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Pealkiri: ILO meretöö konventsiooni muudatusettepanekud
Registreerimise kuupäev: 15.03.2018
Registreerimise number: 4.1-2/869-1
Lugupidamisega
Sotsiaalministeerium
Suur-Ameerika 1, 10122 Tallinn
Tel. (372) 626 9301, faks (372) 626 9209
e-post:
[email protected]
www.sm.ee
Proposals for amendment to the Code
of the Maritime Labour Convention, 2006,
as amended (MLC, 2006) submitted by
the group of Seafarer representatives
in accordance with Article XV
(23 August 2017)
Piracy and armed robbery against ships
Background
Despite an apparent reduction in the number of incidents in recent times, piracy and
armed robbery against ships continues to be a problem. One of the most concerning elements
of this problem is the effect on the members of a ship’s crew who find themselves held
captive during an incident, and the families of those crew members. Periods of captivity can
last years, leaving crew members traumatized and families in a constant state of worry for
their captured loved ones and, potentially, without the income on which they had relied for
food, schooling, medicines and other necessities.
The interim guidelines on measures relating to the welfare of seafarers and their
families affected by piracy off the coast of Somalia (MSC 93/16/1) which was referred to
the ILO by the 93rd Session of the IMO MSC provide:
Shipowners … should ensure the continued payment of wages and applicable entitlements
to the affected seafarers’ families.
and
Seafarers held hostage should not be dismissed, and consequently the payment of their
wages should continue.
It should be noted that these guidelines were submitted to the IMO by Italy, the
Republic of Korea, the Philippines, BIMCO, ICC, ICMA, IFSMA, IMHA, INTERCARGO,
INTERTANKO, ITF, the Nautical Institute, and OCIMF.
While it is acknowledged that many shipowners and employers do provide for the
families of captured seafarers, unfortunately the guidelines have not been adhered to in all
cases. Such cases are damaging to the image of the maritime industry. Further, there are grey
areas over the expiry of fixed-term contracts and the continued payment of wages during the
entire period on unlawful captivity. This has led to considerable hardship for seafarers and
their families.
Purpose
The purpose of this proposed amendment is to codify the protection of seafarers’ wages
and other entitlements due from the shipowner to the seafarer under their employment
agreement, the relevant collective bargaining agreement or the national law of the flag State
during a period when the seafarer is held captive and to ensure that responsibility for such is
taken by the appropriate party. To ensure that seafarers rights are adequately protected, it is
proposed that an amendment is made to both Standards and Guidelines.
STCMLC-2018-Seafarer amendments-[NORME-170912-7]-En.docx 1
Relevant considerations
The proposed amendment will: (i) provide clarity on the requirements which should be
placed on shipowners in the case of seafarers being held captive; (ii) ensure that payments
of wages and other contractual entitlements which sustain the families of captured seafarers
continue to be made, thus removing the need for governments and other social partners to
carry the burden of support during this period; and (iii) ensure that the right to decent work
and conditions is expressly maintained.
The proposed amendment will achieve the above aims without placing a large
administrative burden on States. It will also ensure that the families of seafarers do not suffer
from loss of income during the period of captivity.
Proposed amendment(s)
Standard A2.1
1. Insert a new paragraph 1:
1. For the purpose of Standard A2.2.1, Standard A2.2.2, Guideline B2.5.4 and the
present Standard, the term:
(a) “piracy” shall have the same meaning as in the United Nations Convention on the Law
of the Sea, 1982 (UNCLOS);
(b) “armed robbery against ships” means any illegal act of violence or detention or any act
of depredation, or threat thereof, other than an act of piracy, committed for private ends
and directed against a ship or against persons or property on board such a ship, within
a State’s internal waters, archipelagic waters and territorial sea, or any act of inciting
or of intentionally facilitating an act described above; this term shall include the
kidnapping of seafarers for ransom who are then held on or off a ship.
2. Renumber existing paragraphs from “1 to 6” to “2 to 7” and insert a new paragraph 8:
8. Each Member shall adopt laws or regulations establishing that a seafarer’s
employment agreement shall not expire or be terminated while a seafarer is held captive on
or off the ship as a result of acts of piracy or armed robbery against ships.
Standard A2.2
3. Replace the words “Standard A2.2 – Wages” by “Standard A.2.2.1 – Wages”.
4. Insert two new paragraphs:
7. Where a seafarer is held captive on or off the ship as a result of acts of piracy or
armed robbery against ships, the seafarer’s wages and entitlements under their employment
agreement, the relevant collective bargaining agreement or the national law of the flag State,
shall continue to be paid, including the remittance of any allotments as provided in
paragraph 4 of this Standard, during the entire period of captivity and until the seafarer is
released and duly repatriated in accordance with Standard A2.5.1, or until the death of the
seafarer while in captivity.
