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

Convention du travail maritime, 2006 (MLC, 2006) - Bahamas (Ratification: 2008)

Autre commentaire sur C186

Demande directe

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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, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with serious concern the impact of the COVID-19 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.

The Committee notes with deep concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments. The Committee informs the Government that, if it has not supplied replies to the points raised by 1 September 2021, then it may proceed with the examination of the application of the Convention on the basis of the information at its disposal at its next session.

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It further notes that the Government has previously ratified two maritime labour Conventions, which have been denounced as a consequence of the entry into force of the MLC, 2006, for the Bahamas. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article II(1)(i), (4) and (6) of the Convention. Scope of application. Definition of the terms seafarers and ships. The Committee notes that section 3 of the Merchant Shipping (Maritime Labour Convention) Regulations, 2012 (hereinafter, the Regulations, 2012) envisages that the Director will make determinations as to categories of persons to whom the Regulations do not apply. In that respect, the Committee notes that section 2.5 of the Bahamas Maritime Authority (BMA) Information Bulletin No. 127 (Rev. No. 02 dated 27 March 2013), entitled Maritime Labour Convention, 2006 (MLC, 2006) provides that the BMA will make use of the guidance and criteria set out in the Resolution concerning information on occupational groups that was adopted by the 94th Session of the International Labour Conference (February 2006). Under section 2.6 of the Bulletin, the following persons are not seafarers for the purpose of the Convention application: port workers, including travelling stevedores; pilots and port officials; ship surveyors and auditors; equipment repair/service technicians and riding crew whose principal place of employment is onshore; guest entertainers who work occasionally and short-term on board with their principal place of employment being onshore. The Committee notes that sections 2.7–2.9 of Bulletin No. 127 provide for applications by shipowners for further determinations regarding persons that would not be considered seafarers and sections 2.9 and 2.10 contain minimum requirements that would still apply to these persons even if they are not considered seafarers, including meeting the requirements of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) if applicable to their ship board duties and, if required, International Ship and Port Facility Security (ISPS) matters. The Committee recalls its General Observation adopted in 2014: “The Committee also notes that the MLC, 2006, does not allow for the partial application of the national law implementing its provisions if the workers concerned are seafarers covered by the Convention. Exclusion of workers from the scope of the Convention is possible only where: (a) they clearly do not come within the definition of “seafarer”; (b) the ship on which they work is clearly not a “ship” covered by the Convention; (c) a doubt can arise in regard to (a) or (b) above and a determination has been made, in accordance with the Convention, that the categories of workers concerned are not seafarers or are not working on ships covered by the Convention; or (d) the provisions in the relevant legislation that do not apply to such workers relate to subjects that are not covered by the Convention.” The Committee also recalls that, according to paragraph 3 of Article II of the Convention, any determination as regards categories of persons to be regarded as seafarers must be made after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to specify whether the determinations with respect to the application of the Convention to categories of persons, as set out in Information Bulletin No. 127 (Rev. No. 02 dated 27 March 2013) were made after consultation with shipowners’ and seafarers’ organizations. The Committee also requests the Government to indicate if any further determination concerning the definition of seafarer has been made following an application by shipowners as foreseen in sections 2.7–2.9 of Bulletin No. 127.

The Committee further notes that section 3 of the Regulations, 2012, provides that its provisions apply to: (a) Bahamian registered ships engaged in commercial activities, except – (i) ships engaged in fishing, (ii) warships or naval ships, or (iii) any other ship as determined by the Director; (b) seafarers, except the categories of persons determined by the Director of the BMA and specified in the Bulletin; or (c) seafarer recruitment and placement services registered and licensed in the Bahamas. The Committee notes that the Regulations, 2012, do not contain a definition of the term “ship”. However, it notes that, according to section 2.2 of BMA Information Bulletin No. 127: “The Bahamas has determined that the following will not be considered ships for the purpose of application of the requirements of MLC 2006: (i) Ships that are trading and/or operating exclusively between ports and facilities within the Bahamas; (ii) Offshore units whose primary service is in operations for the exploration, exploitation or production of resources beneath the sea-bed, are not ordinarily engaged in navigation or international voyages (e.g. MODUs, drill ships, jack-up platforms, accommodation platforms, Floating Production, Storage and Offloading units (FPSO), purpose built or permanently converted Floating Storage and Offloading/Floating Storage Units (FSO/FSU) etc.); (iii) Commercial yachts of less than 24 metres in length; and (iv) Yachts in non-commercial use of any size.” The Committee notes that the Bulletin provides that these ships (which have been determined not to be ships for purposes of the Convention) must still provide coverage on a range of matters as set out in paragraph 2.3. The Committee recalls that the Convention applies to all ships as defined in paragraph 1(i) of Article II, other than those expressly excluded under paragraph 4. The Committee also recalls that paragraph 6 of Article II, provides additional flexibility with respect to the application of “certain details of the Code” to 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 the details of the Code provisions concerned at the present time and that the subject matter of the relevant Code provisions is dealt with differently by national legislation or collective agreements or other measures. The Committee underlines that paragraph 6 of Article II does not provide for the exclusion of a ship, or a category of ships, from the protection offered by the Convention. The Committee requests the Government to specify whether the determinations with respect to the application of the Convention to categories of ships, as set out in Information Bulletin No. 127 (Rev. No. 02 dated 27 March 2013) were made after consultation with shipowners’ and seafarers’ organizations. The Committee also requests the Government to indicate how it ensures that the Convention is applied to commercial yachts of less than 24 metres.

