Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention du travail maritime, 2006 (MLC, 2006) - Mongolie (Ratification: 2015)

Autre commentaire sur C186

Demande directe

2021
2018

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The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Mongolia on 28 February 2021, 8 January 2019, and 26 December 2020, respectively. The Committee draws the Government’s attention to the following issues.

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 and on 4 October 2021 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-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article I of the Convention. General questions on application. Implementing measures. The Committee previously noted the Government’s indication that it is developing new laws and a certification system in line with the Convention and hoped that it will make concrete progress in adopting laws and regulations to give effect to the Convention. The Committee notes that the Government has submitted a copy of the draft new Maritime Law of Mongolia (hereinafter draft Maritime Law) for information. The Government indicates that a Working Group for developing the Draft of the new Maritime Law was established by Order no.157 of the Minister for Road and Transport Development of Mongolia on 23 July 2018 and held several meetings with the participation of different ministries and non-governmental organizations. The Draft Maritime Law was presented to the Parliament of Mongolia on 17 October 2019 and approved on 28 August 2020. After ratification of the new Maritime Law, according to the internal procedure, the following second legislation shall be approved: (i) New Regulation on Ship Registry; (ii) Regulation on Investigation into the Marine Casualty and Incidents; (iii) Regulation on Flag State Inspection and Survey; (iv) Regulation on Oversight and Audit for Recognized Organizations by Flag State; (v) Regulation on Long Range Identification and Tracking System of Vessels; (vi) Regulation on Monitoring and Evaluation of IMO Conventions and Recommendations; (vii) Requirements and Principles of Minimum Safe Manning; and (viii) Regulation on Conduct of Inspection and Survey for Working and Living Condition of Seafarers on-board. The Committee hopes that the revised edition of the draft Maritime Law will be adopted in the near future and will give full effect to the Convention. It encourages the Government to take into account its comments when finalizing the draft Maritime Law and requests the Government to provide a copy of the Law once adopted.

Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. The Committee observes that the provisions of the draft Maritime Law define “crew” as a personnel expert who is responsible to ensure the safe operations of the vessel and a “seafarer” as a person who is working in the crew in order to ensure the safety of the ship, preventing marine environment pollution and protecting the marine environment. The Committee notes that this definition is not in conformity with the Convention. The Committee draws the Government’s attention to the definition of “seafarer” specified in Article II, paragraph 1(f), which covers “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”. This definition encompasses not only personnel responsible for the safety of the ship, but also persons working on board in any capacity, such as hotel or catering personnel. The Committee requests the Government to revise the draft Maritime Law to ensure that all persons employed or engaged or working in any capacity on board a ship to which the Convention applies are considered seafarers within the meaning of Article II, paragraph 1(f). Noting that the Government has not provided information on the status of cadets or apprentices, the Committee further requests the Government to indicate whether cadets or apprentices are regarded as seafarers under its national legislation and therefore fully enjoy the protection afforded by the Convention.

