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

Convention du travail maritime, 2006 (MLC, 2006) - Japon (Ratification: 2013)

Autre commentaire sur C186

Demande directe

2020
2018
2016

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention (MLC, 2006). It further notes that the Government previously ratified nine Conventions on maritime labour. Five of these Conventions have been automatically denounced following the entry into force of the MLC, 2006, for Japan. Regarding the other four Conventions, which were adopted before 1930, the Government notified the ILO of its decision to continue to be bound by them. These are the Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8), the Placing of Seamen Convention, 1920 (No. 9), the Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16), and the Seamen’s Articles of Agreement Convention, 1926 (No. 22). The Committee notes the efforts undertaken by the Government and the social partners to implement 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(i) and 5, of the Convention. Scope of application. Definition of ship covered by the Convention. The Committee notes that by Note Verbale dated 5 August 2013, the Government informed the ILO that, concerning Article II, paragraph 5, of the Convention, it would not apply the Convention to “ships of less than 20 gross tonnage and ships for which owners only employ relatives residing with such owners”. The Committee recalls that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those excluded under paragraph 4 (that is ships engaged in fishing or similar pursuits, ships of traditional build such as dhows and junks, and warships and naval auxiliaries). The Committee also recalls that a determination under Article II, paragraph 5, can only be made in the event of a doubt as to whether the Convention applies to a ship or particular categories of ships. Given that the Convention does not allow any exclusions on the basis of tonnage or the fact that only relatives of the owner work in a ship, the Committee considers that there is no doubt that both categories of ships mentioned in the Note Verbale are “ships” according to the definition in Article II, paragraph 1(i) and therefore cannot be excluded from the application of the Convention. The Committee accordingly requests the Government to specify if the ships whose categories are mentioned in the Note Verbale of 5 August 2013 exclusively navigate in waters within, or closely adjacent to, sheltered waters or areas where port regulations apply and, if that is not the case, to review the national determination made in relation to these ships, in consultation with shipowners’ and seafarers’ organizations concerned, in order to fully comply with the Convention.

Article II, paragraph 6. National determination. The Committee notes that by Note Verbale dated 5 August 2013, the Government informed the ILO that “[w]ith reference to Article II, paragraph 6, of the Convention, Japan will not apply the provisions of Regulation 3.1 and Standard A3.1 of the Convention to ships of less than 200 gross tonnage not engaged in international voyages”. The Committee recalls that the flexibility provided in Article II, paragraph 6, of the Convention can only be exercised for cases where the competent authority, in consultation with the shipowners’ and seafarers’ organizations concerned, determines that it would not be reasonable or practicable to apply certain details of the Code provisions concerned at the present time to the extent 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 this provision only applies to the Code of the Convention (Standards and Guidelines). Accordingly, the decision to exclude ships of less than 200 gross tonnage from the application of Regulation 3.1 is not in conformity with Article II of the Convention. Furthermore, the Committee considers that the phrase “certain details of the Code” implies a contrario sensu that a Member is not entitled to determine that a Standard of the Convention, almost in its entirety, is not applicable to ships of less than 200 gross tonnage. The Committee therefore requests the Government to re-examine, in consultation with shipowners’ and seafarers’ organizations concerned, the national determination it has made concerning the provisions of Standard A3.1 to exclude the reference to Regulation 3.1. The Committee also requests the Government to specify which provisions of this Standard are not reasonable or practicable to apply at the present time and to explain how the subject matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures.

