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

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

Autre commentaire sur C186

Demande directe

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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 also notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for Bahamas on 8 January 2019 and 26 December 2020, respectively. Based on its second review of the information and documents available, 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 the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, 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.

In this regard, the Committee further notes that according to Technical Alert 21-01 v2.1, issued on 8 July 2021, valid until further notice, where, as a result of travel restrictions imposed due to the COVID-19 pandemic, crew members employed on board have to extend their service beyond their contractual period as stated in their original SEA and / or 12 months, the Bahamas Maritime Authorities (BMA) will consider such extensions to be a result of force majeure and therefore not a breach of the MLC, 2006. The Committee recalls that in its 2020 general observation it considered that the extreme fatigue of seafarers who have been on board beyond the default 11 months maximum period of service on board not only constitutes a situation clearly hazardous for the safety and health of the seafarers concerned, but also profoundly endangers the safety of navigation in general. The Committee accordingly urges the Government to adopt without delay the necessary measures to bring all relevant legislation in full compliance with the Convention and to ensure that in practice seafarers on board Bahamas-flagged ships are not requested to continue working beyond the default 11 months maximum period of service on board and they are not denied the protection derived from the provisions of the Convention.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. The Committee previously requested the Government to provide further information about the determinations made with respect to the application of the Convention to certain categories of persons. The Committee notes that section 2.6 of the Bulletin No. 127 (Rev. No 04 dated 11 November 2016) revisited the category of persons not considered seafarers for the purpose of the Convention. The Committee also 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. The Committee notes the Government's indication that no cases of doubt as to whether any categories of persons are to be regarded as seafarers have arisen so far. The Committee requests the Government to provide information on any developments on this issue, including any further determination made under the applicable legislation.

Article II, paragraphs 1(i), 4, 5 and 7. Definitions and scope of application. Ships. National determination. The Committee requested the Government to provide further information on the determinations with respect to the application of the Convention to certain categories of ships and to indicate how it ensures that the Convention is applied to commercial yachts of less than 24 metres. The Committee notes the Government’s indication that pursuant to section 5.8 of the Yacht Notice No. 8 (Version No. 1.1. – effective date 20/01/21), the Convention applies to all seafarers and all yachts, whether publicly or privately owned, ordinarily engaged in commercial activities. It also provides that passenger yachts shall be constructed and operated under the provisions of the MLC, 2006 issued for passenger ships carrying more than 12 and not more than 36 passengers and shall be issued with a Maritime Labour Certificate. While welcoming this information, the Committee notes that yachts carrying less than 12 passengers, even if engaged in commercial activities, have been excluded from the application of the Convention. The Committee accordingly requests the Government to adopt the necessary measures to ensure that all ships falling within the scope of application of the Convention are covered by its provisions.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee requested 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. The Committee notes the Government's indication that Marine Notice No. 36 includes a list of risk factors which should be assessed by the shipowners. The Committee notes however that this is a general risk factor list applicable to all seafarers on board the ship, irrespective of their age. The Committee further notes the Government's reference to a list of risk factors that shipowners are required to take into consideration for young workers under 18 years of age. The Committee observes however that the Government has not adopted a list of types of work that should be prohibited for young seafarers. The Committee accordingly requests the Government to take the necessary measures without delay to bring its legislation in conformity with Standard A1.1, paragraph 4.

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 and to indicate in each case the applicable national provisions.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee requested the Government to explain whether the exceptions granted by the BMA under the Merchant Shipping (Training, Certification, Manning and Watchkeeping) Regulations, 2011 and reproduced on BMA Information Bulletin No. 144 (Rev. No. 00 dated 31 August 2012) and BMA Information Bulletin No. 142 (Rev. No. 01 dated 19 April 2013), are provided within the framework of collective bargaining. The Committee notes the Government’s reply which however does not address its request. Recalling that any exception to the minimum hours of rest or maximum hours of work prescribed by the Convention may only be authorized by collective agreement, the Committee requests the Government once again to review its applicable legislation to give full effect to Standard A2.3, paragraph 13.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. The Committee previously requested the Government to indicate how it is ensured that seafarers are provided with their entitlement to annual leave and to repatriation in accordance with the Convention. The Committee notes the Government’s response, which however does not fully reply to its request. The Committee recalls that under Standard A2.5.1, paragraph 2 (b), the maximum duration of service periods on board following which a seafarer is entitled to repatriation shall be less than 12 months. It considers that, from the combined reading of Standard A2.4, paragraphs 2 and 3, on annual leave and Standard A2.5.1, paragraph 2(b), the maximum continuous period of shipboard service without leave is in principle 11 months. The Committee accordingly requests the Government to indicate the measures adopted to give full effect to these requirements of the Convention.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. The Committee notes the Government’s reference to BMA Information Bulletins Nos. 086, 104, 153, 158, 162 and 168, which explain in detail the procedures of certification and training of the seafarers, pursuant to requirements set by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) and the MLC, 2006. The Committee observes however that the Government has not provided information on whether any national policies were adopted to encourage the career and skill development for seafarers that are domiciled in Bahamas. The Committee requests the Government to indicate any measures taken or envisaged in this regard.

