Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

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

Autre commentaire sur C186

Observation

Demande directe

2021
2020
2019

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The Committee notes that Maldives has ratified the eight fundamental Conventions, as well as the Seafarers' Identity Documents Convention (Revised), 2003, as amended (No. 185). It further notes that Maldives has not submitted a declaration of acceptance of the amendments to the Code of the Convention approved in 2014 by the International Labour Conference and is therefore not bound by these amendments. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2016 entered in force for the country on 8 January 2019. 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.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020 respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

Noting that no information is available on the application of the following provisions of the Convention, the Committee requests the Government to provide detailed information on the implementation of the following matters, based on the questions in the report form :

The competent authority having power to issue and enforce regulations in respect of subject matters covered by the Convention (Article II, paragraph 1(a));

-the shipowners’ and seafarers’ organizations that the competent authority consult on matters relating to the implementation of the Convention (Article VII);
-the definition of “seafarer” under the legislation implementing the Convention, specifying whether cases of doubt have arisen as to if any categories of persons are to be regarded as seafarers (Article II, paragraphs 1(f), 2 and 3);
-the definition of a ship under national law and whether cases of doubt have arisen as to if a vessel or a particular category of vessels are to be regarded as ships covered by the Convention; in the case of ships under 200 GT not engaged in international voyages, information on measures to apply differently certain details of the Code (Article II, paragraphs 1(i), 4, 5 and 6);
-provisions of legislation or other measures which prohibit the violation of the requirements of the Convention and establish sanctions or require the adoption of corrective measures to discourage such violations (Article V, paragraph 6);
-the implementation of: Regulation 1.2 and Standard A1.2 (medical certificate); Regulation 1.3 (training and qualification); Regulation 1.4 and Standard A1.4 (recruitment and placement); Standard A2.1, paragraphs 1(b), (d) and (e) and 2 (seafarers’ employment agreements); Regulation 2.3 and the Code (hours of work and hours of rest); Regulation 2.4, paragraph 2 (shore leave); Regulation 2.5, Standard A2.5and Guideline 2.5 (repatriation); Regulation 2.6 and the Code (seafarer compensation for the ship’s loss or foundering); Regulation 2.7 and the Code (manning levels); Regulation 2.8 and Standard A2.8 (career and skill development and opportunities for seafarers’ employment); Regulation 3.1 and Standard A3.1 (accommodation and recreational facilities); Regulation 3.2 and the Code (food and catering); Regulation 4.1 and the Code (medical care on board ship and ashore); Regulation 4.2 and Standard A4.2 (shipowner’s liability); Regulation 4.3 and the Code (health and safety protection and accident prevention); Regulation 4.4 and Standard A4.4 (access to shore-based facilities); Regulation 4.5 and the Code (social security); Regulation 5.1 (Regulations 5.1.1, 5.1.2, 5.1.3, 5.1.4, 5.1.5 and 5.1.6 and the Code) (flag State responsibilities); Regulation 5.2 (Regulations 5.2.1 and 5.2.2 and the Code).

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee notes that under section 6 of the Employment Act “minors under the age of sixteen years shall not be employed except in connection with training associated with their education or deportment”. Noting that this provision allows for exceptions to the minimum age, the Committee requests the Government to adopt the necessary measures to ensure that no person below 16 years is employed or engaged or work on a ship, as required by the Convention.

Regulation 1.1 and Standard A1.1, paragraph 2. Minimum age. Night work. The Committee notes that under section 9(b) of the Employment Act, a minor shall not be required to work after 11pm at night. It recalls that under Standard A1.1, paragraph 2, night work of seafarers under 18 years shall be prohibited. Night shall be defined in accordance with national law and practice and shall cover a period of at least nine hours starting no later than midnight and ending no earlier than 5 a.m. The Committee requests the Government to indicate how night is defined pursuant to Standard A1.1, paragraph 2 of the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that under section 7(a) of the Employment Act, no minors (persons under 18 years of age) shall be employed in any work or employment that may have a detrimental effect on their health, education, safety or conduct. It also notes the Government's information regarding the application of the Minimum Age Convention, 1973 (No. 138), that specific types of hazardous work have not been identified. The Committee recalls that under Standard A1.1, paragraph 4, the types of hazardous work for seafarers under 18 years of age shall be determined by national legislation or by the competent authority, after consultation with the shipowners' and seafarers' organizations concerned. The Committee requests the Government to take the necessary measures to ensure compliance with Standard A1.1, paragraph 4 of the Convention and to provide information in this regard.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that section 13(b) of the Employment Act requires a written employment agreement between the employer and the employee. The Committee recalls that Standard A2.1, paragraph 1(a) of the Convention requires that seafarers’ employment agreements (SEAs) are signed by both the seafarer and the shipowner (or a representative thereof), regardless of whether the latter is the employer of the seafarer. Standard A2.1, paragraph 1(c) requires that the shipowner and seafarer concerned shall each have a signed original of the SEA. The Committee requests the Government to indicate how it gives full effect to Standard A2.1, paragraph 1(a) and (c) of the Convention, reproducing the relevant national provisions or a summary thereof.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee notes that section 13 of the Employment Act regulates matters to be included in the employment agreement. It notes that a number of matters to be included in the SEA pursuant to Standard A2.1, paragraph 4, are not listed under section 13 of the Employment Act, such as details on the shipowner, capacity in which the seafarer is to be employed, conditions of termination of employment, health and social security benefits, seafarer's entitlement to repatriation. The Committee requests the Government to indicate the national provisions giving full effect to Standard A2.1, paragraph 4 of the Convention, reproducing their text or a summary thereof.