Article VII. Consultations. Noting that there are no shipowners’ and seafarers’ organizations in Mongolia, the Committee recalled that under Article VII of the Convention, any derogation, exemption or other flexible application for which the Convention requires consultations may, where representative organizations of shipowners or of seafarers do not exist within a Member, only be decided through consultation with the Special Tripartite Committee established in accordance with Article XIII of the Convention. It invited the Government to have recourse to the consultative arrangement provided for in Article VII of the Convention. Noting the absence of information in this respect, the Committee requests, once again, the Government to have recourse to the arrangements provided for in Article VII of the Convention until a shipowners’ and seafarers’ organization are established in the country.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. In its previous comment, noting that paragraphs 109.2 and 109.3 of the Labour Code 1999 allow for exceptions to the prohibition of the employment, engagement or work on board a ship of any person under the age of 16, the Committee requested the Government to take the necessary measures to bring its legislation into conformity with Standard A1.1, paragraph 1, of the Convention. The Committee notes that Article 11.2. of the draft Maritime Law provides that “Citizens of Mongolia, foreign citizens or stateless persons who are at least 16 years of age, having professional high skills and meeting health requirements shall be employed as a crew member under contractual terms in conformity with applicable international Conventions.” Recalling that no person below the minimum age shall be employed or engaged or work on ship, the Committee requests the Government to clarify whether, once adopted, the provisions of the Maritime Law would be considered lex specialis in this case and would prevail over the Labour Code. The Committee further requests the Government to adopt the necessary measures to amend the Labour Code in order to avoid any inconsistencies in the legislation giving effect to the Convention.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. The Committee previously noted that Article 72.1 of the Labour Code does not define “night” as a period of at least 9 hours as required by the Convention and that there are no provisions in the Labour Code prohibiting night work for seafarers under 18 years. The Committee notes the Government’s indication that Article 73.5 of the draft Maritime Law provides that “Crewman less than 18 years of age shall not work at night watchkeeping.” The Committee further observes that Marine Circular No. 1/214/2020, minimum hours of rest (hereinafter Marine Circular No. 1/214/2020), provides in sub-section 1.7 that “night work of seafarers under the age of 18 shall be prohibited unless the effective training of the seafarers concerned would be impaired or the specific nature of the duty or a recognized training programme requires that the seafarers covered by this exception perform duties at night and it has been determined that the work will not be detrimental to their health or well-being.” The Committee also notes that draft Regulation on carrying out inspection for seafarers’ working and living conditions on board provides in sub-section 7.6 that the employer shall be liable to not allow seafarers under the age of 18 to work on board for long periods and not to assign night work in accordance with Standard A1.1 of the MLC, 2006. While noting this information, the Committee recalls that the responsibility of authorizing strict exceptions to the night work restriction lies with the competent authority and not the shipowner in accordance with Standard A1.1, paragraph 3(b) of the Convention, which requires that “the authority determines, after consultation with the shipowners’ and seafarers’ organizations concerned, that the work will not be detrimental to their health or well-being”. The Committee requests the Government to indicate the measures taken or envisaged to ensure that exceptions to night work are only allowed in conformity with the Convention.

Regulation 1.2 and the Code. Medical certificate. The Committee previously noted that the applicable legislation is silent with regard to: (i) the requirement that duly qualified practitioners must enjoy full professional independence in exercising their medical judgement in undertaking medical examination procedures (Standard A1.2, paragraph 4); (ii) the opportunity for seafarers, who have been refused a certificate or have had a limitation imposed on their ability to work, to have a further examination by another independent medical practitioner or by an independent medical referee (Standard A1.2, paragraph 5); (iii) the requirement that the maximum period of validity of the medical certificate shall be one year for seafarers under the age of 18 (Standard A1.2, paragraph 7); (iv) the permission for seafarers to work without a valid medical certificate in urgent cases (Standard A1.2, paragraph 8); (v) the circumstance when the period of validity of a medical certificate expires in the course of a voyage (Standard A1.2, paragraph 9); and (vi) the requirement that medical certificates must as a minimum be provided in English (Standard A1.2, paragraph 10). The Committee requested the Government to indicate the measures taken or envisaged to give effect to these requirements of the Convention. The Committee notes the Government’s indication that paragraph 2 of article 10 of the Constitution of Mongolia provides that “Mongolia fulfils in good faith its obligations under international treaties to which it is a Party” and that paragraph 3 of Article 10 provides that “The international treaties to which Mongolia is a Party become effective as domestic legislation upon the entry into force of the laws on their ratification or accession”. While noting this information, the Committee observes that the Government has not provided detailed information on how it gives effect to the specific requirements of Standard A1.2, and how the said requirements are implemented in practice. The Committee accordingly requests the Government to take the necessary measures to give effect to the different requirements of Standard A1.2 of the Convention.

