Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention du travail maritime, 2006 (MLC, 2006) - Thaïlande (Ratification: 2016)

Autre commentaire sur C186

Demande directe

2023
2019

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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). The Committee notes that the Government has not ratified any of the maritime Conventions revised by the MLC, 2006. It notes that the Government 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 these amendments. The Committee notes that the amendments adopted by the Conference in 2016 entered into force for Thailand on 8 January 2019. 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.

Article II, paragraphs 1(f) and 2 of the Convention. Definitions and scope of application. Seafarers. The Committee notes that section 3 of the Maritime Labour Act B.E. 2558, 2015 (hereafter the MLA) excludes from the definition of a seafarer a person working temporarily on board a ship without, however, specifying the time frame or indicating the criteria to determine that time frame. While noting the Government’s indication that no cases of doubt have arisen as to whether any categories of persons are to be regarded as seafarers, the Committee observes that the persons excluded by section 3 of the MLA relate to cases of doubt as to whether categories of workers are to be regarded as seafarers for the purpose of the Convention and for which an explicit determination by the competent authority is necessary under Article II, paragraph 3, of the Convention. The Committee therefore requests the Government to: (i) provide information on the criteria that are to be followed to determine if a category of person temporarily working on board is excluded from the definition of seafarer; (ii) indicate the categories of persons, if any, who have been excluded from the application of the Convention under section 3 of the MLA; and (iii) provide information on whether the above exclusion was determined after consultations with the shipowners’ and seafarers’ organizations concerned.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that section 3 of the MLA defines a “ship” as one which normally navigates in seawater for commercial purposes but shall not include: (1) a ship used for fishing or other ships with similar purposes; (2) a ship traditionally built; (3) a governmentally military ship; and (4) other ships as prescribed by ministerial regulations. While the Government indicates that no cases of doubt have arisen as to whether a ship or a particular category of ship is covered by the Convention, section 3(4) of the MLA, Ministerial Regulation B.E. 2561 states that, among others, the following will not be considered ships for the purpose of application of the requirements of the MLC, 2006: (2) a vessel of less than 200 gross tonnage with a domestic maritime area; (5) a vessel with naval area within province; (7) mobile offshore drilling units (MODUs); (8) a ship engaged on Local Trade voyage, or non-self-propelled vessel. 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. In the event of doubt, a determination may be made under paragraph 5 as to whether the Convention applies to a ship or particular category of ships. The Committee therefore requests the Government to specify whether the determinations with respect to the exclusion of categories of ships from the application of the Convention, as set out in the ministerial regulation prescribing ships excluded from the Maritime Labour Act B.E. 2558, B.E. 2561 were made after consultation with shipowners’ and seafarers’ organizations. The Committee further underlines that the Convention does not allow for a general or overall exclusion of ships below a certain gross tonnage. Article II, paragraph 6 provides flexibility with respect to the application of “certain details of the Code”, that is, Standard and Guidelines, to a ship or particular categories of ships of less than 200 gross tonnage that do not voyage internationally. This flexibility can only be applied 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 certain details of the Code at the present time and that the subject matter is dealt with differently by national legislation or collective agreements or other measures. The Committee accordingly requests the Government to indicate how it ensures that the protection afforded by the Convention is guaranteed to all seafarers working on board ships under 200 gross tonnage. The Committee further requests the Government to provide detailed information about the definitions of “vessel with naval area within province” and “ship engaged in Local Trade voyage”.

