Solicitud directa (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Islas Caimanes

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The Committee notes the Government’s first report. It further notes the observations made by the International Transport Workers’ Federation (ITF), received on 6 August 2015. The Committee requests the Government to provide its comments in this regard.

The Committee notes that no other Conventions on maritime labour had previously been declared applicable in Cayman Islands. 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. Scope of Application. Seafarers. Occasional workers. The Committee notes the Government’s indication that doubt has arisen as to whether occasional workers, such as nannies and security guards, were to be regarded as seafarers, and that this issue has been discussed among the members of the Red Ensign Group of British Registries. The Committee recalls that, for a national determination to be made, in the event of doubt, that certain categories of persons are not to be regarded as seafarers for the purpose of the Convention, the specific procedure provided for in Article II, paragraphs 3 and 7, should be followed. The Committee therefore requests the Government to explain how it will ensure that the procedure of Article II is followed in such cases.

Ships. The Committee notes the Government’s indication that there have been no cases of doubt concerning whether a ship or a particular category of ship is covered by the Convention. The Committee notes, however, that, under Cayman Islands Guidance Note (CIGN) 02/2013 of 1 September 2014, entitled Application of the Maritime Labour Convention to Pleasure Yachts not Engaged in Trade, pleasure yachts “not engaged in trade” are not required to comply with the requirements of the Convention. It recalls that, according to its Article II, paragraph 4, the Convention applies to all ships ordinarily engaged in commercial activities, including vessels chartered or hired. The Committee notes the ITF’s observations on this issue. The Committee requests the Government to indicate how it ensures that all ships ordinarily engaged in commercial activities are covered by the Convention.

Regulation 1.2 and the Code. Medical certificate The Committee notes the Government’s reference to the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations, 2014, which, under sections 4 to 9, regulate the requirement of seafarers’ medical certificate of fitness. The Committee further notes the Government’s indication that it does not issue its own medical certificates, but that it accepts medical certificates that have been issued by other countries, as set out under Shipping Notice 05/2011 (Rev. 6) of 1 October 2014, entitled Issue of Endorsements Attesting to the Recognition of a Certificate of Competency. The Committee observes that the Government has provided no information concerning any procedures of review for seafarers who have been refused medical certificates. Moreover, it notes that the Government has not specified the period of validity for a certificate of colour vision. The Committee accordingly requests the Government to indicate how it ensures that: (i) seafarers who have been refused a certificate or have had a limitation imposed on their ability to work are given the opportunity to have a further examination by another independent medical practitioner or by an independent medical referee, as required under Standard A1.2, paragraph 5; and (ii) the period of validity for a certificate of colour vision is a maximum of six years, as required under Standard A1.2, paragraph 7(b).

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s reference to section 10 of the Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement, Shipowner’s Liabilities and Wages) Regulations, 2014, which provides that: (1) the shipowner shall ensure that every seafarer is given an annual leave entitlement of not less than 38 days per annum; (2) annual leave shall be accrued at 3.2 days per month and, where a seafarer does not serve a full year, this shall be calculated on a prorated basis; and (3) the 38-day leave entitlement is inclusive and there is no further entitlement to any customary and public holidays. The Committee further notes the Government’s indication that these 38 days consist of 30 days of leave and eight days of public holidays. The Committee recalls, in this respect, that public and customary holidays, whether or not they fall during the annual leave with pay, should not be included as part of annual leave with pay (Guideline B2.4.1, paragraph 4(a)). The Committee requests the Government to explain how it ensures that seafarers are always provided a minimum of at least 2.5 calendar days of leave per month of employment, excluding customary and public holidays. The Committee also notes the observation submitted by the ITF regarding Regulation 2.4, which draws attention to the discrepancy between the entitlement of public holiday for seafarers, at eight days, and that same entitlement for shore workers, which is 11 days. The Committee requests the Government to provide its comments in this regard.

Regulation 2.5 and the Code. Repatriation. The Committee notes that, under sections 8(2) and 8(4) of the Merchant Shipping (Maritime Labour Convention) (Repatriation) Regulations, 2014, the shipowner may recover damages in respect of repatriation costs, or relief and maintenance costs, where the agreement is terminated because of the “seafarer’s misconduct”. The Committee recalls that, under Standard A2.5, paragraph 3, shipowners must be prohibited from recovering the costs of repatriation except where the seafarer has been found to be in serious default of the seafarer’s employment obligations. The Committee 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”.

Regulation 2.7 and the Code. Manning levels. The Committee notes that, under section 25 of the Merchant Shipping (Certification, Safe Manning, Hours of Work and Watchkeeping) Regulations, 2004, companies must ensure that, in relation to every ship of 500 gross tonnage or more, a safe manning document is in place and kept on board at all times. The Committee recalls that the requirements for safe manning, as set out under Standard A2.7, apply to all ships under the Convention. The Committee accordingly requests the Government to explain how it ensures that all ships that fly its flag, including those under 500 gross tonnage, have a sufficient number of seafarers employed on board to ensure that ships are operated safely, efficiently and with due regard to security, as required under Regulation 2.7 and the Code.

