Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention du travail maritime, 2006 (MLC, 2006) - Fidji (Ratification: 2014)

Autre commentaire sur C186

Demande directe

2020
2017

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee notes that Fiji has previously ratified three maritime labour Conventions, which have been denounced as a consequence of the entry into force of the MLC, 2006, for the country. It notes that Fiji has not submitted a declaration of acceptance of the amendments to the Code of the Convention adopted in 2014 by the International Labour Conference and is therefore not bound by the amended version of the MLC, 2006. The Committee further notes the efforts undertaken by the Government for the implementation 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.

General questions on application. Implementing measures. The Committee notes the Government’s indication that the draft Maritime (Labour Convention) Regulations 2017 (hereafter the draft Regulations) which give effect to the requirements of the Convention, are being the subject of consultations and have yet to be adopted by Parliament. The Committee notes that some aspects of this draft are not fully in conformity with the Convention, as explained in detail below. The Committee also notes the Government’s statement that in the absence of relevant legislation, no Declaration of Maritime Labour Compliance (DMLC) or maritime labour certificate have been issued. The Committee hopes that the Government will make concrete progress in the implementation of the Convention in the near future and requests it to provide information in this regard.

Consultation with shipowners’ and seafarers’ organizations. The Committee notes that the consultation of shipowners’ and seafarers’ organizations is not provided for in the draft Regulations whereas the Convention requires such consultations in several of its provisions (for example in Standard A1.1, paragraph 3 (exception to strict compliance with the night work restriction for young seafarers), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.8, paragraph 3 (establishing objectives for the vocational guidance, education and training of seafarers whose duties on board ship primarily relate to the safe operation and navigation of the ship), Standard A3.1, paragraph 19 (the need to take into account the interests of seafarers having differing and distinctive religious and social practices regarding accommodation and recreational activities)). The Committee requests the Government to indicate how it gives effect to the Convention’s requirements regarding consultations.

Article II, paragraph 6. Scope of application. Ships under 200 gross tonnage. The Committee notes that draft Regulation 4(1) provides that, where the Authority determines that it would not be reasonable or practicable to apply any provision of the Regulations to any Fiji-owned ship of less than 200 gross tonnage and not engaged in international voyages, the Authority may exempt that ship, either generally or for such time or such voyage as the Authority shall determine. Moreover, draft Regulations 4(2) and (3) provide that, in granting such exemption, the Authority may impose certain conditions, such as a requirement that the provisions of any other written law, or the terms of any seafarer’s employment agreement or collective agreement, or other measures, be complied with in lieu of the Regulations or Part A of the Code of the Convention. The Committee recalls that the flexibility provided for in Article II, paragraph 6, only concerns “certain details of the Code”, i.e. Standards and Guidelines, and that 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 to indicate the measures taken to revise draft Regulation 4 to ensure full conformity with the provisions of Article II, paragraph 6. It also requests the Government to ensure that any determination under Article II, paragraph 6, may only be made in consultation with shipowners’ and seafarers’ organizations and that they would be communicated to the Director-General of the International Labour Office, as provided for in Article II, paragraph 7.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that according to draft Regulation 64(3), on the requirement to carry qualified ship’s cook, the shipowner and the master may, instead of complying with the requirement to have a qualified ship’s cook on board, comply with such other requirement or requirements as the Chief Executive Officer may approve in respect of a particular ship, or ships of a particular description, being requirements that the Chief Executive Officer considers are “substantially equivalent” to the requirement contained in the Regulations when considered together with the conditions and limitations to which the approval may be subject. The Committee recalls 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, 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. The Committee recalls that explanations are required where a national implementing measure differs from the requirements of Part A of the Code. In particular, the Committee needs information on the reason why the Member was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in Article VI, paragraph 4. The Committee requests the Government to provide detailed information, as explained above, with respect to the substantial equivalence included in the draft Regulations regarding Standard A3.2, paragraph 3.

Regulation 1.1 and Standard A1.1. Minimum age. The Committee notes that section 92 of the Employment Relations Promulgation 2007 states that: “The age of 15 years is the minimum age for employment of children”. The Committee further notes that according to draft Regulation 5, “No person shall cause or permit a person below 16 years of age to be employed on board a ship”. The Committee recalls that Standard A.1, paragraph 1, prohibits the employment, engagement or work of seafarers under the age of 16. Observing that the legislation currently in force is not in conformity with the Convention, the Committee requests the Government to take the necessary steps to give full effect to this provision of the Convention.

