Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Repetition

General question on application. Scope of application. Article II, paragraphs 1(i), 3, 4 and 6. Seafarers and ships. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee also notes that the Antigua and Barbuda Department of Marine Services and Merchant Shipping (ADOMS) has a dedicated maritime website containing the national legislation and other instruments relevant to the implementation of the Convention, including: the Merchant Shipping Act, 2006; the Merchant Shipping (Maritime Labour Convention, 2006) Regulations 2012; the Shipping (Small Commercial Vessels) Regulations 2008; Circular 2012 010 on the “Application of the Maritime Labour Convention 2006 to small local commercial vessels operating in Antigua and Barbuda”; and Circular 2014-003 entitled “Maritime Labour Convention, 2006 Guidance”; as well as various other circulars and directives. The Committee understands that these circulars and directives are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law.

Regarding the Merchant Shipping (MLC, 2006) Regulations, the Committee notes that they “apply to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or similar pursuits … warships or naval auxiliaries” (section 3, paragraph 2(a)), whereas the Shipping (Small Commercial Vessels) Regulations 2008 apply to “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” (sections 2 and 3).

The Committee also notes that section 5(1) of the Merchant Shipping (MLC, 2006) Regulations 2012 provides that ADOMS “may, after consultation, determine that all or any of the requirements of the Code shall not apply to ships of less than 200 gross tons (GT) not engaged on international voyages, in accordance with Article II.6 of the Convention” and that ADOMS adopted Circular 2012-010 on the “application of the Maritime Labour Convention, 2006 to small local commercial vessels operating in Antigua and Barbuda” which exempts ships of under 200 GT 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 (for example: Regulation 1.3, Standards A2.1, A2.4, A2.6, A3.1, A3.2, A4.5). In this regard, the Committee wishes to recall that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those excluded under paragraph 4. Article II, paragraph 5 provides flexibility in the event of doubt as to the application of the Convention to a ship or particular category of ship after consultation with shipowners’ and seafarers’ organizations. Article II, paragraph 6 provides additional flexibility with respect to the application of “certain details of the Code” to ships of less than 200 GT that do not voyage internationally. The flexibility in paragraph 6 can only be exercised by the competent authority in consultation with the shipowners’ and seafarers’ organizations concerned for cases where it determines that it would not be reasonable or practicable to apply the details of the Code provisions concerned at the present time and that the subject matter of the relevant Code provisions is dealt with differently by national legislation or collective agreements or other measures. The Committee underlines that paragraph 6 of Article II does not provide for the exclusion of a ship, or a category of ships, from the protection offered by the Convention and, even if a determination has been made, it can only apply to details of the Code (the Standards and Guidelines). The provisions of the Regulations must still be applied.

The Committee further notes that, according to Circular 2014-003 (entitled Maritime Labour Convention 2006 Guidance), 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 recalls that, according to paragraph 3 of Article II of the MLC, 2006, any determination as regards categories of persons to be regarded as seafarers must be made after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to provide clarification on the application of the Convention to ships of less than 200 GT operating exclusively in Antigua and Barbuda waters and in which seafarers are not accommodated on board. Noting that both paragraph 6 of Article II of the Convention and section 5(1) of the Merchant Shipping (MLC, 2006) Regulations 2012 require consultations with shipowners’ and seafarers’ representatives, the Committee requests the Government to provide information on the manner in which, and with whom, the consultations prior to adopting Circular 2012-010 were conducted. The Committee also requests the Government to provide additional information regarding the scope of application of the Shipping (Small Commercial Vessels) Regulations 2008 and their relationship with the Merchant Shipping (MLC, 2006) Regulations 2012. Finally, the Committee requests the Government to provide information with regard to the determination that a specific category of cadets (German students) are not seafarers and whether this determination was made after consultation with the shipowners’ and seafarers’ organizations concerned.