Regulation 1.4 and the Code. Recruitment and placement. The Committee previously requested the Government to indicate whether there is an established system for the operation of private seafarer recruitment or placement services in its territory or whether shipowners of ships that fly its flag use seafarer recruitment and placement services based in foreign countries or territories. The Committee notes the Government’s indication that there are no public or private services operating in Mongolia without providing information on the use of seafarers recruitment and placement services based in other countries. The Committee recalls that when using recruitment and placement of seafarers operating in countries or territories in which the Convention does not apply, shipowners of ships flying the Mongolian flag must ensure, as far as practicable, that those services meet the requirements of the MLC, 2006 (Standard A1.4, paragraph 9). The Committee requests the Government to indicate the measures taken or envisaged to give effect to this requirement of the Convention.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee previously noted that the Government has not provided information on the national legislation giving effect to the provisions of the Convention with respect to seafarers’ employment agreements (SEAs). In this regard, the Committee notes that the Labour Code, 1999 does not give effect to the detailed requirements of the Convention and that its provisions are of general application and do not take into account the specificities of the maritime sector. The Committee further notes that the Government has provided an example of a SEA for Vietnamese vessels registered with the Mongolian ship Registry Agency. The provisions of the SEA implement a number of requirements of the MLC, 2006, via Vietnamese legislation. The Committee observes however that the matters included in the SEA have not been included in Mongolian laws or regulations, as required by the Convention. The Committee recalls that the terms and conditions for employment of seafarers on board ships flying its flag shall be subject to Mongolia’s national laws and regulations. Noting that seafarers working on board ships flying the flag of Mongolia are in at least one instance subject to foreign national provisions based on the origin of the vessels, the Committee recalls that the implementation of Regulation 2.1 and the Code is a central element to ensure that seafarers benefit from the protection provided by the Convention and therefore requests the Government to adopt the necessary measures without delay to give full effect to these provisions of the Convention, both in law and in practice. The Committee also reiterates its previous request to the Government to clarify the legal status of the Articles of Agreement (which are apparently not binding) and explain the relationship with the SEA.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions.

Regulation 2.2 and Standard A2.2, paragraphs 3, 4 and 5. Wages. Allotments. Noting that the Articles of Agreement state that a portion of a seafarer’s earnings may be allotted to his/her family if the master and the seafarer agree, the Committee observed that this would imply that the allotment of the seafarer’s wages has to be agreed by both the master and the seafarer. The Committee recalled that Standard A2.2, paragraphs 3 and 4 does not provide for the prior authorization by the master for seafarers to transmit their earnings to their family and requested the Government to indicate the measures to ensure conformity with Standard A2.2, paragraphs 3 and 4. The Committee also requested the Government to indicate how effect is given to the requirement of Standard A2.2, paragraph 5 that any charge for this service is reasonable in amount and the rate of currency exchange, unless otherwise provided, is, in accordance with national laws or regulations, at the prevailing market rate or the official published rate and not unfavourable to the seafarer. In the absence of information in this regard, the Committee once again requests the Government to indicate the measures envisaged or adopted to give effect to Standard A2.2.

Regulation 2.3 and Standard A2.3, paragraphs 5, 6 and 13. Hours of work and hours of rest. Division of hours of rest. Noting that the national provisions do not provide for minimum hours of rest of less than 77 hours in any seven-day period, as required under Standard A2.3, paragraph 5(b)(ii), the Committee requested the Government to indicate the measures taken or envisaged to modify its legislation in order to ensure that effect is given to this requirement of the Convention. The Committee notes the Government’s indication that Marine Circular No. 1/214/2020 gives effect to the requirements for minimum hours of rest on board Mongolian vessels in sub-sections 1.4.1 and 1.4.2 by providing that the minimum hours of rest shall not be less than 10 hours in any 24-hour period, which may be divided into no more than two periods – one of which shall be at least 6 hours in length, and no more than 14 hours between consecutive periods; and 77 hours in any 7-day period. While observing that Marine Circular No. 1/214/2020 does not provide for exceptions to the limits set out in Standard A2.3, paragraphs 5 and 6, the Committee notes that Marine Circular 1/213/2020 on principles of watchkeeping provides that the hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length; and that during overriding operational conditions, the minimum period of ten hours may be reduced to a minimum of six consecutive hours on condition that any such reduction shall not extend beyond two days and not less than seventy hours of rest are provided in each seven day period. Exceptions to the established limits on hours of work or the minimum hours of rest are also provided for in Regulation 59(3)(c)(iii) of the Merchant Shipping (certification and Manning) Rules, 2003. The Committee recalls that the limits on hours of work or rest shall not exceed those established under Standard A2.3, paragraph 5, and that any exceptions to paragraphs 5 and 6 of this Standard which do not fall within those covered by paragraph 14 (immediate safety of the ship, persons on board or cargo, or assistance to other ships or persons in distress at sea), including those provided for in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended, must follow the requirements of Standard A2.3, paragraph 13, and be provided by collective agreements. The Committee therefore requests the Government to indicate if any exceptions to the minimum hours of rest for watchkeepers have been permitted up to this date and to indicate the measures taken or envisaged to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6, other than those justified under paragraph 14 of the same Standard, are only provided through a collective agreement, and not fixed by law, as required by Standard A2.3, paragraph 13.

