Repetition

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006), and the observations of the General Workers’ Union (GWU) received by the Office on 31 August 2019. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for Malta 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. If considered necessary, the Committee may come back to other matters at a later stage.

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-19 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 II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. In its previous comments, noting that the Merchant Shipping Notice 105 Rev. 1. of 8 January 2015 determines the categories of persons not to be regarded as seafarers under the convention, the Committee requested the Government to indicate whether such determination was made after consultations with the shipowners’ and seafarers’ organizations concerned. Noting that, according to such Notice, the shipowner should submit an application to the competent authority if he deems that there is any other category of persons who should not be considered as seafarers for the purposes of the MLC, 2006, the Committee requested the Government to indicate whether any additional determination of persons or categories of persons had been made. The Committee notes that, according to the GWU's observations, the ITF and the GWU have been and still are engaged in talks with the authority Transport Malta, both the Port Authorities and the Flag state, over the determination of what is the definition of “seafarer” and under which legislation should his employment fall. The Government indicates that 1) the established list of persons excluded from the term seafarer follows the international application of such exclusions and is intended to maintain harmonisation with the application by other jurisdictions; 2) in cases where doubt arose, reference was made to the Resolution concerning information on occupational groups adopted by the International Labour Conference at its 94th (Maritime) Session; 3) to date there have only been a handful of ad hoc requests, some of which have been accepted by the Directorate, and 4) decisions are only taken following consultations with the seafarers’ and the shipowners’ representatives. The Committee requests the Government to i) indicate the categories of persons who have been excluded from the application of the Convention following the procedure foreseen in Merchant Shipping Notice 105 Rev.1., and ii) specify if the decisions made apply to a category of ships or to individual shipowners .

Article II, paragraphs 1(i), 4, 5 and 7. Definitions and scope of application. Ships. National determination. The Committee had requested the Government to indicate whether cases of doubt have arisen as to whether a ship or a particular category of vessel is covered by the Convention. The Government indicates that there have been no such cases and should such a case ever arise, the Directorate has the necessary mechanism in place to consult both the shipowners’ and the seafarers’ organisations, both locally actively represented to resolve such doubt. The Committee notes, however, the GWU's observations, according to which the ITF and the GWU have been and still are engaged in talks with the authority Transport Malta, both the Port Authorities and the Flag state, over the need to determine which vessels fall either under the MLC, 2006 or under the local legislation by way of the Commercial Vessels Regulation and the Non-Convention Vessels Code. The Committee also notes the Government's indication that Malta has, following extensive consultations with all stakeholders involved, issued a Non-Convention Vessel (NCV) code that applies to ships not engaged in international voyages. The Committee recalls that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those expressly excluded under paragraph 4. The Committee also recalls that Article II, paragraph 6, provides additional flexibility, under certain conditions, with respect to the application of “certain details of the Code”, i.e. Standards and Guidelines, but only to ships of less than 200 gross tonnage not engaged in international voyages, and only “to the extent that the subject matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures”. The Committee therefore requests the Government to provide detailed information on the scope of application of the NCV code,the number, types and tonnage of the ships included therein, and to clarify whether the Convention applies to vessels falling within the scope of the NCV code.

Article VI, paragraphs 3 and 4. Substantial Equivalence. The Committee had requested the Government to indicate if it has adopted any substantial equivalences as permitted under Article VI. The Government indicates that substantial equivalences are in the majority of cases adopted in relation to commercial yachts, given the special nature of such vessels. Such requests are addressed on a case-by-case basis following a thorough consultation between the owner and the Administration. Recommendations from the legal and technical staff within the Administration determine the final outcome of such requests. The Committee notes, however, that the sample Declaration of Maritime Labour Compliance (DMLC) Part I submitted by the Government does not refer to any substantial equivalences or exemptions. The Committee recalls that the concept of substantial equivalence is not a matter for administrative discretion but has to be decided by a Member on a horizontal basis – i.e. not on an ad hoc basis – following the requirements of Article VI, paragraphs 3 and 4 of the Convention. Explanations are required where a national implementing measure differs from the requirements of Part A of the Code. In particular, the Committee requires information on the reason why the Member was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in Article VI, paragraph 4. Any substantial equivalences that have been adopted must be stated in Part I of the DMLC that is to be carried on board ships that have been certified. The Committee requests the Government to provide detailed information with respect to the substantial equivalence(s) it has adopted, indicating the precise differences between the national provisions and the corresponding requirements in the Convention and how it has satisfied itself that the national provisions concerned are substantially equivalent to the requirements of the Convention. The Committee further requests the Government to provide a copy of the DMLC Part I, reflecting any substantial equivalences that have been adopted.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee previously noted that, while the DMLC, Part I states that Rule 6 of the Merchant Shipping (Maritime Labour Convention)Rules (MS Rules) prohibits work that may pose a danger to health and safety for seafarers aged under 18, Rule 6 does not contain such prohibition. It further noted that the Government had not provided information on the list of hazardous activities, which is required under Standard A1.1, paragraph 4 of the Convention. The Government indicates that, cognisant of the dangers and occupational hazards attributed to the maritime industry, it ensures through its flag state inspectors that no seafarer is exposed to such occupational hazards and dangers and requests that risk assessments are evaluated prior to the undertaking of certain tasks, as foreseen in rules 114-117 of the MS Rules. The Government also indicates that it will engage in consultations with the shipowners' and seafarers’ organizations concerned in order to further strengthen the protection of young seafarers, following which a list of hazardous tasks will be compiled. The Committee requests the Government to adopt the necessary measures to ensure that the employment, engagement or work of seafarers under the age of 18 is prohibited where the work is likely to jeopardize their health or safety, as required by Standard A1.1, paragraph 4. It further requests the Government, after consultation with the shipowners’ and seafarers’ organizations concerned, to determine the list of such types of work and to provide a copy thereof once available.

