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Feedback from the Social Partners on the General observation on matters arising from the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006) during the COVID-19 pandemic . Adopted by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) at its 91 st session (Nov-Dec. 2020) Background The Social Partners acknowledged and welcomed comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) at its 91 st session (Nov-Dec. 2020) and particularly that it expressed deep concern that the challenges and impact of restrictions and other measures adopted by governments globally to contain the spread of the pandemic had on the protection of seafarers’ rights in the MLC 2006 . The comments below highlighted in red outline our perspective on the current status of events. The Committee noted that :- the observations of the Social Partners namely ITF and ICS, submitted on 1 October 2020 and 26 October 2020, advising all ratifying States ha d failed to comply with major MLC 2006 provisions during the COVID-19 pandemic, notably regarding cooperation among Members, access to medical care and seafarer repatriation. as well as humanitarian concerns linked to seafarers’ rights violations , there was a risk of fatigue and other health issues lead ing to serious maritime accidents. We appreciate the efforts made to try to draw our observations to the attention of the governments concerned and recognize different degrees of success in being able to achieve improvements by different countries. governmental r eplies to the observations from Barbados, Cyprus, France, Honduras, Hungary, India, Ireland, Republic of Korea, Lithuania, Myanmar, Palau, Poland, Senegal, Singapore and United Kingdom of Great Britain and Northern Ireland acknowledg ing the existence of numerous challenges and highlight ing the different measures taken to ensure, as far as possible, protection of seafarers’ rights . Australia, Belgium, Canada, Croatia, Denmark, Germany, Greece, Ireland, Japan, Malaysia, Panama, Slovenia and Spain also provided information concerning measures adopted relati ng to MLC 2006 implementation during the pandemic. We appreciate the efforts made by the above governments to respond our observations and that some acknowledged the existence of numerous challenges highlighting different measures taken to ensure, as far as possible, protection of seafarers’ rights whilst others provided information on measures adopted relating to MLC 2006 implementation during the pandemic. However this amounts only to 29 countries out of a total of 97 ratifying countries last year ie 29.89% . This in itself is a concern as it demonstrated that 70.1% of countries did not respond to information requests from the Committee of Experts. Additionally respondees often point ed out that they knew they were breaching the MLC but had no choice. T his p laces MLC effectiveness into question if Countries choose to ignore it when they believe they need to. information received about hundreds of individual seafarers’ complaints which sent directly by seafarers concerned or shared by the IMO Seafarer Crisis Action Team (SCAT) . In addition , thousands of complaints were sent to the ITF Inspectorate and its dedicated Team by seafarers highlighting breaches to the convention . T his has reduced in 2021 but there are still reports on unilateral decisions to circumvent the MLC. information provided by the social partners outlining hundreds of thousands of seafarers (approximately 400,000 for the ITF) we re stranded on board and a similar number waiting at home unable to replace them and earn a living. This resulted in a humanitarian crisis despite unprecedented social dialogue among the key international level maritime sector actors and a high level of cooperation among them, numerous governments and United Nations agencies, under ILO and IMO leadership . With deep concern whil st global ports continued to operate uninterruptedly during the pandemic, seafarers provid ing a key frontline service to society, with over 90 % of world trade moved by sea, including food, medicines and vital medical supplies – continue d to face extreme difficulties to disembark and transit through countries for repatriation. Both social partners indicate d that they ha d received thousands of individual claims from seafarers globally describing desperate situations of violations of MLC provisions. In the last 12 months little has changed and many cases are being sent to the IMO Scat Team weekly, identifying actions primarily resulting from Countries not honouring responsibilities under the MLC, the WHO International Health Regulations, SOLAS, UNCLOS and STCW. Crew changes remain extremely difficult particularly in South and Central America, the Pacific Region and Asia. This is happening whilst Consular services work at reduced capacity in most countries, making it difficult for seafarers and compan ies to plan a consistent seafarer deployment process . Seafarers are requested to continue working beyond the terms agreed in their seafarers’ employment agreements (SEAs), they are denied access to medical care ashore (Regulation 4.1) and are deprived from their rights to repatriation (Regulation 2.5) , annual leave and shore leave (Regulation 2.4) in various cases. It is recalled that most ships do not have medically trained staff on board and as consequence when access to medical care ashore is denied, seafarers have no medical care whatsoever. The Committee note d ITF had indicat ed that ratifying Members were using force majeure as a shield for MLC non-compliance. The MLC, 2006, is a comprehensive labour instrument for the maritime industry applicable to all ratifying countries, and not a compilation of labour regulations to appl y selectively, if and to the extent that circumstances so permit. At the start of the pandemic, ratifying States, whether flag, port or labour-supplying States might have been confronted with genuine situations of force majeure , which rendered compliance with some obligations under the MLC, 