragraph 4(a–c) and (g). The Committee notes that the Government does not indicate how it ensures that the content of a seafarer’s employment agreement fully complies with the Convention. The Committee therefore asks the Government to indicate how it is ensured that the particulars to be contained in the SEA include the seafarer’s full name, date of birth or age, and birthplace; the shipowner’s name and address; the place where and date when the seafarers’ employment agreement is entered into; and the conditions of termination of the agreement, in conformity with Standard A2.1, paragraph 4(g). The Committee further requests the Government to provide an updated model of a seafarers’ employment agreement that is in conformity with Standard A2.1, paragraph 4, of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. In its previous comment, the Committee noted that no circumstances justifying termination of the employment agreement at shorter notice or without notice have been provided for in national laws or regulations or collective agreements and requested the Government to indicate how the need of the seafarer to terminate the contract without penalty on shorter notice or without notice for compassionate or other urgent reasons has been taken into account, in accordance with Standard A2.1, paragraph 6. The Committee notes that the example of DMLC, part II, submitted by the Government foresees that the company shall allow a seafarer to terminate the SEA at short notice or without notice and without any penalty in case of a reasonable urgent or compassionate reason. The committee notes however that, under the terms of national law, there are no provisions which allow the termination of an employment agreement with shorter notice or without notice. Recalling that Standard A2.1, paragraph 6, requires the circumstances which justify the termination of an employment agreement at shorter or without notice to be recognized under national law or regulations or collective bargaining agreements, the Committee requests the Government to specify the national provisions which give effect to this prescription of the Convention. The Committee further requests the Government to indicate how it is ensured that such circumstances take into account the need of the seafarer to terminate, without penalty, the employment agreement for compassionate or other urgent reasons.
Regulation 2.2 and the Code. Wages. The Committee previously noted that the provisions of the MSA which implement Regulation 2.2 do not cover cadets and that section 122 of the MSA, which addresses the time of payment of wages, does not provide that payments due to seafarers are made at no greater than monthly intervals and in accordance with any applicable collective agreement, as required by Standard A2.2, paragraph 1. The Committee requested the Government to indicate how effect is given to this Regulation, including with respect to cadets. The Committee notes that point 14(d) of the DMLC, Part I, provided by the Government, referring to Sections 119-144 of the MSA, foresees that seafarers must be paid at no greater than monthly intervals and in full for their work in accordance with their employment agreements. The Committee also notes that Section 100(2) of the Merchant Shipping Bill, 2020, foresees that the frequency of providing a payment advice must be at least every 30 days or as may be agreed in the crew agreement, which must require a payment advice at least every 30 days. Noting that the draft Merchant Shipping Bill, 2020, contains provisions implementing the Convention, the Committee requests the Government to adopt the necessary measures in the near future to ensure the conformity of its legislation with Regulation 2.2. and the Code, including with respect to cadets. The Committee further requests the Government to explain how the guidance provided in Guideline B2.2 is given due consideration in the national measures adopted.
Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of rest. The Committee previously requested the Government to indicate how effect is given to Standard A2.3, paragraphs 2 and 5, in the case of seafarers who are not covered by Regulation 93(2) of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of ten hours of rest in any 24-hour period; and (b) 77 hours in any seven-day period. The Committee notes that Marine Notice No. 13 of 2018 relating to Hours of Work and the Maritime Labour Convention, provides that South Africa implements the requirement of Standard A2.3 Paragraph 5(b) under the above mentioned Regulations Section 93 – “Hours of work: general duty of owners, masters and others’’ and that the requirements of this section are the same for all seafarers operating on all commercial vessel types, and for all areas of operation. The Committee notes this information, which addresses its previous request.
Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee previously requested the Government to review paragraphs 9–11 of Regulation 93 of the Merchant Shipping (Safe Manning, Certification and Training) Regulations 2013, which provide for possible exceptions to the hours of rest. The Committee notes that the revised paragraphs 9–11 of Regulation 93 of the Draft Merchant Shipping (Training Certification and Manning) Regulations, 2020, published by the department of transport Notice No. 232 of 2020, in the Government Gazette of 3 April 2020, do not ensure that any exception regarding hours of work is only authorized by collective agreement, in accordance with the requirements of Standard A2.3, paragraph 13. Recalling that any exception to the hours of rest may only be authorized by collective agreement, the Committee once again requests the Government to review paragraphs 9–11 of Regulation 93 to give full effect to Standard A2.3, paragraph 13, and to provide information on measures taken in this regard.
Regulation 2.4 and the Code. Entitlement to leave for masters and cadets. The Committee previously noted that the provisions of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which implement Regulation 2.4, do not cover masters and cadets. Noting that the Government does not provide information on this point, the Committee once again refers to its comments under Article II of the Convention, and asks the Government to indicate how effect is given to this Regulation in the case of masters and cadets.
Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee previously noted the Government’s indication that shipowners are required to give seafarers appropriate shore leave. In the absence of information on the corresponding measures adopted to ensure compliance with this obligation, the Committee once again asks the Government to indicate how it is ensured that seafarers are granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions, in accordance with Regulation 2.4, paragraph 2.
Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. The Committee notes that the MSA section 111A (1)(a) and (2) foresees that every seafarer employed or engaged on a South African ship is entitled to leave accrued at the rate of at least 2.5 days per month of employment, and that “month” means a period of 30 days including Saturdays, Sundays and public holidays, as defined in section 1 of the Public Holidays Act, 1994. The Committee requests the Government to clarify if justified absences from work are not considered as annual leave (Standard A2.4, paragraph 2).
Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. In the absence of information on the measures adopted to ensure that any agreement to forgo the minimum annual leave with pay is prohibited, except in cases provided for by the competent authority, the Committee once again requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.5 and Standard A2.5.1, paragraphs 1 to 3. Repatriation. The Committee previously noted that, while sections 114, 116, 140, 154 and 155 of the MSA relate to repatriation, these provisions do not cover all the circumstances in which seafarers are entitled to repatriation under the Convention. The Committee also noted that the MSA does not provide for a maximum period of service on board following which a seafarer is entitled to repatriation, which must be less than 12 months. Moreover, it noted that section 114(3) provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country and who was engaged at a port out of the Republic and discharged at a port outside the Republic. In addition, noting that, pursuant to section 114(2) of the MSA, the shipowner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation, the Committee recalled that while the shipowner may recover the cost of the repatriation under the limited circumstances provided for under Standard A2.5, paragraph 3 (i.e. where the seafarer has been found to be in serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements), this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. With regard to the definition of “proper return port”, the Committee also requested the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation. The Committee therefore requested the Government to indicate how it ensures that all seafarers on board a South African ship are entitled to repatriation in all the circumstances provided for in Standard A2.5.1, paragraphs 1, 2 and 3. It further requested the Government to provide the 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 definition of “proper return port”, the Committee requested the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation. While noting that the Merchant Shipping Bill, 2020, contains provisions which, if adopted, would implement some of the requirements of the Convention, the Committee notes that such provisions do not ensure full conformity with Regulation 2.5 and the related provisions of the Code. Hoping that the relevant amendments will be introduced in the near future to ensure full compliance with Standard A2.5.1, paragraphs 1 to 3, the Committee reiterates its previous request.
Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee previously requested the Government to indicate how it is ensured that all ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code, as provided for in Regulation 2.5, paragraph 2. The Committee notes that Regulation 7(k)(iv) of the Merchant Shipping (Seafarer Recruitment and Placement) Regulations (SRPR), 2017, provides that a seafarer recruitment and placement service must ensure that the shipowner has in place financial protection to cover repatriation costs in the event that the seafarer is stranded in any port. The Committee notes, however, that such provision only addresses the obligations placed on seafarer recruitment and placement services in this respect. The Committee also notes that the DMLC, part I, submitted by the Government, requires the provision of an expeditious and effective financial security system to assist seafarers in the event of abandonment, defined in the same terms as prescribed by Standard A2.5.2, paragraph 2 of the Convention. Ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider, a copy of which must be placed in a conspicuous place on board the vessel, and that completed evidence of financial security forms must be submitted for approval of the Maritime Authority. While taking note of the information contained in the DMLC, Part I, the Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions, indicating the national laws and regulations adopted to give effect to the requirements of Regulation 2.5 and Standard A2.5.2.
Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment Indemnity. In the absence of information in the Government report, the Committee reiterates its previous request to the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.7 and the Code. Manning Levels. The Committee previously noted the power given to the Authority in section 85 of the MSA to grant exceptions to the safe manning provisions, and requested the Government to provide information on its application in practice. Noting the absence of reply from the Government, the Committee once again requests the Government to provide information on the application of this provision in practice. The Committee also requests the Government to provide information on how complaints or disputes about determinations on the safe manning levels on a ship are investigated and settled (see guidance in Guideline B2.7).
Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee previously noted that the DMLC, Part I, indicated that ships constructed after 20 August 2013 shall comply with the accommodation and recreational facility requirements as specified in the Convention, which was yet to be domesticated in South Africa. Taking note of the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, which, if adopted, would generally bring the legislation in conformity with Standard A3.1, the Committee requested the Government to indicate how it is ensuring, while awaiting that the relevant legislation is adopted, that ships constructed after 20 August 2013 comply with the accommodation and recreational facility requirements of the Convention, in accordance with the indication contained in the DMLC, Part I. The Government indicates in its report that the Draft Merchant Shipping (Crew Accommodation) Amendment Regulations, 1961, are still in progress. While noting this information, the Committee notes that the new DMLC, Part I, provided by the Government, indicates that ships constructed before 21 June 2014 shall comply with the Crew Accommodation Regulations, 1961 and that ships constructed after that date shall comply with the accommodation and recreational facilities requirements (regulation 3.1) as specified in the Convention, which is a schedule to the MSA. The Committee also notes that according to section 356bis of the MSA, the Convention has the force of Law in South Africa. The Committee therefore requests the Government to provide a copy of the Draft Merchant Shipping (Crew Accommodation) Amendment Regulations, 1961, once adopted, which would apply to ships constructed before 21 June 2014. With respect to ships constructed after that date, the Committee requests the Government to provide information on the implementation of Standard A3.1, paragraph 19 (variations of accommodation standards for differing religious and social practices), as well as to indicate whether any exemptions for ships of less than 200 gross tonnage have been granted pursuant to Standard A3.1, paragraphs 20 and 21, of the Convention.
Regulation 3.2 and the Code. Food and Catering. The Committee previously noted that section 156(1) of the MSA provides that the master of a South African ship of more than 100 gross tons shall furnish provisions to every seafarer (who does not furnish his/her own provisions) in accordance with the prescribed scale. Noting that the 2007 draft Amendments to the Merchant Shipping (Provisions) Regulations, 1961, as amended, include ships of more than 100 gross tons and do not provide for the possibility that seafarers furnish their own provisions, the Committee requested the Government to indicate the progress made in the adoption of these Amendments. The Committee notes that the Government provides no information on the state of adoption of the 2007 Draft Merchant Shipping (Provisions) Amendment Regulations. The Committee notes, however, that section 119 of the Merchant Shipping Bill, 2020, provides that the owner of a prescribed ship must provide or ensure the provision of free provisions to the seafarers employed on that ship for the period of employment, as required by Regulation 3.2, paragraph 2. The Committee therefore requests the Government to provide information on the adoption of new or amended legislation in compliance with the Convention.
Regulation 3.2 and Standard A3.2, paragraph 2. Food and Catering. Religious and cultural practices. Organization and equipment. Noting that the food supplies provided for in the Annex to the Merchant Shipping (Provisions) Regulations, 1961, as amended, did not take into account the differing cultural and religious backgrounds of seafarers, the Committee previously requested the Government to indicate how effect is given to this requirement of the Convention when determining the suitability of food supplies. It also requested the Government to indicate how effect is given to standard A3.2, paragraph 2(b) regarding the organization and equipment of the catering department. The Committee notes that sections 120 and 121 of the Merchant Shipping Bill, 2020, provide that the master must not take the ship to sea or cause or permit that ship to be taken to sea, unless the ship: i) is carrying (a) drinking water of suitable quality and quantity; (b) food of suitable quality, quantity, nutritive value and variety; and (c) provisions having regard to the nature and duration of the voyage and the number, and cultural and religious backgrounds, of the seafarers employed on the ship; and ii) has catering facilities that are arranged and equipped so as to enable proper meals to be served to the seafarers employed on the ship. Noting that these provisions would bring the legislation in conformity with Standard A3.2, paragraph 2, the Committee requests the Government to provide information on progress made in the adoption of the Merchant Shipping Bill, 2020.
Regulation 4.1 and Standard A4.1, paragraph 1 (c). Medical care on board and ashore. Right to visit a doctor or dentist in ports of call. The Committee notes that, while the Government indicates that the shipowner shall be liable for medical costs on board and ashore, no information is provided on the measures adopted to ensure that seafarers are permitted by the shipowner/master to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Committee therefore requests the Government to indicate how it ensures full compliance with this provision of the Convention.
Regulation 4.1 and Standard A4.1, paragraph 2. Medical care on board and ashore. Standard medical report form. Noting that the Government does not provide any information in reply to its previous request, the Committee asks the Government to provide an example of the standard medical report form for use by the ships’ masters and relevant onshore and onboard medical personnel and to indicate how it is ensured that the form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers.
Regulation 4.1 and Standard A4.1, paragraph 4(b). Medical care on board and ashore. Minimum Requirements. Medical doctor on board. The Committee previously noted that while Regulation 5 of the Ship’s Medicines and Medical Appliances Regulations, 1991, provides that a medical practitioner shall be employed on every Class 1 (that is foreign-going) ship which carries 100 or more persons, Regulation 13 allows the authority to exempt any ship from any of the requirements of these Regulations. Recalling that the Convention does not allow for any exception to the requirement of carrying a qualified medical doctor on ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration, the Committee requested the Government to provide information on the exemptions granted in application of this provision, if any, in particular in relation to Regulation 5. Noting the absence of reply from the Government, the Committee reiterates its previous request.
Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum Requirements. Medical advice by radio or satellite. Noting that the Government does not provide information in reply to the its previous request to indicate how effect is given to this Standard, the Committee notes that, according to the annual report 2018-19, the South African Maritime Safety Authority (SAMSA) assisted in 86 medical advice incidents by connecting vessels to local telemedical services and coordinated the evacuation of 22 crew/passengers from vessels offshore to local hospitals. The Committee also notes that, according to MN No. 14 of 2019, a Maritime Radio Coastal Infrastructure is available. Furthermore, the Committee notes that the South African Search And Rescue Organisation (SASAR), which is available 24h, provides medical advice, an exchange of medical information and recommended treatment for sick or injured persons where treatment cannot be administered directly by prescribing medical personnel, as well as medical evacuation of a seriously ill or injured person on board a vessel at sea. Noting the absence of information on whether medical assistance by radio or satellite is provided free of charge to all ships irrespective of the flag that they fly, the Committee requests the Government to indicate the measures giving full effect to Standard A4.1, paragraph 4(d).
Regulation 4.2 and the Code. Shipowners’ Liability. The Committee previously requested the Government to provide information on the draft Bill published for comments in Notice 356 of 2009 (Government Gazette of 15 April 2009), which would insert a new Chapter IV-A in the MSA providing for financial security for loss of life and personal injury, and on the Merchant Shipping (Seafarer Accident Insurance) Regulations, 2015, advertised for comments in Notice 942 of 2015 (Government Gazette of 25 September 2015), which, when adopted, would give a legal basis to the shipowners’ obligation to provide financial security to assure compensation in the event of death or long-term disability of seafarers due to an occupational injury, illness or hazard. . The Committee notes that the Government does not provide any new information on the adoption of such drafts, the Committee notes that the Merchant Shipping Bill, 2020, provides that the owner of a ship must maintain insurance or other financial security to provide compensation for every seafarer belonging to the ship who suffers loss of life or personal injury as a result of an accident and that such insurance or financial security must be evidenced by a certificate, which must be carried on board the ship at all times. The Committee further notes that section 16 of the DMLC, Part I, submitted by the Government, refers succinctly to the financial security relating to shipowners liability. While noting this information, the Committee recalls that, in relation to the 2014 amendments to the Code of the Convention, pursuant to Standards A4.2. and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures?  The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of an example of the kind of certificate or other documentary evidence of financial security that must be provided by shipowners containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).
Regulation 4.2 and Standard A4.2.1, paragraph 2. Shipowners’ liability. Expenses of medical care and board and lodging away from home. Limits. The Committee previously noted that section 140(1)(b) of the MSA limits to a maximum of 60 days the period for which a seafarer shall be entitled to receive wages in case of incapacity for work resulting from illness or injury; and that section 169(1) limits the shipowner liability to cover medical and other expenses incurred due to illness or injury until the seafarer concerned is cured or dies or is returned to and arrives at a proper return port. Noting that the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board may be limited to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness, the Committee requested the Government to indicate how effect is given to Standard A4.2, paragraphs 2 and 4. Noting that the Government does not provide relevant information in reply to its request and that the Merchant Shipping Bill, 2020, does not address this issue, requests the Government to indicate the measures adopted to ensure full conformity with this provision of the Convention.
Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee previously noted that section 140(1)(b) of the MSA provides for an exception to seafarers’ entitlement to wages in cases of sickness or injury when the seafarer unreasonably refused medical treatment for such sickness or injury. The Committee recalled that such exclusion is not permitted by Standard A4.2, paragraph 5, and requested the Government to explain how it gives full effect to this provision of the Convention. Noting that the Government does not provide relevant information in reply to its request and that the Merchant Shipping Bill, 2020, does not address this issue, the Committee requests the Government to indicate the measures adopted to ensure full conformity with this provision of the Convention.