Regulation 1.4 and the Code. Recruitment and placement. The Committee requested the Government to indicate the national laws and regulations which implement these requirements of the Convention and to provide information on the existing recruitment and placement services in Malta. The Government indicates that it has never issued any approval for seafarer recruitment and placement agencies in Malta and no evidence exists that such agencies operate in or from Malta. Recruitment agencies in Malta are regulated by domestic and European Union legislation. The Committee notes that the Employment Agencies Regulations set out the conditions for employment agencies to operate in Malta. According to such regulations, in the case of employment of seamen, it shall be the responsibility of the employment agency or employment business as well as of the user to ensure that the provisions of the Merchant Shipping Act are complied with. Additionally, Rules 17 and 18 of the MS Rules provide that the Registrar-General shall ensure that recruitment services in Malta comply with the Convention and that the competent authority shall ensure that public and private seafarer recruitment and placement services be operated in an orderly manner that protect and promote seafarers’ employment rights. The Committee notes, however, that none of those instruments refer to (i) the prohibition of seafarer recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified (Standard A1.4, paragraph 5(a)); (ii) the obligation to ensure that recruitment and placement of seafarers are free of charge for seafarers and whether seafarers are protected against monetary loss that they may incur as result of the failure of recruitment and placement services (Standard A1.4, paragraph 5(b) and (c)vi)); and (iii) how national legislation ensures that all complaints concerning the activities of recruitment and placement services are investigated involving, as appropriate, representatives of shipowners and seafarers (Standard A1.4, paragraph 7). Noting, in the light of the above-mentioned provisions, that private seafarer recruitment and placement services are likely to operate in the country, the Committee requests the Government to provide detailed information on i) how the requirements of Standard A1.4, paragraph 5, are complied with (prohibition of blacklists, no fees or other charges on the seafarer, keeping registers, qualification of seafarers, protection of seafarers in foreign ports, managing complaints, establishing a compulsory insurance scheme to compensate seafarers); and ii) the national laws, regulations or other measures which implement these requirements of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. The Committee previously noted that Rule 20, section (3), of the MS Rules does not ensure the right to seek advice from other persons before signing a seafarer’s employment agreement, as required by the Convention and requested the Government to indicate how it gives effect to this provision of the Convention. The Government indicates that although the rules do not refer to the right to seek advice from other persons or entities, this right is not being denied to any seafarer who wants to make use of it. The Committee notes the Government’s indication that these provisions of the Convention are directly applicable at the national level by virtue of Rule 2(4) of the MS Rules, which foresees that such Rules are to be read and construed together with the provisions of the Convention and of the European Union Council Directive 2009/13/EC. While noting this information, the Committee requests the Government to adopt the necessary measures to ensure that both in law and in practice seafarers are given the opportunity to examine and seek advice on the employment agreement before signing it, as required under Standard A2.1 of the Convention, providing for legal certainty and predictability for all interested parties.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee had requested the Government to provide information on any developments concerning the permission of exceptions to the minimum hours of rest through collective agreements and, if applicable, to submit copies of any relevant texts. The Government indicates that no collective agreement has ever been authorised. The Committee takes note of this information, which addresses its previous request.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee had requested the Government to provide information with respect to the implementation of Regulation 2.4, paragraph 2. The Government indicates that, although Rule 47 of the MS Rules, which deals with the issue of annual leave, does not refer to shore leave, it is to be construed together with the provisions of the Convention and Directive 2009/13/EC of the European Parliament and of the Council, which foresee that seafarers shall be granted shore leave to benefit their health and well-being and with the operational requirements of their positions. While noting this information, the Committee requests the Government to adopt the necessary measures to ensure that both in law and in practice seafarers are granted shore leave in accordance with Regulation 2.4, paragraph 2.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. Noting that Rule 74(1) of the MS Rules provides that where the service of a seafarer terminates otherwise than by his/her consent to be discharged during the agreement, the master of the ship shall, besides giving the certificate of discharge required under this Rule and besides paying the wages to which the seafarer is entitled, make adequate provision in accordance with this Rule for his/her maintenance and for his/her return to a proper return port, the Committee requested the Government to provide information on the meaning of “proper return port”. The Committee notes the Government’s reply that in cases of repatriation, the parties to the agreement are to be guided by the provisions found in the Convention and that when there is doubt, the references in the guidelines of the Convention are implemented. The Committee recalls, however, that Standard A2.5.1, paragraph 2, requires each Member to ensure that there are appropriate provisions prescribing, among others, the precise entitlements relating to the destinations of repatriation in its laws and regulations or other measures or in collective bargaining agreements. Therefore, the Committee requests the Government to adopt the necessary measures to regulate the meaning of “proper return port” under Rule 74(1) of the MS Rules and to indicate how it has given due consideration to the provisions of Guideline B2.5.1, paragraphs 6 and 7, in implementing its responsibilities under Standard A2.5.1, paragraph 2(c).

