The Maritime Labour Convention, 2006—reflections on challenges for flag State implementation

Abstract

This paper begins by providing a brief overview of the International Labour Organization’s Maritime Labour Convention, 2006 (MLC, 2006), noting that this Convention, often called the “Seafarers’ bill of rights”, seeks to achieve both social and labour rights (“decent work”) for seafarers and fair competition (achieving a level-playing field) for shipowners. It has been described as the “fourth pillar” of the international maritime regulatory regime complementing the major International Maritime Organization conventions. The paper provides a brief update on international efforts to achieve the 30/33 formula needed to bring the Convention into force [at present, the tonnage element, 33% has been achieved already with coverage now at 54% of the world fleet (by gross tonnage), with 18 ratifications]. It then explores challenges faced by flag States in connection with capacity to implement the ship inspection and certification system under the MLC, 2006 and other difficulties with respect to legal implementation by the flag States. The paper also comments on some challenges in connection with port State, coastal State and labour-supplying State responsibilities. The paper points out that the MLC, 2006 is a comprehensive code that covers diverse issues and a wider range of both ships and seafarers than previous conventions. It often requires interdepartmental cooperation to implement its requirements at the national level. The paper concludes that, despite the slower pace of ratification in some regions, largely because of the recent economic and other crises, it appears that many actors in the maritime sector are already actively engaged in MLC, 2006 implementation, often ahead of governments. The question is not “if” but “when” the formula will be achieved to allow the MLC, 2006 to enter into force.

1 Introduction

The introductory parts of this paper draw upon prior publication. In particular, see a guest editorial, McConnell 2011, see also McConnell et al. 2011 and McConnell 2009.

The Maritime Labour Convention, 2006 (MLC, 2006)² was adopted³ on 23 February 2006 at the 10th maritime session and 94th session of the International Labour Conference (ILC) of the International Labour Organization (ILO).⁴ The Convention, comprising over 100 pages of text, elaborates a comprehensive code setting out rights and responsibilities as well as more technical minimum standards for working and living conditions for a diverse range of ocean workers (inclusively called “seafarers”⁵). Consistent with the complexities of the earliest of the globalized economic sectors,⁶ the Convention establishes a system based on responsibilities for countries as flag States, port States, and, to a lesser degree, coastal States. It also introduces a new “face”⁷ for State responsibility, under the framework of international law of the sea, the State with labour-supplying responsibilities. Sometimes described as the “Seafarers’ bill of rights”⁸, the MLC, 2006 is an instrument that seeks to achieve both human rights goals and economic goals. Social and labour rights (“decent work”⁹ for seafarers) are interwoven with more economic fair competition considerations (achieving a level-playing field¹⁰ for shipowners). It has been described as the “fourth pillar” of the international maritime regulatory regime complementing the major International Maritime Organization (IMO) conventions, the International Convention for the Safety of Life at Sea, 1974 (SOLAS), the International Convention for the Prevention of Pollution from Ships, 73/78 (MARPOL) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW), all of which are intended to ensure the safety, security of shipping and the protection of marine environment from ship source pollution.¹¹

As an ILO legal instrument, the MLC, 2006 brings together and modernizes in some areas (for example onboard accommodation and occupational safety and health) the majority of the ILO’s maritime legal instruments adopted since 1920 (41 conventions¹² and the related recommendations—70 instruments in total). The 37 maritime labour Conventions that are consolidated¹³ will be gradually phased out as States that are now party to these Conventions ratify the MLC, 2006.

The Convention sets out minimum requirements for seafarers to work on a ship (e.g. minimum age, medical fitness, training, regulated seafarer recruitment and placement services) and conditions of employment, including important matters such as a contract of employment [seafarers’ employment agreements (SEA)¹⁴], minimum hours of work or rest, wages, leave, repatriation and other matters. It also contains provisions dealing with standards for accommodation¹⁵ and recreational facilities, food and catering on board ship, as well as addressing medical care on board and ashore including shipowners’ liability in that context, health and safety protection and accident prevention, access to seafarer welfare centres and social security protection.

