The Maritime Labour Convention (“MLC”) was adopted by the International Labour Conference of the ILO in February 2006. The MLC consolidates, and updates where necessary, the current 68 maritime labour instruments, creating a comprehensive set of global standards which sets out seafarers’ rights relating to working conditions and which aims to foster an atmosphere of fair competition amongst shipowners. The standards set down by the Convention include ones relating to conditions of employment, hours of work and rest, accommodation, health protection, medical care and general welfare. The MLC also regulates the services by which seafarers are recruited and placed with vessels.
WHO HAS JURISDICTION UNDER THE MLC?
The inherently international nature of the maritime industry has long caused problems with establishing jurisdiction and ensuring flag State responsibility. Often, the beneficial ownership of a ship is based in one State, the ship operates under the jurisdiction of another and the seafarers working onboard are of various different nationalities. The MLC aims to provide some consistency by establishing a system of compliance and enforcement based on the inspection and certification of labour and conditions for seafarers, such tasks to be carried out by the ship’s flag State. This is to be complemented by an inspection carried out by the authorities in the ports visited by the ship, the aim of which is to ensure compliance with the requirements of the MLC. Such a system aims to eliminate substandard ships from the market by ensuring that port visits will be quicker and will run more smoothly if the vessel in question meets MLC standards.
The MLC will come into force 12 months after the date on which there have been registered ratifications by at least 30 ILO member states with a total share of 33% of the world’s gross tonnage. The latter criterion has already been met, but so far only 11 member states have ratified the MLC since its adoption by the ILO in 2006. These are the Bahamas, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Liberia, Marshall Islands, Norway, Panama, Spain and St Vincent and the Grenadines.
Ratification will provide benefits to Governments and shipowners, as well as to the seafarers whose rights are catered for in the MLC. For Governments, reporting obligations will be simplified as they will be dealing with only one Convention rather than many. There is also a large degree of flexibility as to how the MLC is to be implemented at national level. For example, many of the prescriptive requirements in existing Conventions which have given rise to implementation problems in the past are set out in Part B of the MLC, the provisions of which are set out in the form of guidelines, and are not mandatory, and so are not subject to inspections by port authorities. Governments are simply required to give “due consideration” to these provisions when implementing their obligations. National authorities also have a certain amount of flexibility to exempt smaller ships from some aspects of the MLC (ships of 200 gross tonnage and below) which do not undertake international voyages.
For shipowners, the MLC will create a more equal operating environment by ensuring fair competition and significantly reducing the commercial opportunities for companies that trade using substandard ships, thereby protecting the ships flagged to the ratifying countries which meet the MLC requirements from unfair competition. Such ships will also benefit from a system of certification. This system will reduce or altogether avoid the likelihood of lengthy delays caused by inspections in foreign ports.
WHY DOES THE UK NEED TO RATIFY THE MLC?
The prevailing view within the UK shipping industry is that the UK is unlikely to ratify the Convention until 2011 at the earliest. There are fears that UK-flagged ships will be at a disadvantage if this ratification continues to be delayed and the UK is not a signatory by the time the Convention comes into force.
One of the main concerns focuses on a clause in the MLC which states that ships flagged in non-signatory states will not be treated more favourably than those flagged in signatory states. The idea behind this clause is that ships should not be placed at a disadvantage because their flag country has ratified the MLC. The practical consequence is that all ships, irrespective of whether their country has ratified the MLC or not, will be subject to inspection in any country that has ratified the MLC. Further, and crucially, a ship faces detention if it does not meet the MLC’s minimum standards. Those ships flagged to a country which has ratified the MLC will be at an advantage as they will have an MLC certification which should give them a “fast pass” through port inspections. UK-flagged ships, on the other hand, would face rigorous port inspections in accordance with the standards laid down in the MLC, which may lead to the detention of ships if the results are unfavourable, without benefiting from any of the flexibilities or derogations available to countries that have ratified the MLC.
Ratification of the MLC may boost the reputation of the UK shipping industry. It would signal to the rest of the world that the UK is a leading advocate of optimal working and living conditions for seafarers, and further will ensure that all ships calling in UK ports respect the standards laid down by the MLC. Three leading industry and union figures have stated in a letter to the Minister of Shipping, which sets out concerns at the UK’s delay in ratifying the MLC, that ratification is “essential if the UK … is to be acknowledged as a guardian of quality shipping”.
WHAT ARE THE KEY RIGHTS GIVEN TO SEAFARERS UNDER THE MLC?
- The seafarer must be provided with an employment agreement that sets out the terms and conditions of the seafarer’s employment, which is signed by the seafarer and the employer (or the employer’s representative).
- The employer is required to pay wages at least on a monthly basis, in accordance with the employment agreement and any relevant collective agreements.
- Working hours are limited to 14 hours within any 24 hours period, and 72 hours in any 7 day period.
- Rest hours are required to be at least 10 hours within any 24 hour period, and 77 hours in any 7 day period.
- The employer must pay for a seafarer’s repatriation in the event of illness, injury, insolvency, sale of the ship or shipwreck.
- The Convention sets out specific requirements (depending on the size of the ship in question) for accommodation and recreational facilities on the ship, including minimum room sizes, satisfactory heating, ventilation, sanitary facilities, catering, lighting and hospital accommodation.
- The seafarer must be given access to prompt medical care when on board and in port.
DOES THE MLC GO FAR ENOUGH?
Some commentators have criticised the MLC for not going far enough to protect seafarers, and claim that its ratification will in fact be an impediment to further reform in this area. The MLC does not, for example, deal with the issues of visas for shore leave or protection of the right to strike. Due to the amount of time spent by the ILO in putting together the MLC (around five years), together with the amount of time between adoption by the ILO and its coming into force (four and a half years and counting), once it is fully ratified it is arguable that any further reforms might not be pursued for some time in any event.
Nevertheless, the MLC is a great step forward in both consolidating the rights of seafarers and harmonising inspection and compliance procedures to be followed by flag States and port authorities. It remains to be seen, however, how the Government will respond to the concerns raised by the leading industry and union figures in their letter, and whether these will affect the timing of the UK’s ratification, or otherwise, of the MLC.