In 2006, The International Maritime Organization (IMO) embarked on its 4th major journey into shaping international maritime law, via the introduction of the Maritime Labor Convention (MLC). Alongside its sister-agency, The International Labor Organization, the IMO brought about the MLC to internationally recognize seafarers basic rights whilst at work. This new convention, already ratified in over 50 countries has a wide scope in effecting the way commercial vessels are designed and operated. The new standards within the MLC are an integral component to maintaining the safety and efficacy of individual seafarers and the shipping industry alike.
Since 2006 there has existed four ‘pillars’ of international maritime law regulations brought about by the IMO. As with the previous pillars, (MARPOL, STCW & SOLAS) IMO’s task to enforce a new treaty rested on gathering registered ratifications.
The IMO and shaping International Maritime Law
The IMO first set sail in 1948, and like many long journeys in changing the law, it took a mere 11 years to come into force in 1959. As an accessory of the United Nations, IMO is tasked with regulating the legal, safety, environmental and efficacy concerns of the international shipping community. In its humble beginnings, IMO’s first major achievement would be the introduction of the International Convention for the Safety of Life at Sea Convention (SOLAS). From a legal standpoint, SOLAS represented the greatest achievement in updating, regulating and ensuring that ships comply with minimum safety standards in equipment, operation, and construction. Within the convention, chapter 5, known as SOLAS V, was at that time perhaps the most radical and crucial undertaking by the IMO. Titled safety of navigation, SOLAS V was designed to introduce and change the way the shipping community approached all future voyages. The obligations of SOLAS V were welcomed such that internationally 99% of gross tonnage belongs to a signatory of the convention with many governments extending beyond SOLAS’s obligations by delegating the onerous requirements into government laws. With the threat of prosecution, SOLAS V spearheaded the IMO’s legal and political weight by introducing some of the original and most vital safety standards of International Maritime Law.
As of 2013, the MLC has been in force and ratified by 53 states (Including Australia) representing 80% of the global shipping market. Containing 16 articles, and a code with 5 individual titles, the MLC applies to almost all ships entering harbors of parties to the treaty. The MLC was developed as a result of an ongoing trilateral discussion between shipping employers, workers and government officials. Its key objectives are to establish a level playing field in terms of fair work conditions and arrangements for the world’s seafarers.
The MLC is a conglomerate of key principles within past Maritime Labor Conventions and more than 68 existing International labour Organisation Conventions (ILO’s).
Unlike the previous 3 pillars whom were concerned with largely environmental, technical and safety concerns, the MLC’s primary focus is on the sea-fears themselves. The key focus includes issues relating to socio-economic, employment conditions, minimum working ages, equal rights, anti-discrimination, medical, living standards and general concerns of all seafarers on board domestic and international vessels.
Who needs certification?
The MLC does NOT apply to fishing vessels. In particular those exempt from complying are naval, warships, or any ship not normally engaging in commercial dealings including dhows, junks or any other traditionally built ship. Australian commercial marine businesses with ships over 500 gross tonnage (gt) who routinely engage in overseas voyages are required to obtain an MLC compliant certificate. Vessels who routinely voyage overseas that are more than 200 gt but less than 500 gt are not required to obtain certification. Compliance for these vessels with MLC and Marine Order 11 (Living and working conditions on vessels) 2013 is still required. This being said, the Australian Maritime Safety Authroity (AMSA) encourages that all ship owners should be wary that carrying MLC certificates will avoid potential delays in foreign ports.
When does the MLC come into effect?
On an international level, the MLC was ratified on 20 August 2013. Here in Australia, the MLC has been mirrored through the Navigation Act 2012 and various Marine Orders. Both the Navigation Act and the most notable of the associated delegated legislation, Marine Order 11 Living and working conditions on vessels) 2013 have commenced on 1 July 2013. Other aspects of the MLC have been given effect in various Commonwealth legislation; namely The Occupational Health and Safety (Maritime Industry) Act 1993, The Fair Work Act 2009, The Seafarers Rehabilitation and Compensation Act 1992 and a range of Marine Orders. A complete list of Marine Orders is available on the AMSA website.
Is my vessel required to comply with MLC if it is built before August 2013?
The requirements of the MLC which relate to construction and equipment only apply to those vessels constructed on or prior to the date when the convention comes into effect, this date being 20 August 2013. For the purposes of the act, a ship is built when its keel is laid or at some other similar stage of construction.
For those ships that were built prior to this date, construction and equipment policy is regulated under the Accommodation of Crews Convention (Revised), 1949 and the Accommodation of Crews (Supplementary Provisions) Convention, 1970.
If a ship is built before this date it is still required to comply with the non-construction and equipment regulations in the MLC.