It provides an important example of inter-organization learning as it builds upon and, arguably, develops the best practices for effective compliance and enforcement that have evolved under the international regulatory regime in connection with the IMO conventions.¹⁶ The MLC, 2006 contains, in Title 5, obligations to establish a compliance and enforcement system based on regular inspections and, in the case of ships 500GT engaged in international voyages or 500GT operating between ports in a country other than the flag State, mandatory certification of labour and social conditions for seafarers, carried out by the competent authority in the flag States or recognized organizations (ROs) on their behalf.¹⁷ This is complemented by port State inspection [port State control (PSC)] and responsibilities for labour-supplying issues. Aside from labour-supplying responsibilities, these generally follow the existing IMO practices, with a few small differences. However, the Convention also contains aspects reflecting ILO practices and its emphasis on tripartism with on-board and onshore seafarer complaint procedures and linkages to the well-established ILO supervisory system which formally examines legal implementation at the State level. In order to encourage fair competition, the Convention requires port States to ensure that ships of non-ratifying States receive “no more favourable treatment” during PSC than that given to ships of ratifying States. ¹⁸ The Convention expressly seeks to attract widespread ratification through a mix of firmness on rights combined with flexibility on implementation supported by a tripartite approach to implementation at the national level. Typically, for an ILO convention, it allows implementation in laws and/or regulations or collective agreements or other measures,¹⁹ thus emphasizing the important role of the national social partners, the workers and employers, in implementing international obligations.

It is important to keep in mind the point mentioned above: the MLC, 2006 is intended to establish decent work for seafarers and a level-playing field for shipowners. In that equation, despite the clear attempts to provide national flexibility, these two are inseparable and are predicated on the idea of some uniformity in implementation and related inspections. This is also central to the idea, new for an ILO convention, of certifying labour standards in the maritime sector.

The key features of the MLC, 2006, which as discussed below also create challenges for implementation, can be summarized as:

• Comprehensive approach to the issues covered,

• Comprehensive approach to coverage of seafarers and ships (no tonnage limit),

• A new system to mainstream labour standards within the international maritime regulatory system in order to achieve effective enforcement and compliance—a certification system for conditions of “decent work” (some tonnage/voyage parameters on certification), and

• Specific areas for national flexibility based on national social (tripartite) dialogue.

2 The current status of MLC, 2006 ratification and implementation

This year—2011—is an important milestone year for the MLC, 2006. As mentioned earlier, February marked the fifth anniversary of the adoption of the Convention by the 94th ILC, at its 10th maritime session since 1920. This year was also the tenth anniversary of the famous “Geneva Accord”, an agreement that was reached in 2001 by the international representatives of the seafarers and shipowners on the ILO’s Joint Maritime Commission. This Accord called for a legal instrument that would more effectively address the needs of the seafarers and shipowners in the earliest of the globalized industries and provided the impetus²⁰ for the five years of intensive international tripartite meetings leading to the adoption of the MLC, 2006.

As noted above, despite what was, essentially, unanimous adoption in 2006, the Convention has not yet achieved the formula for entry into force—12 months after ratification by 30 Members (States that are members of the ILO) with a total share in the world gross tonnage of ships of at least 33 per cent (MLC, 2006, Article VIII). Although most of the major flag States have ratified the Convention, with ratifications currently covering seafarers on more than 54% of the world fleet, as of August 2011, the Convention has been ratified by only 18 countries.²¹ This means that 12 more ratifications are needed meet the 30/33 formula in 2011, with actual entry into force of the Convention 12 months later. As noted ²² by Cleopatra Doumbia-Henry, Director of the ILO’s International Standards Department,

…[a]t the time the Convention was adopted it was thought it would take about 5 years to achieve the challenging formula which is intentionally demanding because of the importance of ensuring that the MLC, 2006 is not a “paper tiger” but an instrument that results in real change: decent work for seafarers and a level playing-field for shipowners.

Clearly, it is an ambitious Convention that aims for as close to universal ratification as possible.

It had been expected, with the decision by the European Union (EU) in 2007 regarding ratification by its members by the end of December 2010 and the agreement between the social partners in the EU, an agreement that will become a directive once the convention into force,²³ that the other requirement, ratification by at least 30 Members would be achieved by December 2010. This date has now passed; however, the overall five-year goal may still be possible, as there has been significant progress in other countries, particularly in parts of Europe, Asia, Southeast Asia and the Pacific region. Many countries in the Caribbean are moving forward quickly, as well as several countries in Africa and Asia.²⁴

Not surprisingly, the global economic destabilization combined with political and other difficulties in some countries and regions, as well as major environmental disasters has had a serious impact on national legislative agendas. These are all certainly what could be described as the more unpredictable exogenic factors that pose a challenge to governmental efforts, for all States including flag States, to move forward on ratification and implementation.

