THE ILO MARITIME LABOUR CONVENTION, 2006 GUIDANCE FOR SHIP OPERATORS ON PORT STATE CONTROL AS FROM 20 AUGUST 2013
LABOUR CONVENTION, 2006
GUIDANCE FOR SHIP OPERATORS ON PORT STATE CONTROL AS FROM 20 AUGUST 2013
International Shipping Federation
INTERNATIONAL CHAMBER OF SHIPPING
On 20 August 2013, the ILO Maritime Labour Convention (MLC) will enter into force and ship operators will need to be ready.
At the 2006 Diplomatic Conference which adopted the MLC, ILO also adopted a Resolution which recommends that Port State Control (PSC) should not commence until 12 months after entry into force, i.e. August 2014. However, some port states, if they have ratified the MLC, may still decide to subject ships to PSC inspections to check compliance with the MLC from 20 August 2013.*
The following advice is intended to help ship operators avoid potential PSC problems.
The ILO MLC addresses a wide range of matters including shipping companies’ obligations regarding seafarers’ contractual arrangements, oversight of manning agencies, working hours, health and safety, crew accommodation, catering standards, and seafarers’ welfare.
Provided that they put in the effort, the vast majority of companies should not have any difficulty complying with the substance of the Convention, which in large part is derived from existing ILO maritime standards and accepted good employment practice.
However, the enforcement mechanism is new. Shipping companies therefore must get to grips with the certification process in order to avoid port state control problems, and take appropriate measures in the event that flag states have not issued required documentation or guidance.
* EU Members States, in conformity with an EU Directive, are required to implement ILO MLC standards from 20 August 2013. In theory this could involve PSC inspection of ships registered with other EU Member States, even if the port state has not ratified the MLC.
The International Shipping Federation (ISF) is the identity used by the International Chamber of Shipping (ICS) when acting as the international employers’ organisation for ship operators.
ISF co-ordinates the representation of shipowners at the International Labour Organization (ILO) in
the development of maritime labour standards.
As an official Social Partner under the tripartite ILO process, ISF was responsible for negotiating the text of the ILO MLC with governments and seafarers’
trade unions. ISF therefore has
a very special interest in wanting to ensure the Convention’s smooth implementation.
The membership of ISF and ICS comprises national shipowners’ associations from 36 nations representing 80% of the world merchant fleet.
While the advice given in this guide has been developed using the best information currently available, it is intended purely as guidance to be used at the user’s own risk. No responsibility is accepted by Maritime International Secretariat Services Limited or by the International Chamber of Shipping Limited or by any person, firm, corporation or organisation who or which has been in any way concerned with the furnishing of information or data, the compilation, publication or any translation, supply or sale of this guide, for the accuracy of any information or advice given herein or for any omission herefrom or from any consequences whatsoever resulting directly or indirectly from compliance with or adoption of guidance contained herein even if caused by a failure to exercise reasonable care.
THE ILO MARITIME
LABOUR CONVENTIOn, 2006
GUIDANCE FOR SHIP OPERATORS ON PORT STATE CONTROL AS FROM 20 AUGUST 2013
An important aspect of the MLC’s enforcement will be inspection of the Maritime Labour Certificate which should be issued to the ship by the flag state.
In addition, there is a separate MLC requirement for ships to prepare and maintain a Declaration of Maritime Labour Compliance (DMLC) which will be subject to PSC inspection.
However, even when the Convention has entered into
force, a port state will only be legally entitled to conduct
PSC inspections for compliance with MLC provisions if it ratified the MLC at least 12 months before the date of the inspection taking place.
Moreover, at least until August 2014, the MLC permits a flag state to issue certification within 12 months of the date when it ratified the Convention. In practice, this means that flag states which ratified after August 2012 may legitimately not have completed inspections and the issuance of certificates until after August 2013. Therefore, even if a port state decides to exercise PSC, it should not treat any lack of MLC certification as a deficiency before 20 August 2014.
The above notwithstanding (and especially if the flag state ratified the MLC before 20 August 2012) it will nevertheless be sensible for ships to take the precautions recommended by this brochure as from August 2013, in order to minimise potential port state control problems.
of MLC Certification
MLC Certification procedure
Shipowner requests certification for ship
DMLC Part II reviewed by flag state
Initial MLC inspection of ship
Company to submit DMLC Part II to flag state
DMLC approved and Maritime Labour Certificate issued
Intermediate inspection (2-3 years)*
If ship changes owner or
flag, an Interim Certificate
may be issued for 6 months prior to an early renewal inspection and issue of new Maritime Labour Certificate
Renewal Inspection (5 years)*
New Maritime Labour Certificate issued
Flag state to provide DMLC Part I showing issues
to be covered by DMLC Part II
New build ships can be issued with an interim certificate for 6 months
* Includes inspection of DMLC Part II
MARITIME LABOUR CERTIFICATE
The Maritime Labour Certificate is issued to the ship
rather than the company, and is thus similar to the Safety
Management Certificate issued to ships under the IMO
International Safety Management (ISM) Code. During a PSC
inspection, the Certificate is prima facie evidence that a ship
complies with the ILO Convention standards to the extent
set out in the DMLC. Certificates will normally be issued for
five years, with an intermediate inspection between two and
three years after the first flag state inspection.