Regulation 2.6 and the Code. Seafarer Compensation for the ship’s loss or foundering. Noting that in accordance with section 54 in fine of the MS Rules “in all cases of wreck or loss of the ship, proof that the seafarer has not exerted himself to the utmost to save the ship, cargo and stores, shall bar his claim to wages”, the Committee requested the Government to indicate the measures taken or envisaged to give full effect to Regulation 2.6. The Government indicates that, in the case of shipwreck or loss of the ship, Rule 54 of the MS Rules places the onus of proof of the seafarer’s inaction or negligence on the owner. The Committee once again recalls that Regulation 2.6 does not impose any conditions as regards seafarers’ compensation for the ship’s loss or foundering. In all cases, seafarers are entitled to their full salary payable under the contract, regardless of evidence of neglect or fault. Noting that the existing legislation contravenes Regulation 2.6 and the Code, the Committee requests the Government to amend section 54 of the MS Rules and remove the above limitation so as to ensure full compliance with this provision of the Convention.

Regulation 2.7 and the Code. Manning Levels. The Committee had requested the Government to provide information on measures adopted to ensure that ships of less than 500 gross tonnage are sufficiently, safely and efficiently manned as required by the Convention. It further requested the Government to indicate the measures adopted to give effect to Standard A2.7, paragraph 3. The Government indicates that the Administration has catered for such instances through the issuing of an attestation document highlighting the required ranks and the number of personnel on board a ship flying its flag. The Committee notes, however, that the Government does not provide information on the procedures developed to determine, approve or revise manning levels for ships of less than 500 gross tonnage, specifying how they take into account the requirements set out in Regulation 2.7. It also notes that the copies of safe manning documents for tanker, passenger and cargo ships, that the Government provided, do not specify the gross tonnage of the ships to which they refer. Furthermore, the Committee notes that the Government does not provide information on how, when determining manning levels, the competent authority takes into account the requirements set out in Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee therefore once again requests the Government to provide information on procedures developed to determine, approve or revise manning levels for ships of less than 500 gross tonnage, specifying how they take into account: (i) the need to avoid or minimize excessive hours of work and limit fatigue; and (ii) the requirements set out in Regulation 3.2 and Standard A3.2 concerning food and catering.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee requested the Government to indicate if exemptions for ships of less than 200 gross tonnage and for ships of less than 3,000 gross tonnage have been granted under the Fourth Schedule of the MS Rules, and if the relevant consultations have taken place. The Committee further requested the Government to explain the meaning of “bona fide seafarers’ organizations”. The Committee notes the Government’s indication that the Registrar-General’s office has granted exemptions on a case-by-case basis following consultations with both the shipowners’ representatives and the seafarers’ unions. According to the Government, the “bona fide seafarers’ organizations” refer to the seafarer’s representatives chosen by the actual seafarers directly related to the request. The Committee notes the GWU’s statement that ITF and GWU have been involved in an exchange over a request from a work boat owner who asked for regulations relaxation regarding the living quarters on the boat, and communicated their position in writing to Transport Malta after meeting the owner. The Committee recalls that exemptions from the implementation of Regulation 3.1 can only be made in the cases expressly permitted by the Convention, and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to promoting the seafarers’ health and safety. The Committee requests the Government to provide a list of types of exemptions and waivers granted for ships of less than 200 gross tonnage and for ships of less than 3,000 gross tonnage under the Fourth Schedule of the MS Rules, by type of vessel,indicating the grounds under which such exemptions were granted and the organisations involved in the consultations to that end.

Regulation 4.1 and Standard A4.1, paragraph 1. Medical care on board and ashore. The Committee had requested the Government to indicate how effect is given to Standard A4.1, paragraphs 1(a) to (d). The Government reiterates that these provisions of the Convention are directly applied by virtue of Rule 2(4) of the MS Rules, which states that these Rules shall be read and construed together with the Convention and Council Directive 2009/13/EC of 16 February 2009 on implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF). It further indicates that the Administration ensures that seafarers are properly covered for any medical emergency that may arise through the evaluation of employment agreements, which inter alia should include provisions addressing any medical needs that the seafarer may require whilst under an agreement. The Committee also notes that, according to Section 104 and the Fifth Schedule of the MS Rules, the shipowner shall be responsible for the cost of any medical stores including the cost of periodic replacements, and that the requirements for the medicine chest include dental equipment. However, no information is provided by the Government as to the measures in place to ensure: (i) the application to seafarers on ships flying Malta’s flag of any general provisions on occupational health protection and medical care relevant to their duties, as well as of special provisions specific to work on board ships (Standard A4.1, paragraph 1(a)); (ii) that seafarers are given health protection and medical care as comparable as possible to that which is generally available to workers ashore, including prompt access to the necessary medicines, medical equipment and facilities for diagnosis and treatment and to medical information and expertise (Standard A4.1, paragraph 1(b)); and (iii) that seafarers working on board a ship flying Malta’s flag are given the right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable (Standard A4.1, paragraph 1(c)), including if and in what kind of cases the visit can be refused. Although the Government indicates that seafarers are covered for medical emergencies, the Committee notes that no information is provided on whether medical care includes measures of a preventive character, such as health promotion and health education programmes (Standard A4.1, paragraph 1(e)). Recalling that Standard A4.1, paragraphs 1(a) to (e) of the Convention are not self-executing as these provisions require the adoption of measures to ensure that seafarers are given health protection and medical care, the Committee requests the Government to adopt the necessary measures to give effect to these requirements of the Convention and to provide information on any development in this regard.

