Perspectives on the MLC
By maritime journalist Michael Grey
Why the MLC was needed, how it is expected to work, and what it hopes to accomplish
The International Labour Organisation exists, as it has from its inception, to bring together governments, employers and workers to promote decent conditions of work and social justice. It recognises that seafaring will always pose special hazards to life and health because of the hostility of the sea and the nature of the working conditions aboard ship. But it also recognises that much can be done to reduce accidents to ships and their crews through good design and better safety features.
Similarly, much can also be done to improve the quality of life at sea, regardless of the rigours of modern ship operations. Regardless of the flag they are sailing under and the type of trade they are in, seafarers, the ILO points out, should be entitled to good living conditions, regular communications with their home, the guarantee of regular pay, adequate medical care, repatriation, social security and welfare benefits for themselves and their dependants. This would be “decent” work in every respect.
It is also recognised that these conditions should be uniform, harmonised throughout the world and particularly important for a global industry with a mobile, international workforce.
The ILO had sought to promote these concepts for decades, hampered perhaps by the fact that while most of these matters might be covered by conventions and instruments (nearly 70 of these in number, and many of them stretching back almost to the days of sail), the whole body of regulation had become unwieldy, some in force but of doubtful relevance, some clearly overtaken by the passage of time and maritime technology, some virtually ignored and forgotten.
The Maritime Labour Convention, adopted in Geneva in 2006 was the culmination of many years of work to consolidate and update this whole raft of fragmented labour standards, into a single convention that can provide comprehensive rights and protection at work for the global seafaring population of about one-and-a-quarter million seafarers. It has been designed for global application, produced in a fashion that actually promotes understanding, and furthermore has been framed so that it can be regularly updated. Thus the MLC will be a “living” document and we will no longer have people scratching their heads over yellowing, 80-year-old documents, wondering what their authors had really intended.
Crucially it has been designed for a uniformity of enforcement, so that the globe-girdling merchant ship will not encounter different standards and ambiguous interpretations as it moves from port to port and between jurisdictions. It has been described as “the most ambitious convention ever, covering the modern realities of working conditions aboard a 21st century ship”. And along with SOLAS, MARPOL and the STCW conventions, it will become the “fourth pillar” in a maritime regulatory regime that is global in scope and ambition, providing a level playing field in which all parts of the international shipping industry can operate and flourish.
Most importantly, and particularly at a time when seafaring employment needs to be “sold” to young people who might be unconvinced of the attractions of a sea career, once the MLC is implemented and enforced, it will surely present to the world the face of a modern industry where social provisions for the workforce are seen to be central. Thus an up-to-date Maritime Labour Convention , setting minimum standards, addressing conditions of employment, accommodation, recreational facilities, food and catering, health protection medical care, welfare and social security protection, is very timely. It is thought to be good for seafarers, for shipowners and the governments which form the tripartite nature of the ILO negotiating arrangements, with the convention’s emphasis on clarity and simplicity, common sense, universal application, social responsibility, good governance, protection, compliance and verification.
So instead of the great list of conventions, instruments and recommendations that have constituted international labour law, there will be “a single, coherent instrument” that will provide the fundamental rights and freedoms that constitutes decent conditions of work, and provides the special protection that seafarers, by nature of their work, need. The fact that this is contained within just over 100 pages and in a single, comprehensible document, might be considered something of a minor miracle!
The MLC is divided into three parts: the Articles, the Regulations and the Code, the first two setting out the core rights and principles and the obligations of member states ratifying the Convention. The Code itself provides the details for implementation of the regulations.
The regulations and the Code are organised into general areas under five titles, which respectively cover: minimum requirements for a seafarer to work on a ship, conditions of employment, accommodation, recreational facilities, food and catering, health protection, medical care, welfare and social security protection, with the final title detailing compliance and enforcement.