Regulation 1.1 and Standard A1.1. Minimum age. The Committee notes that, pursuant to section 11 of the Merchant Shipping (Training, Certification, Manning and Watchkeeping) Regulations, 2001 (hereinafter the Regulations, 2011), no person under the age of 16 years shall be employed, engaged or work on board, and no person under 18 years of age shall be employed, engaged or work on board where the work may jeopardize health and safety, and that the list of hazardous work will be determined by the competent authority. It further notes that the BMA Information Bulletin No. 140 (Rev. No. 00 dated 31 August 2012), entitled Minimum Age Requirements for Seafarers, requires that the Company ensure that the Shipboard Occupational Health and Safety Plan (SOHSP) addresses seafarers under the age of 18 and ensure that they are not engaged in any work or activity deemed hazardous. The Committee notes, in this regard, that the legislation does not contain the list of hazardous activities, which is required under paragraph 4 of Standard A1.1 of the Convention, and that must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards. The Committee requests the Government to indicate whether it has adopted a list of hazardous work activities prohibited for young workers under 18 years of age as required by the Convention and, if so, to transmit a copy.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. The Committee notes that section 17 of the Regulations, 2012 specifies the minimum hours of rest that must be ensured by the master. The Committee notes that section 17(10) authorizes the BMA, in consultation with the Director of Labour, to authorize or register collective bargaining agreements permitting exceptions to the limits set out in the collective bargaining agreements. The Committee further notes that, under section 28(4)(c) of the Regulations, 2011, a schedule is compliant if it provides a minimum of 10 hours of rest in any 24-hour period and 77 hours in any seven-day period. The Committee notes that this schedule complies with paragraph 5(b) of Standard A2.3 of the Convention. Nevertheless, it also notes that under section 28(5) of the Regulations, 2011, those hours of rest may be reduced on condition that the rest period is not less than 70 hours in any 7-day period and shall not extend beyond two consecutive weeks. It further notes that this exception is also included under section 4 of BMA Information Bulletin No. 144 (Rev. No. 00 dated 31 August 2012) entitled Hours of Rest. Finally, under section 6.4 of BMA Information Bulletin No. 142 (Rev. No. 01 dated 19 April 2013), entitled Seafarer Employment Agreement and Article of Agreement, the BMA “may authorize or register CBA permitting exceptions to the hours of work or hours of rest requirements at its discretion in certain exceptional circumstances”. The Committee notes that, although this exception indicates that the affected seafarer shall be in agreement with the arrangement or the agreement specified in a collective bargaining agreement, there is no indication that the exception was granted on the basis of collective bargaining. In this respect, it notes the Government’s indication that the BMA has not authorized or registered any collective bargaining agreements. The Committee recalls that, under paragraph 13 of Standard A2.3, the competent authority may have national laws or regulations or a procedure to authorize or register collective agreements permitting exceptions to the limits set out. The Committee notes, in this regard, that any such exceptions may only be granted within the framework of collective bargaining. The Committee requests the Government to explain whether the exceptions granted by the BMA under the Regulations are provided within the framework of collective bargaining. If they are not, the Committee requests the Government to adopt the necessary measures to implement Standard A2.3.

Regulations 2.4, 2.5 and the Code. Annual leave; repatriation. The Committee notes that section 18 of the Regulations, 2012, regulates annual leave and specifies that shipowners must give annual leave to seafarers upon completion of each 12 months of employment. The Committee notes, in this respect, that the concept of paid annual leave is assumed to be an uninterrupted period that is to be taken annually. The Committee further notes that this requirement is linked to the requirement in paragraph 2(b) of Standard A2.5, of the Convention, regarding the maximum duration of onboard service – of less than 12 months – following which an entitlement to repatriation arises. The Committee requests the Government to indicate how it is ensured in law and in practice that seafarers are provided their entitlement to annual leave and to repatriation after they have served on a ship for the specified maximum period of less than 12 months.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. The Committee notes that Part V of the Regulations, 2012, sets out the provisions concerning accommodation and recreational facilities, with the details provided in BMA Information Bulletin No. 139 (Rev. No. 01 dated 23 April 2013) entitled Maritime Labour Convention, 2006, (MLC, 2006) Accommodation Standards. However, the Committee also notes that under section 22(7) of the Regulations, 2012, many of the provisions concerning the detailed requirements for sleeping rooms and other accommodations refer to ships “not exceeding 3,000 gross tonnage” which is different from the language set out in the Convention, which concerns “ships of less than 3,000 gross tonnage”. The Committee further notes that, under sections 22(12) and (13) of the Regulations, 2012, the BMA may permit fairly applied variations in respect of the requirements in the Regulations on condition that such variations do not result in overall facilities less favourable than those which would result from the application of those requirements, and may exempt ships not exceeding 200 gross tonnage. The Committee recalls that, under paragraphs 19 and 20 of Standard A3.1, the competent authority may permit fairly applied variations and applicable exemptions only after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee accordingly requests the Government to indicate how its legislation implements the Convention on those points. The Committee also requests the Government to specify whether it has held any consultations with respect to the adoption of variations or exemptions under section 22(12) or (13) of the Regulations, 2012.

