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

Convention du travail maritime, 2006 (MLC, 2006) - Gibraltar

Autre commentaire sur C186

Demande directe

2021
2017

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that seven maritime labour Conventions had been declared applicable to Gibraltar, which are no longer applicable following the entry into force of the MLC, 2006. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Gibraltar on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. The Committee notes the efforts undertaken by the Government 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.

General questions on application. Implementing measures. The Committee notes that the Convention has been incorporated through the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013. It further notes that Gibraltar has published a series of Maritime Labour Notices which follow the structure of the Convention. It notes that the explanatory chapeau of these notices states: “This MLN provides guidance on compliance with Gibraltar regulations which give effect to parts of MLC, 2006, Title [xxx]. Implementation of these guidelines will be taken as evidence of compliance with the Gibraltar regulations.” Recalling that the Articles, Regulations and Part A of the Code (Standards) are mandatory, the Committee requests the Government to clarify the legal status of the provisions of Maritime Labour Notices. The Committee also notes that the explanatory chapeau of the Maritime Labour Notices adds “The guidelines do not preclude the shipowner from demonstrating an equivalent or higher standard as an ‘alternative method’ of evidence of compliance.” It also notes that an “MLC 2006 Request for exemption/substantial equivalence” form can be downloaded from the Gibraltar Maritime Administration’s website, whereby a shipowner can request an exemption or the application of a substantial equivalence for a specific ship. In this regard, the Committee recalls that Article VI, paragraph 3, of the Convention provides that “a Member which is not in position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A”. The Committee draws the Government’s attention to its General Observation adopted in 2014, in which it indicated 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, of the Convention, 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 paragraph 4 of Article VI. Any substantial equivalences that have been adopted must be stated in Part I of the Declaration of Maritime Labour Compliance (DMLC) that is to be carried on board ships that have been certified. The Committee requests the Government to indicate if it has adopted any substantial equivalences as permitted under Article VI of the Convention, through which procedure and on which issues.

Consultations with shipowners’ and seafarers’ organizations. The Committee recalls that ratifying members are required, under various provisions of the Convention, to make determinations after consultations with shipowners’ and seafarers’ organizations. The Committee notes that in several occasions, the Government has adopted laws and regulations with a view to implement the Convention but has not indicated if these had been adopted after such consultations. This is the case, for example, in relation to Standard A1.1, paragraph 4 (minimum age for work likely to jeopardize the health or safety of seafarers; see section 8(f) of Maritime Labour Notice No. 003); Standard A2.1, paragraph 5 (minimum notice period for early termination of a seafarers’ employment agreement; see Regulation 12(1)(c) of the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013 and Section 13 of Maritime Labour Notice No. 007); and Standard A2.5.2, paragraph 3 (establishing that the form of the financial security system in place for ships (social security scheme or insurance or a national fund or other similar arrangements) must be determined by the Member). The Committee requests the Government to indicate how it gives effect to the Convention’s requirements regarding consultations.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age for work likely to jeopardize the health or safety of seafarers. The Committee notes that, under section 8(f) of Maritime Labour Notice No. 003, the Gibraltar Maritime Administration has determined that young seafarers are prohibited from carrying out certain hazardous work. However, section 8(g) sets out exceptions to this prohibition where the work is: (i) an indispensable part of their established training programme; (ii) performed under the supervision of a competent person; and (iii) carried out in a way in which the young person’s health and safety is ensured (so far as is reasonably practicable) when performing the activity. The Committee recalls, in this respect, that Standard A1.1, paragraph 4, prohibits the employment, engagement or work of seafarers under the age of 18 for hazardous work, without exception. The Committee requests the Government to amend its legislation to give full effect to this provision of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 13. Exceptions to the limits on hours of work and hours of rest. The Committee notes that Regulation 15(3) of the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013 allows exemptions to the limits of hours of work and hours of rest through collective agreement or “workforce agreement”. It notes the definition of “workforce agreement” under Regulation 2(1) and, by analogy, in the Schedule to the Fixed-term and Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2003. Recalling that Standard A2.3, paragraph 13, only allows exceptions to the limits set out under paragraphs 5 and 6 where permitted in a collective agreement, the Committee requests the Government to clarify the meaning of “workforce agreement” and to specify whether it provides the same level of protection for workers as a collective agreement.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. 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 that the Gibraltar Maritime Administration issued Maritime Labour Notice No. 030 entitled “MLC Titles 2 & 4 Regulations 2.5 & 4.2 – Amendments to MLC entering into force on 18 January 2017” which recalls the requirements under the amended version of Regulations 2.5 and 4.2 of the Convention. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also 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 2.6 and Standard A2.6. Seafarers’ compensation for the ship’s loss or foundering. In a direct request adopted in 2011 on the application of the Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8), by Gibraltar, the Committee noted that under section 21(2) of the Gibraltar Merchant Shipping (Safety, etc.) Ordinance, 1993, in a case of shipwreck or loss of the ship, proof that a seafarer had not exerted himself to the utmost to save the ship, cargo and stores barred his claim for wages. The Committee drew the Government’s attention to the fact that such restriction was not authorized by Article 2 of the Convention and requested the Government to provide clarifications in this respect. Convention No. 8 has been revised by the MLC, 2006, and the content of its Article 2 reflected in Regulation 2.6 and Standard A2.6, paragraph 1, which stipulates that ratifying Members shall make rules ensuring that, in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from such loss or foundering. The Committee notes that when the Gibraltar Merchant Shipping (Safety, etc.) Ordinance, 1993 became an Act, Section 21(2) was not amended. It also notes that no such restriction is provided for under Regulation 20 of the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013. The Committee recalls that a restriction of the type indicated under Section 21(2) of the Gibraltar Merchant Shipping (Safety, etc.) Act, 1993, is not provided for under Standard A2.6 and, noting the existence of conflicting provisions on this issue, requests the Government to amend the Act in order to fully comply with the requirements of the Convention.