Regulation 4.1 and Standard A4.1, paragraph 2. Medical care on board and ashore. Standard medical report form. The Committee notes that while the Government supplied a medical report form for issuing seafarers’ medical certificates, it did not provide a copy of the standard medical report form to be carried on board ship for the use of the ships’ masters’ and relevant onshore and on-board medical personnel, as foreseen by Standard A4.1, paragraph 2. The Committee recalls that this provision of the Convention requires the competent authority of the flag State to adopt a standard medical report form that should only be used to facilitate the treatment of seafarers. The Committee requests the Government to take the necessary measures to adopt the standard medical report form for seafarers pursuant to Standard A4.1, paragraph 2, and to provide a copy once available.

Regulation 4.1 and Standard A4.1, paragraphs 3 and 4(a) to (c). Medical care on board and ashore. On-board hospital and medical facilities, equipment and training. The Committee previously requested the Government to indicate how effect was given to Standard A4.1, paragraph 3 of the Convention. The Committee notes that the Government refers to the MS Rules 36 and 111 to 113. The Committee also notes that Sections 92, 97 to 104, 106 and the Fourth and Eight Schedule of those Rules provide the requirements for hospital and medical care facilities, for medical training of master and ship officers and for medical stores. The Committee further notes that Section 152 of the Merchant Shipping Act establishes that the owner and master of every Maltese ship shall ensure that the ship carries medicines, medical stores, equipment, facilities, appliances and books, as specified by law. The Committee takes note of this information, which addresses 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. The Committee had requested the Government to indicate how effect is given to this provision of the Convention. The Government indicates that this aspect is regulated by the Merchant Shipping (Safety Convention) Rules under which ships are required to carry appropriate equipment and maintain up-to-date contact information for radio or satellite communication to obtain onshore medical advice while on a voyage. Noting that no information is provided on the implementation of this provision by Malta as a coastal State, the Committee recalls that Standard A4.1, paragraph 4(d) provides for the adoption of laws and regulations requiring coastal States to 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, free of charge to all ships irrespective of the flag that they fly. The Committee therefore requests the Government to indicate the measures adopted to comply with this requirement of the Convention.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14 and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes the Government’s indication that the 2014 amendments to the Code have been implemented through the amended MS Rules. It further notes the example of a financial security certificate provided by the Government. The Committee notes, however, that the Government provides no information on the arrangements 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, as required by Standard A4.2.2, paragraph 3. The Committee accordingly requests the Government to provide the set of measures adopted to give effect to that provision of the Convention,indicating the applicable national provisions.

Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. The Committee requested the Government to indicate if national guidelines for the management of occupational safety and health, to protect seafarers that live, work and train on board ships flying its flag, had been adopted after consultation with representative shipowners’ and seafarers’ organizations. The Committee notes that the Government provides no new information on this point. The Committee requests the Government to take the necessary measures to adopt, after consultation with the representative shipowners’ and seafarers’ organizations, national guidelines for the management of occupational safety and health on board ships that fly its flag, in accordance with regulation 4.3, paragraph 2.In this regard, the Committee draws the Government’s attention to Guidelines for implementing the occupational safety and health provisions of the Maritime Labour Convention, 2006.

Regulation 4.3 and Standard A4.3, paragraphs 5 and 6. Health and safety protection and accident prevention. Reporting, statistics and investigation. The Committee previously requested the Government to provide further information on whether the national Maritime Safety Investigation Unit (MSIU) takes into consideration the guidance provided by the ILO with respect to the reporting and recording of occupational accidents and diseases, and to indicate the relevant provision giving effect to this requirement of the Convention. The Government indicates that the MSIU follows the reporting, recording and investigation of occupational accidents as provided by the SOLAS Convention and the IMO Casualty Investigation Code and EU Directive 2009/18/EC. All notifications of occupational accidents, irrespective of the severity, are communicated to the European Commission, through the European Maritime Safety Agency. Safety investigation reports into occupational accidents, compiled by the MSIU are published and communicated to the European Commission and the IMO, through their respective databases. The Committee also notes that the Marine Accident/Incident report form aims to facilitate the reporting to the MSIU of such accidents. The Committee notes however that, as indicated by the Government, the MSIU does not record occupational diseases. The Committee requests the Government to provide information on the manner in which compliance with the obligation to report and investigate occupational diseases on board all ships covered by the Convention is ensured, in accordance with Standard A4.3, paragraphs 5 and 6.The Committee also requests the Government to ensure that the guidance provided by the ILO with respect to the reporting and recording of occupational accidents and diseases is taken into account.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee requested the Government to provide additional information regarding plans for further development of seafarer welfare facilities in its ports. The Government indicates that a welfare facility has been established on shore in Malta and that all seafarers have access to it without restriction, in accordance with the Convention, but that no welfare board has been established yet. The Committee requests the Government to provide information on any developments regarding the establishment of a welfare board for regularly reviewing welfare facilities and services.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. Noting that, according to section 168A(2) of the Merchant Shipping Act, the Social Security Act or any enactment replacing that Act shall not apply in respect of foreign seafarers employed on Maltese ships, the Committee requested the Government to clarify the manner in which social security protection is extended to all seafarers ordinarily resident in Malta, regardless of their nationality and regardless of the flag of the ships they work on. The Committee notes the Government’s indication that all persons residing in Malta irrespective of their nature of employment are regulated by the Social Security Act (Chap. 318). The Committee also notes GWU’s observation that there have been exchanges with both Transport Malta and the International Department of the Social Security, particularly on the issue of where the social contributions are to be paid and what benefits are expected, in view of Regulation (EC) No. 883/2004 of 29 April 2004 on the coordination of social security systems. The Committee requests the Government to provide clarifications regarding whether, and to what extent, seafarers ordinarily resident in Malta who work on ships flying a foreign flag – especially flying the flag of non-EU countries – are granted medical care, sickness benefit and employment injury benefits under the Maltese social security system, which are no less favourable than those enjoyed by shore workers resident in Malta.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee requested the Government to provide information on any measures adopted under Standard A4.5, paragraph 6 in relation to benefits to non-resident seafarers working on ships flying the Maltese flag who do not have adequate security coverage. Noting the absence of reply in theGovernment’s report, the Committee once again requests the Government to indicate how Standard A4.5, paragraph 6 is implemented with respect to non-resident non-EU seafarers working on board Maltese-flagged ships.