3 Challenges for (flag State) implementation

3.1 A brief note on other than flag State obligations

Although the focus of this paper is flag State implementation, it is important to keep in mind the fact that the Convention also contains important obligations for countries with labour-supplying responsibilities as well as coastal and/or port State responsibilities. These also provide significant challenges for governments—particularly those related to the regulation of private seafarers’ recruitment and placement services (if any) that operate in a country and the, always complex, issue of providing social security for seafarers “ordinarily resident” in the country. Although both of these matters have some elements of flag State responsibility related to the verification of the situation during ship inspections, the regulatory responsibilities under the MLC, 2006 are not primarily directed to flag States. In the first case, responsibility rests with the State in which the service is located. In the second, it is the State in which the seafarer is “ordinarily resident” (unless flag State’s social security system covers foreign seafarers on ships under its flag). There are also important obligations relating to adopting policies to promote employment opportunities, again a labour-supplying responsibility. Other obligations, which could be considered as coastal or port State concerns, such as encouraging the establishment of seafarer welfare centres and the provision of access to shore-based onshore medical advice and services to passing ships and ships entering the territory are also important and possibly difficult for some countries. There are also, potentially, some implementation issues in connection with elements of port State responsibilities, particularly where the procedures under the MLC, 2006 vary somewhat from those that are well established under the various PSC Memorandum of Understandings (MOUs), e.g. the onshore seafarer complaint-handling procedures.

3.2 Implementation challenges for flag States

It is clear that the majority of the obligations under the MLC, 2006 are directed to States in their capacity as flag States. These challenges, which are endogenous to the Convention, overlap to some extent but for purposes of this paper are divided into two categories

3.2.1 Challenges related to inspection system capacity

The first, most obvious, issue is the capacity to implement and operate the ship inspection and certification system. As was the case with the introduction of the major IMO instruments, MARPOL or, more recently, the ISM Code or ISPS Code under SOLAS, and in connection with other IMO conventions, this change in the system will inevitably have some teething problems and generate uncertainty at all levels for a period of time. For flag States with a high level of registered tonnage, the need to inspect and certify, if required, a large number of ships will be a challenge. As noted above in Section 1 of this article, the MLC, 2006 is comprehensive. It applies to existing ships (except for the construction and equipment aspects of accommodation) and, although there is some flexibility with respect to ships less than 200GT, it does not have a tonnage limit. Nor does it have broad exclusions ²⁵ based on ships’ voyages/trade. To a large extent, the problem of capacity to inspect and certify, at least for ships engaged in international voyages, may already be addressed through the services provided by the ROs which have moved forward rapidly to make sure that they have staff that are competent to inspect and certify ships for MLC, 2006 compliance.²⁶ In that respect, there may be one difficulty in that there has been a concern about ensuring some degree of uniformity in the way that ROs are interpreting the Convention’s requirements, particularly at the present “infancy” stage when many flag States are still developing the legal details of implementation. It should be noted that the MLC, 2006 differs from the IMO conventions because of its emphasis on national flexibility and the specifics of the documentation on board ship, particularly the requirement for a Declaration of Maritime Labour Compliance, Part I to be filled out by governments.²⁷ For this reason, the need to ensure that national legal capacity is built is important, as some countries may have difficulty implementing the various requirements in the Convention that require both tripartite consultation and adoption of laws or regulations in order to guide the authorized ROs. Clearly, under the MLC, 2006, ROs will require instruction on national standards. This is part of the problem regarding the need to build national capacity to both carry out and oversee inspections.