Regulation 4.5 and Standard A4.5, paragraphs 1-3. Social security. Branches. Protection for seafarers ordinarily resident in its territory. Recalling that, at the time of ratification, the Government has specified sickness benefit; unemployment benefit, employment injury benefit and maternity benefit as the branches of social security for which protection is provided, and noting the Government’s indication that no maternity benefit is given to seafarers ordinarily resident in the country, unless provided for in the contract of employment, the Committee previously requested the Government to indicate how it envisaged to give effect to its obligations in this respect. The Committee notes the Government’s reply indicating that the maternity benefit may be claimed from the Unemployment Insurance Fund (UIF) administered by the Department of Labour. While noting this information, the Committee requests the Government to provide statistical information on the number of seafarers who are actually affiliated to the Unemployment Insurance Fund. The Committee further requests the Government to provide detailed information on all the measures that provide seafarers ordinarily resident in South Africa with protection for the branches which it has declared applicable, specifying the applicable national provisions and including details of the benefits provided under each of the branches mentioned above.
Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee previously noted that the Government has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. Recalling that, although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6 requires Members to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security, the Committee requested the Government to provide information on any measures adopted to give effect to this provision of the Convention. Noting the absence of reply from the Government, the Committee reiterates its previous request.
Regulation 4.5 and Standard A4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee requests the Government to provide information on the procedures of the settlement of disputes relating to social security for seafarers, as per Standard A4.5, paragraph 9 of the Convention.
Regulation 5.1.1 and the Code. Flag State responsibilities. General principles.  The Government indicates in its report that it conducts flag state inspections and an audit of recognised organisations through SAMSA. The Committee notes, however, that the Government does not provide any information regarding the objectives and standards established for the inspection and certification system, as well as on the specific measures taken to ensure the effectiveness of the system in place for the inspection and certification of maritime labour conditions on ships. Noting that the Government did not provide, in its first and second reports, information on the objectives and standards defined for the inspection and certification system, and on the methods in place for its assessment (Regulation 5.1.1, paragraphs 1 and 5) the Committee requests the Government to provide detailed information in this respect.
Regulation 5.1.2 and the Code. Authorization of recognized organizations. The Committee notes the Government’s indication that the organizations recognized for the purposes of carrying out inspection and certification functions follow the guidelines established by the International Maritime Organization in its Resolution No. A.739(18). The Committee emphasizes the need to take into account specific standards in this field, including Standard A5.1.2 and Guideline B5.1.2 of the Convention. While taking note of the list of recognized organizations contained in Marine Notice No. 40 of 2016, the Committee notes that such list does not include an indication of the functions that they are authorized to carry out, and the Government has not provided information concerning the relevant legislation or other measures governing the authorization of such recognized organizations. The Committee therefore requests the Government, on the one hand, to provide information on the laws and regulations or other measures governing the authorization of recognized organizations and, on the other, to provide the Office with the information required by paragraph 4 of Standard A5.1.2.
Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. Implementing legislation. The Committee notes with interest that the Maritime Labour Certificate and Declaration of Compliance Regulations, 2017 were adopted and published in the Government Gazette of 6 June 2017 and give effect to most of South Africa’s obligations under Regulation 5.1.3. The Committee notes this information, which addresses its previous request.
Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee previously requested the Government to review the DMLC, Part I, so as to ensure that it provides a reference to the national legal provisions embodying the relevant provisions of the Convention as well as concise information on the main content of the national requirements. It also requested the Government to ensure that the DMLC, Part II, approved by the competent authority provides specific information on the ways in which the national requirements are to be implemented between inspections. The Committee notes that the Government has revised the DMLC Part I and that the copy submitted by the Government contains information on the 16 matters to be inspected in line with the relevant provisions of the MLC, 2006, as well as reference to the national legal provisions and concise information on their main content. The Committee also takes note of the example of an approved DMLC, Part II, that has been drawn up by a shipowner to set out the measures adopted to ensure ongoing compliance with the national requirements and measures proposed to ensure that there is continuous improvement, as provided under Standard A5.1.3, paragraph 10(b). The Committee notes this information, which addresses its previous request.
Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee notes that, while Regulation 11 of the Maritime Labour Certificate and Declaration of Compliance Regulations, 2017, enumerates the cases in which a maritime labour certificate and a Declaration of Maritime Compliance may be suspended or cancelled, these do not include the circumstances in which a Maritime Labour Certificate shall cease to be valid (Standard A5.1.3, paragraphs 14 and 15; Guideline B5.1.3, paragraph 6) and must be withdrawn (Standard A5.1.3, paragraphs 16 and 17) according to the Convention. The Committee therefore requests the Government to indicate the measures adopted to ensure full conformity with these requirements of the Convention.
Regulation 5.1.4 and Standard A5.1.4, paragraphs 2 and 3. Flag State responsibilities. Inspection and enforcement. Qualified inspectors.  The Committee notes the Government’s indication that appointed Flag State Inspectors are STCW Deck and Engineer Officers who have undertaken in-house and/or ILO training. While noting this information, the Committee requests the Government to indicate the national measures adopted to ensure that inspectors have the competence, terms of reference and powers necessary so as to enable them to carry out verifications that the measures relating to working and living conditions are being followed, and that the requirements of this Convention are met (Standard A5.1.4, paragraph 3).
Regulation 5.1.4 and Standard A5.1.4, paragraph 6. Flag State responsibilities. Inspection and enforcement. Independence of inspectors. The Committee notes that section 4 of the MSA provides that SAMSA may appoint any qualified person whom it deems fit to act as a surveyor to inspect any South African ship wherever she may be or any ship not registered in the Republic while she is within the Republic or the territorial waters of the Republic for the purpose of ascertaining whether she complies with the provisions of this Act. The Committee also notes the Government’s statement that surveyors are not Government employees or civil servants. Recalling that adequate rules must be provided and enforced to guarantee that inspectors have a status and conditions of service ensuring that they are independent of changes of Government and of improper external influences, as required by Standard A5.1.4, paragraphs 6, 11(a) and 17 of the Convention, the Committee requests the Government to indicate how it gives effect to these provisions of the Convention.
Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. The Committee previously requested the Government to indicate the measures taken to prohibit and penalize any kind of victimization of a seafarer for filing a complaint. The Committee notes that section 158A of the MSA and Marine Notice No. 48 of 9 October 2020, which provides the standard form which the seafarer may use to file complaints, regulate onboard complaints procedures and include safeguards against victimization of the seafarer, notably the right for the seafarer i) to obtain guidance or to submit the complaint directly to the Competent Authority; and ii) to be accompanied and represented by a labour organization or by another seafarer of their choice on board the ship concerned at all times. The Committee also notes that any claims of victimisation should be investigated by the master or shipowner and where instances of victimisation are found to occur, these must be dealt with under the Company's disciplinary procedures in the shortest possible time, and the outcome reported to the Competent Authority. The Committee notes this information, which addresses its previous request.
Regulation 5.2.1. Port State responsibilities. The Committee previously noted that the national port State control system was under development and requested the Government to indicate the measures taken to establish an effective port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention, including the method used for assessing its effectiveness, as provided for under Regulation 5.2.1. The Government indicates in its report that the national port State control system is still under development and that inspectors use the ILO guidelines on port State control, having carried out 63 detailed inspections to Standard A5.2.1. Regarding compensation to be paid for any loss or damage for a ship being unduly detained or delayed, the Government states that any loss or damage from the wrongful exercise of the inspectors' powers would require the shipowner to approach SAMSA, and in the event that the shipowner was not satisfied with the decision of the Authority, relief would require an approach through the judicial systems of the Republic. The Committee also notes that South Africa is a Member to the Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU) as well as to the Memorandum of Understanding on Port State Control for the West and Central Africa Region (Abuja MoU). The Abuja MoU includes among the relevant instruments underlying its port State control mechanism, the MLC, 2006, the 1978 International Convention on Seafarer Training, Patenting and Watch Standards, as amended (STCW) and the Convention (No. 147) on Merchant Marine (minimum standards), 1976. While recognising the value of the coordinated implementation of inspections under port State control at the level of these regional organizations, the Committee recalls that national authorities have an obligation to give full effect to the provisions of the MLC, 2006, in their own legislation. Hoping that, in its next report, the Government will be able to submit information on the establishment of an effective port State control inspection and monitoring system to verify conformity with the requirements of the Convention, the Committee requests the Government to provide detailed information on the procedures established at the national level to implement its port State responsibilities under the MLC, 2006.
Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee takes note of Marine Notice No. 15 of 2019, which provides the national contact point for all complaints which are to be lodged with the National Authority (SAMSA), concerning the breach or alleged breach of seafarers’ rights as stipulated under the Convention, including for seafarers on board foreign flagged vessels calling at a South African port. The Committee also notes the Government’s statement that SAMSA’s whistleblower policy ensures confidentiality. The Committee notes however that the Government does not provide concrete information on the functioning of the onshore complaint-handling procedure in its administration, including on the possibility to conduct a more detailed inspection in accordance with Standard A5.2.1. The Committee therefore requests the Government to inform how it implements in practice the provisions of Regulation 5.2.2 and Standard A5.2.2. The Committee also requests the Government to indicate the number of complaints filed and resolved with the maritime authority, as well as the text of any document presenting the procedures for processing complaints onshore.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2016.