Regulation 2.3 and Standard A2.3, paragraph 14. Hours of work and hours of rest. Immediate safety and distress at sea. Noting that the Articles of Agreement provide that work performed in excess of eight hours per day shall not be compensated for when necessary for the safety of the vessel, its passengers, officers, crew, cargo or for the saving of other vessels, lives or cargo, or for the performance of fire, lifeboat or other emergency drills, the Committee requested the Government to indicate the steps taken or envisaged to ensure compliance with the requirement of Standard A2.3, paragraph 14 that as soon as practicable after the normal situation has been restored, the master shall ensure that any seafarer who has performed work in a scheduled rest period is provided with an adequate period of rest. The Committee notes that subsection 1.8 of Marine Circular No. 1/214/2020 gives effect to this requirement of the Convention. The Committee takes note of this information, which addresses its previous request.

Regulation 2.4 and Standard A2.4, paragraphs 1 and 2. Entitlement to leave. Noting that the provisions in the Labour Code, 1999 do not give effect to the requirements of Regulation 2.4, paragraph 2 (seafarers to be granted appropriate shore leave), nor Standard A2.4, paragraph 2 (annual leave with pay entitlement to be calculated on the basis of a minimum of 2.5 calendar days per month of employment), the Committee requested the Government to indicate the measures taken or envisaged to take account of the special needs of seafarers with respect to leave and ensure conformity with these requirements of the Convention. Noting that the Government did not provide an answer on this point, the Committee reiterates its request to the Government to adopt the necessary measures to ensure that its laws and regulations determine the minimum standards for annual leave for seafarers serving on ships that fly its flag.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition of agreements to forgo annual leave. The Committee previously noted that section 79 of the Labour Code, 1999, states that an employee who has not taken his or her annual vacation due to an unavoidable work need, may be paid monetary remuneration instead and that the procedure for paying compensation shall be governed by the collective agreement or by the employer’s decision in case there is no collective agreement. Recalling that Standard A2.4, paragraph 3, prohibits any agreement to forgo the minimum annual leave with pay, except in cases provided for by the competent authority, the Committee requested the Government to indicate the measures taken or envisaged to give full effect to Standard A2.4, paragraph 3. Noting that the Government has not provided information in this regard, the Committee therefore once again requests the Government to indicate the measures taken to give effect to Standard A2.4, paragraph 3.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2 (a). Repatriation. Circumstances. While noting that the model SEA provided by the Government seems to cover the circumstances under which seafarers are entitled to repatriation in accordance with Standard A2.5.1, paragraphs 1, the Committee observes that the terms and conditions of employment included in the SEA are subject to foreign legislation. The Committee further notes that there does not seem to be any other relevant provisions in Mongolia’s laws and regulations or other measures or in collective bargaining agreements regulating the repatriation of seafarers. In the absence of detailed information in this regard, the Committee requests the Government to take the necessary measures to ensure that there are appropriate provisions in its laws and regulations or other measures or in collective bargaining agreements prescribing the circumstances in which seafarers are entitled to repatriation in accordance with Standard A2.5.1, paragraphs 1 and 2(a).

