Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Togo (Ratificación : 2012)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code of the MLC, 2006, approved by the International Labour Conference in 2014, entered into force for Togo on 18 January 2017. It further notes that the Government’s report was received before the entry into force of the 2014 amendments. Following its second review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article I. General questions on application. Implementing measures. The Committee notes the Government’s indication that the implementation of the MLC, 2006, at the national level has been handled informally in practice because of the time needed for transposing the provisions of the Convention into national law. The Committee notes with interest the adoption of Act No. 2016-028 of 11 October 2016 issuing the (new) Merchant Shipping Code, Book IV of which deals with the requirements of the MLC, 2006. However, the Committee notes that the Government has not provided a copy of the implementing regulations, either already adopted or in preparation, to which the new Merchant Shipping Code refers. Recalling the need to implement the Convention as soon as possible, the Committee requests the Government to provide detailed information on the implementation of the new Merchant Shipping Code and to send copies of all laws, regulations and other measures which have been adopted or are being prepared to give effect to the MLC, 2006.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee notes that the new Merchant Shipping Code defines “seafarers” as all persons employed or engaged or working in whatever capacity on board a ship (section 3). However, the Committee notes that section 206 of the new Merchant Shipping Code, which defines the scope of application of Book IV dealing with seafarers, states that any waged employee engaged by a shipowner or having embarked on his or her own account to take up employment relating to any aspects of the operation of the ship shall be regarded as exercising the occupation of seafarer. The Committee recalls that Article II, paragraphs 1(f) and 2, of the Convention provides that the Convention applies irrespective of the duties concerned to all seafarers, who are defined as any persons who are employed or engaged or work in any capacity on board a ship to which the Convention applies. The Committee also notes that Title II of Book IV of the new Merchant Shipping Code, which deals with the organization of hours of work and rest, leave and retirement, does not apply to the ship’s master, doctor or nursing personnel who exclusively perform nursing duties. The Committee requests the Government to indicate the measures taken to ensure that all seafarers within the meaning of the Convention, including the master and persons not employed in any aspects of the operation of the ship, enjoy the protection afforded by the MLC, 2006.

Article VII. Consultations. The Committee previously noted the lack of formal seafarers’ and shipowners’ organizations in Togo. The Committee notes the Government’s indications concerning activities undertaken at the national level to promote the emergence of organized forms of seafarer representation. However, the Committee recalls that, under Article VII of the Convention, any derogation, exemption or other flexible application of this Convention for which the Convention requires consultation with shipowners’ and seafarers’ organizations may, in cases where representative organizations of shipowners or of seafarers do not exist within a Member, only be decided by that Member through consultation with the Special Tripartite Committee. The Committee requests the Government to provide detailed information on the consultations held concerning the adoption of the new Merchant Shipping Code, its implementing regulations and any other national measures intended to give effect to the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, the Committee noted that there was no prohibition on young seafarers as regards performing any type of work likely to jeopardize their health or safety. The Committee notes that the new Merchant Shipping Code merely states that a minor can only be employed on board ship in work and services which correspond to his or her physical capacities and to the performance of his or her duties (section 300). It does not provide for the adoption of a list of prohibited types of work, as required by Standard A1.1, paragraph 4. The Committee once again requests the Government to adopt effective measures without delay to prohibit any type of work that is likely to jeopardize the health or safety of seafarers under 18 years of age and to determine the types of work which are prohibited (Standard A1.1, paragraph 4).

Regulation 1.4 and the Code. Recruitment and placement. In its previous comment, the Committee noted the Government’s indication concerning the existence of two private recruitment and placement agencies in the country, the activities of which are not governed by any specific legislation. The Committee asked the Government to provide information on the recruitment of seafarers in Togo and on the handling of complaints concerning the activities of recruitment or placement services operating on Togolese territory. The Committee notes the Government’s indication that seafarers are often engaged by private placement agencies to work on ships flying foreign flags. It also notes that the Directorate of Maritime Affairs endeavours to reach out-of-court settlements but that complainants can always be brought before the judicial authorities if no satisfactory solution has been found. The Committee notes that sections 226–230 of the new Merchant Shipping Code give effect to the requirements of Regulation 1.4 and Standard A1.4 of the Convention. However, these provisions are still very general and require more detailed implementing measures, especially to give full effect to Standard A1.4, paragraph 5. The Committee requests the Government to provide information on all the measures taken or envisaged to give full effect to Regulation 1.4 and Standard A1.4.

Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. The Committee notes that the new Merchant Shipping Code does not provide that seafarers signing a seafarers’ employment agreement shall be given an opportunity to examine and seek advice on the agreement before signing, as well as such other facilities as are necessary to ensure that they have freely entered into an agreement with a sufficient understanding of their rights and responsibilities (Regulation 2.1 and Standard A2.1, paragraph 1(b)). The Committee requests the Government to indicate the measures taken to give full effect to Standard A2.1, paragraph 1(b).

