Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Samoa (Ratificación : 2013)

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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee also notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Samoa on 8 January 2019 and 26 December 2020, respectively.

General questions on application. Implementing measures.In reply to its previous comments, the Committee notes the Government’s statement that it is still working on the amendments of national related laws and regulations. Recalling that the Convention was ratified by Samoa in 2013, the Committee expects that the relevant measures will be adopted without further delay to give full effect to the provisions of the Convention taking into account the comments presented below. It requests the Government to provide a copy of all new laws and regulations once adopted.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. In reply to its previous comment, the Committee notes the Government’s indication that the Labour and Employment Relations Bill of 2020 (“the Bill”) includes the proposed amendment to increase the compulsory age for admission to employment from 15 to 16 years old with no exception, and the Shipping Act of 1998 will be amended accordingly. The Committee requests the Government to amend its legislation without further delay to give effect to Regulation 1.1 and Standard A1.1, paragraph 1.

Regulation 2.1 and Standard A2.1. Seafarers’ employment agreements. In reply to its previous comment, the Committee notes the Government’s indication that: (1) the parties to the seafarer employment agreement (SEA) comprise seafarers, a representative of the Samoa Shipping Services Ltd (SSS) on behalf of the shipowner and the representative of the Ministry of Works, Transport and Infrastructure (MWTI) (Maritime Administration); (2) while there is no requirement in the legislation, the SSS confirms that seafarers obtain original signed copies of the SEA and collective agreements prior to embarkation. While noting this information, the Committee recalls that, in accordance with Standard A2.1, paragraph 1, each Member shall adopt laws or regulations prescribing that every seafarer must have an original agreement signed by both the seafarer and the shipowner or a representative of the shipowner (whether or not the shipowner is considered to be the employer of the seafarer). The Committee requests the Government to adopt specific legislation to ensure full compliance with Standard A2.1, paragraph 1.

Regarding the matters to be included in the SEA (Standard A2.1, paragraph 4), the Government indicates that although section 148 of the Shipping Act 1998 does not fully reflect the requirements provided for under this provision of the Convention, existing employment contracts and collective bargaining agreements (CBA) include several matters specified in Standard A2.1, paragraph 4.While noting that a new Regulation is being developed to address these requirements of the Convention, the Committee requests the Government to ensure that the Regulation fully complies with this requirement of the Convention.

Finally, the Committee notes that the Government provides no information regarding the implementation of Standard A2.1, paragraph 1(d) (seafarers’ conditions of employment to be easily obtained on board), Standard A2.1, paragraph 2 (copy of collective bargaining agreement forming all or part of a SEA to be available on board), and Standard A2.1, paragraph 6 (consideration of the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons). The Committee requests the Government to indicate the measures taken to give effect to these requirements of the Convention.

Regulations 2.1 and 2.2, Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7).The Committee requests the Government to reply to the above-mentioned questions and to indicate in each case the applicable national provisions.

Regulation 2.2 and Standard A2.2, paragraph 5. Wages. Allotments. In reply to its previous comment, the Committee notes that the Government refers to section 148 of the Shipping Act 1998 dealing with arrangements set out by the recruiting agency rules for a seafarer's earning. However, the Committee observes that this information is not relevant in this context. The Committee recalls that Standard A2.2, paragraph 5, requires that allotment services, which provide seafarers with means to transmit all or part of their earnings to their families, dependents or legal beneficiaries, be charged at a reasonable amount and that the rate of currency exchange be at the prevailing market rate or the official published rate and not unfavourable to the seafarers. The Committee requests the Government to indicate how it implements this provision of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 8. Hours of work and hours of rest. On-call work. In reply to its previous comment, the Committee notes the Government’s indication that surveyors and auditors from the MWTI carry out annual surveys and International Safety Management auditing to ensure compliance with other standards, including Standard A2.3 paragraph 8. In case of on-board emergency or drills and exercise, the master’s duty is to ensure that the affected crew is provided with adequate rest before duty resumption and these hours are inspected by the Flag State Officers. Noting that there are no requirements in national legislation implementing this prescription, the Committee requests the Government to adopt laws and regulations giving effect to Standard A2.3, paragraph 8.

