Solicitud directa (CEACR) - Adopción: 2014, Publicación: 104ª reunión CIT (2015)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Benin (Ratificación : 2011)

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General questions on application. Measures implementing the Convention. The Committee notes that Benin was not bound by any of the maritime Conventions of the International Labour Organization (ILO) until the ratification of the Maritime Labour Convention, 2006 (MLC, 2006) on 13 June 2011. Benin has ratified all of the ILO’s fundamental Conventions and, of the governance Conventions, the Labour Inspection Convention, 1947 (No. 81), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee notes that the relevant legislation in Benin relating to seafarers consists of Act No. 2010-11 of 7 March 2011 issuing the Maritime Code in the Republic of Benin, Act No. 98-019 of 21 March 2003 issuing the Social Security Code and Act No. 98-015 of 12 May 1998 issuing the General Regulations respecting Seafarers. As the Government indicates in the introductory letter sent with the report, Act No. 2010-11 of 7 March 2011 issuing the Maritime Code in the Republic of Benin was drawn up in 2006 prior to the adoption of the MLC, 2006. The Committee also notes that the regulations referred to in the Maritime Code have, in most cases, not yet been adopted. The Government therefore recognizes the need to bring the national legislation into conformity in accordance with the plan adopted at the conclusion of the tripartite workshop for the validation of the legal gap analysis, held in Cotonou from 22 to 26 July 2013. Finally, the Committee notes the information provided by the Government to the effect that Benin does not currently have ships flying its flag within the meaning of the Convention. While noting the information provided by the Government on the legislation in force and the measures set out in the plan attached to the national report, the Committee requests the Government to complete its present report on the basis of all the information available to it concerning the implementation of the plan and the legislative measures and regulations that will be adopted to ensure the conformity of the national legislation with the MLC, 2006. In this regard, the Committee hopes that the Office will continue to provide the Government with technical assistance in the framework of the ongoing legislative reform, in order to bring the national legislation into line with the provisions of the Convention.

General questions. Scope of application. Article II, paragraph 1(f). Seafarers. The Committee notes that section 5 of the Maritime Code defines a seafarer as “any person who enters an undertaking with the shipowner or his representative to serve on board the ship”. The legislation in Benin accords real importance to registration on the crew list for recognition as a seafarer (section 2 of the General Regulations respecting Seafarers). This definition does not cover in full the definition, paragraph 1(f) in Article II of the MLC, 2006; “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure the conformity of its legislation with the MLC, 2006, taking into account the proposed amendments and measures attached to its report.

Regulation 1.1 and the Code. Minimum age. The Committee notes that the information provided by the Government does not exclude seafarers under the age of 16 from working on board the ships to which the MLC, 2006, applies. Although the Maritime Code establishes the minimum age at 18 years, section 7 of the General Regulations respecting Seafarers allows exceptions on the sole condition that the parents (or their representative) give their permission. With regard to the restrictions on working on board ship for seafarers under the age of 18 envisaged by the MLC, 2006 in Standard A1.1, paragraphs 2, 3 and 4 – (night work and work likely to jeopardize health or safety), the Committee notes that the legislation currently in force is incomplete. The Committee draws the Government’s attention to the need to take the necessary measures in the near future to ensure the conformity of its legislation with the MLC, 2006, taking into account the proposed amendments and measures attached to its report.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that there is no public seafarer recruitment and placement service operating in its territory. However, it confirms the existence of two private agencies. The Government adds that section 276 of the Maritime Code entrusts the Directorate of Maritime Affairs with competence to supervise the operation of private agencies. However, the Committee notes that this section is very general and principally addresses the role of the administration in the settlement of individual disputes between a shipowner and a seafarer. It is also necessary to note that no legislation gives effect to the provisions of the MLC, 2006, respecting machinery and procedures for complaints concerning the activities of private recruitment and placement services. Finally, the Government confirms that the current legislation does not provide for the implementation of paragraph 3 of Regulation 1.4, or paragraphs 9 and 10 of Standard A1.4 respecting the use by seafarers of recruitment and placement services operating in countries that have not ratified the Convention. The Committee notes that the legislation in Benin is not adapted to the provisions of the MLC, 2006 respecting the recruitment and placement of seafarers. It also notes that the Government reports the future measures that will be adopted in accordance with the plan provided with the report. The Committee draws the Government’s attention to the need to adopt all the necessary measures to ensure the conformity of its legislation with the MLC, 2006, taking into account the proposed amendments and measures attached to its report.