Article III. Fundamental rights and principles. The Committee notes that Japan has not ratified the Abolition of Forced Labour Convention, 1957 (No. 105), nor the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee would have expected to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. The Committee notes that the Government indicates that it respects the purposes of the abovementioned two Conventions without providing further details. The Committee therefore requests the Government to provide information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect the fundamental rights referred to in Article III, more specifically in relation to the principles contained in the Abolition of Forced Labour Convention, 1957 (No. 105), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Regulation 1.1 and Standard A1.1. Minimum age and night work. The Committee notes that, pursuant to Article 85(1), of the Seafarers Act, a shipowner shall not employ a person under 16 years of age as a seafarer, “provided, however, that this shall not apply to ships that employ only members belonging to the same household”. The Committee also notes that Article 86(1), of the Act prohibits seafarers under the age of 18 to engage in work during the period from 8 p.m. to 5 a.m. the next day but that paragraph 3 of the same Article provides that the provisions of paragraph 1 shall not apply “with regard to fishing boats and ships that employ only members of the same household as the shipowner”. The Committee recalls that Standard A1.1, paragraph 1, provides that the employment, engagement or work on board a ship of any person under the age of 16 shall be prohibited and that no exceptions are permitted in this respect. The Committee further recalls that, according to Standard A1.1, paragraph 3, the competent authority may authorize exceptions to the prohibition of night work of seafarers under the age of 18 year only when the effective training of the seafarers concerned, in accordance with established programmes and schedules, would be impaired or when the specific nature of the duty or a recognized training programme requires that the seafarers covered by the exception perform duties at night and the authority determines, after consultation with the shipowners’ and seafarers’ organizations concerned, that the work will not be detrimental to their health or well-being. The Committee requests the Government to indicate the measures taken or envisaged in order to amend Article 85(1) and Article 86(3) of the Seafarers Act in order to ensure that no exceptions are permitted to the minimum age for work and that exceptions to night work are only allowed in conformity with the Convention.

Regulation 1.1 and Standard A1.1. Minimum age and hazardous work. The Committee notes that, pursuant to Article 85(2) of the Seafarers Act, employment of seafarers under 18 is prohibited where the work is likely to jeopardize their health and safety and that the list of such types of work is included in Article 28 of the Regulations for Labour Safety and Health of Seafarers. The Committee requests the Government to specify if the list of hazardous work has been determined after consultation with the shipowners’ and seafarers’ organizations concerned, as required under Standard A1.1, paragraph 4.

Regulation 1.4 and the Code. Recruitment and placement services. The Committee notes that the Government has provided general information on the manner in which requirements of the Convention relating to recruitment and placement of seafarers are implemented, including a reference to the provisions of the Seafarers’ Employment Security Act. The Committee requests the Government to provide detailed information on the provisions implementing the different requirements of Regulation 1.4 and Standard A1.4.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s reference to Articles 74 and 75 of the Seafarers Act which stipulate the conditions to be entitled to annual leave and its duration. The Committee further notes that, under these provisions, in order to be entitled to annual leave, a seafarer must have “engaged in work continuously on a ship belonging to the same enterprise for six months”. The Committee recalls, in this regard, that according to Guideline B2.4.1, paragraph 3, for seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis. The Committee accordingly requests the Government to indicate how it has given due consideration to Guideline B2.4.1, paragraph 3, in implementing its obligations concerning annual leave in order to ensure that seafarers who work less than six months for an enterprise are given paid annual leave on a pro-rata basis. The Committee also notes that, depending on the length of contract or type of ship on which the seafarer works, the latter may be entitled to less than 2.5 days of leave per month, which is the minimum required under Standard A2.4, paragraph 2. The Committee notes the Government’s indication that, pursuant to Article 80 of the collective bargaining agreement signed between the All Japan Seamen’s Union and the Japanese Shipowners’ Association Ocean-going Labor Subcommittee, 120 days per year of onshore vacation (paid leave) are granted. While noting this information, the Committee recalls that under Standard A2.4, paragraph 1, the minimum standards for annual leave for seafarers has to be determined by each Member through the adoption of laws and regulations. The Committee requests the Government to explain the measures taken to conform to the minimum requirements of the Convention regarding annual leave.

Regulation 2.5 and the Code. Repatriation. The Committee notes that the Government has not indicated the kind of financial security that must be provided by ships flying its flag to cover the right of repatriation, in application of Regulation 2.5, paragraph 2, of the Convention. The Committee requests the Government to provide information in this regard.