2006 materially impossible . The Committee note d that over ten months h ad elapsed, which constitute d a realistically sufficient time frame to explore new modalities to appl y conform ing with international labour standards. Force majeure may be invoked as a condition precluding wrongfulness for non- observance of a treaty obligation only in unforeseen and unforeseeable event(s) creating an absolute and material impossibility of compliance with th e obligation. C ircumstances making observance of an international obligation more difficult or burdensome do not constitute force majeure . The Committee pointed out that: force majeure may no longer be invoked once options are available to comply with MLC provisions, although more difficult or cumbersome, and urge d ratifying States which ha d not yet done so, to adopt all necessary measures without delay to protect seafarers’ rights and comply fully with MLC obligations . the resolutions recently adopted by the UN General Assembly, 3 the ILO Governing Body 4 and IMO Maritime Safety Committee, 5 urging Member States to designate seafarers as key workers to facilitat e safe unhindered movement to embark or disembark a vessel, facilitation of shore leave, and, when necessary, to shore-based medical care . as result of the primarily international character of the maritime sector, it is not possible to comply with various MLC obligations, without allowing seafarers movement across borders in appropriate conditions. ratifying States as flag States, port States or labour-supplying States who ha d not yet done so, should recognize seafarers as key workers without delay and to draw in practice the consequences of such qualification to restore respect of rights with in the MLC. All governments need to strike an adequate balance between protection of public health, and respect of the rights and dignity of seafarers. The Committee note d the Recommended framework of protocols for ensuring safe ship crew changes and travel during the coronavirus (COVID-19) pandemic , proposed by a broad cross section of global industry associations representing the maritime transportation sector which enjoy consultative status at the IMO (MSC.1/Circ. 1636). The United Nations General Assembly as well as the ILO and the IMO in the above-mentioned resolutions refer to the implementation of the Recommended framework of protocols as an appropriate guidance to ensure safe crew change and seafarer travel . The Committee hope d that governments w ould refer to such guidance when adopting the measures urgently needed to restore compliance with their obligations under the MLC, 2006. Despite the ILO statement outlining Force Majeure there are still numerous countries cit ing this as a reason for not meet ing their MLC obligations. This has been the case for example for Indonesia and Kiribati in recent months. ITF are concerned that some flag states still adopt force majeure as a reason to condone exten ding contracts without providing alternative such as a ship’s diversion to countries permitting crew changes . The Social partners observations allege d that ratifying States failed to comply with Article I of the MLC, for Members to cooperate to ensur e effective MLC implementation and enforcement. The Committee acknowledge d that numerous governments undert ook important actions at bilateral, regional and international levels to identify solutions and generate initiatives to overcome challenges faced by seafarers and shipowners result ing from the pandemic. It observe d that based on information from the Social Partners and evidence available at the Office, MLC provisions continue d to be disregarded worldwide. Indeed, hundreds of thousands of global seafarers remained on board well beyond the original expiry date of their SEAs and often well beyond the default 11 months maximum period of service on board derived from MLC provisions , with reported phenomena of physical and mental exhaustion, anxiety, sickness and even suicides; thousands of seafarers have been disembarked but are not allowed to return to their countries of origin and were stranded in a foreign country; moreover, hundreds of seafarers were denied medical care ashore result ing in death of seafarers in several cases. In numerous cases, port restrictions were repeatedly introduced with short-term announcements hindering reasonable planning of the ships’ route while non-coordinated MLC implementation and enforcement, increase d the risk of travel prohibition for both ship and crew and, sometimes led to ship detentions due to State failures. The Committee consider ed that these elements constitute d sufficient basis to conclude that all Members failed to comply with MLC Article I, paragraph 2 . The MLC has no provisions allowing for temporary suspension of implementation of its provisions, in case of crisis, health related or otherwise. The Committee argued that it is precisely during cris e s that protective coverage in the MLC, assumes full significance and must be scrupulously applied. Especially as the MLC only contains minimum standards to protec t seafarers’ rights. Governments were urged to adopt necessary measures, in consultation with relevant social partners , to further enhance cooperation with each other to ensure effective MLC implementation and enforcement during the pandemic. The Committee note d the ITF indicat ed that failure to arrange seafarer repatriation on completion of contracts effectively induce d forced extension of contracts (or continuation of labour without contract), in circumstances where consent clearly cannot be freely given , rais ing serious questions of the precipitation of the international community to a form of global forced labour on ships. MLC Article III , where each Member shall satisfy itself that provisions of its laws and regulations respect, in the MLC context of fundamental rights to eliminat e forced or compulsory labour. I naction of certain Member States to ensur e crew changes or allow seafarers to return home, g ave seafarers no option but to remain on board