Regulation 2.8 and the Code. Career and skill development and opportunities for seafarers’ employment. The Committee notes the information provided by the Government, which recognizes that Benin has not up to now adopted national policies that encourage careers and skill development and employment opportunities for seafarers domiciled in the national territory. The Committee notes that the national legislative provisions provided by the Government on this subject address the matter in part, but that they do not establish clear objectives for the guidance, education and training of seafarers. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure that its legislation is in conformity with the MLC, 2006, taking into account the proposed amendments and measures attached to its report. The Committee also requests the Government to provide relevant information on any national policies adopted in future to encourage career and skill development and greater employment opportunities for seafarers domiciled in the national territory.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s indication regarding the national measures for the health and safety protection of seafarers. However, the Committee notes that these provisions are very general and do not meet the requirements of the Convention. The Committee also notes that there is no indication of a sectoral policy addressing the occupational health and safety of seafarers. The legislation in force is not reviewed regularly, as required by Standard A4.3, paragraph 3 of the Convention. The Government adds that the national legislation does not address all of the matters covered by paragraphs 1 and 2 of Standard A4.3. The Committee therefore requests the Government to indicate the matters that are not covered. In this respect, the Committee recalls that no specific protection is afforded to young seafarers in so far as the minimum age is theoretically set at 18 years. However, as noted earlier, exceptions are possible for the recruitment of seafarers under the age of 18 years. The Government also indicates that the legislation in force does not envisage the requirement to establish a safety committee on board a ship on which there are five or more seafarers. Although the legislation provides for procedures for the reporting and investigation of cases of occupational accidents and diseases, it should nevertheless be noted that these procedures do not take fully into account the guidance provided by the ILO on the subject. For example, the legislation does not provide for a full report to be drawn up and subsequently submitted to the safety and health committee. Nor does the legislation provide for the examination of reports by the company on shore, as recommended by the ILO. The Committee requests the Government to provide information on the procedures for the reporting of occupational accidents and diseases. The Government also indicates that shipowners are not required to conduct risk evaluations in relation to occupational safety and health on board ship. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure that its legislation is in conformity with the MLC, 2006, taking into account the proposed amendments and measures attached to its report.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee requests the Government to provide information on the evaluation of needs for seafarers’ welfare facilities in ports in Benin, in accordance with the requirements of Standard A4.4, paragraphs 2 and 3 of the MLC, 2006. In particular, it requests the Government to indicate whether the possibility of establishing a welfare board has been envisaged with a view to ensuring that welfare facilities and services are appropriate to the needs of seafarers. The Committee also requests the Government to provide information on the system for financing welfare facilities and services.

Regulation 4.5 and the Code. Social security. The Committee notes that at the time of ratification of the MLC, 2006 the Government declared, in accordance with paragraphs 2 and 10 of Standard A4.5, six of the nine branches of social security envisaged by the Convention: old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit, and survivors’ benefit. With regard to the coverage of old-age benefit, family benefit and maternity benefit, section 268 of the Maritime Code and section 73 of the General Regulations respecting Seafarers provide for coverage by the statutory general scheme. However, the Committee notes that exceptions are possible with the agreement of the parties, under arrangements that are not specified. The Committee requests the Government to provide additional information on the actual conditions for the coverage of seafarers ordinarily resident in its territory by the statutory general social security scheme. In this regard, section 119 of the General Regulations respecting Seafarers provides for the provision of compensation to the dependants of a deceased seafarer. The Committee requests the Government to provide additional information on the conditions in practice for the provision of this survivors’ allowance. With regard to the access of seafarers to benefit that is no less favourable than that enjoyed by shoreworkers, the Government indicates in its report that coverage by the general scheme ensures the conformity of the national legislation. However, the Committee also notes that the national legislation provides that the parties may derogate from coverage by the general scheme. The Committee requests the Government to provide additional information on compliance with the principle of protection that is not less favourable for seafarers. The Committee also notes that the Government does not indicate that a draft text is being adopted to improve the benefits to which seafarers are currently entitled. The Committee requests the Government to indicate whether the improvement of the benefits provided to seafarers is envisaged in the context of the adoption of amendments to the national legislation, in accordance with the plan provided with the report. The Committee notes that the Government intends to pay particular attention to bilateral and multilateral social security Conventions and agreements with a view to providing effective coverage for seafarers who are resident in Benin and who work on ships flying the flag of another country. The Committee notes that the Government also indicates that the coverage criterion currently applied is that of the flag of the ship and that, in the framework of the future legislation to be adopted in order to ensure the application of the MLC, 2006, the principle of coverage based on residence will have to be introduced. The Committee requests the Government to provide information on the decisions and measures adopted, according to the national circumstances in Benin, at the national level and within the framework of international cooperation, to progressively achieve comprehensive social security protection for seafarers ordinarily resident.

Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes the information provided by the Government to the effect that Benin does not currently have ships flying its flag within the meaning of the MLC, 2006, and that measures will have to be adopted to bring the national legislation into conformity with Regulation 5.1, in accordance with the proposed amendments and the plan attached to the report. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure the conformity of the national legislation with the MLC, 2006, taking into account the proposed amendments and measures attached to its report. The Committee also requests the Government to provide all of the documentation referred to in the report form. The Committee notes that although the Government indicates that there are no ships to which the Convention would apply, the Government also refers to Order No. 26 MEPTP/MM of 13 June 1969 approving classification societies with a view to controlling and classifying ships in Benin. However, the Committee notes that this Order does not take into account all of the requirements of the MLC, 2006, particularly in terms of reviewing authorized organizations and the competences and means of action recognized for such authorized organizations. The Committee requests the Government to provide additional information on the conditions for the approval of authorized organizations, and a complete list of such organizations. With regard to the inspection and enforcement required by Regulation 5.1.3, the Committee notes the information provided by the Government. The national legislation reflects in part the requirements of the MLC, 2006, particularly with regard to prohibiting a ship from leaving port, in accordance with Standard A5.1.4, paragraph 7. The Government indicates that inspections are carried out by a classification society. In this regard, the Committee noes that no other information is provided concerning the qualifications and training required for inspectors, in accordance with Standard A5.1.4, paragraph 3, or their status, as set out in Standard A5.1.4, paragraphs 3, 6, 11(a) and 17. With reference to the on-board complaint procedures envisaged in Regulation 5.1.5, the Committee notes the information provided by the Government concerning the non-conformity of the national legislation that is in force. The Committee notes that the national legislation provided by the Government affords protection to seafarers against the risk of victimization. However, the provisions indicated by the Government address the subject in a general manner, without specifically addressing the issue of complaints by seafarers. Furthermore, the Committee notes that other relevant provisions would appear to be such as to restrict the possibility of lodging complaints on board. In this regard, the Committee notes section 615 of the Maritime Code, which establishes a heavy fine on a seafarer (in the order of CFA francs 100,000 to 1 million) in cases of a safety inspection based on inexact allegations. The Committee requests the Government to provide explanations concerning the compatibility of section 615 of the Maritime Code with the implementation of the provisions of the MLC, 2006, in relation to on-board complaints.

Regulation 5.2 and the Code. Port State responsibilities. The Committee notes the information provided by the Government indicating that Benin has adhered since 29 June 2007 to the Abuja Memorandum of Understanding (MOU) on Port State Control. The annual report of the MOU for 2011 indicates that 48 inspections were conducted by the maritime authorities in Benin under the terms of this control mechanism. Among the relevant instruments providing a basis for its provisions respecting inspections by the port State, the Abuja MOU refers to the MLC, 2006, the International Convention on Standards, Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW) and the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147). The Committee recognizes the value of the coordinated implementation of inspections within the context of port State control at the level of this regional organization. The Committee recalls, however, that the obligation to give full effect to the provisions of the MLC, 2006, in their own legislation rests with the national authorities. The Committee notes the information provided by the Government in the context of its report on the effective port State control inspection and monitoring system established at the national level is not sufficient to guarantee the conformity of the legislation in Benin with the MLC, 2006. With reference to compensation for any loss or damage suffered as a result of a ship being unduly detained or delayed by the port authorities, the Government indicates that the national legislation does not address this matter. The Committee draws the Government’s attention to the need to adopt the necessary measures in the near future to ensure the conformity of the national legislation with the MLC, 2006, taking into account the proposed amendments and measures attached to its report. The Committee requests the Government to provide information on procedures for dealing with complaints by seafarers on shore and the number of complaints lodged and resolved.

[The Government is asked to reply in detail to the present comments in 2016.]