Each of the titles consists of a number of regulations, framed with a certain stated Purpose (which forms an introduction to each regulation) and provided with a number of Standards and Guidelines. The standards all have mandatory force, while the Guidelines do not. Thus, Title 1, which sets out Minimum Requirements for Seafarers to Work on a Ship, has four Regulations, which cover minimum age of people permitted to work aboard ship, the provision of medical certificates, seafarers’ training and qualifications, and recruitment and placement.
We might consider as an example Regulation 1.4 which covers Recruitment and Placement, the purpose of which is stated : “To ensure that seafarers have access to an efficient and well-regulated seafarer recruitment and placement system”.
This sets out a number of stated aims for access to and operation of recruitment and placement services which shall conform to the standards set out in the Code, along with the duties expected of the member state in respect of these. The mandatory standards are then detailed, followed by the Guidelines for organisation and operation of both public and private recruitment and placement services, which the Code recommends that the competent authority “should consider” adopting. This format is followed for the remainder of the Titles, Regulations and Guidelines.
The MLC places great responsibility on the maritime authorities of the flag states for the implementation of the Convention, and requires them to report regularly on their compliance. An ILO supervisory body has been established to monitor the implementation of the Convention, which is able to rule on any problems that may arise over interpretation, while the ILO has also made available a training regime that will help to “train the trainers” in flag states that require help in implementation. A “mapping exercise” is tracking the progress of more than 100 countries. Courses are being held around the world to assist in the implementation process, while the ILO has put in place a five-year-programme that will regularly provide an indication of progress. And perhaps unlike other, earlier treaties, there is an amendment procedure that will enable the provisions of the Convention to be updated and to respond to any changes that might be indicated once it is in operation.
There are important features contained in this ground-breaking Convention. States cannot “pick and choose” which bits they wish to implement, but must take it all as an integrated whole. Of enormous importance is the fact that the Convention provides for no more favourable treatment for ships of countries which have yet to implement the instrument.
All visiting ships must be treated by port state control equally, whatever the flag they fly.
It is important to note that while the MLC might be hailed as a “seafarers’ bill of rights”, it actually protects all parties,with a strong emphasis on fairness and equity. There are obvious benefits for good shipowners, who hopefully will no longer be undercut by those operating poor quality shipping. And the seafarer himself or herself will have obligations, while enjoying the improved rights. Similarly, the rights and responsibilities of governments, competent authorities and recognised organisations are detailed.
Arrangements for compliance and enforcement place obligations on both flag and port states, with ships required to carry a Maritime Labour Certificate, certifying that it has been inspected and verified to be in compliance with the Convention requirements, and to which is appended a Declaration of Maritime Labour Compliance. It is these documents which will form the basis of any port state inspection, along with any declaration of any substantial equivalences which may have been granted by the issuing authority.
The issue of those certificated will demand a new approach from the flag state inspection regime, and while it will draw on traditional enforcement procedures, it will require new training for inspectors to enable them, for instance, to examine crew agreements, to interview crew members about their contracts, and to inspect a range of additional fields, such as accommodation and food. The company systems and procedures will be placed under the microscope, as never before. The inspection has been required as being a combination between an audit and a survey, and will clearly be something of a challenge as the new regime settles in, once the Convention is in force.
These then are some of the anticipated benefits of the Convention, hopefully to be spread throughout this important, global industry. And while it is yet to come into force, good shipping companies are tuning their systems to cope with the new regime, while flag states are establishing their rules and procedures for inspection, assisted by representative organisations (chiefly, the major classification societies) which are providing guidance and training.
But will it work? In a subsequent article, we examine some of the practicalities of this new regulatory approach represented by the MLC and look at some of its possible limitations.
The Maritime Labour Convention – the practicalities and possible limitations
By Michael Grey
The Maritime Labour Convention, when it comes into force, will affect something like 100,000 ships and around one-and-a-quarter million seafarers from all over the world. There is a great deal of hope and anticipation at its probable effects. Seafarers hope that it will become a genuine “bill of rights”, which will deliver them more “decent” employment conditions. Good owners hope that it will provide them with the global level playing field they need to flourish, and the authorities charged with the Convention’s implementation hope for a regime that will promote safer, properly manned and efficient ships.
