Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

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).