Regulation 2.3 and Standard A2.3, paragraph 13. Exceptions to the hours of rest. In reply to its previous comment, the Committee notes the Government’s indication that section 15 of the STCW Regulations 2014 will be amended to be put in compliance with Standard A2.3, paragraph 13. The Committee accordingly requests the Government to ensure that the new Regulations will be adopted without delay to fully implement the requirements of the Convention.

Regulation 2.4 and the Code. Entitlement to leave. In reply to its previous comment, the Committee notes the Government’s indication that section 40 of the Labour and Employment Relations Act (LERA) specifies a minimum of 10 days of annual leave for the private sector including domestic seafarers, while article 13 of the seafarers CBAs grants leave payments for leave days. It further notes that the Samoa Shipping Corporation 'SSC' arranged working schedules for domestic seafarers to work 7 days made up of 40 hours with 7 days off consecutively. The Committee recalls that Standard A2.4, paragraph 2 sets a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave.The Committee requests the Government to indicate the measures taken or envisaged to ensure conformity with this requirement of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition of agreements to forgo annual leave.Exceptions. In reply to its previous comment, the Committee notes the Government’s reply that section 41 of the LERA intends to allow a dialogue between employers and employees on payment of annual leave days on specific issues (i.e. inability to take all days due to the employee's busy schedule), prioritizing the health and well-being of employees.Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to adopt the necessary measures to implement Standard A2.3 ensuring that any agreements to forgo the minimum annual leave with pay are prohibited, except in specific cases restrictively provided for by the competent authority.

Regulation 2.5 and the Code. Repatriation. In reply to it previous request, the Committee notes the Government’s indication that section 18 of the CBA for seafarers illustrates the entitlement to repatriation and travelling expenses in compliance with Regulation 2.5 of the Convention. The Committee observes that the Government did not submit a copy of the CBA and notes that except for section 125 of the Shipping Act 1998, which provides for the return of a distressed seaman in cases of abandonment and shipwreck, there are no specific provisions in the Act which recognize seafarers’ entitlement to repatriation.The Committee requests the Government to adopt the necessary measures to ensure full compliance with the requirements of Regulation 2.5 and the Code.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In reply to its previous comment, the Committee notes the Government’s indication that it has not yet put in place a financial security system implementing Regulation 2.5 and Standard A2.5.2. The Committee accordingly requests the Government to adopt the necessary measures to implement these requirements of the Convention.

Regulation 2.6 and Standard A2.6, paragraph 1. Seafarers’ compensation for the ship’s loss or foundering.Unemployment Indemnity. In reply to its previous comment, the Committee notes the Government’ indication that no new development has been made to give full effect to this provision of the Convention. The Committee accordingly requests the Government to adopt the necessary measures to comply with this requirement of the Convention.

Regulation 2.7 and Standard A2.7, paragraphs 2 and 3. Manning levels.In reply to its previous comment, the Committee notes the Government’s indication that: (1) section 19 of the Collective Agreement deals with the food and accommodation for seafarers as per requirements of Standard A2.7, and (2) section 16 and Schedule 2 of the STCW Regulations provide requirements pertinent to Standard A2.7; and (3) Samoan flagged vessels have been issued with Safe Manning Certificates issued by MWTI. The Committee observes that the Government did not attach a copy of a safe Manning document as stated. In this connection, the Committee recalls that the MLC, 2006 contains specific additional requirements according to which, when determining manning levels, the competent authority shall take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. Furthermore, the Committee observes that the Government has not provided information regarding the obligation to take into account the need to avoid or minimize excessive hours of work to ensure sufficient rest and to limit fatigue by seafarers when determining the manning levels of ships, in accordance with Regulation 2.7 and Standard A2.7, paragraphs 1 and 2. The Committee accordingly requests the Government to adopt the necessary measures to ensure compliance with all the requirements of Standard A2.7, and to provide an example of a safe manning document.