Will the Convention deliver these eagerly anticipated benefits? All such treaties are of necessity compromises and the MLC has of necessity been no different, despite the evidently good cooperation from the tripartite partners who really did look hard for solutions during the long years of development.
There is, for instance, the reality that the world is composed of “haves” and “have nots”, with member states coming from all parts of the development spectrum. Clearly some would have wished the Convention to set out minimum wages, and detailed pension rights, but the difficulty, as always, would have been in establishing a median that all could agree upon. So the standards on wages and employment agreements specify instead the process rather than the particulars, whereby seafarers are paid regularly, in accordance with their employment conditions, with monthly accounts and facilities for remittances to families ashore and suchlike, in more general than specific terms. Thus it will be the processes for complying with such contractual matters, and how these are demonstrated, that will form the basis of the inspection regime, as it considers such matters.
Issues of social security might prove to be quite hard to consider, bearing in mind the huge variety of what is on offer around the world. Will the concept of acceptable social security levels being “no less favourable” than that provided for shore workers in the home states of the seafarers prove to be a problem in the future?
On the very positive side, the Convention provides explicitly for collective bargaining and freedom of association, although it must be recognised that there are still places in the world and arrangements for the crewing of ships, that recognises neither. How this will be treated remains to be seen. Much will depend upon the way in which flexibility is approached, with the arrangements for “equivalence”, and concern that this will be interpreted too generously by some states, disadvantaging one side or the other. When “substantial” equivalence is required – how is “substantial” to be interpreted?
The convention specifies a far greater degree of transparency about agreements and entitlements, with clear information readily available to the seafarer and to any inspecting authorities. So the seafarer will have no reason to remain ignorant about working conditions, the expectations of the employer, as well as his responsibilities to the employee. In many respects this can be thought of as a modern contractual arrangement, which brings clarity and simplicity to the relationship between an employer and employee, based on “best practice” ashore, but with the necessary flexibility for a shipboard working regime and the peculiarities which emerge as a result of its international workforce.
It is quite specific about what cannot be tolerated, such as manning agencies requiring seafarers to pay for their jobs, or, for example, requiring them to pay for their own repatriation. It genuinely tries to address many of the unacceptable practices of the crewing agencies and substandard employers.
Will it make a difference? It has been said that the shipping industry is composed of three categories of shipping operation: the top flight, high quality operators at the top of the pile, the sub-standard and marginal at the bottom, and in the middle of these extremes, a broad swathe of operators who might be considered “average” or about as good as can be expected. It is this large sector around the median which hopefully, the Convention and its implementation will most materially affect. Of the two extreme groups, the best companies will mostly be more than compliant in most respects, and will have only some “tidying up” of their systems to qualify for their vessels’ Maritime Labour Certificates.
Those scraping along the bottom, will, it is hoped, be forced out of business by their failure to comply, or they will change their habits dramatically for the better. “Once we are doing this in earnest”, said an MLC inspector from one of the major classification societies as he spoke of his hopes for the operation of the compliance process, “the bad ships just won’t get a certificate”. But at the same time, he expressed concern about the “barely compliant”, and the shipowners who will do the absolute minimum to gain their certificates, and change the lot of their crews as little as they are forced to, and can get away with. There is still a demand for goodwill, good faith and good sense, in the way that this Convention is to be implemented.
It is, perhaps, in the amount of interpretation that will be required by flag states as they implement the Convention in practice, which gives rise to a degree of present uncertainty. It is too early to determine how an inspector will judge something that the Convention gives him the opportunity to interpret; flag states have the responsibility of making these decisions and providing the necessary guidance to their inspectors. There are still many flag states which are still engaged in developing their own laws which will enable them to implement the Convention.