The Committee also notes that Article 47 of the Seafarers Act stipulates the circumstances in which a seafarer has a right to repatriation, in accordance with Standard A2.5, paragraphs 1 and 2. However, this Article does not mention the maximum period of service on board a ship following which a seafarer is entitled to repatriation, as required by paragraph 2(b) of this Standard. The Committee recalls that, according to the Convention, laws and regulations, or other measures or collective bargaining agreements, must prescribe the maximum duration of service periods on board following which a seafarer is entitled to repatriation, such periods to be less than 12 months. The Committee therefore requests the Government to indicate the provisions setting a maximum period for service on board a ship as required by Standard A2.5, paragraph 2(b).

The Committee further notes that Article 47(1) of the Seafarers Act provides that the shipowner shall repatriate the seafarer to the port where the seafarer was employed or, at the request of the seafarer, to another location if this is not more expensive. The Committee recalls that Standard A2.5, paragraph 2(c), provides that each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or collective bargaining agreements, prescribing the precise entitlements to be accorded by shipowners for repatriation, including those relating to the destinations of repatriation. Furthermore, Guideline B2.5.1, paragraph 6, stipulates, 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; and 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 explain how it has given due consideration to these provisions in implementing its responsibilities under Standard A2.5, paragraph 2(c), as required under Article VI, paragraph 2, of the Convention.

Finally, the Committee notes the Government’s statement that Article 47 of the Seafarers Act provides that the shipowner may claim reimbursement of the repatriation expenses from the seafarer when: (a) the seafarer has seriously neglected his/her duties, or has been grossly negligent with regard to his/her duties; (b) the crew member fails to board the ship by the time designated by the master; (c) the crew member has seriously disrupted order on board the ship; and (d) the seafarer is not fit enough to carry out his/her duties due to injury or illness (limited to the case where the seafarer has sustained an injury or illness outside the course of his/her duties that is attributable to seafarer’s wilful intent or gross negligence). In this regard, the Committee recalls that Standard A2.5, paragraph 3, of the Convention prohibits shipowners from requiring that seafarers pay the cost of repatriation except where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to explain how it ensures that seafarers only pay the costs of repatriation where they have been found to be in serious default of their obligations, pursuant to the conditions set out in Standard A2.5, paragraph 3, and to indicate in particular 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 seafarers employment obligations”.

Regulation 2.7 and the Code. Manning levels. The Committee notes the information provided by the Government in relation to Standard A2.7, paragraph 3, which provides that, when determining manning levels, the competent authority should take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. It notes however that the two safe manning documents attached to this report do not mention ship’s cooks. The Committee requests the Government to explain how it is ensured that, when determining manning levels, the competent authority takes into account all the requirements of the Convention concerning food and catering.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. The Committee notes that, although the provisions of the Rule of Ship Appliance are generally in line with the requirements of Standard A3.1, many of its Articles provide that the maritime authority can authorize derogations considering “the structure of the ship, mode of navigation, etc. …”; and/or exclude “ships of less than 200 gross tonnage not engaged in international voyage and two-hour limited coasting ships, or moored ships”. This is the case, for example, for the provision of a separate berth for each seafarer (Article 115-8); for the furniture and wash basins to be found in sleeping rooms (Articles 115-10 and 115-10-2); for the size and location of mess rooms (Article 115-13); for the provision of an office for deck and engine departments (Article 115-15); for the requirements for recreational facilities (Article 115-16-2); for the number of toilets and wash basins relative to the number of seafarers on board (Article 115-17); for the provision of laundry facilities (Article 115-18); and for the requirements for hospital accommodation (Article 115-21). Concerning the exceptions provided for ships under 200 gross tonnage, the Committee refers the Government to its comments under Article II, paragraph 6, of the Convention. Furthermore, the Committee observes that the Rule of Ship Appliance provides the maritime authority with a broad power to make exceptions from the national requirements implementing the Convention. The Committee recalls that Standard A3.1, paragraph 21, allows exemptions only where they are expressly permitted in the Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to review its legislation in order to ensure that exemptions are only permitted in full compliance with Standard A3.1 and to specify, when relevant, if consultations with shipowners’ and seafarers’ organizations have taken place.

