Posted 23/09/2013 by Jaan Murphy
The
Maritime Labour Convention (Convention) was adopted by the
International Labour Organisation (ILO) in 2006. It is the result of tripartite negotiations between governments, employers and workers and consolidates and updates over 68 existing ILO conventions. The Convention came into force in Australia on 20 August 2013.
How is the Convention enacted in Australia?
The Convention was implemented in Australia by
Schedule 13 of Marine Order 11 (Marine Order), a legislative instrument made under the
Navigation Act 2012.
What protections does the Convention provide to seafarers?
The Convention provides seafarers a set of comprehensive employment protections, which recognises their unique working and living conditions. Some of the key protections provided include:
- prohibiting the employment of seafarers under the age of 16 and prohibiting seafarers under the age of 18 from performing night work (or other work likely to jeopardise their health or safety)
- guaranteed minimum rest periods (as implemented through Marine Order 28) and maximum hours of work
- a requirement to pay wages at least monthly and a minimum termination notice period of seven days
- a requirement to provide varied and nutritious meals (prepared in hygienic conditions by a qualified cook)
- having health protection, medical and dental care measures that give effect to any occupational health and safety or medical care standards imposed by the country in which the vessel is registered and
- minimum repatriation requirements that apply at the end of a seafarer’s contract.
In addition, the Marine Order provides seafarers with a right to visit a medical practitioner or dentist without delay whilst in a port of call. Importantly, the owner of vessel must provide medical care and health protection services to seafarers free of charge whilst they are on board the vessel or in a port of call (and this is not limited to sick or injured seafarers).
The Marine Order also introduces minimum standards that apply to seafarers’ on-board accommodation. As an example, sleeping rooms must be insulated to prevent overheating (or condensation) and must also be air-conditioned to create the environment mentioned in
ISO standard 7547/2002:
Ships and marine technology — Air-conditioning and ventilation of accommodation spaces — Design conditions and basis of calculations.
Additionally, the Marine Order also introduces a requirement to provide recreation facilities for seafarers, which must be reviewed frequently to ‘ensure that they are appropriate for any changes in the needs of seafarers resulting from developments in the maritime industry’. This is based on Part B of the
Convention's Regulations and Code, which is non-mandatory (that is, parties to the Convention are encouraged, but not required, to implement Part B. In contrast, all parties must implement Part A).
Who does the Convention apply to?
Whilst the Convention applies to the
51 countries that have ratified it, Article V, paragraph seven, requires each signatory to enforce the Convention in such a way that ships flying the flag of a country that has not ratified the Convention are provided ‘no more favourable treatment’ (compared to ships of a country that is a party to the Convention) when in the port of a signatory. This means that the Convention (as implemented through the Marine Order) applies to foreign vessels within Australian ports or territorial waters. Such vessels must be able to provide documentary evidence of compliance with the regulations and standards of the Convention.
Previous Marine Orders had very limited application to foreign vessels, hampering Australia’s ability to enforce minimum employment, health and safety standards on foreign vessels operating in its territorial waters.
The Convention and Marine Order significantly expand Australia’s jurisdiction over (and regulation of) foreign vessels. As a result, all seafarers working on foreign vessels in Australia’s territorial waters and ports will have increased protections.
Practical impact of the Convention
All foreign vessels operating in Australian waters must hold a
maritime labour certificate (MLC), even if the country of their flag has not ratified the Convention. MLC’s are a declaration of maritime labour compliance issued by the flag country of a particular ship, provided after that country has verified that the labour conditions on the ship comply with its relevant labour laws (for example, in the case of Australia this would include the Fair Work Act 2009) and any regulations implementing the Convention.
MLC’s are valid for five years, subject to periodic inspections by the flag country. They set out the shipowner’s plan for ensuring continued compliance with their flag country’s relevant labour, health and safety laws between inspections. Importantly, inspections can be carried out on the ship whilst it is in a foreign port by signatories to the Convention, to ensure compliance with the plans. Where a vessel is found not to have conformed to the requirements of the Convention, a variety of actions can be taken by the
Australian Marine Safety Authority, up to and including preventing the vessel from proceeding to sea until all deficiencies have been rectified, or a corrective action plan has been agreed to.
From a practical perspective, this significantly expands Australia’s ability to ensure a safe working environment on foreign vessels operating in its territorial waters. When combined with the substantial protections for seafarers (particularly in the event of illness or injury) provided by the Convention, the Marine Order represents real and tangible steps towards improving the welfare of seafarers operating in Australia’s territorial waters.