creat ing conditions for them to languish for months on end in situations tantamount to forced labour. all ratifying States, as flag, port or labour-supply States, should adopt necessary measures or reinforce existing ones without delay to ensure no seafarer is forced to continue working on extended contractual arrangements without their formal, free and informed consent. The MLC, contains a robust enforcement system. Under Regulation 5.1.1, paragraph 1, each Member shall ensur e implementation of its obligations on ships fly ing its flag. A ll flag State s were urged to adopt necessary measures and/or reinforce existing ones without delay, including through more frequent inspections if necessary, to ensure ships fly ing their flags fully comply with MLC provisions and request ed flag States, which ha d not yet done so, to ensure that: any extension of SEA is done with the seafarers’ freely expressed consent (Reg 2.1, paragraph 2)); no fees or other charges for seafarer recruitment or placement, including any quarantine obligations before joining the ship, are borne directly or indirectly, in whole or in part, by the seafarer, other than the cost authorized under Std A1.4, paragraph 5; the prohibition to forgo minimum annual leave with pay is strictly enforced, with limited exceptions authorized by the competent authority (Reg 2.4 and Std A2.4, paragraph 3); seafarers are granted shore leave for their health and well-being and consistent with the operational requirement of their positions, subject to the strict respect of any public health measures applicable to the local population (Reg 2.4, paragraph 2)); seafarers are repatriated at no cost to themselves in circumstances with in the Convention, with strict respect of the default 11 months maximum period of service on board derived from MLC provisions (Reg s 2.5 and 2.4); ships that fly its flag have sufficient seafarers employed on board to ensure that ships are operated safely, efficiently and with due regard to security under all conditions, accounting for concerns of seafarer fatigue and the particular nature and conditions of the voyage (Re g 2.7); seafarers on ships that fly its flag are covered by adequate measures to protect their health and can access to prompt and adequate medical care whilst working on board, including access to vaccination (Reg 4.1); seafarers on ships that fly its flag are provided with occupational health protection and live, work and train on board ship in a safe and hygienic environment (Reg 4.3); seafarers have access to shore-based welfare facilities, where they exist, subject to the strict respect of any public health measures applicable to the local population (Reg 4.4); &amp; measures are taken to support seafarers’ wellbeing on board, particular ly during extended on board periods of service, including arrangements to contact family and loved ones. The Committee noted that the failure to apply any core principles and requirements listed above under the pretext of a protracted health crisis risks, may render the MLC meaningless especially when and in circumstances where protective coverage would be most needed. Such failure to apply any core principles and requirements ha d a direct negative impact on navigational safety, thus increasing exponentially the risk of maritime accidents, with unpredictable consequences on human lives and the environment, and immeasurable disturbance to the international supply and distribution of necessity goods. This remains a fundamental concern of the Social Partners. Under Regulation 5.2.1, paragraph 1 , every foreign ship calling in a member’s port may be inspect ed to review MLC compliance (including seafarers’ rights) relating to working and living conditions of seafarers on the ship and highlighted the complementary crucial role of port State control . PSC is difficult in some countries where Covid severity remains . some governments’ attention to the obligation to take steps to ensure a ship shall not proceed to sea until any non-conformity ha d been rectified, or until the authorized officer has accepted a plan of action to rectify such non-conformities, in situations foreseen under Standard A5.2.1 . This situation remains mixed. the extreme fatigue of seafarers on board beyond the default 11 months maximum period of service on board derived from the MLC not only constitute d a situation clearly hazardous for the safety and health of seafarers concerned, but also profoundly endangers the safety of navigation. This is still true although there has been an improvement as Companies have work ed to try to ensure those waiting the longest are repatriated first. ITF maintains that the 11 month maximum period cannot be used to extend contracts which were signed for a shorter period without the specified consent of both parties the ship owner and the seafarers concerned. refer red to Standard A2.7, paragraph 2 , which aims to ensure that seafarers work on board ships with sufficient personnel for the safe, efficient and secure operation of the ship and which highlights the need to avoid or minimize excessive hours of work to ensure sufficient rest and to limit fatigue. While noting the challenges faced by port State control authorities to conduct inspections during the pandemic, request ed ratifying countries with responsibilities as port States which have not yet done so, to adopt the necessary measures without delay to fully comply with their MLC obligations. Most countries appear to have ignored this request. call ed upon governments with port State responsibilities to: allow seafarers to enjoy their right to shore leave in Re g 2.4, paragraph 2, subject to the strict respect of any public health measures applicable to the local population; facilitate the repatriation of seafarers serving on ships which call at their ports or pass through their territorial or internal waters (Standard A2.5.1, paragraph 7); allow and facilitate the replacement of seafarers who have disembarked and consequently ensure the safe manning of ships, by providing an expeditious