Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Antigua y Barbuda (Ratificación : 2011)

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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 notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for Antigua and Barbuda, respectively, on 18 January 2017 and on 8 January 2019. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. Cadets. In its previous comment, the Committee noted the Government’s indication that cadets are to be regarded as seafarers except for German students “covered by the German law on this subject and who are not paid a salary by the shipowner and who have a training contract with the maritime university” (as well as German school pupils who are occasionally carried on a ship for a short work familiarization period as defined by German law). The Committee notes the Government’s indication that the determination of status of German students/cadets was made in line with the determination made by the German Government who will have conducted consultation with appropriate bodies. The Committee recalls that, in accordance with Article II, paragraph 1(f), the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. The Committee considers that obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets, including cadets from a foreign country but who are training on ships flying Antigua and Barbuda’s flag, are to be regarded as seafarers for the purpose of the Convention. The Committee therefore requests the Government to adopt the necessary measures to ensure that all students undertaking their shipboard training and sea service period, as well as school pupils, are regarded as seafarers for the purpose of the Convention. The Committee is certainly aware of the reported and anticipated shortage of qualified officers to effectively man and operate ships engaged in international trade and the difficulties encountered to ensure that cadets meet the minimum mandatory seagoing service which forms part of the requirements prescribed in the Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) for certification. In these circumstances, the Committee recalls that, as foreseen in Article VI, paragraph 3, of the Convention, governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee noted that Circular 2012-010 on the “application of the Maritime Labour Convention, 2006 to small local commercial vessels operating in Antigua and Barbuda” exempts ships of under 200 gross tonnage operating exclusively in Antigua and Barbuda waters – and in which seafarers are not accommodated on board – from the requirements of certain regulations and standards of the Convention. The Committee requested the Government to indicate what are the alternative national provisions that apply to this category of ships for each Standard of the MLC, 2006 which is not applicable to them (e.g. Standards A1.3, A2.1 and 2.4). The Committee notes that the Government does not provide this information. The Committee also requested the Government to provide information with respect to the scope of application of the Shipping (Small Commercial Vessels) Regulations 2008. The Government indicates that these Regulations refer to the Small Commercial Vessel Code 2017 (hereafter the SCV Code 2017) which covers commercial vessels (cargo or passenger vessel) of more than five metres but less than 24 metres in length that carries not more than 150 passengers or provides overnight accommodation for not more than 50 passengers regarding working and living conditions on board. The Committee observes that Circular 2016-001 – Maritime Labour Convention 2006 Guidance provides that both the SCV Code 2017 and Circular 2012-010 on the “application of the Maritime Labour Convention, 2006 to small local commercial vessels operating in Antigua and Barbuda” address the measures taken under Article II, paragraph 6, to apply differently some requirements of the MLC, 2006. The Committee notes the Government’s indication that the SCV Code 2017 version includes suggested formats for MLC, 2006 related inspection forms which should ensure a reasonably consistent application within the Caribbean region and can form a basis for individual countries to demonstrate compliance as appropriate. While welcoming the objectives of the SCV Code, the Committee observes that several important requirements of the MLC, 2006 are not addressed or are not sufficiently addressed by Chapter IX Part D of this Code as currently drafted. The Committee recalls that the flexibility provided for in Article II, paragraph 6, for ships under 200 gross tonnage only concerns “certain details of the Code”, i.e. Standards and Guidelines, and it only applies “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: (i) to adopt the necessary measures to ensure full conformity with the provisions of Article II, paragraph 6 by ensuring that any flexibility applied to ships under 200 gross tonnage not engaged in international voyages only relates to “certain details of the Code” and definitely not to the Articles and Regulations; and (ii) to provide detailed information indicating what are the alternative national provisions that apply to this category of ships for each Standard of the MLC, 2006, which is not applicable to them.