Part I, section IV of the report form. Competent authority and consultation. The Committee recalls that a number of provisions of the Convention, including those mentioned above, require consultation with shipowners’ and seafarers’ organizations concerned. The Government indicated in its report that shipowners are consulted on an individual basis when needs arise but that Antigua and Barbuda’s seafarers are not yet formally organized. The Committee notes that, according to section 2 of the Merchant Shipping (MLC, 2006) Regulations 2012, the term “after consultation” in these Regulations means “after consultation with the appropriate shipowners’ and seafarers’ organizations or, in case there are none, employers’ and workers’ organizations concerned with the matter in question”. The Committee requests the Government to clarify how seafarers are consulted when this is called for by the Convention or relevant national regulations.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that the Government did not indicate if collective agreements have been authorized or registered that permit exceptions to the established limits on hours of work or the minimum hours of rest. It also notes that paragraph 7(g) of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 provides for ADOMS to approve, after consultation with the social partners, a collective bargaining agreement that varies from the established standards. It further notes that paragraph 7(h) and (i) provides for exemptions to the established standards for “seafarers who are engaged as watchkeeping officers or as ratings forming part of a watch or whose duties involve designated safety, prevention of pollution, or security duties”. The Committee recalls that paragraph 13 of Standard A2.3 provides for the possible exceptions where permitted in a collective agreement. The Committee requests the Government to provide information clarifying whether the possible exceptions to the minimum hours of rest under paragraph 7(h) and (i) of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 have to be made in accordance with paragraph 7(g), that is, through a collective bargaining agreement, and, if any such agreement has been approved by ADOMS, to provide a copy of it. The Committee would also be grateful to receive information about the due consideration given to Guideline B2.3 regarding the hours of work for young seafarers.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that paragraph 12(b) and (c) of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 implements the requirements of paragraphs 1 and 2 of Regulation 3.1 of the Convention and the related provisions under the Code. Paragraph 12(b) provides that accommodation and recreational facilities on board ships must be, as a minimum, in compliance with the standards set out in detail in paragraphs 6 to 17 of Standard A3.1. Paragraph 12(c) provides that ships constructed – or whose keel has been laid – before the entry into force of the Convention for Antigua and Barbuda, shall comply with the standards set out in the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133). The Committee also notes that paragraph 12(g) of the Schedule aims at implementing paragraphs 20 and 21 of Standard A3.1 and uses the same language. It 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 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”. The Committee recalls, however, that paragraphs 20 and 21 of Standard A3.1 only allow exemptions with regard to paragraphs 7(b) (air-conditioning), 11(d) (washbasin with hot and cold running fresh water in sleeping room), 13 (laundry facilities), as well as paragraph 9(f) and (h) to (l) inclusive, with respect to floor areas only. In this regard, the scope of potential exemptions under paragraph 12(g) of the Schedule to the national Regulations is not clear. The Committee requests the Government to clarify the scope of potential exemptions under paragraph 12(g) of the Merchant Shipping (MLC, 2006) Regulations 2012.

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes the explanations by the Government with respect to implementation of Standard A4.1, paragraph 4(d), that there is no law or regulation providing for a system using satellite or radio or similar forms of communication to offer medical advice, free of charge, 24 hours a day, to all ships, but that help can be provided from a local hospital. However only limited medical expertise with relevant experience is available in the country. While the limited medical expertise available in Antigua and Barbuda is noted, the Committee points out that ratifying Members are to have in place a system of satellite or radio communication in order to provide medical advice, as available. The Committee asks the Government to provide information on the measures taken to provide the services foreseen under paragraph 4(d) of Standard A4.1.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that paragraph 15(a) of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 provides that “shipowners shall meet the standards set out in Standard A4.2, paragraph 1, subparagraphs (a)–(d)”. The Committee asks the Government to provide information on the kinds of financial security that shipowners are required to provide to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that paragraph 16 of the Schedule to the Merchant Shipping (MLC, 2006) Regulations 2012 provides for the health and safety protection of seafarers. However, the Government refers to directives or other guidance but did not indicate whether national guidelines were actually adopted in accordance with Regulation 4.3, paragraph 2. The Committee wishes to draw the attention of the Government to the ILO Tripartite Expert Meeting on Maritime Occupational Safety and Health, held from 13 to 17 October 2014, which discussed and adopted guidelines on implementing the occupational safety and health provisions of the MLC, 2006. The Committee invites the Government to provide information with regard to the adoption, after consultation with shipowners’ and seafarers’ organizations, of national guidelines relevant to occupational safety and health protection of seafarers as well as information on the requirement for shipowners to conduct risk evaluations on board ship in accordance with paragraph 8 of Standard A4.3.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the information provided by the Government that there are no shore-based welfare facilities for seafarers in the country but that it is considering setting up a port welfare committee to address the issue. The Committee would be grateful if the Government would provide information on any measures taken to promote the development of shore-based welfare facilities in appropriate ports in Antigua and Barbuda.