Regulation 2.1 and Standard A2.1, paragraphs 5 and 6. Seafarers’ employment agreement. Minimum notice period for termination. Shorter notice period for urgent reasons. The Committee notes that the Employment Act regulates termination of employment and notice periods for early termination of employment agreements of indefinite duration (sections 22 et seq.). Under section 22, the shorter minimum period of notice is two weeks for a period of employment of between six months and one year. The Committee notes that such provision does not appear to take into consideration the specificities of seafarers, who are likely to be employed for a period of less than six months. The Committee also observes that the Convention does not allow the waiver by the seafarer to the right to be given notice of termination (section 22 of the Employment Act), nor provides for payment in lieu of notice (section 25 of the Employment Act). It observes therefore that the above provisions of the Employment Act are not in full conformity with the Convention. The Committee requests the Government to indicate the measures taken to ensure full compliance with Standard A2.1, paragraph 5 of the Convention, reproducing the relevant national provisions or a summary thereof. The Committee further notes that the Employment Act only provides for termination without notice in case of dismissal by the employer for reasonable grounds (section 23). The Committee requests the Government to ensure that in determining the circumstances justifying the termination of employment at shorter notice or without notice, the need of the seafarer to terminate employment without penalty for compassionate or other urgent reasons is taken into account, as provided by Standard A2.1, paragraph 6. It requests the Government to provide information in this regard.

Regulation 2.2 and Standard A2.2, paragraph 2. Wages. Monthly account of payments. The Committee notes that section 53 of the Employment Act provides for the requirement to provide a statement - or including in a register signed by the employee - information regarding the total wage paid to the employee, details and reasons of any deductions. The Committee recalls that Standard A2.2, paragraph 2 provides that the monthly account of payments shall also include information on the rate of exchange used when the payment has been made in a currency or at a rate different from the one agreed to. The Committee requests the Government to indicate the national provisions giving full effect to Standard A2.2, paragraph 2 of the Convention, reproducing their text or a summary thereof.

Regulation 2.2 and Standard A2.2, paragraphs 3, 4 and 5. Wages. Allotments. The Committee notes that section 50(b) of the Employment Act allows payments to be made to a person nominated by the employee. The Committee recalls that Standard A2.2, paragraph 4 of the Convention requires the adoption of measures to ensure that seafarers are able to transmit their earnings to their families, in particular by allotting a proportion of their wages for remittance at regular intervals to their families by bank transfers or similar means. Allotments should be remitted in due time and directly to the person or persons nominated by the seafarers. Standard A2.2, paragraph 5 provides that any charge for the transferral of wages shall be reasonable in amount, and the rate of currency exchange, unless otherwise provided, shall, in accordance with national laws or regulations, be at the prevailing market rate or the official published rate and not unfavourable to the seafarer. The Committee requests the Government to indicate how it ensures full conformity with Standard A2.2, paragraphs 4 and 5 of the Convention, reproducing the text of the relevant national provisions or a summary thereof.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. The Committee notes that under section 39 of the Employment Act, upon completion of one year of employment, an employee is entitled to thirty days of paid annual leave. The Committee recalls that annual paid leave shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment (Standard A2.4, paragraph 2) and 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 requests the Government to specify the method of calculation of paid annual leave for periods shorter than one year or in the event of termination of the employment relationship.

Documents requested. The Committee requests the Government to provide the following documents and information :: an example of the standard wording in medical certificates in English (Standard A1.2, paragraph 10); in English: i) an example of the approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); ii) the standard form or an example of a seafarers’ employment agreement (Standard A2.1, paragraph 2(a)); iii) the relevant portion of any applicable collective bargaining agreement (Standard A2.1, paragraph 2(b)); a copy of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy in English of: i) the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest (Standard A2.3, paragraph 12); ii) any authorized or registered collective agreement provisions that establish seafarers’ normal working hours or permit exceptions to the established limits (Standard A2.3, paragraphs 3 and 13); iii) the provisions on seafarers’ entitlement to repatriation in any applicable collective bargaining agreements (Standard A2.5, paragraph 2); 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, paragraph 2); for each type of ship (passenger, cargo, etc.), a typical example in English of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it; an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2); a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraph 4(a)); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2, paragraph 1(b); 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 list of all seafarers’ shore-based welfare facilities and services, if any, operating in your country and a copy of a report or review prepared by a welfare board, if any, on the welfare services; a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment; the following statistical information: i) number of ships flying your country’s flag that were inspected during the period covered by next report for compliance with the requirements of the Convention; ii) number of inspectors, appointed by the competent authority or by a duly authorized recognized organization, carrying out those inspections during the period covered by next report; iii) number of full-term (up to five years) maritime labour certificates currently in force; iv) number of interim certificates issued during the period covered by next report in accordance with Standard A5.1.3, paragraph 5; an example or examples of authorizations given to recognized organizations (Regulation 5.1.1, paragraph 5; Regulation 5.1.2, paragraph 2); a copy of the standard Maritime Labour Certificate, including Part I of the Declaration of Maritime Labour Compliance (DMLC) as well as an example or examples of Part II of the DMLC which have been prepared by a shipowner and have been accepted by your country, when certifying a ship or ships; in English, a copy of the national interim maritime labour certificate; 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 next report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7); 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 your country’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag; 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 next report: i) number of foreign ships inspected in port; ii) number of more detailed inspections carried out according to Standard A5.2.1, paragraph 1; iii) number of cases where significant deficiencies were detected; and iv) 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 MLC, 2006 (including seafarers’ rights); a copy of a document, if any, that describes the onshore complaint-handling procedures.