Repetition
The Committee takes note of the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee notes that South Africa had not previously ratified other Conventions on maritime labour. The Committee notes the efforts achieved and measures taken, particularly through the adoption of legislation and regulations, for the implementation of the Convention. 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 of the Convention. Seafarers. The Committee notes that section 2(1) of the Merchant Shipping Act, 1951 (MSA), as amended (most recently by the Merchant Shipping Amendment Act, 2015), defines “seafarer” as “any person (except a master, pilot or cadet) employed or engaged in any capacity as a member of the crew of a ship”. It also notes that, while masters and cadets are not included in the definition of “seafarer” for the purposes of this Act, a number of provisions of this Act apply to cadets or masters, or include a specific indication that the section concerned also applies to these categories of workers. The Committee recalls that the Convention does not allow for the partial application of the national law implementing its provision if the workers concerned are seafarers covered by the Convention. Recalling that under Article II, paragraph (f), “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies, the Committee requests the Government to consider amending the definition of “seafarer” contained in section 2(1) of the MSA.
Article III. Fundamental rights and principles. South Africa has ratified all the ILO fundamental Conventions. Concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), in relation to seafarers, the Committee has been raising the need to revise a number of provisions of the MSA, as amended (most recently by the Merchant Shipping Amendment Act, 2015), which provide for imprisonment of seafarers (involving compulsory labour) for certain offences. It therefore draws the Government’s particular attention to its comments under Convention No. 105.
Article VII. Consultations. The Committee notes the Government’s indication that the South African Transport and Allied Workers Union (SATAWU) and the South African Association of Ship Operators and Agents (SAASOA) are the organizations that the competent authority consults in matters relating to the implementation of the Convention. The Committee draws the Government’s attention to the fact that a number of provisions of the Convention specifically require consultations, such as Standard A1.1, paragraph 4 (types of work likely to jeopardize the health or safety of seafarers under 18), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.1, paragraph 5 (minimum notice periods for the early termination of a seafarers’ employment agreement), Standard A3.1, paragraph 2 (accommodation and recreational facilities), Regulation 4.3, paragraph 2 (national guidelines for the management of occupational safety and health on board ships). Noting that the Government has not indicated whether consultations have taken place when required by the relevant provisions of the Convention, the Committee requests the Government to provide information in this regard.
Regulation 1.1 and Standard A1.1, paragraph 4. Prohibition of hazardous work for persons under the age of 18. The Committee notes that section 10(3)(a) of the Maritime Occupational Safety Regulations, 1994, provides that the safety officer shall ensure that the crew of the vessel comply with the provisions of the Code of Safe Working Practices for Merchant Seamen. It notes the Government’s reference to various provisions of this Code, in particular concerning work at height, laundry equipment and maintenance of certain machines. However, these provisions do not contain a prohibition of the specific types of work concerned but they indicate under which conditions persons under the age of 18 may perform such work. The Committee recalls that Standard A1.1, paragraph 4, 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, and that 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. In this respect, the Committee notes that the “Regulations on hazardous work by children in South Africa” adopted on 15 January 2010 include the prohibition in the case of persons under 18 of such work as: (i) work involving exposure to a hazardous substance; (ii) work in a confined space; (iii) work at a height of more than 5 metres above the floor; or (iv) work involving the lifting of heavy weights. However, these Regulations do not contain provisions that deal expressly with work on board seagoing ships. The Committee therefore requests the Government to indicate the measures taken or envisaged to prohibit the work likely to jeopardize the health or safety of seafarers under the age of 18 and to adopt a list of the types of such work.
Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Draft Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2015, published in the Government Gazette of 25 September 2015, which would give effect to most of the provisions of Regulation 1.4 and the Code. It notes, however, that the current draft does not address the content of Standard A1.4, paragraph 9, which states that each Member which has ratified the Convention shall require that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories in which this Convention does not apply, ensure, as far as practicable, that those services meet the requirements of this Standard. The Committee requests the Government to provide information on the promulgation of the draft Regulations and to indicate the measures taken or envisaged to give effect to Standard A1.4, paragraph 9, of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreement (SEA) to be signed by the shipowner. The Committee notes that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalls that any signatory of the SEA other than a shipowner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the shipowner. The Committee requests the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner’s representative as required by Standard A2.1, paragraph 1(a).
Regulation 2.1 and Standard A2.1, paragraph 1(c). Shipowner and seafarer to have a signed original of the SEA. The Committee notes that section 103(c) of the MSA provides that when the crew is first engaged the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master. Recalling that Standard A2.1, paragraph 1(c), provides that the shipowner and seafarer concerned shall each have a signed original of the SEA, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 2. Seafarers’ employment agreement to be available in English. The Committee recalls that Standard A2.1, paragraph 2, provides that where the language of the seafarers’ employment agreement and any applicable collective bargaining agreement is not in English, a copy of a standard form of the agreement and the portions of the collective bargaining agreement that are subject to a port State inspection shall also be available in English (except for ships engaged only in domestic voyages). In the absence of information on the application of this provision, the Committee requests the Government to indicate how effect is given to this requirement of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ record of employment. The Committee notes that section 113(2) and (4) of the MSA provides that, upon the discharge of a seafarer, the master shall issue to the seafarer a certificate of his/her discharge in the prescribed form and that when the master declines to express an opinion on the conduct, character and ability of the seafarer, the discharge shall be made before a proper officer, to whom he/she shall furnish a report in the prescribed form stating that he/she so declines, and, if the seafarer so desires, the proper officer shall give to him/her or endorse on his/her certificate of discharge a copy of such report. The Committee also notes the form for seafarers’ Record Book and Certificates of Discharge contained in the Merchant Shipping (Seamen’s Documents) Regulations, 2000, which includes a “report of character”. The Committee recalls that Standard A2.1, paragraph 3, provides that the document to be given to seafarers, containing a record of their employment on board the ship, shall not contain any statement as to the quality of the seafarers’ work. The Committee requests the Government to indicate how conformity with Standard A2.1, paragraph 3, is ensured.
Regulation 2.1 and Standard A2.1, paragraph 4. Content of the SEA. The Committee notes that section 102(3) of the MSA provides for the particulars to be contained in the agreement with the crew. This section does not include the particulars specified in Standard A2.1, paragraph 4(a–c) and (g). The Committee requests the Government to indicate how it is ensured that the particulars to be contained in the SEA include the seafarer’s full name, date of birth or age, and birthplace; the shipowner’s name and address; the place where and date when the seafarers’ employment agreement is entered into; and the conditions of termination of the agreement, in conformity with Standard A2.1, paragraph 4(g).
Standard A2.1, paragraph 6. Shorter notice period for compassionate or other urgent reasons. The Committee notes that the Government indicates, in relation to this Standard, that no circumstances justifying termination of the employment agreement at shorter notice or without notice have been provided for in national laws or regulations or collective agreements. The Committee recalls that, according to Standard A2.1, paragraph 6, in determining the circumstances in which a notice period shorter than the minimum may be given, each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. The Committee requests the Government to indicate how effect is given to Standard A2.1, paragraph 6.
Regulation 2.1 and the Code. Masters’ SEA. The Committee notes that the provisions of the MSA which implement Regulation 2.1 do not cover masters. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of masters.
Regulation 2.2, paragraph 1, and Standard A2.2, paragraph 1. Regular payment of wages. The Committee notes that section 122 of the MSA which addresses the time of payment of wages does not provide that payments due to seafarers are made at no greater than monthly intervals and in accordance with any applicable collective agreement. The Committee therefore requests the Government to indicate how effect is given to this requirement, in accordance with Standard A2.2, paragraph 1.
Regulation 2.2 and the Code. Wages of cadets. The Committee notes that the provisions of the MSA which implement Regulation 2.2 do not cover cadets. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of cadets.
Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of rest. The Committee notes that the Government has decided to apply the system of minimum hours of rest. It further notes that Regulation 93(2) of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013 provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of ten hours of rest in any 24-hour period; and (b) 77 hours in any seven-day period. The Committee requests the Government to indicate how effect is given to Standard A2.3, paragraphs 2 and 5, in the case of seafarers who are not covered by Regulation 93(2).
Regulation 2.3 and Standard A2.3, paragraphs 5, 6 and 13. Exceptions to the hours of rest. The Committee notes that paragraphs 9–11 of Regulation 93 of the Merchant Shipping (Safe Manning, Certification and Training) Regulations 2013, provide for possible exceptions to the hours of rest. Recalling that exceptions to the hours of rest, including those provided by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, may only be permitted by collective agreements authorized or registered by the competent authority in accordance with national laws or regulations, as provided for in paragraph 13 of Standard A2.3, the Committee requests the Government to review paragraphs 9–11 of Regulation 93 so as to ensure conformity with the Convention.
Regulation 2.4 and the Code. Entitlement to leave for masters and cadets. The Committee notes that the provisions of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which implement Regulation 2.4 do not cover masters and cadets. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of masters and cadets.
Regulation 2.4, paragraph 2. Shore leave. The Committee notes the Government’s indication that shipowners are required to give seafarers appropriate shore leave. In the absence of information on the corresponding measures adopted to ensure compliance with this obligation, the Committee requests the Government to indicate how it is ensured that seafarers are granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions, in accordance with Regulation 2.4, paragraph 2.
Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. In the absence of information on the measures adopted to ensure that any agreement to forgo the minimum annual leave with pay is prohibited, except in cases provided for by the competent authority, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.5, paragraph 2, and the Code. Financial security for repatriation. The Committee notes that the Draft Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2015, provide that seafarer recruitment and placement services must ensure that the shipowner has in place financial protection to cover repatriation costs in the event of the seafarer being stranded in any port (draft Regulation 7(1)(k)(iv)). While it hopes that these draft Regulations will be promulgated in the near future, the Committee notes that such provision only addresses the obligations placed on seafarer recruitment and placement services in this respect. The Committee requests the Government to indicate how it is ensured that all ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code, as provided for in Regulation 2.5, paragraph 2.
Regulation 2.5 and Standard A2.5, paragraphs 1–3. Entitlement to repatriation. The Committee notes the Government’s indication that circumstances for repatriation include illness, injury, death, loss and or abandonment of vessel, bankruptcy of the owner and/or recruitment agency and termination of service. It notes, however, that the Government does not specify under which provisions of the relevant legislation or collective agreement or other measures this entitlement to repatriation is guaranteed. It also notes that, while various provisions of the MSA relate to repatriation, in particular sections 114 and 140 which address cases where the seafarer’s service terminates before the expiration of the period of engagement, section 116 which concerns cases of change of ownership, and sections 154 and 155 which relate to distressed seafarers, these provisions do not cover all the circumstances mentioned by the Government, nor all those provided for in Standard A2.5. The Committee further notes that these provisions do not provide for a maximum period of service on board following which a seafarer is entitled to repatriation, which must be less than 12 months. Moreover, it notes that section 114(3) which provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country (other than the Republic) and who was engaged at a port out of the Republic and discharged at a port outside the Republic. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to indicate how it ensures that all seafarers on board a South African ship are entitled to repatriation in all the circumstances provided for in Standard A2.5, paragraphs 1 and 2. In addition, noting that, pursuant to section 114(2) of the MSA, the shipowner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation, the Committee recalls that while the shipowner may recover the cost of the repatriation, under the limited circumstances provided for under Standard A2.5, paragraph 3 (i.e. 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 A2.5.2 of the Convention, Members shall require a financial security system to assist abandoned seafarers for ships flying its flag. It notes that seafarers are deemed abandoned, among others, 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. It 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”. Finally, with regard to the definition of “proper return port” contained in section 2(1) of the MSA, which provides for the proper officer to decide which port, among three options, is to be considered as such, the Committee draws the Government’s attention to Guideline B2.5.1, paragraph 7, which provides that seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. It therefore requests the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation.
Regulation 2.6 and Standard A2.6, paragraph 1. Indemnity against unemployment resulting from the ship’s loss or foundering. In the absence of information, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.7. Safe manning. The Committee notes that section 85 of the MSA provides that the Authority may, at its discretion and for such periods and under such conditions as it may specify if it is satisfied that no suitable holder of a certificate of the required grade is available, permit a South African ship to go to sea from any port whatsoever or a ship other than a South African ship to go to sea from a port in the Republic without the prescribed number of certificated officers or other persons. Noting the power given to the Authority in this provision to grant exceptions to the safe manning provisions, the Committee requests the Government to provide information on its application in practice.
Standard A3.1, paragraph 1. Accommodation and recreational facilities. Implementing legislation. The Committee notes that the Declaration of the Maritime Labour Compliance (DMLC), Part I, provided by the Government, indicates that ships constructed after 20 August 2013 shall comply with the accommodation and recreational facility requirements as specified in the Convention which was yet to be domesticated in South Africa. It also notes the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, which, if adopted, would generally bring the legislation in conformity with Standard A3.1. The Committee requests the Government to provide information on the developments related to the adoption of these amendments. It hopes that the Government will take into account its comments formulated below in relation to Standard A3.1 when finalizing these amendments. It also requests the Government to indicate how it is ensuring, while awaiting that the relevant legislation is adopted, that ships constructed after 20 August 2013 comply with the accommodation and recreational facility requirements of the Convention, in accordance with the indication contained in the DMLC, Part I.
Standard A3.1, paragraph 6(a). Minimum headroom in seafarer accommodation. The Committee notes that the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, provide for a revised Regulation 6(1), as follows: “in every ship the height of the crew accommodation measured from the deck to the deck head shall not be less than 2.1 metres; the Authority may, in respect of store rooms and sanitary accommodation, permit some reduction in head room”. The Committee also notes that the draft Amendments do not provide for a revision of Regulation 6(2) which provides that, in sleeping rooms, headroom shall be at least 6 feet 3 inches (which corresponds to 1.9 metres and therefore is not in conformity with the minimum of 203 centimetres provided for in the Convention). When finalizing the Amendments, the Committee therefore requests the Government to review Regulation 6(2) and, in relation to the draft Amendments to Regulation 6(1), to ensure that the competent authority may only permit some limited reduction in headroom in any space, or part of any space, in seafarer accommodation, where it is satisfied that such reduction: (i) is reasonable; and (ii) will not result in discomfort to the seafarers, as provided for in Standard A3.1, paragraph 6(a).
Standard A3.1, paragraph 9. Sleeping accommodation. The Committee notes that the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, include a number of provisions which would bring the national legislation into conformity with most of the content of Standard A3.1, paragraph 9. However, its paragraph (l) – which concerns floor areas for seafarers performing the duties of ships’ officers where no private sitting room or day room is provided on passenger ships and special purpose ships, and paragraph (m) – which concerns additional room for the master, the chief engineer and the chief navigating officer, do not seem to be covered. When finalizing the Amendments, the Committee therefore requests the Government to ensure that Standard A3.1, paragraph 9(l) and (m), are taken into account.
Standard A3.1, paragraph 21. Possible exemptions in relation to crew accommodation. The Committee notes that a number of possible exemptions to the requirements relating to crew accommodation are provided for in the Crew Accommodation Regulations, 1961, as amended. The Committee draws the Government’s attention to the need to review these Regulations so as to ensure that any exemptions may be made only where they are expressly permitted in Standard A3.1 and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety, as provided for in Standard A3.1, paragraph 21. The Committee requests the Government to provide information on any measures taken or envisaged in this respect.
Regulation 3.2. Free food and drinking water for all seafarers. The Committee notes that section 156(1) of the MSA provides that the master of a South African ship of more than 100 gross tons shall furnish provisions to every seafarer (who does not furnish his/her own provisions) in accordance with the prescribed scale. It further notes the Merchant Shipping (Provisions) Regulations, 1961, as amended, which implement the MSA on this matter. The Committee recalls that, under Regulation 3.2, seafarers on board a ship shall be provided with food free of charge during the period of engagement and that no exception is permitted in this regard. It notes that the 2007 draft Amendments to these Regulations provide that every seafarer shall be furnished with provisions in accordance with the scale set forth in the Annex to the Regulations. The draft Amendments therefore include ships of more than 100 gross tons and do not provide for the possibility that seafarers furnish their own provisions. The Committee requests the Government to indicate the progress made in the adoption of these Amendments, and to take into account its comments related to the application of Regulation 3.2 when finalizing them.
Regulation 3.2, paragraph 1, and Standard A3.2, paragraph 2(a). Food supplies to take into account the differing cultural and religious backgrounds of seafarers. The Committee notes that the food supplies provided for in the Annex to the Merchant Shipping (Provisions) Regulations, 1961, as amended, do not seem to take into account the differing cultural and religious backgrounds of seafarers. It requests the Government to indicate how effect is given to the requirement that the differing cultural and religious backgrounds of seafarers are taken into account when determining the suitability of food supplies.
Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. The Committee recalls that this Standard provides that the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions. In the absence of information on this matter, the Committee requests the Government to indicate how effect is given to Standard A3.2, paragraph 2(b).
Standard A4.1, paragraph 2. Standard medical report form. In the absence of information, the Committee requests the Government to indicate how effect is given to this Standard which provides that the competent authority shall adopt a standard medical report form for use by the ships’ masters and relevant onshore and onboard medical personnel and that the form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers.
Standard A4.1, paragraph 4(b). Medical doctor on board. The Committee notes that Regulation 5 of the Ship’s Medicines and Medical Appliances Regulations, 1991, provides that a medical practitioner shall be employed on every Class 1 (that is foreign-going) ship which carries 100 or more persons. It also notes that Regulation 13 allows the authority to exempt any ship from any of the requirements of these Regulations. The Committee recalls that the Convention does not allow for any exception to the requirement of carrying a qualified medical doctor on ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration. The Committee requests the Government to provide information on the exemptions granted in application of this provision, if any, in particular in relation to Regulation 5.
Standard A4.1, paragraph 4(d). Free medical advice to all ships. In the absence of information, the Committee requests the Government to indicate how effect is given to this Standard which provides that the competent authority shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day; and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, shall be available free of charge to all ships irrespective of the flag that they fly.
Standard A4.2, paragraph 1(b). Financial security in the event of death or long-term disability. The Committee notes that the DMLC, Part I, indicates that shipowners must have appropriate protection and indemnity cover for the costs related to seafarers’ sickness and injury. It also notes the Government’s reference to a draft Bill for the amendment of the MSA, which would insert a new Chapter IVA to this Act providing for financial security for loss of life and personal injury. While this draft has been published for comments in Notice 356 of 2009 (Government Gazette of 15 April 2009), no information has been provided on its current status. Similarly, no information has been provided on the current status of its implementing regulations, the Merchant Shipping (Seafarer Accident Insurance) Regulations, 2015, which have been advertised for comments in Notice 942 of 2015 (Government Gazette of 25 September 2015). The Committee therefore requests the Government to provide information on the current status of the draft Bill and Regulations, which, when adopted, would give a legal basis to the shipowners’ obligation to provide financial security to assure compensation in the event of death or long-term disability of seafarers due to an occupational injury, illness or hazard.