Regulation 2.3 and Standard A2.3, paragraphs 2, 5 and 6. Hours of work and hours of rest. Limits and division. The Committee notes that the new Merchant Shipping Code deals with normal hours of work, which may not exceed eight hours per day or 48 hours per week, with one day of rest per week, in principle Sunday, as well as rest corresponding to public holidays (section 297). However, the Committee notes that this new Code does not deal with maximum hours of work or minimum hours of rest, as required by Standard A2.3, paragraphs 2 and 5. The Committee requests the Government to take the necessary steps to ensure that either maximum hours of work or minimum hours of rest are fixed in accordance with the requirements of the Convention. The Committee also notes that the new Merchant Shipping Code does not provide that hours of rest shall be divided into no more than two periods, one of which shall be at least six hours in length, or that the interval between consecutive periods of rest shall not exceed 14 hours (Standard A2.3, paragraph 6). The Committee requests the Government to indicate the measures taken to give full effect to Standard A2.3, paragraph 6.

Regulation 2.5 and Standard A2.5.2, paragraph 2. Repatriation. Financial security in the event of abandonment. The Committee notes that section 290 of the new Merchant Shipping Code provides that any owner of a ship flying the Togolese flag shall arrange financial security to ensure the due repatriation of seafarers. The Committee notes that the conditions for the implementation of this financial security are not described in the provisions of the new Merchant Shipping Code. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) was the financial security system provided for by the legislation determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarer, as defined in Standard A2.5.2, paragraph 9; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 4.1 and the Code. Medical care on board and ashore. The Committee notes that sections 354–357 of the new Merchant Shipping Code deal with the organization and objectives of medical care for seafarers, including emergency medical assistance on board ships and on drilling platforms. The Committee notes that the organization and operation of health services for seafarers must be determined by decree in the Council of Ministers. The Committee also notes that sections 327 et seq. of the new Merchant Shipping Code define the responsibilities of the shipowner in the event of any sickness, injury or death during the voyage. However, the Committee notes that the aforementioned Code does not impose an obligation on the country, as established by Regulation 4.1 and Standard A4.1, to ensure access to medical care for seafarers working on ships flying the national flag, including the adoption of laws or regulations regarding medical equipment and medical personnel on board, or any obligation concerning access to medical facilities ashore for ships in its territory, including access to medical advice by radio or satellite communication. The Committee requests the Government to provide information on all the measures taken or envisaged to give full effect to Regulation 4.1 and Standard A4.1.

Regulation 4.2, Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that the new Merchant Shipping Code does not take account of the 2014 amendments concerning shipowners’ liability (Standards A4.2.1 and A4.2.2). The aforementioned Code only provides, in section 332, that where a seafarer is put ashore in a foreign port further to sickness or injury occurring on board, the consul or diplomatic representative of Togo “may” require the master to deposit, with a body or fund designated by the former, the sum presumed necessary for the treatment and repatriation of the sick or injured seafarer. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while the situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary); (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that section 310 of the new Merchant Shipping Code provides that the shipowner shall observe the provisions established by the maritime administration with regard to the prevention of occupational accidents. The shipowner is also required to report to the maritime administration all occupational accidents and provide all relevant information in this respect, in particular the number, nature, causes and consequences of occupational accidents, indicating the ship’s department and the location where the accidents occurred. Section 313 provides that the competent maritime authority shall determine arrangements for implementing these provisions. The Committee requests the Government to provide information on all the measures taken on the basis of these provisions of the new Merchant Shipping Code to give full effect to Regulation 4.3 and Standard A4.3.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. In its previous comment, the Committee asked the Government to provide information on the evaluation of needs for seafarers’ welfare facilities in ports in Togo, in accordance with the requirements of Standard A4.4, paragraphs 2 and 3, of the Convention. The Committee notes the Government’s indication that matters relating to shore-based welfare facilities for seafarers are handled by the seafarers’ welcome centre. This centre works in close cooperation with the maritime authority for the welfare of seafarers on shore. The Committee also notes that sections 341–346 of the new Merchant Shipping Code give effect to Regulation 4.4 and the related provisions of the Code of the MLC, 2006.

Regulation 4.5 and the Code. Social security. In its previous comment, the Committee noted that the Government declared at the time of ratification of the Convention that the branches of social security considered in accordance with Standard A4.5, paragraphs 2 and 10, of the MLC, 2006, are old-age benefit, employment injury benefit and family benefit. The Government indicated that these contingencies, and particularly old-age and invalidity, are covered by an affiliation to the general social security scheme. The Committee asked the Government to amend the national legislation to bring it into conformity with Standard A4.5, paragraph 3, of the Convention, which provides that each Member shall take steps according to its national circumstances to provide social security protection to all seafarers ordinarily resident in its territory. The Committee notes that sections 347–353 of the new Merchant Shipping Code represent significant progress in this area, since they provide, inter alia, that all seafarers ordinarily resident in Togo shall enjoy the protection afforded by the legislation, without prejudice to the protection established in terms of on-board medical care and in relation to sickness or injury occurring on board ship, for the following branches of social security: old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit; and survivors’ benefit (section 348). Recalling that the Government indicated in its first report that the affiliation of seafarers to the National Social Security Fund is not operational in practice, even though it is provided for by the national legislation, the Committee requests the Government to provide detailed information on the manner in which the social security coverage provided for in section 348 of the new Merchant Shipping Code is provided in practice for seafarers who are ordinarily resident in Togo.

Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes that the Government has not provided all the requested documentary information due under the requirements of the Convention. It notes the Government’s indication that there are currently no institutions authorized to act on its behalf, but the Maritime Department enlists the services of a company to register ships under the Togolese flag. The Committee also notes that section 361 of the new Merchant Shipping Code stipulates that an effective system of inspection and certification of conditions of work on board ships flying the Togolese flag shall be established, under the responsibility of the competent maritime authority, in conformity with the international regulations in force. The competent maritime authority shall determine the public institutions or other bodies that it recognizes as competent and independent to carry out inspections and issue certificates. The competent maritime authority shall define precise objectives and standards for the administration of the inspection and certification system, and also an appropriate general monitoring procedure for verifying that these objectives have been achieved and that these standards have been observed. The Committee also notes that section 363 of the above-mentioned Code provides that decrees shall be adopted to determine, in accordance with the international regulations in force, the methods for implementing section 361, in particular the certification of conditions of work, inspections and complaints handled on board ship. The Committee requests the Government to adopt the necessary measures as soon as possible to give full effect to Regulation 5.1 and the related provisions of the Code of the MLC, 2006.

Regulation 5.2 and the Code. Port State responsibilities. In its previous comment, the Committee noted that Togo has adhered, since 12 September 2007, to the Abuja Memorandum of Understanding (MoU). Among the relevant instruments for its port State control measures, the Abuja MoU refers to the MLC, 2006. While recognizing the value of the coordinated implementation of inspections under port State control at the level of this regional organization, the Committee drew the Government’s attention to the fact that national authorities are under the obligation to give full effect to the provisions of the MLC, 2006, in their own legislation. The Committee asked the Government to provide detailed information on the procedures established at the national level to implement its port State responsibilities under the MLC, 2006. The Committee notes that section 362 of the new Merchant Shipping Code provides that any foreign ship docking in a Togolese port in the normal course of its activity or for operational reasons may be inspected by authorized officials in order to verify its conformity with the requirements of the Convention relating to the living and working conditions of seafarers, including seafarers’ rights. The Committee also previously noted the Government’s indications that onshore complaints were dealt with informally, since measures giving effect to the Convention had not been adopted in this regard. The Committee notes that the new Merchant Shipping Code does not deal with onshore complaint procedures for seafarers. The Committee requests the Government to take the necessary steps as soon as possible to give full effect to Regulations 5.2.1 and 5.2.2 and the related provisions of the Code of the MLC, 2006.

Additional documents and information requested

The Committee requests the Government to provide the following documents and information: a copy in English, French or Spanish or an English language translation, as required by Standard A5.1.3, paragraph 12, of the maritime labour certificate and of Part I of the declaration of maritime labour compliance (DMLC) and an example or examples of Part II of the DMLC drawn up by a shipowner and accepted by your country for the certification of one or more ships; an example of the standard wording in medical certificates (Standard A1.2, paragraph 10); an example of the approved document for the seafarer’s record of employment (Standard A2.1, paragraphs 1 and 3); an example of a seafarers’ employment agreement (Standard A2.1, paragraph 2(a)); a copy in English of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest (Standard A2.3, paragraph 12); for each type of ship, a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1); an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see also Guideline B4.1.2, paragraph 1); a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraph 4(a); see also Guideline B4.1.1, paragraphs 4 and 5); an example of a document (for example, Part II of the DMLC) outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment (Regulation 5.1.1, paragraph 5); an example or examples of authorizations given to recognized organizations (Regulation 5.1.1, paragraph 5; Regulation 5.1.2, paragraph 2); a copy in English of the interim maritime labour certificate if your country issues such a document (Regulation 5.1.3); a copy in English, French or Spanish of annual reports on inspection activities, issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a copy of a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see also Guideline B5.1.4, paragraphs 7 and 8), together with a summary in English, French or Spanish if the document is not in one of those languages; a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7, with an indication of the content in English, French or Spanish if the guidelines are not in one of those languages; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and other parties concerned about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5; see also Guideline B5.1.4, paragraph 3), with an indication of the content in English, French or Spanish if documentation is not in one of those languages; a copy of your country’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag, with a translation into English, French or Spanish if the procedures are not in one of those languages (Regulation 5.1.5); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7, with an indication of the content in English, French or Spanish if the guidelines are not in one of those languages; a copy of any document that describes the onshore complaint-handling procedures (Regulation 5.2.2).