The Convention can be quite specific, for instance in the size of accommodation and recreation space that is to be provided for crew members, where actual minimum heights and floor areas are specified. However, a certain degree of latitude and good faith will be necessary when judging items which the standards prescribe to be “adequate” or “reasonable”, or “appropriate”, and terms such as “suitable” are employed. It has been suggested that such are the sociological and economic differences that pertain throughout the world fleet, that what might be more than adequate for some crew members may be quite unacceptable to others. It is here that pragmatism and good sense, along with judgement, will have a major part to play, along with comprehensive training for those charged with the inspection of ships, and in the developing relationship between the relevant authorities, shipowners and seafarers, and their representative bodies.
There is a natural degree of concern at the way in which flag states around the world will interpret issues for which they are permitted such latitude. An owner, for instance, will probably hope that the Convention requirements, when translated into the law of the flag states, will not emerge as regulations that are “gold plated”, with more onerous requirements than the authors of the Convention clearly intended. There again, most reasonable flag states will be mindful of the fact that ship owners are able to change their flag states and will not wish to frighten off those good owners whose ships fly their flags by enacting unreasonably rigorous regulations. Everyone, it would seem (with the exception of the irredeemably sub-standard) has a strong vested interest in making this Convention work well, when finally it is implemented.
Our final section will consider some of the challenges that lie ahead as the MLC is implemented, and how it will be judged as making a positive difference to the lives of seafarers.
Some very human challenges as a seafarer-focused Convention comes into effect
By Michael Grey
When the Maritime Labour Convention was delivered in 2006, it was estimated that it would take some five years to bring it into effect. There were several reasons for this apparent caution, not least being the wish of the tripartite, who had worked so hard and for so long in their modernising and consolidating process, that the MLC should not become just a Convention without teeth, which could be widely ignored and thus change things very little.
The conditions for coming into force, which required 30 ratifications from members representing 33% of the world’s gross tonnage, also reflected this desire to see brought into force a Convention that really did make a difference. And being realists, the authors of the treaty knew that ratification was not merely the signing of something into law. The Convention, if it was to work properly, needed extensive preparation in maritime administrations and shipping companies over a whole range of matters, from the training of the inspectors who must see the Convention implemented to the development of proper, auditable systems within shipping companies.
Additionally, while “translating” the Convention into the laws of the flag states, many other associated instruments and laws were interconnected to the MLC – an example being its relationship with the Standards of Training, Certification and Watchkeeping Convention – so the new Convention could not be considered in isolation by the national regulators in their ratification and implementation processes. And as always, even though the MLC might be considered a huge step forward in the shipping industry, in many countries it will have been slowly working its way through a queue of other laws in national legislatures.
To date (May 2011) while the tonnage target for starting the final 12 month process to entry into force has already been exceeded, with 48% of gross tonnage reached, 12 member states have deposited their instruments of ratification. Eighteen more are needed, although there is some hope that EU nations will ratify in time to bring the Convention into effect in 2012. Realistically, there has clearly been some delay on the target date anticipated in 2006, with the economic difficulties which began in 2008 having intervened to throw into confusion government plans in so many member nations.
Seafarers organisations, and those of ship owners have, despite the delays that have been faced in governments, maintained their sense of urgency in ensuring that timetables need to be adhered to, in order that the benefits of the MLC can be enjoyed just as soon as possible. Both sides probably are well aware that there is always a very natural human inclination to let matters slide, and that the pressure on the less dynamic shipping companies must be kept up if they are not to be overtaken by events, their ships possibly facing detentions, should they fail to demonstrate their compliance with the Convention in force. It will come into force, warned the then UK Shipping Minister Paul Clarke, in 2009, “faster than you might think”, and the Convention would be taken very seriously, implying that any form of derogation would not be permitted.
For the past three years, flag states and representative organisations such as major classification societies, have been engaged in “trialling” the practical effects of the Convention. Invariably this has involved the trial inspections of ships and shipping company systems, with co-operative owners, who are themselves anxious to see the system in operation assuring them the “international level playing field” they need.