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. The Committee observes that the model SEA provides that the maximum period of service following which the seafarer will be entitled to repatriation at no cost is 12 months. The Committee also notes that the terms of the contract are entered into for 10 months from the date of joining the vessel and that this term may be increased or decreased by two months. The Committee recalls that from the combined reading of Standard A2.4, paragraph 3, on annual leave, and Standard A2.5.1, paragraph 2(b), on repatriation, it flows that the maximum continuous period of shipboard service without leave is, in principle, 11 months. The Committee requests the Government to adopt measures without delay to ensure that the maximum continuous period of service on a ship without leave is limited to 11 months, including in the event of the terms of the contract being extended.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. In the absence of clear information from the reading of the model SEA and the Articles of Agreement as to the items of expense (including accommodation and food) to be covered by the shipowner in the case of repatriation, the Committee requested the Government to indicate what are the precise entitlements to be accorded by shipowners for repatriation, as required by Standard A2.5.1, paragraph 2(c). The Committee also requested the Government to indicate how, in relation with the place of repatriation, it has given due consideration to Guideline B2.5.1, paragraphs 6 and 7, according to which seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. The Committee notes the Government’s indication that Article 21.2 of the draft Maritime Law provides that the shipowner shall be liable via insurance services for the expenses related to wages for crew of vessels, any other payments to them and repatriation cost to their home country. While noting this information, the Committee notes that there is no precise indication as to what the costs to be borne by the shipowner for repatriation of seafarers should entail. The Committee recalls that Standard A2.5.1, paragraph 2(c) provides that each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or collective bargaining agreements, prescribing the precise entitlements to be accorded by shipowners for repatriation. Furthermore, the Committee recalls that under Guideline B2.5.1, paragraphs 6 and 7, seafarers should have the right to choose the place to which they are to be repatriated among: the place at which they entered into the agreement; the place stipulated in collective agreement; the country of residence; or the place agreed upon at the time of engagement. The Committee requests the Government to adopt the necessary measures to give effect to these provisions of the Convention regarding the precise entitlements to be accorded by shipowners for repatriation.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee previously noted that the model SEA states that a seafarer may not be entitled to repatriation at the expense of the shipowner in circumstances where he/she has been dismissed on disciplinary grounds or has breached his/her obligations under the SEA. In such circumstances the shipowner will be still liable to repatriate him/her but is entitled to recover, from any wages due to the seafarer, the cost of doing so. Recalling that the possibility provided by the Convention to recover the cost of the repatriation from the seafarer is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements, the Committee requested the Government to indicate 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 A2.5.1, paragraph 3, and 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. Noting that no information has been provided in this respect, the Committee reiterates its previous request.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. 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 with interest that Marine Circular No. 1/198/2020 on the amendments of 2014 to the MLC, 2006, regarding new compulsory financial requirements pertaining to the repatriation of abandoned seafarers and work injury compensation gives effect to the requirements of Standard A2.5.2. The Committee takes note of this information.

Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment indemnity. Noting the Government’s indication that Regulation 2.6 and Standard A2.6 are implemented through protection provided by insurance companies, the Committee requested the Government to indicate how effect is given to the requirement that seafarers be entitled to adequate compensation in the case of injury, loss or unemployment arising from the ship’s loss or foundering, as required by Regulation 2.6, paragraph 1. The Committee notes the Government’s indication that article 6.4 of the model SEA provided by the Government states that seafarers are entitled to receive from the shipowner compensation for any unemployment resulting from the loss of the ship or its foundering and shall be paid for every day of effective unemployment, in accordance with the wages payable pursuant to the SEA. Shipowners may limit the total amount of compensation payable to seafarers to an amount no over three months of basic wage. Noting that the terms and conditions of the SEA provided by the Government are regulated by foreign legislation, the Committee recalls that each Member 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 arising from such loss or foundering and requests the Government to indicate how it ensures that the protection of Standard A2.6 of the Convention benefit all seafarers working on board vessels registered with Mongolia’s Ship Registry who may be subject to various foreign provisions.

Regulation 3.1 and the Code. Accommodation and recreational facilities. Noting the absence of reference to national legislation or regulations, the Committee requested the Government to specify the legislative or regulatory provisions with respect to accommodation and recreational activities and to provide detailed information on the provisions implementing the different requirements of Standard A3.1. The Committee notes the Government’s indication that paragraph 31.5 of the draft Maritime Law provides that a Flag state inspector or surveyor shall conduct inspection and surveys on labour conditions of crew, accommodation to live and work, supply of provisions, protection of health, medical aid and service as well as equipment of safe operations along with verifying certificate of competency granted to seafarer. The Committee further observes that the draft Regulation on carrying out inspection for seafarers’ working and living conditions on board, as well as the draft Regulation on Flag State Inspection and Survey state that inspections shall be carried in relation to the rest and accommodation area’s interior, general condition, cleaning, insulation and isolation. While noting this information, the Committee observes the absence of detailed requirements and recalls that Standard A3.1 provides that each Member shall adopt laws and regulations requiring that ships that fly its flag meet minimum standards respecting accommodation and recreational facilities and are inspected to ensure initial and ongoing compliance with these standards. The Committee requests the Government to adopt laws and regulations without delay in accordance with Regulation 3.1 and the Code and to provide information on this subject.