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions. The Committee previously requested the Government to indicate how its legislation implements Standard A3.1, paragraphs 19 and 20 and 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. The Committee notes that under section 22(13) of the Regulations, 2012, the competent authority may exempt: (a) ships not exceeding 200 gross tonnage; (b) ships not exceeding 3000 gross tonnage; and (c) special purpose ships, from specific provisions of the Regulations, where it is reasonable to do so, taking into account the size of the ship and the number of persons on board. The Committee reiterates that many of the provisions in the Regulations of 2012 concerning the detailed requirements for sleeping rooms and other accommodations refer to ships “not exceeding 3,000 gross tonnage”, a wording which has a different meaning from the one used in the Convention, which refers to “ships of less than 3,000 gross tonnage”. The Committee further recalls that under Standard A3.1, paragraph 20 the competent authority may permit fairly applied variations and applicable exemptions only in relation to ships of less than 200 gross tonnage and only after consultation with the shipowners’ and seafarers’ organizations concerned. Therefore, the Committee again requests the Government to indicate the measures taken to implement the provisions of Regulation 3.1 and Standard A3.1, paragraph 21 of the Convention.

Regulation 3.2 and Standard A3.2, paragraph 2(a). Food and catering. Religious and cultural practices. Noting that the Merchant Shipping Regulations, 2012 do not mention the obligation to take into account the differing cultural and religious background of seafarers, as required under Regulation 3.2, paragraph 1 and Standard A3.2, paragraph 2(a) of the Convention, the Committee requests the Government to indicate how effect is given to this provision of the Convention.

Regulation 4.1 and Standard A4.1, paragraph 1(b). Medical care on board and ashore. Protection comparable to workers ashore. The Committee requests the Government to provide information on how it ensures that seafarers are given health protection and medical care as comparable as possible to that which is generally available to workers ashore, as required under Standard A4.1, paragraph 1(b).

Regulation 4.1, paragraph 3. Medical care on board and ashore. Access to on shore medical facilities for seafarers on board foreign ships. The Committee requests the Government to provide information on how it ensures that seafarers on board ships in its territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore, as set out in Regulation 4.1, paragraph 3.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes that the Government does not provide any information in relation to the establishment of shore-based welfare facilities. The Committee requests the Government to provide information on any developments in this regard.

Regulation 4.5 and Standard A4.5. Social security. In its previous comment, the Committee requested the Government to 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. The Committee notes the Government’s reference to the Bahamas National Insurance Act Ch. 350 (the «Act»), which includes in Part IV, entitled “Benefits”, a list of benefits, including retirement benefit, invalidity benefit, survivor’s benefit, sickness benefit, maternity benefit, funeral benefit, medical benefit, unemployment benefit, and in case of employment injury, injury benefit, disablement benefit and death benefit. The Committee also notes that, pursuant to Part III, the Act applies to: (a) employed persons; (b) self-employed persons; and (c) voluntarily insured persons. The Committee also notes that, pursuant to the First Schedule (section 2), entitled “Employment as an Employed Person”, employment under the Act is considered: (1) employment in the Bahamas under any contract of service; and (2) employment whether within or without the Bahamas of a person domiciled or having a place of residence therein as master or a member of the crew of any ship or vessel, or as pilot, commander, navigator or a member of the crew of any aircraft, being a ship, vessel or aircraft of which the owner (or the managing owner, if there is more than one owner) or the manager, resides or has his principal place of business in the Bahamas, or in any other capacity on board such a ship, vessel or aircraft, provided that the employment in that other capacity is for the purposes of the ship, vessel or aircraft, or of the crew thereof, or of any passenger or cargo or mails carried thereby. Considering that the seafarers ordinarily residing in the Bahamas are covered by the benefits afforded by the Act, provided that they are employed on-board vessels owned or managed by persons residing or having their principal place of business in the Bahamas, the Committee requests the Government to indicate the measures adopted to ensure that seafarers ordinarily resident in the Bahamas, who are 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 requested the Government to explain how effect is given to Regulation 5.1.3, paragraph (b) with respect to ships flying the Bahamas flag operating between ports in another country. The Committee notes the Government’s reply in relation to vessels’ inspections, which however does not fully reply its request. Therefore, the Committee once again requests the Government to indicate the relevant national provisions giving effect to Regulation 5.1.3, paragraph 1(b).

In its previous comment, the Committee also requested the Government to indicate any steps taken or envisaged to fully implement Regulation 5.1.3, paragraph 10 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. The Committee notes the Government’s indication that BMA has reviewed the relevant procedures pertaining to the pertinent Regulations, including DMLC, Part II, to ensure that the mandatory Regulations are duly responded to by the Shipowner and that the submitted DMLC, Part II duly satisfies the concise information on the main content of the national requirements. The Committee observes, however, that the DMLC, Part I submitted by the Government only provides references to implementing legislation, without providing any details on the content of the national requirements. The Committee recalls that Standard A5.1.3, paragraph 10(a) provides that the DMLC, Part I 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 therefore requests again the Government to adopt the necessary measures to fully implement Regulation 5.1.3, paragraph 10.

Additional documents requested. The Committee notes that the Government did not provide a copy of the abovementioned documents. The Committee requests the Government to provide: (a) a copy of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); (b) a copy of 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); (c) a copy of 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); (d) a typical example 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; (e) a list of all seafarers’ shore-based welfare facilities and services, if any, operating in your country; (f) an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see guidance in Guideline B4.1.2, paragraph 1); (g) a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraph 4(a);see guidance in Guideline B4.1.1, paragraphs 4 and 5); and (h) a copy in English of a document that describes the onshore-handling procedures (Regulation 5.2.2).