Standard A1.2, paragraph 4. Independence of the medical practitioners. The Committee notes that there is no reference in the draft Regulations as to the independence that practitioners must enjoy in exercising their medical judgement in undertaking medical examination procedures related to seafarers. The Committee recalls that Standard A1.2, paragraph 4, states that “practitioners must enjoy full professional independence”. The Committee requests the Government to indicate how effect is given to this provision of the Convention.

Standard A1.2, paragraph 5. Review of decisions related to seafarers’ medical certificate. The Committee notes that, according to draft Regulation 15(2), the competent authority may accept or refuse a seafarer’s application for review of decisions related to the seafarer’s medical fitness. The Committee recalls that Standard A1.2, paragraph 5, states that seafarers that have been refused a certificate or have had a limitation imposed on their ability to work shall be given the opportunity to have a further examination by another independent medical practitioner or referee. The Committee requests the Government to modify its draft Regulations in order to comply with the provisions of Standard A1.2, paragraph 5.

Standard A2.1, paragraph 6. Notice for the termination of seafarers’ employment agreements. The Committee notes that draft Regulation 25(11) provides that the Chief Executive Officer may permit the length of notice for the termination of seafarers’ employment agreement to be less than seven days where such shorter notice is necessary for compassionate or other urgent reasons and agreed to by both the seafarer and shipowner. The Committee notes that this would imply that a reduction of the notice period for compassionate or other urgent reason, once agreed by both parties, has to be permitted by the Chief Executive Officer. The Committee recalls that Standard A2.1, paragraph 6, provides that a notice period shorter than the minimum may be given in circumstances which are recognized under national law or regulations or applicable collective bargaining agreements as justifying termination of the employment agreement at shorter notice or without notice, and therefore does not provide for authorization by the competent authority. The Committee therefore requests the Government to review draft Regulation 25(11) in order to ensure conformity with Standard A2.1, paragraph 6.

Standard A2.3, paragraph 13. Possible exceptions in respect of working time. The Committee notes that draft Regulation 30(9)(a) provides that the Chief Executive Officer may permit certain exceptions to the hours of rest set out in the Regulations when such exceptions are provided for in a collective agreement or “any other agreement between a seafarer and a shipowner”. The Committee recalls that Standard A2.3, paragraph 13, only allows exceptions where permitted in a collective agreement. The Committee requests the Government to review draft Regulation 30(9) to ensure conformity with Standard A2.3, paragraph 13.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that several provisions of the draft Regulations give effect to the requirements contained in Regulation 2.4. The Committee notes, however, that according to draft Regulation 38(9): “The shipowner shall grant and the seafarer shall take annual leave not later than 12 months after the end of every 12 months of continuous service and any seafarer who fails to take that leave by the end of such period shall thereupon cease to be entitled thereto.” The Committee observes that this provision of the draft Regulations is not in conformity with the Convention. First, the Committee recalls that from the combined reading of Standard A2.4, paragraph 3 on annual leave, and Standard A2.5, paragraph 2(b) on repatriation, it flows that the maximum continuous period of shipboard service without leave is, in principle, 11 months. The Committee therefore requests the Government to review draft Regulation 38(9) to ensure conformity with these provisions of the Convention. Second, the Committee recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. This prohibition clearly aims at guaranteeing the effective realization of the purpose of Regulation 2.4 which is to ensure that seafarers have adequate leave to benefit their health and well-being in the interest of ship safety and security. In this context, while noting that the situation under examination does not constitute a case of “agreement to forgo annual leave”, the Committee considers that the fact that a seafarer who fails to take leave by the end of the indicated period ceases to be entitled to it is clearly not in conformity with the Convention. 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 review draft Regulation 38(9) to bring it into conformity with Regulation 2.4.

The Committee notes that the Government has not provided information on the prohibition of agreements to forgo annual leave, required under Standard A2.4, paragraph 3. The Committee requests the Government to indicate how it ensures conformity with this provision of the Convention.

The Committee also notes that, according to draft Regulation 38(3): “A seafarer who has served a shipowner for a period shorter than 12 months of continuous service in any year or in the event of termination of employment otherwise than for misconduct, shall be entitled to annual leave in proportion to the number of completed months of service in that year.” 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 observes that the possibility to lose the entitlement to leave in the event of termination of employment for misconduct is not authorized by the Convention. The Committee accordingly requests the Government to review draft Regulation 38(3) to eliminate this possibility in order to ensure that all seafarers who work for a period shorter than 12 months are given paid annual leave on a pro rata basis.