Regulation 3.2 and the Code. Food and catering. Noting the absence of information on any detailed standards regarding food and catering, the Committee requested the Government to indicate how it gives effect to the different requirements of Standard A3.2. The Committee notes that the draft Regulation on carrying out inspection for seafarers’ working and living conditions on board provides in paragraphs 8.2 et seq. that inspection shall be carried out on crew’s working place, recreational facility and safety equipment, such as whether the drinking water and water supply management is sufficient and with respect to the general and hygienic condition of mess room, galley, food storage and sanitation of kitchen hood and oil filter. The Committee observes however that these provisions are silent with respect to a number of other requirements of Standard A3.2 and recalls that each Member shall adopt laws or regulations or other measures to provide minimum standards for the quantity and quality of food and drinking water and for the catering standards that apply to meals provided for seafarers on board ships that fly its flag. The Committee therefore requests the Government to indicate the measures envisaged or taken to give effect to the provisions of the Convention to ensure that: (i) ships that fly its flag meet the minimum standards with respect to food and drink supplies, having regard to the number of seafarers on board, their religious requirements and cultural practices and the duration and nature of the voyage (Standard A3.2, paragraph 2(a)); (ii) the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions (Standard A3.2, paragraph 2(b)); (iii) catering staff shall be properly trained or instructed for their position (Standard A3.2, paragraph 2(c)); (iv) all ships operating with a prescribed manning of more than ten carry a fully qualified cook (Standard A3.2, paragraph 5); (v) in circumstances of exceptional necessity, the limitation of a dispensation permitting a non-fully qualified cook to service in a specified ship only until the next convenient port of call or for a period not exceeding one month (Standard A3.2, paragraph 6); and (vi) documented inspections are carried out in scheduled frequency, in accordance with the ongoing compliance procedure under Title 5 (Standard A3.2, paragraph 7).

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee requested the Government to indicate the measures taken or envisaged to give full effect to the requirements of Regulation 4.1 and Standard A4.1. The Committee observes that section 9 of the Mongolia Merchant Shipping (Certification & Manning) Rules, 2003 provides that a qualified medical practitioner shall be carried on every foreign-going ship having 100 persons or more on board as part of her complement. It further notes that the model SEA states that “If the seafarer requires medical care while on-board this will be provided free of charge, including access to necessary medicines, medical equipment and facilities for diagnosis and treatment and medical information and expertise. Where practicable and appropriate, the seafarer will be given leave to visit a qualified medical doctor or dentists in ports of call for the purpose of obtaining treatment and notice must be sent to owner in writing.” The Committee observes that there does not seem to be any other national provisions prescribing the requirements for medical care on board ship and ashore. In the absence of more detailed provisions, the Committee recalls that Standard A4.1 requires the adoption of measures to ensure that seafarers are given health protection and medical care. The Committee therefore requests the Government to adopt the necessary measures to give effect to the requirements of Regulation 4.1 and Standard A4.1 of the Convention.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee previously noted that the model SEA implements some requirements of Standard A4.2.1 regarding the right of the seafarer to material assistance and support with respect to the financial consequences, including burial expenses, of sickness, injury or death occurring while serving under seafarers’ employment agreements or arising from their employment under such agreements. Noting however that the Government has not adopted legal provisions in this regard as required by Standard A4.2.1, paragraphs 1–4, the Committee requested it to indicate the laws or regulations adopted or envisaged to give effect to these requirements of the Convention. The Committee notes the Government’s indication that Paragraph 21.2 and Sub-paragraph 21.2.2 of the draft Maritime Law provide that the shipowner shall involve following expenditures into the insurance services, including lives and health of captain and crewmen of vessel. Noting however that the provisions of the draft Maritime Law provide for the shipowner’s liability in general terms without giving effect to the detailed requirements of Regulation 4.2 and the Code, the Committee reiterates its previous request.