To help achieve more harmony, if not uniformity, in connection with the ship inspection obligations, the ILO organized an international tripartite experts meeting in 2008 to adopt the Guidelines for Flag State Inspections Under the Maritime Labour Convention, 2006²⁸ and the Guidelines for Port State Control Officers Carrying Out Inspections Under the Maritime Labour Convention, 2006 (Guidelines for PSCOs).²⁹ These Guidelines are not binding but are intended as tripartite advice to flag States, in particular, about the system for inspection and what is should be checked in an inspection. The Paris PSC MOU guidance, which is nearly completed, is not exactly the same as these Guidelines but generally follows the ILO’s MLC, 2006 Guidelines for PSCOs.³⁰

These Guidelines have been combined with other initiatives such as the Maritime Labour Academy, based at the ILO’s International Training Centre in Italy,³¹ which is an essential element in the major effort by the ILO to develop training for maritime labour inspectors in order to ensure some degree of consistency in practice and understanding in all regions. The first course, a two-week residential course that was developed in 2009, was the “Train the Trainers maritime labour inspectors on the application of the Maritime Labour Convention, 2006”. Since then, more than 200 MLC, 2006 trainers from all regions have graduated from these courses, with more courses planned for 2011 and 2012, including courses in partnership with the ITF for ITF inspectors³² and workshops and courses for ships’ masters and other officers, the cruise ship sector³³ and for national legal counsel/advisers. Numerous regional and national level courses delivered by the ILO or trainers who have taken the ILO course have also taken place in addition to many other industry or national activities.³⁴

Clearly, capacity to operationalize the MLC, 2006 inspection system is being developed by both public and private actors in the maritime sector. There have also been many industry reports of ships and seafarer recruitment and placement services already being inspected and certified, either on a trial basis or under voluntary certification, as well as initiatives to include MLC, 2006 compatible terms in various industry collective agreements and other tools such as courses and training offered by ROs and others.

But these inspection challenges for governments should not be overstated. It is important to keep in mind the fact that the MLC, 2006 builds upon obligations that have been in place for many countries since the adoption of the ILO Convention No.147³⁵ which was an early attempt at consolidation and also contained a form of port State scrutiny of working and living conditions on ships. It is now one of the Conventions included under many of the PSC MOUs. In fact, Convention No. 147 and the Labour Inspection (Seafarers) Convention, 1996 (No.178)³⁶ form the basis of the current compliance and enforcement system in the MLC, 2006. In principle, this means that, for countries that have ratified those Conventions, the “upgrade” to the MLC, 2006 while certainly a “plusher” system should not, in fact, require a major change in basic maritime labour inspection operations.

3.2.2 Challenges relating to legal implementation (and ratification) by flag States

The challenges related to legal implementation are perhaps more difficult and certainly, along with the exogenous factors noted above, constitute a large part of the explanation of the slower than expected pace of ratification. Many countries, for example Canada, Australia and Singapore, do not normally ratify international agreements until their legislation is in place, even though there is a clear 12 months (or longer if a country ratifies before the 30th ratification needed to bring the Convention into force) “grace period” after ratification before the Convention obligations enter into force, and are, therefore, binding on the ratifying country. There is then a further period before a country would have to report to the ILO supervisory system on its implementation.

One of the main difficulties for implementation is that the MLC, 2006 is both a labour convention and a maritime convention. Interaction with the ILO including implementation of labour conventions is usually a matter dealt with by the labour departments or ministries in each country. However, the compliance and enforcement approach in the MLC, 2006, including PSC and the possible use of ROs and the express alignment with IMO instruments, is intended to “mainstream” it within the current flag State inspection and the PSC MOU approaches under the wider maritime regime. For some countries, the question of which department should handle the implementation of the MLC, 2006 has been difficult as this is a labour matter, usually involving labour inspectors; however, the Convention is obviously predicated, from a systemic perspective, on implementation by the competent authority or authorities that are already working with ship inspection and certification and with PSC. On the other hand, many of the topics such as social security or occupational safety and health and the possibility of implementation through collective bargaining agreements are not within the usual practice or jurisdiction of most maritime administrations.³⁷

While there are some countries where the labour department and labour inspectors will play a central role, in many countries, implementation has occurred through cooperative arrangements between the relevant departments. This is especially important since some topics may be matters on which the maritime administration cannot develop legislation. To use the example of Canada, the majority of the MLC, 2006 provisions are addressed in a regulation under the Canada Shipping Act, 2001,³⁸ a statute dealt with by Transport Canada. However, some elements dealing with maritime occupational safety and health (MOSH) and seafarers’ accommodation on board ship are set out in a regulation under the Canada Labour Code,³⁹ a statute under the purview of Human Resources and Skills Canada. These institutional and legal issues are complex to work out, particularly in countries where departments have not previously worked together to develop MOUs or other cooperative arrangements to address issues and legislation that straddles departmental boundaries. The MLC, 2006 requires an integrated approach in order to achieve implementation.