Article III. Fundamental rights and principles. The Committee notes that Thailand has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). 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 seeks 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 the information provided by the Government that seafarers are entitled to freedom of association and the effective recognition of the right to collective bargaining under sections 90 to 94 of the MLA. The Committee, however, notes that section 94 of this Act provides that no seafarer, agent to a seafarer, members of the committee, members of the subcommittee, or members of the seafarer organization related to such demand (relating to employment condition of seafarers) shall support or cause a lock‐out. The Committee notes that this section deprives seafarers from the right to take industrial action. The Committee requests the Government to indicate how it has satisfied itself that this provision of the MLA respects the fundamental right to freedom of association provided for under Article III of the Convention.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. The Committee notes that, under section 16 of the MLA, exceptions to the prohibition of night work are possible: “(a) when the seafarer is engaged in a training programme with advanced schedules; or (b) when the training requires night work to be performed due to the specific position and duty of the seafarer, with an approval of the Director‐General of Department of Labour Protection and Welfare, or a person assigned by the Director‐General who determines that it shall not negatively affect their health and good living condition”. The Committee requests the Government to indicate how it ensures that the exceptions authorized by the competent authority under point (b) above, are made after consultation with the shipowners’ and seafarers’ organizations concerned as required by Standard A1.1, paragraph 3(b).

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that section 35 of the MLA prohibits recruitment services from charging fees to seafarers except for the following expenses: (i) an expense for the issuance of a medical certificate; (ii) fee for a seafarer documentation issued by the Marine Department; (iii) passport fee or documents used for travelling but shall not include fee for immigration stamp; (iv) other expenses as prescribed in ministerial regulations. In this regard, the Committee recalls that paragraph 5(b) of Standard A1.4 provides that a Member “shall, in its laws and regulations or other measures, at a minimum require that no fees or other charges for seafarer recruitment or placement or for providing employment to seafarers are borne directly or indirectly, in whole or in part, by the seafarer, other than the cost of the seafarer obtaining a national statutory medical certificate, the national seafarer’s book and a passport or other similar personal travel documents, not including, however, the cost of visas, which shall be borne by the shipowner”. Noting that section 35 of the MLA refers to other expenses which may be borne by the seafarer, as prescribed in ministerial regulations, the Committee requests the Government to identify what the expenses may consist of and how it is ensured that seafarers are not charged, directly or indirectly, for any other costs than those provided for in Standard A1.4, paragraph 5(b).

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. The Committee notes that section 28 of the MLA provides for an insurance system established “to compensate job seekers and shipowners in the case where damage occurs” and that sections 38–40 provide for arrangements on transportation, accommodation, food and other necessary expenses for travel in the case where a jobseeker does not get a job as specified in the employment agreement of a seafarer and such a jobseeker does not wish to continue such work. While noting the detailed provisions adopted to protect seafarers in this case, the Committee observes that it is unclear if they also cover monetary loss seafarers may incur, once they have started working, as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them (Standard A1.4, paragraph 5(c)(vi)). The Committee requests the Government to provide clarifications in this regard.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement (SEA). Record of employment. The Committee notes that the Declaration of Maritime Labour compliance (DMLC), Part I, states that seafarers shall be given a seaman book/seafarer’s discharge book containing a record of their employment on board the ship. The Committee notes however that the Government has not provided information with respect to the requirement under Standard A2.1, paragraph 3, concerning the form of the document, the particulars to be recorded and the manner in which such particulars are to be entered be determined by national law and that the document shall not contain any statement as to the quality of the seafarer’s work or as to their wages. The Committee requests the Government to provide information on how it gives effect to this provision of the Convention as well as a sample of the approved document for the seafarers’ record of employment.

Regulation 2.2 and Standard A2.2, paragraphs 3, 4 and 5. Wages. Allotments. The Committee notes that section 51 of the MLA provides that a shipowner shall arrange for a seafarer to transfer, wholly or partly, the money received to a person specified by the seafarer in accordance with the agreed time period by which the shipowner may charge the actual expense from the seafarer. Observing the absence of more detailed information, the Committee recalls that Standard A2.2, paragraph 5, requires that allotment services, which provide seafarers with means to transmit all or part of their earnings to their families, dependants or legal beneficiaries, be charged at a reasonable amount and that the rate of currency exchange be at the prevailing market rate or the official published rate and not unfavourable to the seafarers. The Committee therefore requests the Government to indicate how effect is given to these requirements of the Convention, in particular in relation to the reasonable amount to be charged and the currency exchange rate to be used for allotments.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes that the DMLC, Part I, refers to the normal working hours standard for seafarers based on an eight-hour day with a day of rest per week and rest on public holidays and not over 48 hours in any seven-day period. The Committee, however, observes that neither section 58 of the MLA which provides that working hours for each day shall not exceed eight hours and the total amount of hours for each week shall not exceed 48 hours, nor the model SEA provided by the Government, refer to weekly rest and rest on public holidays. It recalls that Standard A2.3, paragraph 3, provides that each Member acknowledges that the normal working hours standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. The Committee requests the Government to indicate how it is ensured that the normal working hours standards for seafarers include one day of rest per week and rest on public holidays, as required by this provision of the Convention.

