Studies on Enforcement Systems of Seafarers’ Rights under the Maritime labour Convention 2006〔*〕



Studies on Enforcement Systems of Seafarers’ Rights under the Maritime labour Convention 2006〔*〕

Zhang Li

(Law School Dalian Maritime University, Dalian Liaoning 116026)

Through the complaint systems,the flag state and the port states inspections,shipmaster supervision as well as labour supplying responsibilities,the paper provides the systematic studies on the enforcement systems under the Maritime Labour Convention 2006 and the supervisory systems under the International Labour Organization constitution which is linked with the enforcement systems under the MLC 2006 for theoretical and practical circles to understand the enforcement systems of the Convention further.Certainly given China has a large sum of seafarers,especially many seafarers working on foreign ships,it is very important for China to understand the enforcement systems and balance profits to determine the attitude to the Convention and perfect the domestic legislations for seafarers’ rights security.

complaint procedures;flag states;port states;labor supplying responsibility

Ⅰ.The rights of seafarers under the ILO

Seafarers are treated as a distinct group of workers and maritime employment has the particular nature.Seafaring profession is full of hardship,dangers and loneliness.Seafarers require special protection.The ILO recognizes the special characters for seafarers’ working and living conditions,so has dealt with seafarers’ issues specially.Since 1920 the International Labour Conference (ILC) holds special maritime sessions regularly.The ILO regulates many maritime conventions which can provide international minimum standards for seafarers’ rights.These maritime conventions regulate the seafaring profession’s special problems.

1.The ILO constitution regulations for seafarers’ rights

The ILO was founded in Geneva in 1919,under the Treaty of Versailles.Its fundamental aim is to seek ways to promote workers’ labour condition,inclusive of workers in the maritime industry.The basic principles of the ILO Constitution include:a.(1) labour is not a commodity;(2) freedom of expression and of association are essential to sustain progress;b.all human beings,irrespective of race,creed or sex,have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity of economic security and equal opportunity….The principles provide a international standard for all workers.China is the member state of ILO and complies and enforces the Conventions ratified by China.

2.2006 maritime labour convention (MLC) for seafarers’ rights

2006 MLC has entered into force in August 2013 and enshrines mandatory minimum standards for seafarers.The MLC 2006 establishes minimum requirements for almost all aspects of working and living conditions for seafarers including conditions of employment,employment contracts,payment of wages,hours of work and rest,accommodation,recreational facilities,food and catering,health protection,medical care,welfare and social security protection,crewing insurance,abandonment insurance and so on,so as to be said that the Convention provides a bill of rights for seafarers.In order to secure and relieve seafarers’ rights 2006 MLC has a special chapter to enforce and implement the Convention.

Ⅱ.Onboard seafarers complaint procedure and onshore seafarers complaint procedure

The MLC 2006 has two kinds of complaint procedures for seafarers’ rights:one is on-board seafarer complaint procedure and the other is onshore seafarers complaint procedure.The two procedures have the common aim that is to provide convenient and effective relief systems for seafarers.Seafarers can directly relieve their rights through the two procedures and the two procedures are also called self-employment procedures.The procedures allow for identifying existing deficiencies from the Convention on board and enable timely rectification of deficiencies.

1.Onboard seafarers complaint procedure

(1) Who is responsible for establishing the procedure?

The Convention requires each member state to establish on-board complaint procedure in its domestic legislation on ships flying its flags so as to handle seafarers’ complaint effectively.So flag states have obligations to establish onboard seafarers complaint procedure.The competent authority of the flag state should consult with shipowners’ and seafarers’ organizations to develop a model for the procedure.

(2) Who is to deal with the onboard complaints?

Any complaint can be addressed to the head of the seafarers’ department or to the seafarers’ superior officer who should then attempt to resolve the matter within prescribed time limits appropriate to the seriousness of the issues involved.If the head of the seafarers’ department or to the seafarers’ superior officer cannot resolve the complaint to the satisfaction of seafarers,the complaint should be put forward to the master.But in all cases seafarers have the rights to complain directly to the master or the shipowner or the competent authority.At the same time seafarers have rights to appoint representatives or be accompanied by another seafarer on board the ship.All complaints and any subsequent decision must be recorded and a copy must be given to the seafarer concerned.When a complaint cannot be resolve on board it must be delivered to the shipowner who should then resolve the complaint within given appropriate time.The appropriate time should be a consulted time with the seafarer concerned or any person that is the appointed representative of the seafarer concerned.

(3) The available method of the procedure for seafarers

Firstly,seafarers must be informed about the availability of the procedure and secondly,seafarers must be provided with a copy of the procedure applicable on the ship.The copy includes contact information of the competent authority in the flag state.If seafarers reside in different state with the flag state the copy should meanwhile include contact information of the competent authority in the seafarers’ resident state.The copy should also include contact information of the name of a person or persons on board the ship who can give seafarers impartial advice or assistance about complaint on the basis of confidentiality.