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8. Each Member shall require ships that fly its flag to provide financial security to
ensure that the wages and entitlements of seafarers held captive on or off the ship as a result
of acts of piracy or armed robbery against ships continue to be paid.
5. Insert a new Standard A2.2.2 – Financial security with the following paragraphs:
1. In implementation of paragraph 8 of Standard A2.2.1, this Standard establishes the
requirement to provide an effective financial security system to ensure payment of seafarers,
and/or their nominated representative, held captive on or off the ship as a result of acts of
piracy or armed robbery against ships.
2. Each Member shall ensure that a financial security system meeting the
requirements of this Standard is in place for ships flying its flag. The financial security
system may be in the form of a social security scheme or insurance or a national fund or
other similar arrangements. Its form shall be determined by the Member after consultation
with the shipowners’ and seafarers’ organizations concerned.
3. The financial security system shall provide direct access, sufficient coverage and
expedited financial assistance, in accordance with this Standard, to any seafarer held captive
on or off the ship as a result of acts of piracy or armed robbery, and/or their nominated
representative, against a ship flying the flag of the Member.
4. Each Member shall require that ships that fly its flag, and to which paragraph 1
or 2 of Regulation 5.1.3 applies, carry on board a certificate or other documentary evidence
of financial security issued by the financial security provider. A copy shall be posted in a
conspicuous place on board where it is available to the seafarers. Where more than one
financial security provider provides cover, the document provided by each provider shall be
carried on board.
5. The certificate or other documentary evidence of financial security shall contain
the information required in Appendix A2-II. It shall be in English or accompanied by an
English translation.
6. Assistance provided by the financial security system shall be granted promptly
upon request made by the seafarer or the seafarer’s nominated representative and supported
by the necessary justification of entitlement in accordance with paragraph 2 above.
7. Having regard to Regulations 2.1 and 2.2, assistance provided by the financial
security system shall be sufficient to cover wages and other entitlements due from the
shipowner to the seafarer under their employment agreement, the relevant collective
bargaining agreement or the national law of the flag State, including the remittance of any
allotments as provided in paragraph 4 of Standard A2.2.1, during the entire period of
captivity and until the seafarer is released and duly repatriated in accordance with
Standard A2.5.1, or until the death of the seafarer while in captivity.
8. The financial security shall not cease before the end of the period of validity of the
financial security unless the financial security provider has given prior notification of at least
30 days to the competent authority of the flag State.
9. Nothing in this Standard shall prejudice any right of recourse of the insurer or
provider of financial security against third parties.
10. The provisions in this Standard are not intended to be exclusive or to prejudice
any other rights, claims or remedies that may also be available to compensate seafarers who
are victims of piracy or armed robbery against ships. National laws and regulations may
provide that any amounts payable under this Standard can be offset against amounts received
STCMLC-2018-Seafarer amendments-[NORME-170912-7]-En.docx 3
from other sources arising from any rights, claims or remedies that may be the subject of
compensation under the present Standard.
New Guideline B2.5.4
6. Insert a new Guideline B2.5.4 – Piracy and armed robbery against ships with the following
text:
1. The entitlement to repatriation may not lapse while the seafarer is held captive on
or off the ship as a result of acts of piracy or armed robbery against ships.
Appendix A5-I
7. After the last line, insert a new line to read: “Financial security for payment of seafarers held
captive as a result of acts of piracy or armed robbery”.
Appendix A5-III
8. After the last line, insert a new line to read: “Financial security for payment of seafarers held
captive as a result of acts of piracy or armed robbery”.
New Appendix A2-I
9. Insert a new Appendix A2-I – Evidence of financial security under Standard A2.2.1,
paragraph 8 with the following text:
The certificate or other documentary evidence referred to in Standard A2.2.2,
paragraph 5, shall include the following information:
(a) name of the ship;
(b) port of registry of the ship;
(c) call sign of the ship;
(d) IMO number of the ship;
(e) name and address of the provider or providers of the financial security;
(f) contact details of the persons or entity responsible for handling requests for relief;
(g) name of the shipowner;
(h) period of validity of the financial security; and
(i) an attestation from the financial security provider that the financial security meets the
requirements of Standard A2.2.2.
10. Make all necessary consequential amendments.
4 STCMLC-2018-Seafarer amendments-[NORME-170912-7]-En.docx
Proposal for the development of
ILO guidelines outside the Maritime
Labour Convention, 2006, as amended
(MLC, 2006) submitted by the group
of Shipowner representatives
(26 August 2017)
Protection of seafarers’ wages when
the seafarer is held captive on or off
the ship as a result of acts of piracy
or armed robbery against ships
Background
The second meeting of the Special Tripartite Committee (STC) established under
Article XIII of the Maritime Labour Convention, 2006 (MLC, 2006) (Geneva,
8–10 February 2016), decided, in accordance with article 15 of its Standing Orders, to
establish a Working Group to, inter alia, examine issues related to the protection of seafarers’
wages when the seafarer is held captive on or off the ship as a result of acts such as piracy
or armed robbery, and to prepare proposals including a possible amendment to the Code of
the MLC, 2006, to address these issues.