Regulation 3.1 and Standard A3.1. Seafarers’ accommodation and recreational facilities on board.In reply to its previous comment, the Committee notes the Government’s indication that while there are no detailed standards for crew accommodation adopted at the national level, the collective agreements ensure that seafarers have access to proper and safe accommodation. It also notes that the Samoa Shipping Corporation (SSC) provides onboard accommodation for crew during the length of their shifts onboard. A recreational area is not applicable given the trivial range of travel of the fleet with services closing down at the end of each working day. The Committee recalls thatStandard A3.1 provides that each Member shall adopt laws and regulations requiring that ships that fly its flag: (a) meet the minimum standards set out in paragraphs 6 to 17 of this Standard in respect of accommodation and recreational facilities on board ship; and (b) are inspected to ensure initial and ongoing compliance with those standards, in conformity with Standard A3.1, paragraph 18 (frequent inspections to be carried out on board ships by or under the authority of the master).The Committee requests the Government to indicate the measures adopted to give full effect to Regulation 3.1 and to the detailed requirements of Standard A3.1.

Regulation 3.2 and Standard A3.2. Food and catering.In reply to its previous comment, the Committee notes that there is no development on this issue. The Committee accordingly reiterates its previous comment and requests the Government to adopt the necessary measures to ensure compliance with these requirements of the Convention.

Regulation 4.1 and Standard A4.1. Medical care on board ship and ashore.In reply to its previous comment, the Committee notes that the Government refers to section 14 of the collective agreement, which has not been provided with the report. The Committee accordingly reiterates its previous comment and requests the Government to adopt the necessary measures to ensure compliance with these requirements of the Convention.

Regulation 4.2 and the Code. Shipowners’ liability.In reply to its previous comment, the Committee notes the Government’s indication that the Accident Compensation scheme aims to assist in preventing accident, provide therapy for victims injured from accidents and ensure persons affected have access to financial compensation. This scheme is one of the obligatory compensations deducted from income of every employee including domestic seafarers and they are entitled to services offered by the Accident Compensation Corporation. The Corporation also provides aids and limbs to assist victims with permanent disabilities, promotes programs for treatments of persons injured from accidents and provides compensation for dependents of workers whose death results from work related accidents. The Committee recalls that Standard A4.2.1, paragraph 1, provides for the adoption of laws and regulations requiring that shipowners of ships that fly the Member’s flag are responsible for health protection and medical care of all seafarers working on board the ships in accordance with the minimum standards provided for in paragraphs 1, 3 and 7 of this Standard, with the possible limitations and exemptions envisaged in paragraphs 2 and 4 to 6.The Committee requests the Government to indicate the measures adopted to give effect to the specific requirements of Standard A4.2.1, paragraphs 1 to 7.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability.In reply to its previous comment, the Committee notes the Government’s indication that there is no development on this issue.The Committee accordingly reiterates its previous comment and requests the Government to adopt the necessary measures to ensure compliance with these requirements of the Convention.

Regulation 4.3 and the Code. Health and safety protection and accident prevention.In reply to its previous request, the Committee notes the Government’s indication that it took due note of its comment without providing further information.The Committee accordingly reiterates its previous comment and requests the Government to adopt the necessary measures to ensure compliance with these requirements of the Convention.

Regulation 4.5 and the Code. Social security.In reply to its previous comments, the Committee notes the Government’s indication that there are no provisions in the national legislation that pinpoint the matters raised by the Committee. It further notes the Government’s reference to the collective agreements for seafarers working abroad. It observes that these agreements are not attached. Furthermore, the Committee notes that the Government does not submit any new information on the applicable legislation and details on the benefits provided under each of the branches of social security protection specified at the time of ratification (medical care; sickness benefit and employment injury benefit) complementing the protection given under Regulations 4.1 on medical care and 4.2 on shipowners liability. The Committee accordingly requests the Government to provide detailed explanations on the social security schemes and benefits foreseen for seafarers under national legislation regarding the above-mentioned branches.

Title 5. Compliance and enforcement.In reply to its previous comment, the Committee notes the Government’s indication that no developments were made since its last comment. The Committee accordingly reiterates its previous comment and requests the Government to adopt the necessary measures to implement these requirements of the Convention.