None, however, among the members of the tripartite committee at the ILO could have foreseen the crisis that was to come and shake the foundations of both the global economy and the shipping industry.
Those rights to decent working and living conditions where they already existed have been under extreme pressure as the industry has coped with the crisis. The number of cases of unpaid crews and seafarers abandoned in distant ports has increased, stressing to some the need for the MLC to come into force as soon as possible.
It was fitting then that, with the tonnage entry-into-force requirement having already been met, the second target of ratification by 30 ILO member states should have been reached last week when The Philippines became the latest to sign up. The Asian country may not be a significant flag state or port-state but it is the largest supplier of seagoing manpower to the world fleet. Many of its seafarers work on ships flagged with the leading open registers which were among the first to ratify the MLC.
With the MLC also requiring ship owners to use only licensed crewing agencies, ratification by labour-supplying countries such as The Philippines provides an extra level of assurance. Ship owners would otherwise have to satisfy themselves and the relevant authorities the crewing agencies they use are covered by an equivalent system of control.
Ships flying the flags of countries that have failed to ratify the MLC by next August will, under the “no more favourable treatment” principle, still be subject to inspections in those countries that have ratified. Ships from flag states that have signed up to the MLC may still be inspected to check compliance, although this may only require checking the documentation (the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance) issued by the flag state is valid.
With the industry insisting the majority of ships already meet the MLC requirements through good employment practices, officially documented or not, how the port state control (PSC) inspections are carried out and the nature of any reported deficiencies that could, if warranted to be serious enough, result in detention, will no doubt be observed with interest.
While the MLC is specific in some details, there are areas where PSC inspectors will be required to exercise their judgment. In cases where an inspection of more than the paperwork is deemed appropriate, they are, after all, being asked to judge whether on board working and living conditions are decent.
Guidelines for PSC inspectors suggest they might consider a more thorough examination if, for example, they see any signs that might indicate fatigue among the crew – a yawning seafarer, for example.
While the MLC itself does not, as some may try to suggest, set a minimum wage, it does set out minimum requirements for how seafarers should be paid: at least monthly, with all deductions clearly listed. Non-payment and under-payment of wages are also to be regarded as serious deficiencies.
Manning levels also fall within the scope of a PSC inspection and, if the number of crew is deemed low enough to present a threat to their health and safety, an inspector is entitled to class it as a serious deficiency. This could give rise to arguments with the flag state which has the responsibility for issuing the ship with its safe manning document.
Concern has been voiced at the potential for abuse in the MLC’s complaints procedures. It is not only the individual seafarer who can act as a whistle-blower but also “a professional body, an association, a trade union or generally any person with an interest in the safety of the ship, including an interest in safety or health hazards to seafarers on board”.
Whistle-blowers, protected by confidentiality in the MLC, may, in fact, help the enforcement if the substance of their allegations is borne out by inspection, although there is still the risk some may be merely seeking to satisfy personal grievances.
Meeting all the medical requirements may also prove challenging. Under the MLC seafarers should have access to medical care as “comparable as possible” to shore-based workers. This includes having constant access by radio or internet to shore-based medical expertise but such telemedicine services can depend for their existence on public funding that may not always be guaranteed.
Cruise ship operators also face the challenge presented by the MLC’s definition of “seafarer” as anyone who works on a ship and so embracing hotel and entertainment staff.
The MLC will not, of course, mean that seafarers will find all the problems of both working and living at sea magically resolved. Shore leave and access to port welfare facilities, for example, are recognised in the MLC as being important to seafarers’ well-being, but security concerns that since 9/11 have seen many crews remain cooped up when their ships are in port may still take precedence – at least in the short-term.
The crucial factor in the success of the MLC will be its effectiveness in catching and rooting out the sub-standard operator. In the current challenging economic climate and no clear prospect of significant improvement in the next 12 months, the MLC could, if enforced evenly enough around the world, at least give greater assurance that under-cutting the competition by denying seafarers their rights is no longer the easy option.
Source: BIMCO,Andrew Guest