Regulation 4.5 and the Code. Social security. The Committee notes that, in its first report on the application of the Convention, the Government did not provide any information as regards social security for seafarers. It notes however that in 2011, upon ratification of the MLC, 2006, Antigua and Barbuda had declared that the branches for which it “provides social security protection to Antigua and Barbuda seafarers” in accordance with paragraphs 1, 2 and 10 of Standard A4.5 were medical care, sickness benefit and unemployment benefit. The Committee understands 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 notes that section 27 of the Social Security Act provides that the benefits are of the following kinds: age benefit, sickness benefit, invalidity benefit, maternity benefit, funeral grant, survivors’ benefit. However Circular 2012-010 states that the requirements of Standard A4.5 “will not be applied to vessels of 200 GT or less operating in Antigua and Barbuda waters”. The Committee requests the Government to provide information with respect to the extent of social security protection afforded to seafarers ordinarily resident in Antigua and Barbuda when they work on ships flying the flag of Antigua and Barbuda and when they work on ships that fly the flag of another country.

Regulation 5.1 and the code. Flag State responsibilities. The Committee recalls that, under the MLC, 2006, all ships must be inspected and notes that the Merchant Shipping (MLC, 2006) Regulations 2012 appear to address only the ship certification system. The Committee requests the Government to provide information with respect to inspections of all ships flying its flag.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee notes the statement by the Government to the effect that reports of flag State inspections for compliance with the Convention are “generally held by the Recognized Organizations” on behalf of ADOMS and are “available if needed”. The Committee wishes to recall that paragraph 12 of Standard A5.1.4 requires that a copy of the inspection report must be provided to the master and that a copy must be posted on the ship’s notice board for the information of the seafarers. The Committee requests 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 paragraph 12 of Standard A5.1.4.

Regulation 5.1.6 and the Code. Marine casualties. The Committee notes 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 recalls that paragraph 1 of Regulation 5.1.6 provides that “the final report of an inquiry shall normally be made public”. The Committee requests the Government to provide information on measures taken to ensure that reports of inquiry into marine casualties are made public.

Additional documentation requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee would be grateful if the Government would provide the following documents and information: an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners, indicating that it covers repatriation (Regulation 2.5, paragraph 2) and compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard (Standard A4.2, paragraph 1(b)); a copy of the relevant national guidelines for the management of occupational safety and health on board ships (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ships (Standard A4.3, paragraph 1(d)); a document on the objectives and standards established for flag State inspection and certification system, including the procedures for its assessment; information on the budgetary allocation for the administration of Antigua and Barbuda’s inspection and certification system and the total income received on account of inspection and certification services; information on the number of full-term maritime labour certificates currently in force and the number of interim certificates issued during the period covered by the report (Regulation 5.1.1); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint regarding a breach of the requirements of the Convention (Standard A5.1.4, paragraph 5); a standard document issued to or signed by flag State inspectors setting out their functions and powers and a copy of any national guidelines issued to them (Standard A5.1.4, paragraphs 7 and 8); a copy of the form used for flag State inspectors’ reports (Standard A5.1.4, paragraph 12); a copy of the national guidelines issued to flag State inspectors on the kinds of circumstances justifying detention of a ship (such as the Port State Control Manual mentioned by the Government but not submitted) (Standard A5.2.1, paragraph 7); statistical information regarding the number of cases where significant deficiencies were detected and 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 constitute a serious or repeated breach of the requirements of the MLC, 2006 (including seafarers’ rights) (Standard A5.2.1); and a copy of a document, if any, that describes the onshore complaint-handling procedures (Regulation 5.2.2).