and non-discriminatory treatment of new crew members who enter their territory exclusively to join their ships (Standard A2.5.1, paragraph 7); ensure that seafarers on board ships in their territory who are in need of immediate medical care are given access to medical facilities on shore (Regulation 4.1); and This situation remains dire particularly in Asia and also in respect to refusal to repatriate bodies of deceased seafarers. refrain from the adoption and/or repetitive modification of restrictive national measures and/or port regulations which may hinder the reasonable ex ante planning of ships’ voyage and avoid inconsistent implementation and enforcement of the Convention vis-à-vis other contracting States. There are also e xamples of countries which have relaxed the restriction for some citizens but retain restriction for seafarers during the pandemic . The Committee note d that labour-supplying States must play a crucial role in cooperating with flag and port States to ensure the respect of seafarers’ rights. The Committee calls upon governments with labour-supplying responsibilities which have not yet done so, to adopt the necessary and immediate measures to ensure that the required facilities are put in place in relation to transport, testing and quarantine to receive their seafarers currently abroad and allow others to join their ships. S ome labour Supply Countries do this but others argu e they cannot fulfil t his . the COVID-19 pandemic has severely tested the MLC legal framework, to protect seafarers decent working and living conditions. The pandemic h as also highlighted the essential role of seafarers and criticality of the sector for the world economy. Regrettably, global public and private responses were not always respectful of, or attentive to, the maritime labour force ’s needs resulting in is a pressing need for restoring full respect of basic seafarers’ rights and drawing correct lessons in future. The possibility to attract young talent into shipping m ay be further compromised if the international community fails to deliver. The above situation remains the same from our perspective. D uring the pandemic a generation of potential Officers and Rating trainees have missed the opportunity to obtain the required seatime for licencing and training, with most facing employment difficulties due to uncertainty and costs to deploy seafarers . the issue would be placed on the agenda of the Fourth meeting of the Special Tripartite Committee of the MLC, 2006, held in April 2021. The Issue was indeed raised at the STC meeting and 2 Resolutions were tabled, however most States continue to refus e to act in accordance with t he obligations of the Convention. i t would continue to examine information provided by Governments and/or social partners about issues raised aiming to ascertain compliance with the application of the Convention by ratifying Member States during the crisis. Both Social Partners hope that given the update above , the Committee of Experts can continue to examine information provided by Governments and/or the social partners about issues raised to ascertain compliance with MLC application by ratifying Member States during the crisis. Saatja: <[email protected]> Saadetud: 12.10.2021 11:57 Adressaat: <[email protected]> Koopia: SM Info <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]> Teema: Transmission to Government of Article 23 ACD-19-2-1-20 Dear Sir,Please find attached a copy of a communication received by the Office on 4 October 2021, by which the International Transport Workers Federation (ITF) and the International Chamber of Shipping (ICS) submit an observation on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006).In accordance with established practice, these observations, as well as any comments that your Government may wish to make on the matters raised therein, will be brought to the attention of the Committee of Experts on the Application of Conventions and Recommendations at its next session (November-December 2021). Please refer to paragraphs of the 2021 Report of the Committee of Experts General Report, for information on the treatment of observations made by employers and workers organizations in the context of the supervision of the application of ratified Conventions.Yours sincerely, Corinne VarghaDirectorInternational Labour Standards DepartmentT: +41 22 799 71 55E: Route des Morillions 4CH-1211 Geneva 22Switzerland The International The International Transport Chamber of Shipping Workers Federation 4 October 2021 To Corinne Vargha Director ILO International Labour Standards Department Re Request for transmission of comments from the Social Partners with Regard to The Feedback from the Committee of Experts Dear Corinne, The International Transport Workers’ Federation (ITF) and the International Chambers of Shipping (ICS) have jointly prepared the attached paper for the review of the Committee of Experts in relation to the ongoing Covid Pandemic and its impact on Seafarers and the Shipping Industry. The observations are submitted under article 23 of the ILO Constitution and concern all MLC, 2006 ratifying Member States. We very much appreciate the efforts taken by the committee last year to highlight the concerns we expressed in our Article XXIII submission. However, we are concerned by the small number of governments which responded to requests for feedback from Governments and also by the admission by a number of countries that they knew they were not fulfilling their obligations but could not do anything differently. The situation remains dire with medical care and repatriation of bodies being denied. This combined with unwillingness of some states to allow repatriation of seafarers and shore leave makes the lives of seafarers very difficult and unpleasant. In view of this the ITF and the ICS would very much appreciate if, through your good office, you could pass this through to the Committee of experts. Yours faithfully Natalie Shaw Natalie Shaw Fabrizio Barcellona Shipowners’ Group Secretary Seafarers’ Group secretary