Regulation 4.5 and Standard A4.5. Social security. The Committee notes that, upon ratification of the Convention, the Bahamas declared that the branches for which it “provides social security protection to the Bahamas seafarers” in accordance with paragraphs 1, 2 and 10 of Standard A4.5 are: medical care; sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit and survivors’ benefit. The Committee notes that section 27 of the Regulations, 2012, states that: (1) a seafarer who is a citizen of the Bahamas or is ordinarily resident in the Bahamas is covered under the social security scheme, specified in the National Insurance Act and regulations and set out in the Bulletin; (2) a shipowner who employs a seafarer, who is a citizen of the Bahamas or is ordinarily resident in the Bahamas, shall make the appropriate employer contributions to the Bahamas social security scheme referred to under paragraph (1); (3) a shipowner, who employs seafarers from a country or territory that is not a party to the Convention, shall ensure that the seafarers are provided with access to social security protection as set out in the Bulletin; and (4) a seafarer’s employment agreement or a collective bargaining agreement shall provide details of the agreed social protection arrangements in accordance with the relevant laws. The Committee further notes that section 5.2.1 of the BMA Information Bulletin No. 148 (Rev. No. 01 dated 19 April 2013), entitled Medical Care Onboard, Shipowner Liability and Social Security, also provides for implementation of paragraph 8 of Standard A4.5 with respect to maintenance of social security right through multilateral cooperation, and states that: The Bahamas is a party to the Caribbean Community (CARICOM) Social Security Agreement and accordingly, shipowners employing seafarers from Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago, should note that the seafarer may be liable to pay contribution to the social security system of that country and may request the shipowner to provide measures to enable such payment to be made. The Committee understands that, in view of the multilateral framework referenced above, the seafarer may be liable to pay contribution to the social security system of another country and may request the shipowner to provide measures to enable such payment to be made. The Committee notes that the shipowner is only obligated to pay the social security for seafarers described under the CARICOM Agreement; however, this does not prohibit the shipowner from entering into a seafarer employment agreement or any applicable collective bargaining agreement to make such payments. The Committee requests that the Government provide information on whether seafarers ordinarily resident in the Bahamas working on ships operating under the flag of another country outside of the CARICOM Social Security Agreement are provided with social security protection as required under Regulation 4.5 and the Code.

Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime compliance. The Committee notes that section 6(4) of the Regulations, 2012, which regulates the maritime labour certificate, applies to: (a) Bahamian ships that are 500 gross tonnage or over and engaged in international voyages; (b) any other ship, (i) that is 500 gross tonnage or over; (ii) in the territorial waters of the Bahamas; or (iii) that fly the flag of a member to the Convention. The Committee notes that the term “international voyage” under section 2 of the Regulations, 2012, is defined as “a voyage from a port in one country to a port in another country”. The Committee recalls that paragraph (b) of Regulation 5.1.3 of the Convention, defining the scope of ships that must carry and maintain a maritime labour certificate, includes ships 500 gross tonnage or over, flying the flag of a member and operating from a port, or between ports, in another country. The Committee requests the Government to explain how effect is given to this requirement with respect to ships flying the Bahamas flag operating between ports in another country.

The Committee also notes that the Declaration of Maritime Labour Compliance (DMLC) Part I only provides references to implementing legislation, without providing any details on implementing measures. The Committee draws the Government’s attention to its general observation adopted in 2014 and recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC, Part I, drawn up by the competent authority 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 also recalls that paragraph 1 of Guideline B5.1.3 provides guidance with respect to the statement of national requirements, including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices. In these cases, the DMLC, Part I does not appear to fulfil the purpose for which it, along with the DMLC, Part II, is required under the Convention, which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ship. The Committee also recalls, in that respect, that the DMLC does not address all the areas of the Convention, which must also be implemented by Members. The Committee requests the Government to indicate any steps taken or envisaged to fully implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to include all of the elements necessary for the DMLC Parts I and II and to provide for concise information on the main content of the national requirements.