(4) The onboard complaints procedure in singapore

Singapore is first Asian country to ratify the Maritime Labour Convention,2006 (MLC,2006).Singapore applies the Convention’s provisions to Singapore-registered ships and ships that call at her ports.Shipowners shall ensure that all ships have a set of on-board complaint procedures for fair,effective and expeditious handling of seafarer complaints alleging breaches of MLC in Singapore.In addition to the above,all seafarers working on board any ship shall also be given a copy of the on-board complaint procedures at the time of signing the seafarer’s employment agreement (SEA).This shall include contact information of the Maritime and Port Authority of Singapore and,where different,the competent authority in the seafarers’ country of residence,and the name of a person or persons on board the ship who can,on a confidential basis,provide seafarers with impartial advice on their complaint and otherwise assist them in following the complaint procedures available to them on board the ship.

(5) The purpose of the procedure

The purpose of the procedure is to resolve complaints at the lowest level possibly and to exhaust onboard remedies,without prejudice to seafarers’ right to complain directly to the shipowner or competent authority if they consider it necessary to pursue a complaint with appropriate external authorities.Meanwhile the Convention emphasizes that the procedure is in any case without prejudice to seafarers’ right to seek redress through whatever legal means seafarers consider appropriate.

2.Onshore seafarer complaint-handling procedure

(1) Who is responsible for establishing the procedure?

An on-shore complaint procedure is a procedure whereby a seafarer or seafarers can make a complaint to the relevant authority in the port where the ship is calling at,about working and living conditions including seafarer’s rights.According to the Convention port states are required to establish the appropriate onshore complaint-handling procedure in order to handle seafarers’ complaints promptly and practically when ships call at the port.

(2) Who can submit complaints under the procedure?

Different with onboard complaint procedure seafarers,a professional body,an association,a trade union or,generally,any person with an interest in the safety of the ship,including an interest in safety or health hazards to seafarers on board.So under this procedure the person who has the right to address complaints is very wide and the purpose is to give better protection for seafarers and enforce the Convention more effectively.

(3) Relationships between onboard complaint procedure and onshore complaint procedure

According to the Convention PSCOS (Port State Control Officers) in the port must undertake an initial investigation after receiving a complaint and determining whether the complaint should be handled under PSC procedure.Then PSCO should consider whether the on board complaint procedure established by the flag state has been used before making a decision to carry out a more detailed inspection.PSCOS should try to seek to resolve the complaint under the onboard complaint procedure unless there are some goog reasons such as the inadequacy of or undue delay in internal procedures or the complainants’ fear of reprisal for lodging a complaint.If there are reasons PSCOS can consider a complaint before any onboard complaint procedures have been explored.If the complaint cannot be resolved at shipboard level,the flag State should be notified and requested,within a prescribed deadline decided by the PSCO,to provide advice and a corrective plan of action.Certainly if PSCOS check that complaint is of a general nature that concerns all seafarers on the ship a more detailed inspection should be undertaken by PSCOS.

(4) PSCOS’ inspection under the procedure

Port state control inspection is voluntary or discretionary in character,if a country chooses to carry out such inspections they must be based on an effective port State inspection and monitoring system (Regulation 5.2.1,paragraph 4).PSCOS’ inspection should be limited to matters within the scope of the complaint.On the basis of the complaint,the PSCO may,or must decide to carry out a more detailed inspection on board ship when the working and living conditions alleged to be defective so as to constitute a clear hazard to safety or health or a serious breach referred to in the last sentence of Standard A5.2.1,paragraph 1.Under the above conditions PSCOS can carry out detailed inspection not limited within the scope of the complaint.During the inspection PSCOS should give the master,the shipowner and any other person involved in the complaint a proper opportunity to express their opinions.

(5) Results of PSCOS’ inspection

The ship will be prevented from sailing from the port by PSCOS if PSCOS find a non-conformity that constitutes a clear hazard to the safety,health or security of seafarers or a serious or repeated breach of the requirements of the Convention until non-conformities have been rectified,or until a plan of action for expeditious rectification has been agreed.And under the condition PSCOS must immediately notify the flag state and invite a representative of that state to be present and if possible requesting the flag state to reply within a prescribed deadline.

Ⅲ.Inspection and certification of flag states

1.Flag state inspection system responsibilities

The flag State is required to establish an effective system for inspection and certification of maritime labour conditions on ships that fly its flag (Regulation 5.1,paragraph 2) to ensure seafarers’ working and living conditions and continue to meet the standards in the Convention.This involves a wide range of matters including:(1) drawing up the national documents required by the Convention;(2) providing a sufficient number of qualified inspectors (training and competence);(3) developing rules or regulations providing for inspectors’ powers,status and independence;(4) guidelines regarding inspectors’ tasks and confidentiality;(5) identification (credentials) for inspectors;(6) reporting responsibilities;(7) delegation of some aspect of the inspection system to ROs (if an RO is used);(8) establishing a process for receiving and responding to complaints or requests for information.The system is effected by the issuance of the Maritime Labor Certificate (MLC) and the Declaration of Maritime Labor Compliance (DMLC),which together constitute prima facie evidence that a ship has been duly inspected by the flag state and complies the requirement of the Convention relating to seafarers’ working and living conditions.