Regulation 2.3 and Standard A2.3, paragraphs 7, 8 and 9. Hours of work and hours of rest. Drills and on-call work. The Committee notes that the Government has not specified the requirements relating to granting compensatory rest in case of call-outs to work or minimizing disturbance of rest periods during drills, in accordance with paragraphs 7 and 8 of Standard A2.3. The Committee recalls that the question of granting compensatory rest in case of call-outs to work or minimizing disturbance of rest periods during drills is left to be regulated through collective agreements and that it is only in the absence of such agreements, or if the competent authority determines that any collectively agreed provisions are inadequate, that the Government is expected to regulate these matters. Noting the Government’s indication that there are no collective agreements containing provisions on these matters, the Committee requests the Government to indicate the measures taken to establish such provisions, as required by Standard A2.3, paragraphs 7 to 9.

Regulation 2.3 and Standard A2.3, paragraph 12. Hours of work and hours of rest. Records. The Committee notes that there seem to be no national provisions with respect to the requirements that records of seafarers’ daily hours of work or of their daily hours of rest be maintained, in a standardized format, and that seafarers shall receive a copy of those records pertaining to them which shall be endorsed by the master, or a person authorized by the master, and by the seafarers, in accordance with Standard A2.3, paragraph 12. The Committee requests the Government to indicate the measures taken to give full effect to this requirement of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes the Government’s indication that clause 4 of Notification of Marine Department No. 110/2560 on Rules, Procedures and Conditions of Security to assure Repatriation provides that seafarers have the right to repatriation in all the circumstances provided for by Standard A2.5.1, paragraph 1 of the Convention. The Committee however notes that, neither section 66 of the MLA, nor the example of the SEA provided by the Government, provide for the right to repatriation at no cost to themselves when the SEA is terminated by the seafarer for justified reasons (Standard A2.5.1, paragraph 1(b)(ii)). The Committee recalls that according to Standard A2.5.1, paragraph 1(b)(ii), seafarers are entitled to repatriation when the SEA is terminated by the seafarer for justified reasons. The Committee requests the Government to indicate how it ensures that seafarers are entitled to repatriation in the circumstances foreseen in Standard A2.5.1, paragraph 1(b)(ii).

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee notes that section 68 of the MLA provides that the shipowner shall not pay for the repatriation expenses in the case of termination of contract when a seafarer conducts an offence against the law of the flag of a State or commits a negligent offence on duty or fails to comply with an employment agreement of a seafarer. 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. While noting 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 also to indicate 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 Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee notes that the DMLC, Part I, and Annex 6 on the minimum safe manning requirements refer to the need to take into account the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering when determining manning levels. The Committee however notes the Government’s indication that the requirements on manning composition do not take into account the ship’s cook or catering staff. It recalls that, under Standard A2.7, paragraph 3, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to indicate the measures taken or envisaged to ensure that the requirement of Regulation 2.7, paragraph 3 is given full effect.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee notes that the Government has not indicated, in relation to Standard A3.1, paragraph 3, whether inspections required under Regulation 5.1.4 (inspections and enforcement) are carried out when a ship is registered or re-registered and/or when seafarer accommodation is substantially altered. The Committee requests the Government to indicate the measures taken or envisaged to ensure compliance with this requirement of the Convention.