MLC and Repatriation; a case study on improving Seafarers welfare
International conventions have long recognised seafarer’s rights to repatriation since the early 20TH century. However, recent reports by the London based charity Mission to Seafarers, indicates that more workers have been abandoned by their employers and shipowners compared to those taken hostage by Somali pirates. The United Nations officially reports more than 2300 stranded sailors on 200 ships within the past decade, with the actual figure of unreported cases of abandonment unknown. The MLC aims to overcome the legal limbo that many sailors find themselves trapped within by offering an alternative solution to sailors relying on what little foreign resources they may find themselves within. Internationally, ships get around the varying regulations and jurisdictions by flying what is known as “flags of convenience” that belong to countries such as Panama or Liberia with unfettered regulations and port monitoring systems.
The MLC aims to provide a system of Repatriation under regulation 2.5 whereby seafarers have the right to be repatriated at no cost, and each member to the MLC flying its flag is required to provide financial security to afford repatriation. In August of 2013, reports indicate that insurance spiked with 60% of the world’s ships began covering the costs of repatriation. This increase comes with the news that the United Nations agencies ILO and IMO are planning to implement a new rule that has been on the table for some 10 years; a method for allowing port inspectors to withhold those ships from departing which lack the insurance or bonds to pay for repatriating stranded crew. Although abandonment is not as real a concern in Australia as opposed to many shipping companies overseas who operating under the protection of Shell Companies, the issue of repatriation for stranded sailors is an important analogy in supporting the MLC. Ratifying and upholding the MLC encourages fair working and living conditions amongst vessels, setting an international standard for all seafarers.
Enforcing the MLC
All foreign flagged vessels will be subject to port State inspections, irrespective of whether that Flag state is a signatory to the convention. For those vessels who have not ratified the MLC, they must provide evidence of compliance with all regulations and standards of the Convention.
To encourage the implementation of the MLC amongst all vessels and signatories, specialised on-board complaint procedures are available to all sea-farers who are aware of any matter that is alleged to constitute a breach of the convention. The MLC includes a safeguard against victimization of those seafarers whom submit a complaint that is not vexatiously or maliciously made, and all seafarers must be provided with a copy of the available on board complaint procedures alongside their employment agreement.
Overseas the problem between ratification and enforcement at law is a major hindrance to the effectiveness of the MLC. The European Union (EU) Vice-President Transport Minister, Siim Kallas has recognised publicly that although many EU Flag states have ratified and recently enforced the MLC through government legislation, many flag states were still lagging in their obligations. Although in December 2008, all EU member States committed to ratify a number of international conventions by January 1 2013, the majority have failed to ratify conventions dating back to 2007 onwards. The EU is struggling to enforce the MLC and is currently looking into further means of affecting flag states to discharge the onerous obligations under the MLC. These measures include the potential prosecution of EU flag states who are failing to keep up to standard. Fortunately this problem is not so much an issue in terms of domestic compliance, yet it is food for thought considering the MLC is designed to be systematically upheld across signatory states.
Particular Aims of the MLC
The MLC specifically aims to simplify the vast range of regulations and sanctions that exist on a global level. The MLC’s key objectives are broken into 5 titles;
- Minimum requirements for seafarers to work on vessels
- Conditions of employment
- Accommodation, recreational facilities, food and catering
- Health protection, medical care, welfare and social security protection
- Compliance and enforcement of the regulations
Particular objectives of the MLC include eliminating the possibility of taking advantage of young and child workers. The MLC identifies the minimum age standards of seafarers to be 16 years, with additional obligations on employers who are managing those less than 18 years. Those under 18 must not be employed to do work likely to jeopardize their health and or safety, must pay additional attention to health and safety regulations and are prohibited from night work. Commercial businesses who employ workers less than 18 years must be aware of the onerous obligations placed on them in ensuring these guidelines are adhered to.
In regards to living quarters; adequate headroom must be provided in all seafarer accommodation; the minimum where complete free movement is required shall be no less than 203 centimetres. Other areas the MLC regulates includes the size of rooms and accommodation spaces; ventilation and heating; vibration, noise, sanitary facilities and lighting. As well as providing decent living conditions, MLC aims to regulate decent conditions of employment, recreational facilities, food and catering.
The MLC’s health care regulations are designed to compel the accurate and consistent reporting of occupational accidents, diseases and incidents to allow both adequate on and off-board hospital treatment and access to healthcare, whilst providing accurate records and statistics that assist preventing future occurrences.
The MLC is similar to the Australian Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) in its aim to simplify inter-state procedures. The MLC seeks to provide a globally uniform approach to the welfare of seafarers. As we have seen domestically, the Australian Government has endorsed the recommendations of the MLC through various legislative instruments. The MLC is an important stepping stone in the long-term goal that the United Nations and IMO have in securing a globally recognised equality amongst seafarers. The MLC transcends beyond the 3 previous pillars concerned with safety, certification and pollution standards. The MLC is tailored to the individual needs of the seafaring community. The MLC is integral to upholding the shipping community in a positive light, for both attracting future industry and maintaining current ventures. Most importantly, the MLC ensures seafarers of their basic human rights no matter what vessel or Flag State they may find themselves in. Foreign and domestic vessels wishing to enter or continue trading with the commercial marine industry should inform themselves of the new regulations found in the MLC. Commercial vessels obtaining certification will enjoy a smooth transition into cleaner waters for both the industry and seafarers alike.