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 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. The Committee requested the Government to review the DMLC, Part I, so as to ensure not only that it provides a reference to the relevant national legal provisions implementing the Convention, but that it also contains, to the extent necessary, concise information on the main content of the national requirements as provided for under Standard A5.1.3, paragraph 10(a) to allow all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements are being properly implemented on board ship. The Committee notes with interest that the DMLC, Part I submitted with the Government's report includes references to the implementing legislation with succinct information on the provisions to which reference is made on the list of 16 matters to be inspected. According to Technical Notice SLS.33 of 27 august 2018 and the information available in the Transport Malta website, all documents referenced in the DMLC, Part I are to be carried on board ships and are accessible to those concerned. The Committee takes note of this information, which addresses its previous request.

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee requests the Government to provide a copy of the following documents: an example of an approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); an example of a seafarers’ employment agreement (please remove individual identification information) (Standard A2.1, paragraph 2(a)).

Repetition

The Committee takes note of the Government’s first report on the application of the Convention. It notes that the Government previously ratified ten maritime Conventions, which were denounced following the entry into force of the Maritime Labour Convention, 2006 (MLC, 2006), for Malta. The Committee notes the efforts undertaken and the measures adopted to give effect to the provisions 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, paragraphs 1(f) and (i), 3 and 5 of the Convention. Scope of application. Seafarers. The Committee notes the Government’s indication that in cases of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of the Convention, reference was made to Resolution VII adopted by the International Labour Conference at its 94th (Maritime) Session. It notes in this regard that Rule 3(2) of the Merchant Shipping (Maritime Labour Convention) Rules (MS Rules) provides that in cases of doubt as to whether any categories of persons are to be regarded as seafarers, the matter shall be determined by the Registrar-General after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee further notes that, pursuant to the Merchant Shipping Notice 105 Rev. 1. of 8 January 2015, the Merchant Shipping Directorate considers that the following persons are not seafarers for the purpose of application of the MLC, 2006: (1) portworkers, including travelling stevedores; (2) pilots and port officials; (3) ship surveyors and auditors; (4) superintendents; (5) armed personnel (engaged on short voyages); (6) scientists, researchers, fitters and divers; (7) equipment repair/service technicians and riding crew whose principal place of employment is onshore; and (8) guest entertainers who work occasionally and short term on board with their principal place of employment being onshore. The Committee requests the Government to indicate whether the determination of the categories of persons not to be regarded as seafarers under the Convention was made after consultations with the shipowners’ and seafarers’ organizations concerned as required by Article II, paragraph 3, of the Convention. The Committee notes that also under Merchant Shipping Notice 105 Rev. 1., if the shipowner deems that there is any other category of persons who should not be considered as seafarers for the purposes of the MLC, 2006, an application should be submitted to the competent authority. The Committee requests the Government to indicate whether any additional determination has been made on the basis of this provision and whether these determinations referred to specific persons or specific categories of persons. The Committee further requests the Government to ensure that any determination is made on a horizontal basis and applies to the whole sector and not to individual shipowners.