If a ship has not yet been issued with a Maritime
Labour Certificate, the company should contact the flag
state (even if it has not yet ratified the MLC) requesting
an immediate inspection, and maintain copies of
subsequent correspondence on board the ship.
Some flag states may decide to issue ‘temporary’ or
‘provisional’ certificates in advance of a flag state inspection
for MLC compliance being completed. It is therefore
recommended that ship operators that might not be in
possession of MLC certification before 20 August 2013
explore this possibility with their flag states. (This may also
be relevant to flag states that have still not yet ratified the
MLC prior to August 2013, given that widespread PSC
enforcement is expected to commence in August 2014,
although there is no guarantee that such documents will be
accepted by port states.)
DECLARATION OF MARITIME LABOUR
Notwithstanding the advice above, it is strongly
recommended that all ships prepare a DMLC Part II
before 20 August 2013 in order to avoid difficulties
during PSC inspections.
The purpose of the DMLC is to demonstrate ongoing
compliance with the MLC standards, and to help PSC
inspectors to check that relevant national requirements
are being properly implemented.
The DMLC should set out national requirements
implementing the Convention for working and living
conditions on board the ship. It should be issued by the
flag state as an attachment to the Maritime Labour
Certificate and be comprised of two parts. Part II must
be completed by the shipping company.
Part I of the Declaration should be prepared by the flag
state to identify matters for flag state inspection.
Part II of the Declaration should be drawn up and
maintained by the company for every ship. This should
identify the measures adopted by the company to ensure
compliance between inspections.
When preparing the DMLC Part II, it is essential for
companies to follow instructions from individual flag
states which will differ from country to country.
Flag states should therefore be providing ships with a DMLC
Part I and should be issuing detailed advice to shipowners
about preparing the DMLC Part II and the particular national
format and content which may be required.
If the flag state has not issued the ship with a DMLC
Part I by August 2013, has not issued specific advice
about its national requirements, or has not provided the
ship with the national format required for preparation
of the DMLC Part II, ISF recommends that the ship:
• Carries a copy of a letter to the flag state requesting
the DMLC Part I;
• Prepares a DMLC Part II following the model
suggested in the ‘ISF Guidelines on the Application
of the ILO MLC’ (which may then have to be adjusted
once national guidance has been issued); and
• Has the means to demonstrate that the ship meets
all the standards set out in the Convention, taking
account of the checklist and advice contained in the
‘ISF Guidelines on the Application of the ILO MLC’.
The ISF Guidelines on the Application of the ILO MLC include a
sample DMLC Part II as might be prepared by a shipping company,
in a manner intended to be concise but comprehensive
Declaration of Maritime Labour Compliance (Part II)
Measures adopted to ensure ongoing compliance between inspections
Name of Ship: MV Marisec Flag State: Ruritania
IMO Number 1234567 Gross Tonnage: 101,000
The following measures have been drawn up by the shipowner, named in the Maritime
Labour Certificate to which this Declaration is attached, to ensure ongoing compliance
ILO MLC Regulation 1.1 and Ruritania Maritime Act 2010
A list of any seafarers under the age of 18 is provided by the Company and maintained
as part of the Safety Management System (SMS). A comment concerning the age of
any such seafarers is entered into the ISF Watchkeeper work/rest hour software used on
board the ship.
In accordance with standing orders, upon arrival on board, the Master or designated
officer checks the passport and/or Seafarer’s Identity Document of seafarers to confirm
that no person working on board is below the age of 16 and that any seafarers under 18
years old are identified.
Standing orders prohibit seafarers below the age of 18 from work that may jeopardise
their safety or health and night work (as defined by national regulation) except during
an emergency or, with respect to night work, as part of their professional development,
in which case such work is recorded with a comment on the seafarer’s work/rest hour
record (which is signed by the seafarer) as well as being recorded in the ship’s log.
Any questions that arise concerning the age of seafarers are communicated to the
Designated Person Ashore (DPA).
ILO MLC Regulation 1.2 and Ruritania Maritime Act 2010
Upon arrival on board, the Master or designated officer checks the validity of the
seafarers’ medical certificates and, where relevant, colour blindness certificates.
The SMS establishes the criteria for checking the validity of medical certificates, and
procedures with respect to certificates that may become out of date during the voyage.