Regulation 2.7 and Standard A2.7, paragraphs 1 and 2. Safe manning levels. The Committee notes that the DMLC, Part I, provides that the “Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) Regulations 1997 require safe manning documents for all ships over 500 GT.” It also notes that Regulation 4 of the Gibraltar Merchant Shipping (Manning, Training and Certification for Seafarers) Regulations 2006, which states the requirement for safe manning document, does not provide for any gross tonnage threshold. The Committee recalls that Standard A2.7 of the Convention provides that “Each Member shall require that all ships that fly its flag have a sufficient number of seafarers on board to ensure that ships are operated safely, efficiently and with due regard to security. Every ship shall be manned by a crew that is adequate, in terms of size and qualifications, to ensure the safety and security of the ship and its personnel, under all operating conditions, in accordance with the minimum safe manning document or an equivalent issued by the competent authority, and to comply with the standards of this Convention.” The Committee requests the Government to clarify whether all ships covered by the Convention that fly its flag have safe manning levels which are determined or approved by the competent authority, and how such manning levels are determined according to tonnage.

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In 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 meet certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also 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 4.2 and Standard A4.2.1, paragraph 1(d). Cost of burial expenses. The Committee notes that Article 49(5) of the Merchant Shipping Act No. 1935-09 of 1935 as amended, provides that in some instances, expenses incurred by the shipowner in respect of illness and burial of any seafarer shall be deducted from the wages of the seafarer. It notes, however, that Regulation 29(1)(e) of the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013 does not provide for this deduction. In that regard, the Committee recalls that Standard A4.2.1, paragraph 1(d), provides that shipowners shall be liable to pay the cost of burial expenses in the case of death occurring on board or ashore during the period of engagement and that there is not possible exception to this requirement. Noting the existence of conflicting provisions, the Committee requests the Government to amend Article 49(5) of the Merchant Shipping Act No. 1935-09 of 1935 in order to give full effect to the requirement under Standard A4.2.1, paragraph 1(d).

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10, the Government of the United Kingdom has specified, on behalf of Gibraltar, the following branches of social security for which protection is provided: employment injury benefit, invalidity benefit and survivors’ benefit. The Committee notes, however, that, according to the information provided by the Government of Gibraltar, the branches for which it provides protection in accordance with Standard A4.5, paragraphs 1, 2 and 10, are: medical care and employment injury benefit. The Committee therefore requests the Government to provide information on the branches of social security for which protection is provided for seafarers in Gibraltar paying particular attention to the branches for which it has acquired an international obligation following the declaration made by the Government of the United Kingdom. The Committee also notes the Government’s statement that the main benefits provided under medical care are “hospital treatment in Gibraltar”. The Committee requests the Government to specify how benefits relating to medical care are afforded to seafarers when they are abroad. It also requests the Government to indicate the main benefits provided in the employment injury benefit branch. Finally, it requests the Government to indicate the measures taken or envisaged to participate in any bilateral or multilateral arrangements regarding the provision of social security protection, including the maintenance of rights acquired or in the course of acquisition, as required in Standard A4.5, paragraphs 3, 4 and 8.

Regulation 5.2.2 and Standard A5.2.2. On-shore complaint-handling procedures. The Committee notes that Regulation 42 of the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013, to which the Government makes reference, refers only to ships flying the flag of Gibraltar. The Committee requests the Government to provide additional information on procedures established, including steps taken to safeguard confidentiality, for seafarers calling at its ports to report a complaint alleging breach of the requirements of the MLC, 2006 (including seafarers’ rights). The Committee also requests the Government to provide information on the number of on-shore complaints that were reported and on the complaints that were resolved and reported to the ILO Director-General.

Additional documents requested. The Committee requests the Government to provide the following documents and information: a copy of the DMLC, Part I, taking into account the 2014 amendments to the Convention; an example of the DMLC, Part II, filled in by a shipowner; an example of the approved document for seafarers’ record of employment (Regulation 2.1); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Regulation 2.5); a typical example of a safe manning document for each type of ship (Regulation 2.7); a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Regulation 4.1); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Regulation 4.2); an example of a document (e.g. the DMLC, Part II) outlining a shipowner’s practices or on-board programmes for preventing occupational accidents, injuries and diseases (Regulation 4.3); statistical information on the number of full-term (up to five years) maritime labour certificates currently in force and the number of interim certificates issued during the reporting period (Regulation 5.1.1); an example of authorizations given to recognized organizations (Regulation 5.1.2); a copy of the national interim maritime labour certificate (Regulation 5.1.3); a copy of the annual reports on inspection activities; a copy of the standard document issued to or signed by inspectors setting out their functions and powers; a copy of any national guidelines issued to inspectors on their tasks; a copy of the form used for an inspector’s report; a copy of any documentation available informing seafarers and interested others about the procedures for making a complaint (including seafarers’ rights) (Regulation 5.1.4); and a copy of a document on the on-shore complaint-handling procedures (Regulation 5.2.2).

[The Government is asked to reply in full to the present comments in 2019.] -- Following the modifications to the reporting cycle adopted by Governing Body, the CEACR decided to postpone this request to 2020.