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Thursday, 03/01/2013, GMT+7


As the entry-into-force date for the Maritime Labour Convention (MLC) draws ever nearer, fears it will prove to be merely an exercise on paper have been expressed.

With less than eight months to go before the deadline of August 20, an International Labour Organisation (ILO) official warned last month of the danger of the convention being seen as a “paper tiger” if it were not properly implemented by all flag-states. 

Seafarers’ unions and welfare organisations have expressed similar concerns and say they intend to keep a watchful eye on compliance. Unions plan to take up cases of non-compliance with the flags concerned and, where necessary, file complaints with the ILO. 

The ILO official, in a conference speech, was restating a concern expressed when the convention was adopted six years ago. Members of the ILO’s joint maritime commission of ship owners and maritime trade unions were all too aware that to create an international law is one thing but to achieve universal and effective implementation is another. 

That concern influenced the way in which the MLC was constructed and prompted the inclusion of the “no more favourable treatment” provision to ensure all ships, regardless of whether the flag state had ratified MLC or not, were covered and so deter flag-hopping. 

Ship owners are now being advised to check on the progress towards MLC ratification by the flags that their ships fly. Only 32 had ratified at the time of writing, leaving ships registered with non-ratifying countries exposed to the risk of inspections and delays in the ports of those countries that have ratified. 

Concern that seafarers might not be fully aware of the MLC or how it might affect them has also prompted one European union to offer training courses to its members. One of its officials uses the word “empowerment”, while acknowledging that with rights come responsibilities, particularly for masters and senior officers tasked with helping ensure their ships are compliant. 

Meanwhile, even at this late stage uncertainty persists over some of the finer details of the MLC. Flag-states are being asked, for example, to clarify their definition of a seafarer and what they will accept as proof of the financial security required to cover an employer’s liabilities. 

The MLC, in being designed to cover as many of those working on a ship as possible, uses a broad definition of seafarer that has created some grey areas. One recent example required a flag-state to state its position on superintendents who might spend a significant amount of their time on ships but are not considered to be engaged in the “normal” or “routine” business or “regular activities” of the ship, to quote some examples from flag-states’ guidance to ship owners. In this particular case, the decision was that they are not seafarers. 

Another MLC conundrum has been how to treat workers on self-propelled mobile offshore drilling units who could, in theory, be classed as seafarers when their rig is repositioning on a regular basis but as non-seafarers when it is attached to the seabed or subsea structure and classed as an “installation” and so subject to a different health and safety regime. 

The UK’s Maritime & Coastguard Agency (MCA) provides three other examples of categories of workers who might or might not be seafarers under the MLC: scientists on research vessels “and so not employed by the ship owner”; guest entertainers “who go from ship to ship” and “security staff employed to deter acts of piracy”. 

Where uncertainty remains, the MLC says flag-states should make decisions after consulting their ship owners’ and seafarers’ organisations. This may be a realistic proposition for countries where there are well-established national associations of ship owners and trade unions representing seafarers and between whom there are existing negotiating mechanisms. 

For some flags, however, where there is no equivalent industry representation, this may present problems, although one with a significant fleet states that is what it will do. 

Once defined as a seafarer, the research scientist, the singer performing on a cruise ship or the armed guard is legally covered by the MLC and all its provisions. While it may seem academic to some, the decision has implications for the company designated in MLC documentation as the ship owner and as such assumes the responsibility for, among other things, payment of seafarers’ wages. 

Potential problems like this can be addressed through revised contracts between ship operators and sub-contractors, with BIMCO planning to produce new clauses for its relevant standard contracts in time for the MLC’s entry into force. 

While some if not all such questions may have been resolved by next August, one that may take longer to answer is how the industry will know whether the MLC is not a paper tiger and has met its stated purpose of ensuring “decent” working and living conditions for seafarers. After all, there is not much point of going to the trouble of creating a new law if its desired effects are not demonstrably achieved. 

One way of assessing the MLC’s impact might be in the amount of work handled by seafarers’ welfare organisations. The International Seafarers Assistance Network last year assisted over 3,000 seafarers whose problems ranged from experiencing pirate attacks to family bereavements, but most involved issues covered by the MLC. Statistics collected by the organisation show that unpaid wages topped the list at 25%, followed by denial of repatriation rights at 14% and breaches of contract at 12%. 

Regular reports to the ILO from port-state control and flag-states should also provide some indication of levels of compliance and problems encountered in implementation. How the ILO might take meaningful action against member-states with poor compliance records remains to be seen. 

If the worst fears prove unfounded, however, and the MLC comes to be judged a success, the threat that labour standards might be imposed unilaterally by some governments or trade unions, as feared at the time the convention was first proposed at the ILO, should have been averted. 

An industry that is recognised as having good employment practices also tends to find it easier to both retain and recruit workers. 

Editor’s Note: Andrew Guest is a freelance journalist. 

Source: Bimco.org (27.12.2012)

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