The Working Group of the STC established under the MLC, 2006, met at the ILO from
3 to 5 April 2017. The outcome of their discussion was outlined in document
STCMLC/WG/2017/D.1 which sets out various types of proposals for potential
consideration of the STC. These proposals are without prejudice to the positions of any
government or group and not to be considered or treated as replacing or obstructing the need
for proposals to be submitted to the Director-General of the ILO in accordance with
Article XV, paragraph 2, of the MLC, 2006.
The Shipowners’ group is therefore submitting one of the proposals which it made to
the Working Group, using the proposed draft template prepared at the Working Group
meeting (see document STCMLC/WG/2017/D.3).
The proposal is found at paragraph (c) of document STCMLC/WG/2017/D.1, and
provides elements that could be incorporated into Office guidelines outside of the MLC
2006, on the protection of seafarers’ wages when the seafarer is held captive on or off the
ship as a result of acts of piracy or armed robbery against ships. These elements are
reproduced below:
1. Shipowners should continue to pay seafarers’ wages and provide all other entitlements in
accordance with their seafarers’ employment agreements, when seafarers are held captive
on or off the ship as a result of acts of piracy or armed robbery against ships.
2. For the purpose of these guidelines, “piracy” has the same meaning as in the United
Nations Convention on the Law of the Sea, 1982 (UNCLOS) and “armed robbery against
ships” has the same meaning as in IMO Resolution A.1025(26).
STCMLC-2018-Seafarer amendments-[NORME-170912-14]-En.docx 1
3. The shipowner’s obligations under paragraph 1 above should continue until the seafarer
is released and duly repatriated, in accordance with the provisions in Standard A2.5 and
Guideline B2.5; or until the date of death if the seafarer dies while in captivity. The date
of death should be defined according to the applicable national legislation.
4. The shipowner should continue to remit allotments to the person or persons nominated by
the seafarer in accordance with Standard A2.2(4) of the MLC, 2006.
5. The shipowner should not terminate the seafarers’ employment agreement while a seafarer
is held captive on or off the ship as a result of acts of piracy or armed robbery against
ships.
Where the seafarers’ employment agreement has been made for a fixed period and it
expires while the seafarer is held captive on or off the ship as a result of acts of piracy or armed
robbery against ships, the shipowner should treat the seafarers’ employment agreement as
continuing to have effect until the period of captivity ends.
Where the shipowner has already served notice of termination of the seafarers’
employment agreement to the seafarer and the date of termination occurs while the seafarer is
held captive on or off the ship as a result of acts of piracy or armed robbery against ships, the
shipowner should ensure that the seafarers’ employment agreement continues to have effect
until the period of captivity ends.
6. There should be a reference to existing guidance to shipowners on best practice to support
seafarers and their families during or after piracy incidents, for example the International
Seafarers Welfare and Assistance Network’s Good Practice Guide for Shipping
Companies and Manning Agents, Humanitarian Support of Seafarers and their Families
in cases of armed robbery and piracy attack.
7. Encouragement of seafarers to conclude arrangements on allotments.
8. Support for post-traumatic stress disorder for seafarers.
Purpose
The Shipowners’ group recognizes the importance of ensuring the protection of
seafarers’ wages when a seafarer is held captive on or off the ship as a result of acts of piracy
or armed robbery against ships, and supports examination of this issue by the STC. However,
as advised in the Working Group, the Shipowners’ group notes that the number of cases of
piracy where seafarers have not received their wages is extremely small, with most of the
cases reported being prior to the 2014 amendments to the MLC, 2006 (related to financial
security), entering into force. Furthermore, many of the cases drawn to the attention of the
Working Group related to vessels that fall outside the scope of application of the MLC, 2006,
namely fishing vessels, dhows and junks, or registered with the flags of States that had not
ratified the MLC, 2006, or did not comply with its requirements. The Shipowners’ group
also considers that the MLC, 2006, covers situations when SEAs cannot be terminated or
wages cease to be paid when a seafarer is held captive on or off the ship as a result of acts
of piracy or armed robbery against ships.
Therefore, the Shipowners’ group:
– considers that an amendment to the Code of the MLC, 2006, would not assist those
affected, be appropriate, or be the most effective or proportionate response;
– recalls that the MLC, 2006, has only recently entered into force (including some
amendments already adopted) and needs more time to be fully implemented;
2 STCMLC-2018-Seafarer amendments-[NORME-170912-14]-En.docx
– considers that the most appropriate, effective and proportionate response would be to
develop Office guidelines on the protection of seafarers’ wages when a seafarer is held
captive on or off the ship as a result of acts of piracy or armed robbery against ships;
and
– proposes that the guidance could be developed to be broad in scope and address all
personnel onboard seagoing vessels, and not just those within the scope of the MLC,
2006.