Article VII. Consultations. The Committee requested the Government to clarify how seafarers are consulted when this is called for by the Convention or relevant national regulations. The Committee notes the Government’s indication that Antigua and Barbuda only has a very small number of seafarers who are represented in a Port Welfare Committee. It further indicates that when regulations changes are proposed, they form part of the agenda with the facility to have furthermore in-depth meetings on specific subjects if needed. The Committee recalls that under Article VII of the Convention, any derogation, exemption or other flexible application for which the Convention requires consultations may, where representative organizations of shipowners or of seafarers do not exist within a Member, only be decided through consultation with the Special Tripartite Committee established in accordance with Article XIII of the Convention. Until a seafarers’ organization is established in the country, the Committee requests the Government to have recourse to the arrangements provided for in Article VII of the Convention.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. It notes with interest that the MLC (2006) 2014 Amendments Financial Security Directive 2017 (Directive 001-2017) gives effect to the requirements of Standard A2.5.2. The Committee requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions. The Committee noted that paragraph 12(b) of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 provides that “ADOMS may, after consultation, exempt ships of less than 200 gross tons from the requirements in subparagraphs (b) and (c), in accordance with Standard A3.1 paragraph 20 of the MLC, 2006 but shall only do so in particular circumstances in which such exemption can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety”. Noting that the scope of potential exemptions under paragraph 12(g) of the Schedule to the national Regulations is not clear, the Committee requested the Government to provide clarifications in this regard. The Committee notes the Government’s indication that exemptions are only granted by the technical department of the Antigua and Barbuda Department of Marine Services and Merchant Shipping (ADOMS) who applies the Code requirements, with surveyors being aware of the very restricted scope for exemption. The Government further indicates that one vessel, a Yacht under 300 gross tonnage, has been granted with an acceptance letter as she was of traditional build and constructed prior to MLC ratification. Several vessels have had their accommodation arrangements accepted as they were built prior to the Convention coming into force. The Committee takes not 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 requested the Government to indicate the measures taken to provide the services foreseen under paragraph 4(d) of Standard A4.1. The Committee notes once more the Government’s indication that while medical facilities available are somewhat restricted, the main Hospital Accident Service may be contacted by Seafarers at any time by telephone. It notes that the enhancement of medical services to seafarers is currently being investigated by the Port Welfare Committee with a questionnaire having been prepared to gauge any areas of potential improvement. The Government further indicates that, in the meantime, ships agents, the local search and rescue service and coastguard are all aware of means to contact medical services for seafarers should the need arise. Recalling that Standard A4.1, paragraph 4(d), provides that the competent authority shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, is available 24 hours a day, the Committee requests the Government to provide updated information concerning any progress in the implementation of this Standard.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meets certain minimum requirements. In this regard, it takes note with interest of the adoption of MLC (2006) 2014 Amendments Financial Security Directive 2017 (Directive 001-2017) which aims at implementing the amendments of 2014. The Committee requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3 and the Code. Health and safety protection and accident prevention. In its previous comment, the Committee noted that while paragraph 16 of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 provides for the health and safety protection of seafarers, the Government did not indicate whether national guidelines were actually adopted in accordance with Regulation 4.3, paragraph 2. The Committee requested the Government to provide information in this regard as well as on the requirement for shipowners to conduct risk evaluations on board ship in accordance with Standard A4.3, paragraph 8. The Committee notes the Government’s indication that, for ships registered in Antigua and Barbuda, the standards and practices required for occupational health, risk analysis, safe working practices and measures to reduce the risk of exposure to harmful levels of ambient factors and chemicals and the risk of injury or disease shall be those set out in: (i) The ILO Code – Accident prevention on board ships at sea and in port 1996; (ii) The Code of Safe Working Practices for Merchant Seamen published by the UK; (iii) Such other guidance as ADOMS may publish from time to time in the form of a Directive or other official guidance. The Committee notes however that the Government does not seem to have developed yet national guidelines on occupational safety and health as required under Regulation 4.3, paragraph 2, of the Convention. The Committee recalls that new Guidelines for implementing the occupational safety and health provisions of the MLC, 2006 were adopted by the ILO in 2015. The Committee accordingly requests the Government to take the more recent Guidelines into account in accordance with Regulation 4.3, paragraph 2. With respect to the requirement to conduct risk evaluations for occupational safety and health on board ship, as provided for under Standard A4.3, paragraph 8, the Committee notes that the Code of Safe Working Practices for Merchant Seamen published by the United Kingdom which applies to ships registered in Antigua and Barbuda, states in paragraph 17 that it is the duty of shipowners and employers to protect the health and safety of seafarers and others so far as is reasonably practicable. The principles that should underpin health and safety measures are, among others, the evaluation of unavoidable risks and the taking of action to reduce them. The Committee also notes that the example of an approved DMLC Part II outlining a shipowner’s practices or on-board programmes for preventing occupational accidents, injuries and diseases allows to assess compliance with these aspects of the requirements. The Committee takes note of this information, which addresses its previous request.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. Noting that there were no shore-based welfare facilities for seafarers in the country but that the Government was considering setting up a port welfare committee, the Committee requested the Government to provide information on any measures taken to promote the development of shore-based welfare facilities in Antigua and Barbuda. The Committee notes the Government’s indication that it has established a Port Welfare Committee initially as part of the ISWAN initiative (International Seafarers’ Welfare Assistance Network), focused on improving the welfare services and support made available to seafarers when they call at different ports around the world, in which Antigua and Barbuda partook in the initial pilot project. The Committee takes note of this information.