Regulation 4.2 and Standard A4.2.1, paragraph 7. Shipowners’ liability. Safeguarding of property left on board. The Committee previously noted that while the model SEA refers to the return of the property of the seafarer to his/her next of kin in the event of death, there is no reference to the safeguard of the seafarer’s property in the event also of injury or sickness as provided for under Standard A4.2.1, paragraph 7. The Committee requested the Government to indicate how full effect is given to this provision of the Convention. Noting the absence of information in this respect, the Committee reiterates its previous request.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. 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. In this regard, the Committee notes with interest the Government’s indication that Marine Circular No. 1/198/2020 on the amendments of 2014 to the MLC, 2006, regarding new compulsory financial requirements pertaining to the repatriation of abandoned seafarers and work injury compensation, complies with the new provisions of the Convention. The Committee takes note of this information.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. Noting that the Government has not provided detailed information on any national laws and regulations and other measures, including the development and promulgation of national guidelines for the management of occupational safety and health, taken to protect seafarers that live, work and train on board ships flying its flag, the Committee requested the Government to explain how it gives effect to the detailed requirements of Regulation 4.3 and Standard A4.3. The Committee notes the Government’s indication that Article 21.1.1 of the draft Maritime Law with respect to obligations pertaining to the labour relations of crewmen on-board provides that the shipowner shall ensure occupational safety. The Committee further observes that the draft Regulation on carrying out inspection for seafarers’ working and living conditions on board states that the employer shall be liable: (i) to take measures for providing and maintaining occupational health, safety working and living workplace, ensuring safety and comfortable condition of living room and providing good quality of food, equipment, recourse and tools (paragraph 7.2); (ii) to pay special attention to the health of seafarers (paragraph 7.3); (iii) to pay seafarers’ salary and rewards in timely manner in accordance with the relevant employment agreement (paragraph 7.4); and (iv) to take control over the working condition, occupational safety of seafarers and safety rules (paragraph 7.5). The Committee however notes that these draft provisions are of a general nature and that they do not cover all the requirements under Regulation 4.3 and Standard A4.3. The Committee therefore requests the Government to provide detailed information on the following: (i) development of national guidelines for the management of occupational safety and health on board ships, taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations (Regulation 4.3, paragraph (2); (ii) adoption of laws and other measures for effective implementation and promotion of occupational safety and health policies and programmes on ships, including training and instruction of seafarers (Standard A4.3, paragraph 1(a)); (iii) laws and regulations and other measures specific to maritime employment addressing all matters in Standard A4.3, paragraphs 1 and 2, and in particular measures taken to protect seafarers under the age of 18 (Standard A4.3, paragraph 2(b)) and obligation to establish ship’s safety committee on board a ship with five or more seafarers (Standard A4.3, paragraph 2(d)); and (iv) manner in which occupational accidents and diseases relating to seafarers covered by the Convention are reported and investigated, and statistics in that regard are published (Standard A4.3, paragraph 5).