Regulation 3.1 and Standard A3.1, paragraph 20. Accommodation and recreational facilities. Exemptions for ships of less than 200 gross tonnage. The Committee notes that clause 2 of Notification of Marine Department No. 112/2560 on the Standards of Accommodations, Spaces and Facilities for Seafarers excludes ships of less than 200 gross tonnage engaged in domestic voyages from its scope of application. The Committee recalls that exemptions to Standard A3.1 may be allowed, only after consultation with the shipowners’ and seafarers’ organizations, only for ships of less than 200 gross tonnage and for certain requirements of Standard A3.1, i.e. 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. Furthermore, such exemptions must be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee therefore requests the Government to indicate the measures taken ensure that exemptions are only made where they are expressly permitted in Standard A3.1 and under the requirements set out under Standard A3.1, paragraphs 20 and 21.

Regulation 3.2 and Standard A3.2, paragraph 6. Food and catering. Dispensation of a fully qualified cook. The Committee notes the Government’s reference to section 76 of the MLA which provides that a shipowner shall ensure that a seafarer assigned to work to provide food has passed the appropriate training standard or obtains qualifications in accordance with the rules, procedures and conditions as prescribed by the Director‐General of Marine Department. While these provisions cover the requirements of Standard A3.2, paragraphs 2(c), 3 and 4, the Committee notes that the Government’s indication that section 76 allows for dispensations without specifying the circumstances under which these dispensations are permitted. While noting that the only exceptions allowed by the Convention concern ships with a prescribed manning of less than ten which may not be required by the competent authority to carry a fully qualified cook and circumstances of exceptional necessity (respectively Standard A3.2, paragraphs 5 and 6), the Committee requests the Government to indicate whether exemptions are limited to these cases.

Regulation 4.1, paragraph 3. Medical care on board and ashore. Access to on-shore medical facilities for seafarers on board foreigner ships. The Committee notes the Government’s indication that access to medical facilities on shore for seafarers on board ships voyaging in Thai waters or ports is not provided under the MLA and that the applicable national provisions will be provided its next report. The Committee requests the Government to indicate the measures taken or envisaged, including how this requirement is applied in practice, to give effect to Regulation 4.1, paragraph 3, regarding the obligation as a port State to ensure that seafarers on board ships in Thai territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore.

Regulation 4.2 and Standard A4.2.1, paragraph 7. Shipowners’ liability. Safeguarding of property left on board. The Committee notes the Government’s indication that the shipowners’ obligation in Standard A4.2, paragraph 7, of the Convention to safeguard the personal property of sick or injured or deceased seafarers and/or to return it to them or their next of kin is currently not prescribed. The Committee requests the Government to take the necessary measures to ensure conformity with these provisions of the Convention.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indication that detailed information on seafarer welfare facilities in the country will be provided in its next report. The Committee requests the Government to provide information on progress made with respect to the development of welfare facilities.

Regulation 4.5 and the Code. Social security. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10, the Government has declared that the branches for which it provides protection are medical care; employment injury benefit; family benefit; invalidity benefit and survivors’ benefit. The Committee notes the Government’s indication that the Maritime Labour Committee established under the MLA is now in the process of revising the MLA with respect to social security protection for seafarers with the intention to allow seafarers to be registered under the Workmen’s Compensation Fund and the Social Security Fund under the same schemes with on-shore employees. The Committee requests the Government to provide information on any development in this respect and to indicate how it ensures that seafarers ordinarily resident in its territory are provided social security benefits that are no less favourable than those provided to shoreworkers resident in Thailand. The Committee also notes the Government’s indication that shipowners’ and, if applicable, seafarers’ contributions to relevant social protection systems or schemes are not monitored. The Committee requests the Government to provide information concerning any progress with the implementation of the required contributions to relevant social protection and social security schemes.