Standard A4.2, paragraphs 2 and 4. Minimum duration of the shipowners’ liability. The Committee notes that section 140(1)(b) of the MSA provides that the period for which a seafarer shall be entitled to receive wages in case of incapacity for work resulting from illness or injury is limited to a maximum of 60 days; and that section 169(1) provides that the shipowner is liable to cover medical and other expenses incurred due to illness or injury until the seafarer concerned is cured or dies or is returned to and arrives at a proper return port. The Committee requests the Government to indicate how effect is given to Standard A4.2, paragraphs 2 and 4, which provide that the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board may be limited to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness.
Standard A4.2, paragraph 5. Possible exclusion of the shipowner’s liability. The Committee notes that section 140(1)(b) of the MSA provides for an exception to seafarers’ entitlement to wages in cases of sickness or injury when the seafarer unreasonably refused medical treatment for such sickness or injury. The Committee notes that, as a consequence to this exception, shipowners would not be liable to bear costs in such cases. Since this exception does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2, paragraph 5, the Committee requests the Government to explain how it gives full effect to this provision of the Convention.
Standard A4.5, paragraph 2. Maternity benefit. The Committee notes that, at the time of ratification, the Government has specified the following branches of social security for which protection is provided: sickness benefit; unemployment benefit; employment injury benefit and maternity benefit. Noting that the Government indicates that no maternity benefit is given to seafarers ordinarily resident in the country, unless provided for in the contract of employment, the Committee requests the Government to indicate how it envisages to give effect to its obligations in this respect.
Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee notes the Government’s indication that it has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. The Committee recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6, provides that Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to provide information on any measures adopted to give effect to Standard A4.5, paragraph 6.
Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. Implementing legislation. The Committee notes the draft Merchant Shipping (Maritime Labour Convention) Regulations, 2015, which have been published for comments in the Government Gazette of 2 October 2015. When adopted, these draft Regulations would generally give effect to South Africa’s obligations under Regulation 5.1.3. The Committee therefore requests the Government to provide information on the adoption of these Regulations.
Standard A5.1.3, paragraph 10 (a). Content of Part I of the DMLC. The Committee notes the copy of the Maritime Labour Certificate and DMLC, Part I, as well as the example of an approved DMLC, Part II, provided by the Government. It notes that, in relation to a number of Regulations, the DMLC, Part I only refers to the provisions of the Convention and not to the national requirements embodying those provisions. It understands that this is mainly due to the fact that implementing legislation is currently being developed. Concerning the DMLC, Part II, which is intended to identify the measures adopted by shipowners to implement the national requirements, the Committee notes that the example provided does not contain any information on such measures. The Committee considers that the DMLC, Parts I and II, do not appear to fulfil the purpose for which they are required under the Convention which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ships. The Committee requests the Government to review the DMLC, Part I, as the implementing legislation is adopted, and taking into account the Committee’s comments in relation to existing legislation, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements. The Committee requests the Government to ensure that the DMLC, Part II, approved by the competent authority provide specific information on the ways in which the national requirements are to be implemented between inspections.
Regulation 5.1.5, paragraph 2. In the absence of information on the implementation of this Regulation, the Committee requests the Government to indicate the measures taken to prohibit and penalize any kind of victimization of a seafarer for filing a complaint.
Regulation 5.2.1. Port State responsibilities. The Committee notes the Government’s indication that the national port State control system is under development. The Committee requests the Government to indicate the measures taken to establish an effective port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention, including the method used for assessing its effectiveness, as provided for under Regulation 5.2.1.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee takes note of the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee notes that South Africa had not previously ratified other Conventions on maritime labour. The Committee notes the efforts achieved and measures taken, particularly through the adoption of legislation and regulations, for the implementation of the Convention. 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 of the Convention. Seafarers. The Committee notes that section 2(1) of the Merchant Shipping Act, 1951 (MSA), as amended (most recently by the Merchant Shipping Amendment Act, 2015), defines “seafarer” as “any person (except a master, pilot or cadet) employed or engaged in any capacity as a member of the crew of a ship”. It also notes that, while masters and cadets are not included in the definition of “seafarer” for the purposes of this Act, a number of provisions of this Act apply to cadets or masters, or include a specific indication that the section concerned also applies to these categories of workers. The Committee recalls that the Convention does not allow for the partial application of the national law implementing its provision if the workers concerned are seafarers covered by the Convention. Recalling that under Article II, paragraph (f), “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies, the Committee requests the Government to consider amending the definition of “seafarer” contained in section 2(1) of the MSA.
Article III. Fundamental rights and principles. South Africa has ratified all the ILO fundamental Conventions. Concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), in relation to seafarers, the Committee has been raising the need to revise a number of provisions of the MSA, as amended (most recently by the Merchant Shipping Amendment Act, 2015), which provide for imprisonment of seafarers (involving compulsory labour) for certain offences. It therefore draws the Government’s particular attention to its comments under Convention No. 105.
Article VII. Consultations. The Committee notes the Government’s indication that the South African Transport and Allied Workers Union (SATAWU) and the South African Association of Ship Operators and Agents (SAASOA) are the organizations that the competent authority consults in matters relating to the implementation of the Convention. The Committee draws the Government’s attention to the fact that a number of provisions of the Convention specifically require consultations, such as Standard A1.1, paragraph 4 (types of work likely to jeopardize the health or safety of seafarers under 18), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.1, paragraph 5 (minimum notice periods for the early termination of a seafarers’ employment agreement), Standard A3.1, paragraph 2 (accommodation and recreational facilities), Regulation 4.3, paragraph 2 (national guidelines for the management of occupational safety and health on board ships). Noting that the Government has not indicated whether consultations have taken place when required by the relevant provisions of the Convention, the Committee requests the Government to provide information in this regard.
Regulation 1.1 and Standard A1.1, paragraph 4. Prohibition of hazardous work for persons under the age of 18. The Committee notes that section 10(3)(a) of the Maritime Occupational Safety Regulations, 1994, provides that the safety officer shall ensure that the crew of the vessel comply with the provisions of the Code of Safe Working Practices for Merchant Seamen. It notes the Government’s reference to various provisions of this Code, in particular concerning work at height, laundry equipment and maintenance of certain machines. However, these provisions do not contain a prohibition of the specific types of work concerned but they indicate under which conditions persons under the age of 18 may perform such work. The Committee recalls that Standard A1.1, paragraph 4, 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, and that 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. In this respect, the Committee notes that the “Regulations on hazardous work by children in South Africa” adopted on 15 January 2010 include the prohibition in the case of persons under 18 of such work as: (i) work involving exposure to a hazardous substance; (ii) work in a confined space; (iii) work at a height of more than 5 metres above the floor; or (iv) work involving the lifting of heavy weights. However, these Regulations do not contain provisions that deal expressly with work on board seagoing ships. The Committee therefore requests the Government to indicate the measures taken or envisaged to prohibit the work likely to jeopardize the health or safety of seafarers under the age of 18 and to adopt a list of the types of such work.
Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Draft Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2015, published in the Government Gazette of 25 September 2015, which would give effect to most of the provisions of Regulation 1.4 and the Code. It notes, however, that the current draft does not address the content of Standard A1.4, paragraph 9, which states that each Member which has ratified the Convention shall require that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories in which this Convention does not apply, ensure, as far as practicable, that those services meet the requirements of this Standard. The Committee requests the Government to provide information on the promulgation of the draft Regulations and to indicate the measures taken or envisaged to give effect to Standard A1.4, paragraph 9, of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreement (SEA) to be signed by the shipowner. The Committee notes that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalls that any signatory of the SEA other than a shipowner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the shipowner. The Committee requests the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner’s representative as required by Standard A2.1, paragraph 1(a).
Regulation 2.1 and Standard A2.1, paragraph 1(c). Shipowner and seafarer to have a signed original of the SEA. The Committee notes that section 103(c) of the MSA provides that when the crew is first engaged the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master. Recalling that Standard A2.1, paragraph 1(c), provides that the shipowner and seafarer concerned shall each have a signed original of the SEA, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 2. Seafarers’ employment agreement to be available in English. The Committee recalls that Standard A2.1, paragraph 2, provides that where the language of the seafarers’ employment agreement and any applicable collective bargaining agreement is not in English, a copy of a standard form of the agreement and the portions of the collective bargaining agreement that are subject to a port State inspection shall also be available in English (except for ships engaged only in domestic voyages). In the absence of information on the application of this provision, the Committee requests the Government to indicate how effect is given to this requirement of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 3. Seafarers’ record of employment. The Committee notes that section 113(2) and (4) of the MSA provides that, upon the discharge of a seafarer, the master shall issue to the seafarer a certificate of his/her discharge in the prescribed form and that when the master declines to express an opinion on the conduct, character and ability of the seafarer, the discharge shall be made before a proper officer, to whom he/she shall furnish a report in the prescribed form stating that he/she so declines, and, if the seafarer so desires, the proper officer shall give to him/her or endorse on his/her certificate of discharge a copy of such report. The Committee also notes the form for seafarers’ Record Book and Certificates of Discharge contained in the Merchant Shipping (Seamen’s Documents) Regulations, 2000, which includes a “report of character”. The Committee recalls that Standard A2.1, paragraph 3, provides that the document to be given to seafarers, containing a record of their employment on board the ship, shall not contain any statement as to the quality of the seafarers’ work. The Committee requests the Government to indicate how conformity with Standard A2.1, paragraph 3, is ensured.