Regulation 4.5 and the Code. Social security. Noting that the Government has not provided information regarding this Regulation, the Committee observed that section 2(1), section 19 and the second schedule of the Social Security Act 1972, if read together, provide social security for seafarers between 16 and 60 years of age who are domiciled or have a place of residence in Antigua and Barbuda and who work on “any ship registered in Antigua and Barbuda or of any other British ship or vessel of which the owner or (if there is more than one owner) the managing owner, or manager resides or has his principal place of business in Antigua and Barbuda”. The Committee also noted that Circular 2012-010 states that the requirements of Standard A4.5 “will not be applied to vessels of 200 gross tonnage or less operating in Antigua and Barbuda waters”. The Committee requested further information in this respect. The Committee notes the Government’s indication that information is presently being gathered with regards to this regulation. The Committee recalls that Regulation 4.5 and its Code requires social security protection for all seafarers ordinarily resident in the territory of the Member, regardless of the flag or size of the ship on board which they work. The Committee once again requests the Government to provide detailed information with respect to the measures taken to give full effect to this provision of the Convention. The Committee notes the Government’s indication that there are 41170 seafarers working on national flags ships. The Committee recalls that, although the primary obligation concerning 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 seafarers working on board the ships that fly its flag in the absence of adequate coverage in the applicable branches of social security. The Committee accordingly requests the Government to provide information in this regard.

Regulation 5.1 and the Code. Flag State responsibilities. General principles. Noting that the Merchant Shipping (MLC, 2006) Regulations 2012 appear to address only the ship certification system and recalling that all ships must be inspected, the Committee requested the Government to indicate how it gives effect to this obligation of the Convention. While noting the Government’s reference to its annual report on the implementation of the MLC, 2006, the Committee requests once again the Government to provide detailed information about the functioning of the established system of inspection and the national provisions that ensures that all ships flying its flag are subject to inspections at least every 3 years (Standard A5.1.4, paragraph 3).

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee requested the Government to provide information regarding the measures taken to ensure that reports on flag State inspections are provided to the master and also posted on board in accordance with the requirements of Standard A5.1.4, paragraph 12. The Committee notes the Government’s indication that “this is part of RO procedures and will also be covered by flag State inspectors in their rounds of the vessels”. However, from the Government’s information, it is unclear whether the requirements of Standard A5.1.4, paragraph 12 are implemented. The Committee requests the Government to indicate how it gives effect to this requirement of the Convention.

Regulation 5.1.6 and the Code. Marine casualties. The Committee noted that, according to section 7 of the Merchant Shipping (Reporting of Accidents) Directive 2012 (Directive 001-2012), the publication of a report into marine casualties is left at the discretion of the Director of ADOMS. The Committee requested the Government to provide information on measures taken to ensure that reports of inquiry into marine casualties are made public. The Committee notes the Government’s indication that Antigua and Barbuda’s casualty investigation reports can be viewed on ADOMS website and understands that such reports are therefore made public. The Committee takes note of this information which addresses its previous request.