Regulation 4.5 and the Code. Social security. In its previous comment, the Committee requested the Government to specify the legislative or regulatory provisions that provide protection in the branches of social security specified at the time of ratification (medical care, sickness benefit and employment injury benefit) for seafarers ordinarily resident in Mongolia and, to the extent provided for in its national law, their dependants. The Committee notes the Government’s indication that there are no resident seafarers in Mongolia. The Committee further observes that the Government has not provided information on its obligation, under Standard A4.5, paragraph 6, to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers on board ships that fly its flag, in the absence of adequate social security coverage. The Committee recalls that although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Standard A4.5, paragraph 6, provides that Members have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the applicable branches of social security. The Committee therefore requests the Government, once again, to provide information on any measures adopted or envisaged to give effect to Standard A4.5, paragraph 6.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee previously requested the Government to provide detailed information on the ship inspection and certification system set up to ensure implementation of its obligations under this Convention on ships that fly its flag. The Committees notes the Government’s indication that article 20 of the draft Maritime Law provides that the living and working conditions on board ships flying Mongolia’s flag shall be regulated in national laws and regulations and inspected by flag state inspectors to verify compliance with the Law on Labour of Mongolia, the MLC, 2006 and the STCW. The Committee also takes note of the draft Regulation on carrying out inspection for seafarers’ working and living conditions on board, which prescribes how inspections by the Flag state are conducted to ensure whether the crew of the vessels registered under the ship registry of Mongolia are being paid, taking annual leave and fully provided with working and living conditions in accordance with the MLC, 2006. The Committee requests the Government to provide information on any development with respect to the adoption of these texts and to provide a copy of the texts once adopted.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. Noting that the provisions of the Merchant Shipping (Certification and Manning) Rules, 2003, provide that recognized organizations are granted the power to require rectification of deficiencies on ships and to carry out inspections to verify compliance in accordance with the International Maritime Organization (IMO) Conventions, the Committee requested the Government to take the necessary measures to ensure that recognized organizations also carry out inspection and certification of seafarers’ working and living conditions in accordance with the MLC, 2006 requirements. The Committee notes the Government’s indication that Article 28 of the draft Maritime Law authorizes recognized organizations to conduct inspections and surveys, including to verify that the shipowner complies with its labour obligations. The Committee further observes that the draft Regulation on carrying out inspection for seafarers’ working and living conditions on board also prescribes in paragraph 4 that the flag state shall carry out inspection of seafarers’ welfare and employment rights for compliance with the MLC, 2006 and that such function can be carried out through recognized organizations authorized by the flag State. The Committee welcomes this information and requests the Government to provide information on the progress made towards the adoption of these new provisions, and to provide a copy of the texts once adopted.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee previously noted that the Government has not adopted any laws or regulations implementing the provisions with respect to the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance (DMLC). It further noted that the Government has not provided a copy of the maritime labour certificate and while it has provided a copy of the DMLC, Part I, the document refers for the most part to provisions of IMO Conventions or of the MLC, 2006, without however specifying the relevant national legal provisions. The Committee requested the Government to indicate the measures envisaged to give full effect to Standard A5.1.3 and to amend accordingly the DMLC, Part I, to fully implement Standard A5.1.3, paragraph 10(a), so as to ensure that it provides a reference to the relevant national legal provisions embodying the Convention, and, to the extent necessary, concise information on the main content of the national requirements. While noting that the Government has provided a copy of the maritime labour certificate, the Committee however observes that it does not provide information as to the adoption of any measures to give effect to Regulation 5.1.3 and Standard A5.1.3 with respect to the requirements of the certification of the working and living conditions of seafarers on board in accordance with the Convention. The DMLC, Part I communicated by the Government does not refer as noted previously to the relevant national legal provisions implementing the requirements of the Convention. Noting the absence of information in this regard, the Committee reiterates its previous comment and requests the Government to provide one or more examples of an approved DMLC, Part II.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. Noting in particular that there are no national provisions giving effect to the requirements of Regulation 5.1.4 and Standard A5.1.4 to establish an effective and coordinated system of regular inspections to ensure that ships flying Mongolia’s flag comply with the requirements of the Convention, the Committee requested the Government to indicate the measures adopted in this regard. The Committee notes that the draft Regulation on carrying out inspection for seafarers’ working and living conditions on board and the draft Regulation on flag State inspection and survey prescribe the minimum requirements with respect to qualifications and training of flag State inspections and the duties and procedures that inspectors must follow to conduct inspections, as well as the tasks that they shall carry. While noting this information, the Committee however observes that the Government has not provided detailed information on the national measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4, in particular measures taken to ensure: (i) the intervals at which inspections have to be carried out (Standard A5.1.4, paragraph 4); (ii) the procedures for receiving and investigating complaints (Standard A5.1.4, paragraphs 5, 10, 11(b) and 12); (iii) the penalties to be imposed in case of deficiencies under the Convention (Standard A5.1.4, paragraph 7(c)); and (iv) the compensation to be payable in accordance with national laws and regulations for any loss or damage suffered as a result of the wrongful exercise of the inspectors’ powers (Standard A5.1.4, paragraph 16). The Committee requests the Government to indicate the measures taken to give full effect to these provisions of the Convention.

Regulation 5.1.5 and Standard A5.1.5. Flag State responsibilities. On-board complaint procedures. Noting that the Government has not provided information on how it gives effect to the requirements for on-board complaint procedures, the Committee requested the Government to indicate the measures taken to implement Standard A5.1.5. Noting the absence of reply in the Government’s report, the Committee once again requests the Government to indicate how it gives effect to Standard A5.1.5 on board Mongolian-flagged ships.

[The Government is asked to reply in full to the present comments in 2024.]