The Committee further notes the sample safe manning documents annexed to the Government’s report, including those for oil and chemical tankers, a cargo ship, a passenger ship and a bulk carrier. It notes that, according to those documents and the information contained in the Declaration of Maritime Labour Compliance (DMLC), Parts I and II, the manning requirements do not seem to take into account the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering, as provided for in Standard A2.7, paragraph 3. The Committee requests the Government to indicate how it ensures the implementation of this provision of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s references to the Merchant Shipping (Maritime Labour Convention) (Crew Accommodation) Regulations, 2014, as well as to Shipping Notice CISN 03/2014 of 24 July 2014 entitled Maritime Labour Convention 2006 – Crew Accommodation on Cayman Islands Flagged Vessels, both of which implement most of the provisions of Regulation 3.l and the Code. The Committee further notes, however, that under section 5 of the Regulations, the Chief Executive Officer (CEO) of the Maritime Authority may approve requirements which the CEO considers are substantially equivalent to the requirements which are set out in CISN 03/2014. Moreover, the Committee notes the Government’s indication that, with respect to substantial equivalence for crew accommodation for cadets, the maritime authority would consider case-by-case applications from a shipowner for a dispensation allowing him to accommodate a maximum of two officer trainees in one cabin, subject to certain conditions. The Committee recalls 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 Convention. The Committee therefore requests the Government to indicate how it ensures that substantial equivalences are not based on a case by case examination made by the administrative authority. The Committee also notes the Government’s indication that, with respect to substantial equivalence for crew accommodation for small commercial vessels, the relevant legislation concerning crew accommodation for ships under 24 metres in length holding a certificate of compliance with the Code of Practice for the safety of small commercial vessels (sailing, motor, or workboat) operating on domestic voyages was to be amended to address the requirements of the Convention. The Committee requests the Government to provide information on any development in this respect.

Finally, noting the absence of information on this matter, the Committee requests the Government to indicate how it ensures, in accordance with Standard A3.1, paragraph 3, that the inspections required under Regulation 5.1.4 shall be carried out when: (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered.

Regulation 3.2 and the Code. Food and catering. The Committee notes the Government’s reference to Shipping Notice CISN 07/2014 of 24 July 2014, entitled Maritime Labour Convention 2006 – Requirements and Guidance for the Provision of Food, Fresh Water and training Requirements for Staff on Ships, which provides guidance concerning the qualification of ships’ cooks. It further notes the comments of the ITF, which state that the training requirements under CISN 07/2014 are insufficient as they permit ship’s cooks to be employed based on previous working experience without having passed an “approved examination” and a significant portion of ship’s cooks serving on commercial yachts do not meet required standards. The Committee recalls that the Convention does not require that ships’ cooks be certified. However, ships’ cooks must not be less than 18 years of age and, in accordance with Regulation 3.2, paragraph 3 and Standard A3.2, paragraph 3, must be trained, qualified and found competent for the position in accordance with requirements set out in the laws and regulations of the country concerned. The Committee further recalls that, in the case of ships’ cooks who have successfully served at sea for some time, the ILO’s Guidelines on the training of ships’ cooks advise the competent authority to establish alternative methods for certification which meet the requirements of the Convention and the practical needs of the ship’s cook concerned. The Committee requests the Government to indicate how it ensures that ships’ cooks are trained, qualified and found competent for the position, in accordance with Regulation 3.2, paragraph 3 and Standard A3.2, paragraph 3.

Regulation 4.1 and the Code. Health protection, medical care, welfare and social security protection. The Committee notes the Government’s reference to the Merchant Shipping (Maritime Labour Convention) (Medical Care) Regulations, 2014, which implement most of the requirements of the Convention. It notes, however, that, while under section 8 of these Regulations, the shipowner and master shall permit a seafarer to seek medical attention at port, where reasonably practicable, these provisions do not include dental treatment. The Committee recalls, in this respect, that the medical care on board and ashore, as required under Regulation 4.1 and Standard A4.1, paragraph 1(c), include essential dental care. The Committee accordingly requests the Government to explain how it ensures that seafarers have the right to visit a qualified dentist without delay at ports of call, as required under the Convention.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s reference to the Merchant Shipping (Maritime Labour Convention) (Health and Safety) Regulations, 2014, which require the shipowner to ensure that a seafarer is provided with occupational health protection and that reasonable precautions are taken to prevent occupational accidents, injuries and disease on board ships. It notes that, under section 4, paragraph 3(b)(v) of these Regulations, the shipowner must adopt procedures to take account of new technology, changes in working practices, equipment and other factors which may affect a seafarer’s health and safety. The Committee recalls that Standard A4.3, paragraph 3, of the Convention requires consultation with the representatives of the shipowners’ and seafarers’ organizations in this process. The Committee accordingly requests the Government to indicate how it ensures that full effect is given to this provision of the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, the Government declared that the branches for which it provides protection in accordance with paragraphs 1, 2 and 10 of Standard A4.5 are: medical care; old-age benefit; family benefit; and survivors’ benefit. It notes the Government’s statement that, although there are no active seafarers resident in its territory, there are a number of retired seafarers, who are entitled to free medical care through the government-owned Cayman Islands National Insurance Company (CINICO). The Committee further 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 social security coverage. The Committee requests the Government to provide updated information concerning any consideration it has given to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers working on board ships flying its flag in the absence of adequate coverage in the branches referred to in Standard A4.5, paragraph 1.

[The Government is asked to reply in full to the present comments in 2018.]