Regulation 2.1 and Standard A2.1, paragraph 4. Content of the SEA. The Committee notes that section 102(3) of the MSA provides for the particulars to be contained in the agreement with the crew. This section does not include the particulars specified in Standard A2.1, paragraph 4(a–c) and (g). The Committee requests the Government to indicate how it is ensured that the particulars to be contained in the SEA include the seafarer’s full name, date of birth or age, and birthplace; the shipowner’s name and address; the place where and date when the seafarers’ employment agreement is entered into; and the conditions of termination of the agreement, in conformity with Standard A2.1, paragraph 4(g).
Standard A2.1, paragraph 6. Shorter notice period for compassionate or other urgent reasons. The Committee notes that the Government indicates, in relation to this Standard, that no circumstances justifying termination of the employment agreement at shorter notice or without notice have been provided for in national laws or regulations or collective agreements. The Committee recalls that, according to Standard A2.1, paragraph 6, in determining the circumstances in which a notice period shorter than the minimum may be given, each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. The Committee requests the Government to indicate how effect is given to Standard A2.1, paragraph 6.
Regulation 2.1 and the Code. Masters’ SEA. The Committee notes that the provisions of the MSA which implement Regulation 2.1 do not cover masters. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of masters.
Regulation 2.2, paragraph 1, and Standard A2.2, paragraph 1. Regular payment of wages. The Committee notes that section 122 of the MSA which addresses the time of payment of wages does not provide that payments due to seafarers are made at no greater than monthly intervals and in accordance with any applicable collective agreement. The Committee therefore requests the Government to indicate how effect is given to this requirement, in accordance with Standard A2.2, paragraph 1.
Regulation 2.2 and the Code. Wages of cadets. The Committee notes that the provisions of the MSA which implement Regulation 2.2 do not cover cadets. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of cadets.
Regulation 2.3 and Standard A2.3, paragraphs 2 and 5. Hours of rest. The Committee notes that the Government has decided to apply the system of minimum hours of rest. It further notes that Regulation 93(2) of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013 provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of ten hours of rest in any 24-hour period; and (b) 77 hours in any seven-day period. The Committee requests the Government to indicate how effect is given to Standard A2.3, paragraphs 2 and 5, in the case of seafarers who are not covered by Regulation 93(2).
Regulation 2.3 and Standard A2.3, paragraphs 5, 6 and 13. Exceptions to the hours of rest. The Committee notes that paragraphs 9–11 of Regulation 93 of the Merchant Shipping (Safe Manning, Certification and Training) Regulations 2013, provide for possible exceptions to the hours of rest. Recalling that exceptions to the hours of rest, including those provided by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, may only be permitted by collective agreements authorized or registered by the competent authority in accordance with national laws or regulations, as provided for in paragraph 13 of Standard A2.3, the Committee requests the Government to review paragraphs 9–11 of Regulation 93 so as to ensure conformity with the Convention.
Regulation 2.4 and the Code. Entitlement to leave for masters and cadets. The Committee notes that the provisions of the Merchant Shipping (Safe Manning, Certification and Training) Regulations, 2013, which implement Regulation 2.4 do not cover masters and cadets. Referring to its comments under Article II of the Convention, the Committee requests the Government to indicate how effect is given to this Regulation in the case of masters and cadets.
Regulation 2.4, paragraph 2. Shore leave. The Committee notes the Government’s indication that shipowners are required to give seafarers appropriate shore leave. In the absence of information on the corresponding measures adopted to ensure compliance with this obligation, the Committee requests the Government to indicate how it is ensured that seafarers are granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions, in accordance with Regulation 2.4, paragraph 2.
Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave. In the absence of information on the measures adopted to ensure that any agreement to forgo the minimum annual leave with pay is prohibited, except in cases provided for by the competent authority, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.5, paragraph 2, and the Code. Financial security for repatriation. The Committee notes that the Draft Merchant Shipping (Seafarer Recruitment and Placement) Regulations, 2015, provide that seafarer recruitment and placement services must ensure that the shipowner has in place financial protection to cover repatriation costs in the event of the seafarer being stranded in any port (draft Regulation 7(1)(k)(iv)). While it hopes that these draft Regulations will be promulgated in the near future, the Committee notes that such provision only addresses the obligations placed on seafarer recruitment and placement services in this respect. The Committee requests the Government to indicate how it is ensured that all ships that fly its flag provide financial security to ensure that seafarers are duly repatriated in accordance with the Code, as provided for in Regulation 2.5, paragraph 2.
Regulation 2.5 and Standard A2.5, paragraphs 1–3. Entitlement to repatriation. The Committee notes the Government’s indication that circumstances for repatriation include illness, injury, death, loss and or abandonment of vessel, bankruptcy of the owner and/or recruitment agency and termination of service. It notes, however, that the Government does not specify under which provisions of the relevant legislation or collective agreement or other measures this entitlement to repatriation is guaranteed. It also notes that, while various provisions of the MSA relate to repatriation, in particular sections 114 and 140 which address cases where the seafarer’s service terminates before the expiration of the period of engagement, section 116 which concerns cases of change of ownership, and sections 154 and 155 which relate to distressed seafarers, these provisions do not cover all the circumstances mentioned by the Government, nor all those provided for in Standard A2.5. The Committee further notes that these provisions do not provide for a maximum period of service on board following which a seafarer is entitled to repatriation, which must be less than 12 months. Moreover, it notes that section 114(3) which provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country (other than the Republic) and who was engaged at a port out of the Republic and discharged at a port outside the Republic. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to indicate how it ensures that all seafarers on board a South African ship are entitled to repatriation in all the circumstances provided for in Standard A2.5, paragraphs 1 and 2. In addition, noting that, pursuant to section 114(2) of the MSA, the shipowner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation, the Committee recalls that while the shipowner may recover the cost of the repatriation, under the limited circumstances provided for under Standard A2.5, paragraph 3 (i.e. 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 A2.5.2 of the Convention, Members shall require a financial security system to assist abandoned seafarers for ships flying its flag. It notes that seafarers are deemed abandoned, among others, 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. It 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”. Finally, with regard to the definition of “proper return port” contained in section 2(1) of the MSA, which provides for the proper officer to decide which port, among three options, is to be considered as such, the Committee draws the Government’s attention to Guideline B2.5.1, paragraph 7, which provides that seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. It therefore requests the Government to indicate how it has given due consideration to Guideline B2.5 on repatriation.
Regulation 2.6 and Standard A2.6, paragraph 1. Indemnity against unemployment resulting from the ship’s loss or foundering. In the absence of information, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.7. Safe manning. The Committee notes that section 85 of the MSA provides that the Authority may, at its discretion and for such periods and under such conditions as it may specify if it is satisfied that no suitable holder of a certificate of the required grade is available, permit a South African ship to go to sea from any port whatsoever or a ship other than a South African ship to go to sea from a port in the Republic without the prescribed number of certificated officers or other persons. Noting the power given to the Authority in this provision to grant exceptions to the safe manning provisions, the Committee requests the Government to provide information on its application in practice.
Standard A3.1, paragraph 1. Accommodation and recreational facilities. Implementing legislation. The Committee notes that the Declaration of the Maritime Labour Compliance (DMLC), Part I, provided by the Government, indicates that ships constructed after 20 August 2013 shall comply with the accommodation and recreational facility requirements as specified in the Convention which was yet to be domesticated in South Africa. It also notes the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, which, if adopted, would generally bring the legislation in conformity with Standard A3.1. The Committee requests the Government to provide information on the developments related to the adoption of these amendments. It hopes that the Government will take into account its comments formulated below in relation to Standard A3.1 when finalizing these amendments. It also requests the Government to indicate how it is ensuring, while awaiting that the relevant legislation is adopted, that ships constructed after 20 August 2013 comply with the accommodation and recreational facility requirements of the Convention, in accordance with the indication contained in the DMLC, Part I.
Standard A3.1, paragraph 6(a). Minimum headroom in seafarer accommodation. The Committee notes that the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, provide for a revised Regulation 6(1), as follows: “in every ship the height of the crew accommodation measured from the deck to the deck head shall not be less than 2.1 metres; the Authority may, in respect of store rooms and sanitary accommodation, permit some reduction in head room”. The Committee also notes that the draft Amendments do not provide for a revision of Regulation 6(2) which provides that, in sleeping rooms, headroom shall be at least 6 feet 3 inches (which corresponds to 1.9 metres and therefore is not in conformity with the minimum of 203 centimetres provided for in the Convention). When finalizing the Amendments, the Committee therefore requests the Government to review Regulation 6(2) and, in relation to the draft Amendments to Regulation 6(1), to ensure that the competent authority may only permit some limited reduction in headroom in any space, or part of any space, in seafarer accommodation, where it is satisfied that such reduction: (i) is reasonable; and (ii) will not result in discomfort to the seafarers, as provided for in Standard A3.1, paragraph 6(a).