Regulation 5.1.4 and Standard A5.1.4, paragraph 4. Flag State responsibilities. Inspection and enforcement. Intervals of inspection. The Committee notes that article 11 of Notification of Ministry of Transport on Rules, Procedures and Conditions for Competent Officials in Inspecting on a Thai Ship or Entering an Office of Shipowner or Workplace to Inspect Maritime Labour, provides that vessels which are not required to carry a Maritime Labour Certificate, are nonetheless subject to inspection on working and living conditions. While noting that there is no frequency provided for in the national provisions regarding the interval of inspections for ships that are not required to carry a Maritime Labour Certificate, the Committee requests the Government to indicate how it ensures that such inspections are conducted at least every three years as required by Standard A5.1.4, paragraph 4.

Regulation 5.1.4 and Standard A5.1.4, paragraph 7. Flag State responsibilities. Inspection and enforcement. Powers of inspectors. The Committee notes the Government’s indication that no national provisions provide that flag State inspectors shall be empowered, where they have grounds to believe that deficiencies constitute a serious breach of the Convention (including seafarers’ rights), to prohibit a ship from leaving the port. The Committee requests the Government to indicate the measures taken or envisaged to give effect to Standard A5.1.4, paragraph 7(c), of the Convention.

Regulation 5.1.4 and Standard A5.1.4, paragraph 16. Flag State responsibilities. Inspection and enforcement. Compensation in case of wrongful exercise of the inspectors’ powers. Regarding the compensation for loss or damage suffered as a result of the wrongful exercise of the inspectors’ powers, provided for under Standard A5.1.4, paragraph 16, the Committee notes that the Government indicates that there are currently no legal provisions or principles under which such compensation must be paid. The Committee requests the Government to indicate the measures envisaged to give effect to this requirement of the Convention.

Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On board complaint procedures. The Committee notes that section 89 of the MLA contains provisions with respect to the on-board complaint procedure. It notes, however, the Government’s indication that it has not developed a model for a fair and expeditious and well-documented on-board complaint procedure for ships flying Thailand’s flag. The Committee also notes that other requirements of Regulation 5.1.5 and the Code are not reflected in national legislation, such as the right of the seafarer to be accompanied or represented during the complaint procedure (Standard A5.1.5, paragraph 3) and the elements to be contained in the copy of the on-board complaint procedures to be provided to the seafarer (Standard A5.1.5, paragraph 4). The Committee therefore requests the Government to take the necessary measures to ensure that appropriate on-board complaint procedures are in place to meet the requirements of Regulation 5.1.5 and the Code, and to provide a copy of the model for on-board complaint procedures or of typical procedures that are followed on ships once adopted.

Regulation 5.2 and the Code. Port State responsibilities. The Committee notes the information provided by the Government according to which Thailand has adhered to the Tokyo Memorandum of Understanding (MoU). The Committee notes that the Government refers to the Notification of Ministry of Transport on Rules, Procedures and Conditions for Competent Officials in Inspecting on a Thai Ship or Entering an Office of Shipowner or Workplace to Inspect Maritime Labour, which appears to address flag State responsibilities rather than port State obligations. The Committee recalls that Regulation 5.1 refers to port State obligations and provides that each Member shall establish an effective port State inspection and monitoring system to help ensure that the working and living conditions for seafarers on foreign ships entering a port in Thailand meet the requirements of this Convention. The Committee requests the Government to provide updated information concerning the establishment of an effective port State control inspection and monitoring system of foreign ships calling in a Thai port, for the purpose of reviewing compliance with the Convention relating to the working and living conditions of seafarers on ships.

Additional documents requested. The Committee observes that the DMLC, Part II, provided by the Government is a blank form and is not an example of an approved DMLC, Part II, that has been drawn up by a shipowner to set out the measures adopted to ensure ongoing compliance with the national requirements and measures proposed to ensure that there is continuous improvement, as provided under Standard A5.1.3, paragraph 10(b), of the Convention. The Committee requests the Government to provide one or more examples of an approved DMLC, Part II.

[The Government is asked to reply in full to the present comments in 2022.]