Regulation 2.4, paragraph 2. Shore leave. The Committee notes that draft Regulation 38(4) states that temporary shore leave by agreement between the shipowner and the seafarer under the seafarer’s employment agreement shall not be counted as part of a seafarer’s annual leave. It notes that there are no other provisions in the draft Regulations which would provide, in conformity with Regulation 2.4, paragraph 2, that 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 ensures compliance with this requirement of the Convention.

Standard A2.5. Repatriation. The Committee notes that draft Regulation 45 provides for a number of cases in which the duty of a shipowner to repatriate a seafarer ends, including where the shipowner has made reasonable arrangements for repatriation which are unsuccessful because of the seafarer’s unreasonable conduct. The Committee requests the Government to provide information on the implementation of this provision, in particular regarding the process of determination of whether the seafarer’s conduct was reasonable or not.

Standard A3.1. Accommodation and recreational facilities. The Committee notes the Government’s indication that the requirements under Standard A3.1, paragraph 3, that inspections are carried out when a ship is registered or re registered and/or when seafarer accommodation is substantially altered are included in the Maritime (Fiji Maritime Code) Regulations 2014. The Committee requests the Government to indicate which provisions of these Regulations ensure conformity with Standard A3.1, paragraph 3.

Standard A4.1, paragraph 1(d). Dental care. The Committee notes that while draft Regulation 76(c) guarantees that medical care on board is provided to seafarers free of charge, there is no reference to dental treatment, as required under Standard A4.1, paragraph 1(d). The Committee requests the Government to provide clarifications on how it gives effect to this provision of the Convention.

Standard A4.1, paragraph 1(e). Preventive health care. The Committee notes that there is no information on measures of health protection and medical care of a preventive character for seafarers working on board a ship. The Committee recalls that under Standard A4.1, paragraph 1(e), members shall ensure that measures providing health protection and medical care for seafarers working on board a ship are not limited to treatment of sick or injured but include measures of a preventative character. The Committee requests the Government to provide information on how it gives effect to this provision of the Convention.

Standard A4.1, paragraph 4(b). Medical practitioner on board. The Committee notes that while various provisions of the draft Regulations refer to ships with or without qualified medical practitioners (e.g. draft Regulations 94 and 95), there seems to be no provision indicating when ships are obliged to carry on board a qualified medical doctor. The Committee therefore requests the Government to indicate how it ensures that ships carrying 100 or more persons and are ordinarily engaged on international voyages of more than three days’ duration carry a qualified medical doctor, in conformity with Standard A4.1, paragraph 4(b).

Standard A4.1, paragraph 4(d). Availability of medical advice through radio stations. The Committee notes that draft Regulation 80 provides for shipowners’ obligations in relation to the ship’s equipment to receive medical advice through radio stations. However, it does not mention whether medical advice through radio or satellite communication should be available 24 hours a day, as requested under Standard A4.1, paragraph 4(d). The Committee requests the Government to indicate how it ensures that this provision of the Convention is fully implemented.

Regulation 4.1, paragraph 3. Medical care on shore. The Committee notes that the Government refers to draft Regulation 81 on the shipowner’s obligation to ensure that seafarers are given access to medical facilities on shore. The Committee observes that this provision is relevant for the implementation of Regulation 4.1, paragraph 1 (applicable to flag States). The Committee recalls that Regulation 4.1, paragraph 3, refers to a port State obligation and provides that each Member shall ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee requests the Government to provide information on how it ensures full implementation of Regulation 4.1, paragraph 3.

Standard A4.4, paragraph 2. Development of shore-based welfare facilities. The Committee notes the Government’s indication that the development of seafarer welfare facilities in the country is work in progress. The Committee requests the Government to provide information on progress made in this respect.

Regulation 4.5, paragraph 1. Social security. Dependants of seafarers. The Committee notes that, upon ratification of the Convention, Fiji declared that the branches for which it provides protection in accordance with Standard A4.5, paragraphs 2 and 10, are sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; maternity benefit and survivors’ benefit. The Committee notes the Government’s indication that dependants of seafarers ordinarily resident in Fiji are not provided with social security protection. The Committee recalls that if national provisions extend social security benefits to dependants of workers, then these national provisions should also be provided to seafarers ordinarily resident in Fiji, as provided for in Regulation 4.5, paragraph 1. The Committee requests the Government to indicate whether dependants of shoreworkers are provided with social security protection (e.g. medical care benefits for spouses and children).