Article II, paragraph 1(i). Ships. The Committee notes the Government’s indication that Rule 3 of the MS Rules applies to all Maltese seagoing ships wherever they are and to all other ships while they are in Maltese ports as determined by the Convention. In cases of doubt as to whether any categories of vessels are to be regarded as ships, the matter shall be determined by the Registrar-General after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to indicate whether cases of doubt have arisen as to whether a ship or a particular category of vessel is covered by the Convention and, if this is the case, to specify whether any determinations with respect to the application of the Convention to categories of ships were made after consultations with shipowners’ and seafarers’ organizations.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that according to the Merchant Shipping Notice 105 Rev. 1. “Notification of exemptions, equivalencies and deviations should be received by the Directorate. If, subsequent to the issuance of the Declaration of Maritime Labour Compliance (DMLC), the shipowner requires consideration of an equivalency or exemption, a new application for a DMLC shall be submitted and, subject to the review of the application, an amended DMLC is issued.” The Committee recalls that Article VI, paragraph 3, of the Convention provides that “a Member which is not in position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A”. The Committee draws the Government’s attention to the fact that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4, of the Convention, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the MLC, 2006. Ratifying Members, therefore, should assess their national provisions from the point of view of substantial equivalence, identifying the general object and purpose of the provision concerned (in accordance with Article VI, paragraph 4(a)), and determining whether or not the proposed national provision could, in good faith, be considered as giving effect to provisions of Part A of the Code as required by Article VI, paragraph 4(b). Any substantial equivalences that have been adopted must be stated in Part I of the DMLC that is to be carried on board ships that have been certified. The Committee requests the Government to indicate if it has adopted any substantial equivalences as permitted under Article VI of the Convention. It further requests the Government to indicate whether any requests for substantial equivalence have been submitted and how they were addressed by the competent authority.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. The Committee observes that while the DMLC, Part I, states that the MS Rules prohibit work that may pose a danger to health and safety for seafarers aged under 18, Rule 6 does not contain such a prohibition. The Committee has not found any other 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 further notes that the Government has not provided information on the list of hazardous activities, which is required under Standard A1.1, paragraph 4, of the Convention, 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 requests the Government to adopt the necessary measures to prohibit work that is likely to jeopardize the health and safety of seafarers, and to indicate whether it has adopted a list of hazardous work prohibited for young workers under 18 years of age, after consultations with the shipowners’ and seafarers’ organizations concerned, as required by the Convention.

Regulation 1.4 and Standard A1.4. Recruitment and placement. The Committee notes the Government’s reference to Rule 18 of the MS Rules which provides that the Registrar-General shall, through the application of Rule 4, ensure that recruitment services in Malta comply with the Convention. Rule 17 provides that the competent authority shall ensure that public and private seafarer recruitment and placement services be operated in an orderly manner that protect and promote seafarers’ employment rights. The Committee notes, however, that the Government has not provided concrete information on: (i) the existence of recruitment and placement services in Malta; (ii) the adoption of a system prohibiting seafarer recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified (Standard A1.4, paragraph 5(a)); (iii) the obligation to ensure that recruitment and placement of seafarers are free of charge for seafarers; whether seafarers are protected against monetary loss that they may incur as result of the failure of recruitment and placement services (Standard A1.4, paragraph 5(vi)); and (iv) how national legislation ensures that all complaints concerning the activities of recruitment and placement services are investigated involving, as appropriate, representatives of shipowners and seafarers (Standard A1.4, paragraph 7). The Committee accordingly requests the Government to indicate the national laws and regulations which implement these requirements of the Convention and to provide information on the existing recruitment and placement services in Malta.

Regulation 2.1 and the Code. Examining and seeking advice on the agreement before signing. The Government indicates that Rule 20, section (3), of the MS Rules provides that a master may sign a seafarer’s employment agreement on behalf of the shipowner, and provide advice upon request on the same, but shall not be answerable to the shipowner for any deficiencies within the agreement, save for his/her duties to ensure that the agreement is understood and signed by the seafarer. The Committee notes that while this provision ensures that the seafarer may receive an employment agreement from the master, it does not ensure the right to seek advice from other persons, as required by the Convention. Noting the lack of information on measures taken to ensure that the seafarers signing a seafarer’s employment agreement are given an opportunity to seek advice on the agreement before signing (Standard A2.1, paragraph 1(a)), the Committee requests the Government to indicate how it gives effect to this provision of the Convention.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. Exceptions through collective agreements. The Committee notes that, according to Rule 40(1) of the MS Rules, the Registrar-General may authorize collective agreements permitting exceptions to the minimum hours of rest provided for under Rule 39(1) and (2) having due regard for the general principles of the protection of the health and safety of seafarers. While noting the Government’s indication that no collective agreement has been authorized or registered permitting exceptions to the minimum hours of rest, the Committee requests the Government to provide information on the development of the situation and, if applicable, to submit copies of any relevant collective agreements.

Regulation 2.4, paragraph 2. Appropriate shore leave. The Committee notes that the Government has not provided information with respect to the implementation of Regulation 2.4, paragraph 2, according to which seafarers shall be granted shore leave to benefit their health and well-being and consistent with the operational requirement of their positions. The Committee requests the Government to indicate how it gives effect to this provision of the Convention.

Regulation 2.5 and the Code. Repatriation. The Committee notes that Rule 73(1) of the MS Rules provides that a seafarer shall be entitled to repatriation at the cost of the owner if he/she has served the maximum duration of service periods on board, such periods being of less than 12 months. Rule 74(1) provides that where the service of a seafarer terminates otherwise than by his/her consent to be discharged during the agreement, the master of the ship shall, besides giving the certificate of discharge required under this Rule and besides paying the wages to which the seafarer is entitled, make adequate provision in accordance with this Rule for his/her maintenance and for his/her return to a proper return port. In this regard, the Committee observes that the phrase “proper return port” has not been defined in the Rules. The Committee recalls that Guideline B2.5.1, paragraph 6, provides, inter alia, that the Member should prescribe the destinations to which seafarers may be repatriated and that these destinations should include the countries with which seafarers may be deemed to have a substantial connection including: (a) the place at which the seafarer agreed to enter into the engagement; (b) the place stipulated by collective agreement; (c) the seafarer’s country of residence; or (d) such other place as may be mutually agreed at the time of engagement. Guideline B2.5.1, paragraph 7, adds that seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. The Committee requests the Government to provide information on the meaning of “proper return port” under the MS Rules and to explain how it has given due consideration to the provisions of the abovementioned Guidelines in implementing its responsibilities under Standard A2.5, paragraph 2(c).