2.Designation of a competent authority

Competent authority means the minister,government department or other authority having power to issue and enforce regulations,orders or other instructions,having the force of law in respect of the subject matter of the provision concerned.According to the Convention flag states must designate a competent authority to enforce their obligations on inspection and certification.The competent authority can be facilitated by other public instructions or private entities to enforce its duties according to practical needs.The relevant authorized organizations constitute part of the national system for the inspection and certification of maritime labor conditions.Under Regulation 5.1.1,paragraph 3,public institutions or other organizations,recognized as competent and independent,may be authorized,in accordance with the MLC,2006,by a flag State to carry out inspections or to issue certificates or do both on its behalf.They are called “recognized organizations” in the MLC,2006.

3.Competent authorities’ responsibilities

Flag states enforce the Convention’s obligations through designated competent authorities.A competent authority should appoint sufficient qualified inspectors to fulfill inspection effectively and should ensure all inspectors have the full and sufficient training and competence through their national legislation.Flag states should take measures to provide inspector with appropriate urther training during their employment.Additionally,flag states establish on board complaint procedure through competent authorities.According to the Convention on board complaint procedure must be established to enable the receipt of confidential information concerning possible breaches of the Convention submitted by seafarers directly or by their representatives.Furthermore,the competent authority is required to publish an annual report on inspection activities within six months of the end of each year.When compiling an annual report,the flag State should give due consideration to the contents of Guideline B5.1.4,paragraph 10.

4.Inspection circumstances of flag states

Ships need to be inspected and certified in a variety of circumstances,for example,some ships may be under construction or newly constructed,others may transfer from another registry and so on.Under different circumstances ships need different inspections.

(1) Inspections prior to the Issue of the first certificate

In the case of ships under construction that have been,or are to be,registered in the flag State the relevant drawings in relation to applicable requirements of MLC 2006 should be reviewed to meet the MLC’s relevant requirement.In the case of new ships entering service,the title 3 of the MLC should be respected against the drawing.If insufficient information is available,an interim certificate should be issued.

(2) Intermediate inspection

An intermediate inspection must be carried out in order to ensure ongoing compliance with the requirements of the MLC,2006.It must be between the second and third anniversary dates if only one intermediate inspection is carried out.The scope and depth of the intermediate inspection is to be equal to an inspection for renewal of the certificate.The certificate is to be endorsed following satisfactory intermediate inspection.Failing to undergo this inspection will invalidate the Maritime Labor certificate.

(3) Renewal inspection

Renewal inspection for a Maritime Labour Certificate,all requirements of the MLC 2006 must be inspected.Renewal inspection can be completed within 3 months before the expiry of the existing Maritime Labor Certificate or more than 3 months before the expiry of the existing Maritime Labor Certificate.

(4) Flag States’ responsibilities for unduly delay or detainment of ships

The flag state remains fully responsible for the inspection and certification in the end although it enforces the required working and living conditions of seafarers on board through the competent authority and the recognized organizations.In case of loss or damage as a result of a wrongful exercise of inspectors or unduly delay or detainment of a ship the flag state should enable the compensation to be claimed under national laws.The flag state undertakes regular inspections and necessary steps to investigate any received complaint to ensure the enforcement of the Convention and the compliance of the Convention.In any inspection all reasonable efforts should be made to avoid a ship being unduly detained or delayed.According to the Convention the burden of proof is on the complainant.

〔1〕Committee of Experts on the Application of Conventions and Recommendations of Labor Standard of ILO.

〔2〕Maritime Labour Convention,2006 (MLC,2006),Frequently Asked Questions (FAQ),Online revised Edition 2012.

〔3〕Guidance on implementing the Maritime Labor Convention,2006-Model national provisions,122.

〔4〕MEFS-Guidelines ( Rev.)-(2008-09-0144-8)-En.doc/v4,p.1.

〔5〕Maritime Labor Convention 2006,Standard A5.2.1 paragraphs 1(d) and 3.

〔6〕Tokyo Mou Secretariat,Guidelines for PSC Officers on Maritime Labor Convention 2006,12-July-2013 TMS13/128,p.5.

〔7〕Meitmann Carl Anton,Enforcing the Maritime Labour Convention,2006,A Study of the Early Results of Implementation and Enforcement of the Maritime Labour Convention,2006,2016,p.51.