The Committee recalls that Standard A3.1, paragraph 8, requires that “subject to such special arrangements as may be permitted in passenger ships, sleeping rooms and mess rooms shall be lit by natural light and provided with adequate artificial light”. It notes that Article 115-4-2 of the Rule of Ship Appliance provides that lightning equipment must be installed in crew rooms but does not specify that sleeping rooms and mess rooms shall be lit by natural light and provided with adequate artificial light. The Committee recalls that it had raised this point in a previous comment on the application by Japan of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147). The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that sleeping rooms and mess rooms are lit by natural light and provided with adequate artificial light.

The Committee also recalls that, pursuant to Standard A3.1, paragraph 9(e), the inside dimensions of a berth shall be at least 198 centimetres by 80 centimetres. It notes that Article 115-9 of the Rule of Ship Appliance specifies two different dimensions for berth according to types of ships and that one of the specified dimensions is 180 centimetres by 60 centimetres, which is less than the minimum required by the Convention. The Committee requests the Government to explain how it gives effect to this provision of the Convention.

Regulation 3.2 and Standard A3.2. Food and catering. The Committee notes that, according to Article 1 of the Ordinance for persons assigned for providing food on board ships, a certificate of ship’s cook is required only for seafarers assuming a position of supervision in ships which navigate in “ocean going area or greater coasting area”. The Committee recalls that Standard A3.2, paragraphs 2(c), 3 and 4, requires that catering staff be properly trained or instructed and that ship’s cooks are trained, qualified and competent, including through the completion of a training course approved or recognized by the competent authority. The Committee requests the Government to provide additional information as regards the requirements for being recruited as a ship’s cook, even if not in a position of supervision.

Regulation 4.1 and Standard A4.1. Medical care on board ship and ashore. The Committee notes the Government’s statement that seafarers’ health protection is ensured under the Seafarers Act, the Mariners’ Insurance Act and the Regulations for Labour Safety and Health of Seafarers. It notes, however, that the Government has not provided details on how the requirements of the Convention have been implemented. The Committee requests the Government to indicate the specific provisions giving effect to Standard A4.1, paragraph 1(a) and (b).

In relation to the implementation of Standard A4.1, paragraph 1(c) related to the right of seafarers to visit a qualified medical doctor or dentist without delay in port of call, where practicable, the Committee notes the Government’s reference to a circular notice which provides that shipowners shall give seafarers an opportunity to visit a medical doctor or dentist without delay in ports of call, to the extent possible, pursuant to Article 81(1) of the Seafarers Act. As the Committee has not been able to consult the circular notice mentioned above, it requests the Government to specify the circumstances in which a seafarer is permitted by the shipowner or the master to visit a qualified medical doctor or dentist without delay in ports of call and to provide a copy of the relevant circular notice.

The Committee notes the Government’s statement that, in application of Standard A4.1, paragraph 4(a) of the Convention, ships’ medicine chests, medical equipment and medical guides are properly maintained and subject to periodical and intermediate inspections by virtue of Articles 81(1), 100 2 and 100 4 of the Seafarers Act as well as of Articles 53 and 54 of the Ordinance for enforcement of the said Act. The Committee notes that Articles 100-2 and 100-4 refer to periodical inspection and intermediate inspections taking place every two to five years and that Articles 53 and 54 of the Ordinance do not specify the frequency of inspections of ships’ medicine chests, medical equipment and medical guides. In view of the above, the Committee requests the Government to explain how it gives effect to Standard A4.1, paragraph 4(a), indicating how it has given due consideration to Guideline B4.1.1, paragraph 4, which provides that inspections should take place at regular intervals not exceeding 12 months.