Regulation 2.6 and the Code. Seafarer compensation for the ship’s loss or foundering. The Committee notes that in accordance with section 54 in fine of the MS Rules, “in all cases of wreck or loss of the ship, proof that the seafarer has not exerted himself to the utmost to save the ship, cargo and stores, shall bar his claim to wages”. The Committee recalls that Regulation 2.6 does not impose any conditions as regards seafarers’ compensation for the ship’s loss or foundering. The Committee accordingly requests the Government to indicate the measures taken or envisaged to give full effect to this Regulation.

Regulation 2.7, and Standard A2.7, paragraphs 1–3. Manning levels. The Committee notes that Rule 32(a) of the MS Rules deals with the safe manning document in connection with ships of 500 gross tonnage or more. In this regard, the Merchant Shipping (Safe Manning and Watchkeeping) Regulations (Legal Notice 29 of 2003) require the company to ensure in relation to every ship of 500 gross tonnage or more that the manning of the ship is maintained at all times to at least the levels specified in the safe manning document (section 5(1)(c)). The Committee recalls that Regulation 2.7 applies to all ships that fly the flag of a Member. The Committee accordingly requests the Government to provide information on measures adopted to ensure that ships of less than 500 gross tonnage are sufficiently, safely and efficiently manned as required by the Convention. The Committee further notes that the Government has provided no information on the measures adopted to give effect to Standard A2.7, paragraph 3, under which the competent authority shall take into account the requirements concerning food and catering when determining manning levels. The Committee accordingly requests the Government to indicate the manner in which it gives effect to this provision of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that the Fourth Schedule of the MS Rules, which regulates the requirements regarding accommodation and recreational facilities for new ships, reproduces the requirements of the Convention. The Committee notes in particular that this Schedule authorizes several exemptions for ships of less than 200 gross tonnage and for ships of less than 3,000 gross tonnage, indicating that these exemptions may be authorized by the Registrar-General after consultation with the shipowners’ and the “bona fide seafarers’ organizations”. The Committee requests the Government to indicate if exemptions have been granted and if the relevant consultations have taken place. The Committee further requests the Government to explain the meaning of “bona fide seafarers’ organizations”.

Regulation 4.1, paragraph 1; Standard A4.1, paragraph 1(a) and (b), paragraph 3 and paragraph 4(d). Medical care on board ship and ashore. The Committee notes that no information has been provided by the Government as to the measures in place to ensure: (i) the application to seafarers on ships flying Malta’s flag of any general provisions on occupational health protection and medical care relevant to their duties, as well as of special provisions specific to work on board ships (Standard A4.1, paragraph 1(a)); (ii) that seafarers are given health protection and medical care as comparable as possible to that which is generally available to workers ashore, including prompt access to the necessary medicines, medical equipment and facilities for diagnosis and treatment and to medical information and expertise (Standard A4.1, paragraph 1(b)); (iii) a standard medical report form is adopted (Standard A4.1, paragraph 2); (iv) that laws and regulations are adopted establishing the requirements for on board hospital and medical care facilities and equipment and training on ships that fly its flag (Standard A4.1, paragraph 3); and (v) that medical advice by radio or satellite communication to ships at sea is available 24 hours a day (Standard A4.1, paragraph 4(d)). The Committee accordingly requests the Government to indicate how effect is given to these requirements of the Convention, indicating the relevant national provisions.

Regulation 4.1 and Standard A4.1, paragraph 1(c) and (d). Right to visit a qualified medical doctor. The Committee notes the Government’s indication that these provisions of the Convention are applied by virtue of Rule 2(4) of the MS Rules, which states that these Rules shall be read and construed together with the Convention and Council Directive 2009/13/EC of 16 February 2009 on implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF). The Committee notes, however, that the Government has not indicated how this European Union Directive (which is not self-executing) has been transposed into national law. The Committee requests the Government to provide information on the measures adopted to ensure that seafarers working on board a ship flying Malta’s flag are given the right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable, and that, to the extent consistent with national law and practice, medical care and health protection services while a seafarer is on board ship or landed in a foreign port are provided free of charge to seafarers.

Regulation 4.3, paragraphs 1–3. Health and safety protection and accident prevention. The Committee notes that Rule 114 of the MS Rules provides that it shall be the duty of every shipowner to carry out an assessment of all the occupational health and safety hazards which may be present on board the ship and the resultant risks involved concerning all aspects of the work activity. Paragraph 4 of that Rule states that the shipowner shall implement the protective measures appropriate to the nature of the work being carried out which are required to be taken following these assessments and, if necessary, the protective equipment to be used, in accordance with recognized industry standards which may be regulated by Maltese law or international treaties. The Committee notes, however, that the Government has provided no information on the development of national guidelines on occupational safety and health as required under Regulation 4.3, paragraph 2, of the Convention. The Committee accordingly requests the Government to indicate if national guidelines for the management of occupational safety and health, to protect seafarers that live, work and train on board ships flying its flag, have been adopted after consultation with representative shipowners’ and seafarers’ organizations.