Standard A3.1, paragraph 9. Sleeping accommodation. The Committee notes that the 2007 draft Amendments to the Crew Accommodation Regulations, 1961, include a number of provisions which would bring the national legislation into conformity with most of the content of Standard A3.1, paragraph 9. However, its paragraph (l) – which concerns floor areas for seafarers performing the duties of ships’ officers where no private sitting room or day room is provided on passenger ships and special purpose ships, and paragraph (m) – which concerns additional room for the master, the chief engineer and the chief navigating officer, do not seem to be covered. When finalizing the Amendments, the Committee therefore requests the Government to ensure that Standard A3.1, paragraph 9(l) and (m), are taken into account.
Standard A3.1, paragraph 21. Possible exemptions in relation to crew accommodation. The Committee notes that a number of possible exemptions to the requirements relating to crew accommodation are provided for in the Crew Accommodation Regulations, 1961, as amended. The Committee draws the Government’s attention to the need to review these Regulations so as to ensure that any exemptions may be made only where they are expressly permitted in Standard A3.1 and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety, as provided for in Standard A3.1, paragraph 21. The Committee requests the Government to provide information on any measures taken or envisaged in this respect.
Regulation 3.2. Free food and drinking water for all seafarers. The Committee notes that section 156(1) of the MSA provides that the master of a South African ship of more than 100 gross tons shall furnish provisions to every seafarer (who does not furnish his/her own provisions) in accordance with the prescribed scale. It further notes the Merchant Shipping (Provisions) Regulations, 1961, as amended, which implement the MSA on this matter. The Committee recalls that, under Regulation 3.2, seafarers on board a ship shall be provided with food free of charge during the period of engagement and that no exception is permitted in this regard. It notes that the 2007 draft Amendments to these Regulations provide that every seafarer shall be furnished with provisions in accordance with the scale set forth in the Annex to the Regulations. The draft Amendments therefore include ships of more than 100 gross tons and do not provide for the possibility that seafarers furnish their own provisions. The Committee requests the Government to indicate the progress made in the adoption of these Amendments, and to take into account its comments related to the application of Regulation 3.2 when finalizing them.
Regulation 3.2, paragraph 1, and Standard A3.2, paragraph 2(a). Food supplies to take into account the differing cultural and religious backgrounds of seafarers. The Committee notes that the food supplies provided for in the Annex to the Merchant Shipping (Provisions) Regulations, 1961, as amended, do not seem to take into account the differing cultural and religious backgrounds of seafarers. It requests the Government to indicate how effect is given to the requirement that the differing cultural and religious backgrounds of seafarers are taken into account when determining the suitability of food supplies.
Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. The Committee recalls that this Standard provides that the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions. In the absence of information on this matter, the Committee requests the Government to indicate how effect is given to Standard A3.2, paragraph 2(b).
Standard A4.1, paragraph 2. Standard medical report form. In the absence of information, the Committee requests the Government to indicate how effect is given to this Standard which provides that the competent authority shall adopt a standard medical report form for use by the ships’ masters and relevant onshore and onboard medical personnel and that the form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers.
Standard A4.1, paragraph 4(b). Medical doctor on board. The Committee notes that Regulation 5 of the Ship’s Medicines and Medical Appliances Regulations, 1991, provides that a medical practitioner shall be employed on every Class 1 (that is foreign-going) ship which carries 100 or more persons. It also notes that Regulation 13 allows the authority to exempt any ship from any of the requirements of these Regulations. The Committee recalls that the Convention does not allow for any exception to the requirement of carrying a qualified medical doctor on ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration. The Committee requests the Government to provide information on the exemptions granted in application of this provision, if any, in particular in relation to Regulation 5.
Standard A4.1, paragraph 4(d). Free medical advice to all ships. In the absence of information, the Committee requests the Government to indicate how effect is given to this Standard which provides that the competent authority shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day; and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, shall be available free of charge to all ships irrespective of the flag that they fly.
Standard A4.2, paragraph 1(b). Financial security in the event of death or long-term disability. The Committee notes that the DMLC, Part I, indicates that shipowners must have appropriate protection and indemnity cover for the costs related to seafarers’ sickness and injury. It also notes the Government’s reference to a draft Bill for the amendment of the MSA, which would insert a new Chapter IVA to this Act providing for financial security for loss of life and personal injury. While this draft has been published for comments in Notice 356 of 2009 (Government Gazette of 15 April 2009), no information has been provided on its current status. Similarly, no information has been provided on the current status of its implementing regulations, the Merchant Shipping (Seafarer Accident Insurance) Regulations, 2015, which have been advertised for comments in Notice 942 of 2015 (Government Gazette of 25 September 2015). The Committee therefore requests the Government to provide information on the current status of the draft Bill and Regulations, which, when adopted, would give a legal basis to the shipowners’ obligation to provide financial security to assure compensation in the event of death or long-term disability of seafarers due to an occupational injury, illness or hazard.
Standard A4.2, paragraphs 2 and 4. Minimum duration of the shipowners’ liability. The Committee notes that section 140(1)(b) of the MSA provides that the period for which a seafarer shall be entitled to receive wages in case of incapacity for work resulting from illness or injury is limited to a maximum of 60 days; and that section 169(1) provides that the shipowner is liable to cover medical and other expenses incurred due to illness or injury until the seafarer concerned is cured or dies or is returned to and arrives at a proper return port. The Committee requests the Government to indicate how effect is given to Standard A4.2, paragraphs 2 and 4, which provide that the liability of the shipowner to defray the expense of medical care and board and lodging and to pay wages in whole or in part in respect of a seafarer no longer on board may be limited to a period which shall not be less than 16 weeks from the day of the injury or the commencement of the sickness.
Standard A4.2, paragraph 5. Possible exclusion of the shipowner’s liability. The Committee notes that section 140(1)(b) of the MSA provides for an exception to seafarers’ entitlement to wages in cases of sickness or injury when the seafarer unreasonably refused medical treatment for such sickness or injury. The Committee notes that, as a consequence to this exception, shipowners would not be liable to bear costs in such cases. Since this exception does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2, paragraph 5, the Committee requests the Government to explain how it gives full effect to this provision of the Convention.
Standard A4.5, paragraph 2. Maternity benefit. The Committee notes that, at the time of ratification, the Government has specified the following branches of social security for which protection is provided: sickness benefit; unemployment benefit; employment injury benefit and maternity benefit. Noting that the Government indicates that no maternity benefit is given to seafarers ordinarily resident in the country, unless provided for in the contract of employment, the Committee requests the Government to indicate how it envisages to give effect to its obligations in this respect.
Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee notes the Government’s indication that it has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate security coverage. The Committee recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6, provides that Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to provide information on any measures adopted to give effect to Standard A4.5, paragraph 6.
Regulation 5.1.3. Maritime labour certificate and declaration of maritime labour compliance. Implementing legislation. The Committee notes the draft Merchant Shipping (Maritime Labour Convention) Regulations, 2015, which have been published for comments in the Government Gazette of 2 October 2015. When adopted, these draft Regulations would generally give effect to South Africa’s obligations under Regulation 5.1.3. The Committee therefore requests the Government to provide information on the adoption of these Regulations.
Standard A5.1.3, paragraph 10 (a). Content of Part I of the DMLC. The Committee notes the copy of the Maritime Labour Certificate and DMLC, Part I, as well as the example of an approved DMLC, Part II, provided by the Government. It notes that, in relation to a number of Regulations, the DMLC, Part I only refers to the provisions of the Convention and not to the national requirements embodying those provisions. It understands that this is mainly due to the fact that implementing legislation is currently being developed. Concerning the DMLC, Part II, which is intended to identify the measures adopted by shipowners to implement the national requirements, the Committee notes that the example provided does not contain any information on such measures. The Committee considers that the DMLC, Parts I and II, do not appear to fulfil the purpose for which they are required under the Convention which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ships. The Committee requests the Government to review the DMLC, Part I, as the implementing legislation is adopted, and taking into account the Committee’s comments in relation to existing legislation, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention, but that it also provides, to the extent necessary, concise information on the main content of the national requirements. The Committee requests the Government to ensure that the DMLC, Part II, approved by the competent authority provide specific information on the ways in which the national requirements are to be implemented between inspections.
Regulation 5.1.5, paragraph 2. In the absence of information on the implementation of this Regulation, the Committee requests the Government to indicate the measures taken to prohibit and penalize any kind of victimization of a seafarer for filing a complaint.
Regulation 5.2.1. Port State responsibilities. The Committee notes the Government’s indication that the national port State control system is under development. The Committee requests the Government to indicate the measures taken to establish an effective port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention, including the method used for assessing its effectiveness, as provided for under Regulation 5.2.1.
[The Government is asked to reply in full to the present comments in 2018.]
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