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The Maritime Labour Convention – Shipping’s “Fourth Pillar”
By Michael Grey
Why the MLC was needed, how it is expected to work, and what it hopes to accomplish
The International Labour Organisation exists, as it has from its inception, to bring together governments, employers and workers to promote decent conditions of work and social justice. It recognises that seafaring will always pose special hazards to life and health because of the hostility of the sea and the nature of the working conditions aboard ship. But it also recognises that much can be done to reduce accidents to ships and their crews through good design and better safety features.
Similarly, much can also be done to improve the quality of life at sea, regardless of the rigours of modern ship operations. Regardless of the flag they are sailing under and the type of trade they are in, seafarers, the ILO points out, should be entitled to good living conditions, regular communications with their home, the guarantee of regular pay, adequate medical care, repatriation, social security and welfare benefits for themselves and their dependants. This would be “decent” work in every respect.
It is also recognised that these conditions should be uniform, harmonised throughout the world and particularly important for a global industry with a mobile, international workforce.
The ILO had sought to promote these concepts for decades, hampered perhaps by the fact that while most of these matters might be covered by conventions and instruments (nearly 70 of these in number, and many of them stretching back almost to the days of sail), the whole body of regulation had become unwieldy, some in force but of doubtful relevance, some clearly overtaken by the passage of time and maritime technology, some virtually ignored and forgotten.
The Maritime Labour Convention, adopted in Geneva in 2006 was the culmination of many years of work to consolidate and update this whole raft of fragmented labour standards, into a single convention that can provide comprehensive rights and protection at work for the global seafaring population of about one-and-a-quarter million seafarers. It has been designed for global application, produced in a fashion that actually promotes understanding, and furthermore has been framed so that it can be regularly updated. Thus the MLC will be a “living” document and we will no longer have people scratching their heads over yellowing, 80-year-old documents, wondering what their authors had really intended.
Crucially it has been designed for a uniformity of enforcement, so that the globe-girdling merchant ship will not encounter different standards and ambiguous interpretations as it moves from port to port and between jurisdictions. It has been described as “the most ambitious convention ever, covering the modern realities of working conditions aboard a 21st century ship”. And along with SOLAS, MARPOL and the STCW conventions, it will become the “fourth pillar” in a maritime regulatory regime that is global in scope and ambition, providing a level playing field in which all parts of the international shipping industry can operate and flourish.
Most importantly, and particularly at a time when seafaring employment needs to be “sold” to young people who might be unconvinced of the attractions of a sea career, once the MLC is implemented and enforced, it will surely present to the world the face of a modern industry where social provisions for the workforce are seen to be central. Thus an up-to-date Maritime Labour Convention , setting minimum standards, addressing conditions of employment, accommodation, recreational facilities, food and catering, health protection medical care, welfare and social security protection, is very timely. It is thought to be good for seafarers, for shipowners and the governments which form the tripartite nature of the ILO negotiating arrangements, with the convention’s emphasis on clarity and simplicity, common sense, universal application, social responsibility, good governance, protection, compliance and verification.
So instead of the great list of conventions, instruments and recommendations that have constituted international labour law, there will be “a single, coherent instrument” that will provide the fundamental rights and freedoms that constitutes decent conditions of work, and provides the special protection that seafarers, by nature of their work, need. The fact that this is contained within just over 100 pages and in a single, comprehensible document, might be considered something of a minor miracle!
The MLC is divided into three parts: the Articles, the Regulations and the Code, the first two setting out the core rights and principles and the obligations of member states ratifying the Convention. The Code itself provides the details for implementation of the regulations.
The regulations and the Code are organised into general areas under five titles, which respectively cover: minimum requirements for a seafarer to work on a ship, conditions of employment, accommodation, recreational facilities, food and catering, health protection, medical care, welfare and social security protection, with the final title detailing compliance and enforcement.
Each of the titles consists of a number of regulations, framed with a certain stated Purpose (which forms an introduction to each regulation) and provided with a number of Standards and Guidelines. The standards all have mandatory force, while the Guidelines do not. Thus, Title 1, which sets out Minimum Requirements for Seafarers to Work on a Ship, has four Regulations, which cover minimum age of people permitted to work aboard ship, the provision of medical certificates, seafarers’ training and qualifications, and recruitment and placement.
We might consider as an example Regulation 1.4 which covers Recruitment and Placement, the purpose of which is stated : “To ensure that seafarers have access to an efficient and well-regulated seafarer recruitment and placement system”.
This sets out a number of stated aims for access to and operation of recruitment and placement services which shall conform to the standards set out in the Code, along with the duties expected of the member state in respect of these. The mandatory standards are then detailed, followed by the Guidelines for organisation and operation of both public and private recruitment and placement services, which the Code recommends that the competent authority “should consider” adopting. This format is followed for the remainder of the Titles, Regulations and Guidelines.
The MLC places great responsibility on the maritime authorities of the flag states for the implementation of the Convention, and requires them to report regularly on their compliance. An ILO supervisory body has been established to monitor the implementation of the Convention, which is able to rule on any problems that may arise over interpretation, while the ILO has also made available a training regime that will help to “train the trainers” in flag states that require help in implementation. A “mapping exercise” is tracking the progress of more than 100 countries. Courses are being held around the world to assist in the implementation process, while the ILO has put in place a five-year-programme that will regularly provide an indication of progress. And perhaps unlike other, earlier treaties, there is an amendment procedure that will enable the provisions of the Convention to be updated and to respond to any changes that might be indicated once it is in operation.
There are important features contained in this ground-breaking Convention. States cannot “pick and choose” which bits they wish to implement, but must take it all as an integrated whole. Of enormous importance is the fact that the Convention provides for no more favourable treatment for ships of countries which have yet to implement the instrument.
All visiting ships must be treated by port state control equally, whatever the flag they fly.
It is important to note that while the MLC might be hailed as a “seafarers’ bill of rights”, it actually protects all parties,with a strong emphasis on fairness and equity. There are obvious benefits for good shipowners, who hopefully will no longer be undercut by those operating poor quality shipping. And the seafarer himself or herself will have obligations, while enjoying the improved rights. Similarly, the rights and responsibilities of governments, competent authorities and recognised organisations are detailed.
Arrangements for compliance and enforcement place obligations on both flag and port states, with ships required to carry a Maritime Labour Certificate, certifying that it has been inspected and verified to be in compliance with the Convention requirements, and to which is appended a Declaration of Maritime Labour Compliance. It is these documents which will form the basis of any port state inspection, along with any declaration of any substantial equivalences which may have been granted by the issuing authority.
The issue of those certificated will demand a new approach from the flag state inspection regime, and while it will draw on traditional enforcement procedures, it will require new training for inspectors to enable them, for instance, to examine crew agreements, to interview crew members about their contracts, and to inspect a range of additional fields, such as accommodation and food. The company systems and procedures will be placed under the microscope, as never before. The inspection has been required as being a combination between an audit and a survey, and will clearly be something of a challenge as the new regime settles in, once the Convention is in force.
These then are some of the anticipated benefits of the Convention, hopefully to be spread throughout this important, global industry. And while it is yet to come into force, good shipping companies are tuning their systems to cope with the new regime, while flag states are establishing their rules and procedures for inspection, assisted by representative organisations (chiefly, the major classification societies) which are providing guidance and training.
But will it work? In a subsequent article, we examine some of the practicalities of this new regulatory approach represented by the MLC and look at some of its possible limitations.