Standard A4.5. Unemployment benefit. The Committee further notes the Government’s indication that all seafarers are entitled to unemployment benefit from the Fiji National Provident Fund provided that they meet the necessary requirements. The Committee notes that the scope of application of the Fiji National Provident Fund Decree 2011 covers “individual who, being a resident of Fiji, is engaged under a contract or arrangement entered into in Fiji as a master or member of the crew of a vessel, or as captain or member of the crew of an aircraft, the owner of which has a place of business in Fiji”. The Committee notes that these requirements concerning the place where the contract of employment is entered into and where the shipowner has a business would restrict access to the protection granted by the Fund and thereby that guaranteed under Standard A4.5 of the Convention which concerns all resident seafarers regardless where their contract was entered into and whether the shipowner has a place of business in Fiji. The Committee therefore requests the Government to provide information on measures taken to ensure that all resident seafarers are entitled to unemployment benefit.

Standard A4.5, paragraph 6. Comparable social security benefits for seafarers in the absence of adequate coverage. The Committee notes the Government’s indication that no measure has been adopted for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate social security coverage. It recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6, provides that Members 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 in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to provide information on any measures adopted or envisaged to give effect to Standard A4.5, paragraph 6.

Regulation 5.1.3 and the Code. Flag State responsibilities – Maritime labour certificate and Declaration of Maritime Labour Compliance. The Committee notes that schedule 11 of the draft Regulations includes a blank Declaration of Maritime Labour Compliance (DMLC) Part I which does not contain any reference to the applicable legislation nor details on the content of the relevant provisions. The Committee recalls that Standard A5.1.3, paragraph 10(a), provides that the DMLC Part I shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide “to the extent necessary, concise information on the main content of the national requirements”. The Committee requests the Government to adopt the DMLC, Part I in the near future bearing in mind the crucial importance of this document for the enforcement of the Convention.

Standard A5.1.4, paragraphs 3, 6, 11(a) and 17. Flag State responsibilities. Qualification, status and conditions of service of inspectors. The Committee recalls that this Standard provides for measures to be adopted to guarantee that inspectors have status and conditions of service which ensure that they are independent of changes of government and of improper external influences. It notes that the Government indicates that appointments are made by the Chief Executive Officer of the Maritime Safety Agency of Fiji and that the measures to be adopted are in accordance with the Contract of Employment. The Committee therefore requests the Government to specify the content of the requirements to which it refers and indicate how it gives effect to Standard A5.1.4, paragraphs 3, 6, 11(a) and 17.

Standard A5.1.4, paragraphs 5, 10 and 11(b). Flag State responsibilities. Procedures for receiving and investigating complaints, and ensuring that their source is kept confidential. The Committee notes that the draft Regulations do not appear to establish any procedures to receive and handle complaints to Fiji as a flag State, apart from the provisions under draft Regulation 131 and 132 relating to on-board procedures. The Committee recalls that this Standard provides that inspectors shall treat as confidential the source of any grievance or complaint and must not reveal any commercial secrets or confidential working processes or information which may come to them in the course of their duties. The Committee requests that the Government indicate how effect is given to this provision.

Standard A5.2.1, paragraph 4. Inspection in port. The Committee notes that draft Regulation 134(8)(g) provides that the Flag State Surveyor or Port State Control Officer or the person duly authorized by the Chief Executive Officer may for the purposes of an inspection require rectification of deficiencies that may be identified in the seafarers’ working and living conditions on any ship. The Committee recalls that there is no reference in the draft Regulations to bringing the deficiencies assessed by an inspection regarding the working and living conditions on a ship to the attention of the appropriate seafarers’ and shipowners’ organizations in case of a complaint or if the deficiencies are considered by the authorized officer to be significant, as provided for in Standard A5.2.1, paragraph 4. The Committee requests the Government to explain how it gives effect to Standard A5.2.1, paragraph 4. The Committee further notes that the Government provided a copy of the Port State procedure which contains the checklist of items to be inspected during Port State Control Inspection. However, the Committee notes that the checklist does not include inspection of working and living conditions on board except for accommodation. The Committee requests the Government to ensure that its Port State procedure will be revised in order to be in conformity with the Convention.

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 standard wording in medical certificates once adopted (Standard A1.2, paragraph 10); an example of a document (e.g. Part II of the DMLC) 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 copy of the relevant national guidelines (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see guidance in 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; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7; the following statistical information for the period covered by this report: the number of foreign ships inspected in port; 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 constitute a serious or repeated breach of the requirements of the MLC, 2006 (including seafarers’ rights); a copy of your country’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag.

[The Government is asked to reply in full to the present comments in 2019.]