Regulation 4.2 and Standard A4.2. Shipowners’ liability. The Committee notes that Article 89(1) of the Seafarers Act provides that, when a seafarer suffers an injury or illness in the course of the duties, the shipowner shall provide medical care at the shipowner’s expense or meet the necessary expenses for medical care until the said injury or illness has healed. However, paragraph 2 of the same Article limits the shipowner’s liability to a period of three months in the case of an injury or illness “outside the course of duties while the employment continues”. In this regard, the Committee recalls that Standard A4.2, paragraph 2, allows for national laws or regulations to limit the liability of the shipowner (for medical care and board and lodging expenses) to a period which shall not be less than 16 weeks from the day of injury or the commencement of the sickness. It notes that, while Standard A4.2, paragraph 5, of the Convention provides that the shipowner can be excluded from liability in case of “injury incurred otherwise than in the service of the ship”, this possibility only covers “injury” and not “illness”. The Committee further notes that, as regards illnesses – even not arising out of the service of the ship – the seafarer has to be covered for at least 16 weeks, which is not the case under the existing legislation. The Committee therefore requests the Government to indicate how it gives full effect to Standard A4.2, paragraph 5, of the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, Japan declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 1, 2 and 10, are: medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, maternity benefit, invalidity benefit and survivors’ benefit. As regards non-resident seafarers, the Committee notes the Government’s statement that private insurance (protection and indemnity insurance) is provided to cover medical care, sickness benefit, employment injury benefit, etc., for non-resident seafarers, working on ships flying the Japanese flag, who do not have adequate social security coverage. The Committee requests the Government to indicate the relevant provisions related to such private insurance.

Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime labour compliance. The Committee notes that Article 100-3 of the Seafarers Act specifies the scope of inspections in order to deliver the maritime labour certificate, in accordance with Regulation 5.1.3 and the Code and Appendix A5-I which lists the 14 areas to be inspected and approved by the flag State before certifying a ship. It notes, however, that none of the items listed under Article 100-3(1) mentions accommodation, on-board recreational facilities, or the use of private recruitment and placement services, which are three of the 14 areas subject to inspection prior to certification. The Committee requests the Government to provide additional information on the provisions requiring that these three items are inspected prior to certification.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee notes that Article 101 of the Seafarers Act bestows the power to prohibit a ship from leaving port on the Minister of Land, Infrastructure, Transport and Tourism. The Committee recalls that Standard A5.1.4, paragraph 7, provides that inspectors shall be empowered to prohibit a ship from leaving port (in certain circumstances). While noting Article 101 of the Seafarers Act, the Committee requests the Government to specify if inspectors are empowered to detain a ship, as required under Standard A5.1.4, paragraph 7.

Regulation 5.2.1. Inspections in port. The Committee notes the information provided by the Government as regards its port State inspection and monitoring system, for the purpose of reviewing compliance with the requirements of the Convention (including seafarers’ rights). It notes, however, that the Government did not provide information on the method used for assessing the effectiveness of the port State inspection and monitoring system, as required under Regulation 5.2.1, paragraph 5. The Committee requests the Government to provide additional information concerning the method used for assessing the effectiveness of the port State inspection and monitoring system. It also requests the Government to provide information on the qualifications and training required for carrying out port State control duties.

Additional documents requested. The Committee requests the Government to 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 with regard to repatriation (Regulation 2.5, paragraph 2); a copy of the circular notices pertaining to the various provisions of the Rule of Ship Appliance regarding accommodation, recreational facilities, food and catering (in relation to Title 3); a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners, as required under Standard A4.2, paragraph 1(b); a copy of the standard document issued to or signed by inspectors setting out their functions and powers and a copy of the national guidelines issued to inspectors (Standard A5.1.4, paragraph 7).

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