Additionally, for a system that will see close on 100,000 ships requiring inspection and certification, there has been a need for the training of sufficient inspectors. And while the training might have suffered from the fact that many flag states have yet to put the Convention into their own law and regulation, many maritime administrations, classification societies and others have established training courses, and trained several hundreds of inspectors. The ILO itself has also been active in promoting training, with its “training the trainers” courses in several locations around the world.
As might be expected, the “dummy runs” of trial inspections have thrown up a number of issues and problems of interpretation. A fairly obvious problem has been that of the definition of “seafarer”. While the Convention definition might appear unambiguous: “seafarer means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”, questions immediately arose from the cruise sector, while the offshore industry employment of numerous specialist contractors also caused difficulties. And while the general obligations of the Convention throw such ambiguities firmly at the feet of the “competent authorities” in each member state, there is concern that different competent authorities might reach different conclusions about whether an itinerant entertainer on cruise ships, or a specialist geologist, and scientists who might rotate around shore side and offshore oil rigs, might be considered a “seafarer”. Will these specialist people have acceptable documentation to demonstrate their qualifications as seafarers?
Other problems have arisen in the commercial yacht and superyacht sector, not least on the requirements for adequate living and recreational spaces, with the crews on many of these craft “just fitting in where they can”.
Problems have arisen on these trial inspections over which the shipping company, or seafarer organisations, or even the competent authorities seem to have little influence. In some states, for instance, medical certificates may not comply with the terms of the Convention, but these are the responsibilities of medical bodies and organisations which operate completely independently from the maritime authorities.
There are also challenges facing shipping companies which have to ensure that all their systems and contractual arrangements are fully compliant. There are obvious complexities for those who draw their crews from a variety of international sources. One large operator, who employs some 12,000 seafarers from 40 different nationalities, operates its fleet, owned by a dozen separate owners, under the same number of flag states, in several different business units. There are some three dozen collective bargaining agreements and perhaps 200 different payment agreements, so it is perhaps unsurprising that this major company has appointed a compliance co-ordinator! Such is quite typical in this international world of shipping, but one can imagine that the matter of establishing compliance is often not so simple as might be expected. Trials have also discovered ambiguities in collective bargaining agreements that have been arranged under jurisdictions that are different to the flag state.
Trials have established that inspections of ships whose operators are well prepared and have tried hard to anticipate the various fields of inspection have been reasonably trouble free, and not too time-consuming. Typical times for these inspections aboard such ships have seen large containerships inspected within an eight hour day, although passenger ships, ferries and more complex ships may take a longer time. Little doubt that as inspection expertise builds, times taken will be shortened.
But it must be realised that the inspection is not merely a check of paperwork, but of actual condition, not just a physical check but involving interviews with crew members. Crew members themselves will have the responsibility of carrying their own documents, owners will have the responsibility of planning and being thoroughly aware of their own systems, their contractual relationships, their responsibilities under the Convention, and, most importantly, their duties in respect of the condition of their ships.
Owners, superintendents and Masters have to take responsibility for the conditions under which their crews are living, bearing in mind cleanliness, health risks and general maintenance standards. This may be a challenge for some, but it is one area in which the MLC might be expected to make a dramatic difference. A bad ship, suggested a surveyor, is easy to spot and one doesn’t need confidential interviews with crew members, or investigations of the veracity of the complaints procedures, to establish that there are problems.
There may be some concern that the MLC, like the International Safety Management Code before it, will be a weapon in the hands of unscrupulous and sometimes corrupt port state control officials, conducting “fishing expeditions” aboard visiting ships to discover reasons to fine the ship and thus enrich themselves. Hopefully this will not be the case, and the presence of the ILO’s Special Tripartite Committee, along with the obligation on member states to regularly report to the ILO, ought to enable a degree of transparency on the reality of the enforcement that is being maintained.
It is of course, far too early to be making any judgements upon this important Convention which must be permitted to work itself into the fabric of the maritime industry. There are reasonable arrangements in place for speedy amendments, should they be found necessary in practice, but perhaps the greatest advantage in this upcoming revolution in the relationships between employees, the employed and the flag states, is their universal desire for the MLC to succeed.