PORT STATE CONTROL
Notwithstanding the ILO Conference Resolution recommending that the PSC enforcement of the MLC should be delayed until August 2014 - and the fact that any lack of certification should not, for an interim period, be regarded as a PSC deficiency – port states that have ratified the Convention at least 12 months beforehand are legally entitled to inspect visiting ships for compliance with MLC standards, even if the flag state of the ship has not ratified the Convention.
Additional advice on port state control inspections is provided in the ‘ISF Guidelines on the Application of the ILO Maritime Labour Convention’.
In the absence of MLC certification, which is meant to provide prima facie evidence that a ship complies with ILO Convention standards, it is unclear how PSC officers might inspect for MLC compliance unless there are ‘clear grounds’ for suggesting that living and working conditions are seriously sub-standard. However, the early preparation by the company of the DMLC Part II, using the model provided in the ISF Guidelines, should help the ship to demonstrate compliance if questions are asked.
In practice, many of the MLC standards are similar to those already required by the ILO Merchant Shipping (Minimum Standards) Convention (ILO 147) which is already enforced by some port state control authorities.
It should be noted that the new accommodation requirements in the MLC only apply to ships constructed after August 2013, although all other new requirements will need to be met.
However, one new requirement, which might be examined by PSC, is the establishment of a ‘complaints procedure’. It is therefore recommended that documentation explaining the complaints procedure is maintained on board the ship. Advice can be found in the ‘ISF Guidelines’.
Port state control inspectors are also expected to give special attention to compliance with seafarers’ work/rest hour limits as specified by the MLC, including the requirement to maintain individual records, since these requirements are already in force under the IMO STCW Convention.
In the event of PSC difficulties after August 2013
In the event of PSC difficulties, the ship might check:
Whether the port state is aware of the ILO Resolution recommending PSC be deferred until August 2014?
See http://bit.ly/186a7GV, Resolution XVII (page 12).
Whether the port state ratified the Convention at least 12 months before the inspection (otherwise it is not entitled to exercise PSC)?
See http://bit.ly/QHRuQa, and Article VIII,
Paragraph 4 of the Convention.
Whether the port state is aware that even if a flag state has ratified the MLC it is not required to issue certification until 12 months after entry into force?
See http://bit.ly/QHRuQa, and Article VIII, Paragraph 4 of the Convention.
WHEN CAN PORT STATES EXERCISE PSC?
ENTITLED TO EXERCISE PSC
FROM 20 AUGUST 2013
Antigua and Barbuda, Australia, Bahamas, Benin, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Denmark, Gabon, Greece, Kiribati, Latvia, Liberia, Luxembourg, Marshall Islands, Netherlands, Norway, Palau, Panama, Philippines, Poland, Saint Kitts and Nevis, Saint Vincent & the Grenadines, Singapore, Spain, Sweden, Switzerland, Togo, Tuvalu.
ENTITLED TO BEGIN EXERCISING PSC BETWEEN
20 AUGUST 2013 AND
20 AUGUST 2014
Barbados, Fiji, Finland, France, Greece, Lebanon, Malta, Morocco, Nigeria, Philippines, Russian Federation, Serbia, South Africa, Viet Nam.
Exact dates of ratification
(with PSC being permitted 12 months later) can be found at http://bit.ly/QHRuQa.
THAT HAVE NOT YET RATIFIED THE ILO MLC*
These states are not permitted to enforce PSC until 12 months after the date of ratification – See Article VIII, Paragraph 4 of the Convention.
Published in July 2013 by
International Shipping Federation/International Chamber of Shipping
38 St Mary Axe
Telephone + 44 20 7090 1460
Several provisions within the MLC are also covered by the requirements of the IMO
Safety Management System (ISM) Code. Therefore, documentation relating to
compliance with some MLC requirements should be covered by ISM.
For more information on the IMO ISM Code and Safety Management Systems see
the ICS/ISF Guidelines on the Application of the IMO ISM Code.
In December 2012, to assist employers, ISF published extensive Guidelines on
the Application of the ILO Maritime Labour Convention. In addition to a detailed
example of Part II of the Declaration as it might be prepared by a shipping
company, these Guidelines include a checklist to help shipowners in preparation
for port state control inspections of the DMLC.
The ILO MLC (and the IMO STCW Convention) requires ships to maintain detailed
reports of work/rest hours in order to demonstrate compliance with ILO (and
IMO) regulations. These records can be inspected by port state control.
The ISF Watchkeeper software enables ship operators to comply with the individual
work/rest hour requirements and produce compliant tables of shipboard working
arrangements. For a free trial visit www.isfwatchkeeper.com.
International Chamber of Shipping
GUIDELINES ON THE APPLICATION OF THE
IMO INTERNATIONAL SAFETY
MANAGEMENT (ISM) CODE
With additional guidance on
risk management, safety culture
and environmental management
International Shipping Federation
Guidelines on the application of
International Shipping Federation