Regulation 4.3 and Standard A4.3, paragraphs 5(a) and 6. Reporting on occupational accidents, injuries and diseases. The Committee notes that, according to the Government, occupational accidents, injuries and diseases are reported to the national Maritime Safety Investigation Unit. The Committee requests the Government to provide further information on whether this Unit takes into consideration the guidance provided by the ILO with respect to the reporting and recording of occupational accidents and diseases, and to indicate the relevant provision giving effect to this requirement of the Convention.

Regulation 4.4 and Standard A4.4, paragraph 2. Plans for the development or further development of seafarer welfare facilities in the country. The Committee notes the Government’s indication that Malta will host a place of worship for different creeds, bedroom with kitchenette, library and TV room, Internet and office where seafarers can seek assistance or advice, be it legal, social or medical. The Committee requests the Government to keep the Office informed of the development of the forthcoming new facilities.

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that, upon ratification of the Convention, Malta specified that the branches for which it provides social security protection to seafarers in accordance with Standard A4.5, paragraphs 2 and 10, are medical care, sickness benefit and employment injury benefit. The Committee notes the Government’s reference to Chapter 318 of the Social Security Act, of 1 January 1987, which provides protection for persons employed: (a) as master or a member of the crew of any ship or vessel registered in Malta; … ; and (c) on board any ship or vessel, otherwise than as master or a member of the crew, provided that: (i) this employment is for the purposes of the ship or vessel or her crew or of any passengers or cargo or mail carried thereon; (ii) where the employee concerned is not a citizen of Malta, the contract is entered into in Malta, and, in all cases, irrespective of the employee’s nationality, with a view to its performance (in whole or in part) while the ship or vessel is on her voyage; and (iii) the employer has a place of business in Malta. The Committee notes, however, that section 168A(2) of the Merchant Shipping Act stipulates that the provisions of the Social Security Act or any enactment replacing that Act shall not apply in respect of foreign seafarers employed on Maltese ships. Recalling that under Standard A4.5, paragraph 3, each Member shall take steps to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory, the Committee requests the Government to clarify the manner in which social security protection is extended to all seafarers ordinarily resident in Malta, regardless of their nationality and regardless of the flag of the ships they work on. The Committee further recalls that although the primary obligation regarding social security rests with the Member in which the seafarer is ordinarily resident, under Standard A4.5, paragraph 6, 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 non-resident seafarers on board ships flying its flag, in the absence of adequate coverage in the relevant branches of social security. The Committee requests the Government to explain how it gives effect to this provision of the Convention.

Regulation 5.1.3 and Standard A5.1.3. Maritime labour certificate and declaration of maritime compliance. The Committee notes that the DMLC, Part I, attached to the report, only contains, for the majority of the issues concerned, references to implementing legislation without providing concise information on the content of the provisions to which reference is made. The Committee recalls that without this information, the DMLC, Part I, does not appear to fulfil the purpose for which it, along with the DMLC, Part II, is 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 ship. The Committee accordingly requests the Government to review the DMLC, Part I, so as to ensure not only that it provides a reference to the relevant national legal provisions implementing the Convention, but that it also contains, to the extent necessary, concise information on the main content of the national requirements as provided for under Standard A5.1.3, paragraph 10(a).

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee requests the Government to provide a copy of the following documents: an example(s) of Part II of the DMLC approved by the competent authority; an example of the approved document for seafarers’ record of employment and a standard form example of a seafarers’ employment agreement (Standard A2.1, paragraphs 1–3); a list of collective agreements (Standard A2.1, paragraph 2(b)); a copy of the provisions in any applicable collective agreement which provides for the calculation of the minimum paid annual leave on a basis that differs from a minimum of 2.5 days per month of employment (Standard A2.4, paragraph 2); a copy of the provisions on seafarers’ entitlement to repatriation in any applicable collective bargaining agreements (Standard A2.5, paragraph 2); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Regulation 2.5, paragraph 2); for each type of ship, a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it; a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraph 4(a)); an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see also the guidance in Guideline B4.1.2, paragraph 1), referred to above in relation to Regulation 4.1; an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2, paragraph 1(b)); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); an example of Part II of the DMLC approved by the competent authority outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a report or other document containing information on the objectives and standards established for the inspection and certification system, including the procedures for its assessment (Regulation 5.1.1, paragraph 5); an example or examples of authorizations given to recognized organizations (Regulation 5.1.2, paragraph 2); a copy in English of the national interim maritime labour certificate (Regulation 5.1.3); a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; Guideline B5.1.4, paragraphs 7 and 8); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; the following statistical information for the period covered by the present report: the number of more detailed inspections carried out according to Standard A5.2.1, paragraph 1, the number of cases where significant deficiencies were detected, the number of detentions of foreign ships due, wholly or partly, to conditions on board ship that are clearly hazardous to the safety, health or security of seafarers, or that constitute a serious or repeated breach of the requirements of the Convention (including seafarers’ rights); a copy of the country’s model for on-board complaint procedures (Standard A5.1.5, paragraph 4); a copy of any national guidelines issued to inspectors for the implementation of Standard A5.2.1, paragraph 7; and a copy of a document, if any, that describes the onshore complaint-handling procedures (Standard A5.2.2, paragraph 6).