Furthermore, such guidance would also ensure that the current statutory requirement
and practice of shipowners continuing to pay seafarers’ wages and provide all other
entitlements in accordance with their seafarers’ employment agreements, when seafarers are
held captive on or off the ship as a result of acts of piracy or armed robbery against ships is
clear and unquestioned. Any amendment to the Code of the MLC, 2006, on this issue could
have the unfortunate and unintended consequence of negatively affecting current practice or
lead to confusion about existing requirements under the MLC, 2006, related to payment of
wages and SEAs.
Relevant considerations
The STC is invited to note relevant existing guidance produced by a number of
stakeholders within the industry as part of the ISWAN Maritime Piracy Humanitarian
Response Programme (MPHRP) 1 programme. It is entitled Good Practice Guide for
Shipping Companies and Manning Agents: Humanitarian support of seafarers and their
families in case of armed robbery and piracy attack.
The Shipowners’ group does not propose that the document should be the Office
guidelines as it has not been produced by a formal tripartite setting, however it could form a
good starting point and resource for the necessary discussions along with the elements found
at paragraph (c) of document STCMLC/WG/2017/D.1. It can be accessed at
http://seafarerswelfare.org/piracy/mphrp, where it is available in both English and French.
Copies of the ISWAN guidance are also attached to this submission for ease of
reference. Using the ISWAN guidance would assist the Office in preparing for the tripartite
meeting convened to produce guidelines, therefore reducing the associated financial and
administrative burdens involved. It would also have the benefit of incorporating the
considerable experience and lessons learned by those having been involved in handling such
regrettable situations.
Proposed amendment
Development of ILO guidelines outside the MLC, 2006, related to the protection of
seafarers’ wages when the seafarer is held captive on or off the ship as a result of acts of
piracy or armed robbery against ships, incorporating the elements indicated in paragraph (c)
of document STCMLC/WG/2017/D.1.
1
MPHRP was established in 2011 as a not-for-profit alliance of maritime industry partners, maritime
unions and welfare associations (http://seafarerswelfare.org/piracy/mphrp). The aim of MPHRP was
to provide assistance to seafarers and their families affected by maritime piracy. In addition to
assisting seafarers and their families with their recovery and rehabilitation, MPHRP developed
guidance, provided training programmes for companies and seafarers, and established a network of
trained welfare responders to assist families and seafarers affected by piracy.
STCMLC-2018-Seafarer amendments-[NORME-170912-14]-En.docx 3
Transitional measures
The ISWAN guidance could be used in the interim until new formal ILO guidelines
outside the MLC, 2006, related to the protection of seafarers’ wages when the seafarer is
held captive on or off the ship as a result of acts of piracy or armed robbery against ships,
can be developed.
4 STCMLC-2018-Seafarer amendments-[NORME-170912-14]-En.docx
Eesti Meremeeste Sõltumatu Ametiühing
[email protected] Meie 15.03.2018 nr 4.1-2/869-1
Eesti Laevaomanike Liit
[email protected]
ILO meretöö konventsiooni
muudatusettepanekud
Edastame Teile arvamuse avaldamiseks meremeeste esindajate ettepaneku ILO meretöö
konventsiooni standardite muutmiseks ning laevaomanike esindajate ettepaneku juhiste, mis
puudutavad meremeeste kaitset piraatluse või relvastatud röövi korral, välja töötamiseks.
ILO meretöö konventsiooni muudatused tulevad arutamisele spetsiaalses meretöö
konventsiooni kolmepoolses komitees aprillis ning esitatakse heaks kiitmiseks ILO
peakonverentsile selle aasta juunis.
ILO pöördumine muudatusettepanekutega jõudis meieni oluliselt hiljem, mistõttu palume Teilt
kiiret tagasisidet.
Palume Teil edastada oma arvamus hiljemalt 28. märtsiks 2018.
Lugupidamisega
(allkirjastatud digitaalselt)
Thea Treier
Tööelu arengu osakonna juhataja
Lisa:
1. Proposal from the group of Seafarer representatives to amend the Code of the MLC, 2006
2. Proposal from the group of Shipowner representatives for the development of the ILO
guidelines outside the MLC, 2006
Lisaadressaadid:
Majandus- ja Kommunikatsiooniministeerium
Veeteede Amet
Liis Tõnismaa 6269 805
[email protected]
Suur-Ameerika 1 / 10122 Tallinn / 626 9301 /
[email protected] / www.sm.ee / registrikood 70001952