Aside from ship inspection questions, the comprehensive coverage under the Convention also provides a challenge because the subject matter may span more than these two departments or in some cases even levels of governments (e.g. in federations). For example, the provision of social security to seafarers “ordinarily resident” in the country or access to onshore medical services may require discussion between a number of departments or levels of government, in some cases. This means that other ministries, particularly where financial or border security matters may be involved, need also to understand and support the Convention. These are all matters that can be difficult and take time to negotiate.

As mentioned earlier, although the MLC, 2006 consolidates older ILO conventions, some dating back to 1920, it also updates and “modernizes” the requirements in a number of areas particularly in connection with MOSH. There are very few models for some requirements, e.g. MOSH regulations and risk assessments, or the form of financial security required of ships (in connection with repatriation) or shipowners (in connection with death or long-term disability) or recruitment and placement services (for a failure by the service or a shipowner to meet their respective obligations).

For some flag States that breadth of the Convention has also provided difficulties in connection with specific sectors, most notably the domestic fleet, commercial yacht owners and the cruise ship industry, where the accommodation on ships and other workplace practices have not easily meshed with the MLC, 2006 requirements, even for future build ships.⁴⁰ The domestic voyage fleet, in particular, has not previously been the subject of international standards.

Another difficulty that has been encountered by some flag States relates to the exercise of the national flexibility that exists under the Convention. In most cases, this must be exercised in or after consultation with the seafarer and shipowners’ organizations concerned. However, a number of countries either do not have these organizations or, if they do exist, may not represent the seafarers on the ships or the shipowners concerned. This problem was, however, foreseen. When the Convention enters into force, or at least achieves the entry into force formula, the ILO’s Governing Body is expected to establish the Special Tripartite Committee (under Article XIII). This Committee, in addition to considering amendments and reviewing how the Convention is working, has a special role, under Article VII, whereby it can act as the relevant consultative organization for countries that do not yet have social partners. There is an obvious gap until the Committee is established. However, in 2010, at a meeting of the Preparatory MLC, 2006 Committee, the establishment of a transitional arrangement was not accepted.⁴¹ This means that this gap-filling role will only be addressed after the Convention achieves the entry into force formula and the Committee is established.

Another major difficulty for some countries, particularly less developed economies, is the problem of capacity to undertake the legal drafting tasks involved in implementing the MLC, 2006.⁴² This problem is not unique to labour conventions, for example the IMO has prepared and delivered numerous model laws and workshops to assist with implementation of IMO conventions. However, this approach is relatively rare for the ILO, perhaps because of the importance placed on promoting social dialogue in national implementation. However, as result of requests for this form of technical cooperation, model national provisions are now being finalized. The ILO has also supported national legal gap analysis in over 40 countries to assist countries to move forward.

Nonetheless, as noted earlier, while flag States may have had some difficulties in many respects, the industry has moved ahead of government with some organizations developing collective agreements and seafarer employment agreements that are in line with the MLC, 2006. In some cases, ships have already been certified along with private seafarer recruitment and placement services.

At the level of the broader international maritime law regime, some elements of the MLC, 2006 have strongly influenced the text of the recent amendments that were adopted by the IMO for its STCW Convention (the Manila amendments).⁴³ These amendments are expected to enter into force in early 2012. This means that, even before the MLC, 2006 comes into force, its requirements relating to medical examinations and certificates, minimum age and hours of rest and training will already be mandatory for seafarers covered by the STCW.

4 Conclusion

It is clear that there are some challenges for flag State implementation of the MLC, 2006; however, as also suggested above, these should not be overstated. In fact, the industry seems to be moving forward, perhaps because, like most major regulatory changes, it generates a new market for some services or technologies, irrespective of the rather slow pace of the mechanics of legal implementation and ratification. Even on the latter point, it seems clear that reaching the requisite 30/33 formula is now simply a question of precisely “when” rather than “if”. When the Convention enters into force, the very interesting experiment of certifying labour standards to achieve “decent work” and a “level-playing field” will also, perhaps, finally address long held concerns about the problem created by the lack of a “genuine link”⁴⁴ between ships and the flag States.