Feature: MLC "paper tiger" fears
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.
Source: BIMCO
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