Solicitud directa (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Malasia (Ratificación : 2013)

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 approved by the International Labour Conference in 2014, 2016 and 2018 entered into force for the Republic of Malaysia on 18 January 2017, 8 January 2019 and 26 December 2020, respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and to its comments on the General Report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. In its previous comment, the Committee requested the Government to provide further information on the list of categories of persons not to be regarded as seafarers under section 2 of the Merchant Shipping Ordinance, 1952, as amended by the Merchant Shipping Ordinance (Amendment) Act 2016, and paragraph 7 of the Malaysian Shipping Notice, NPM 07/2013. The Committee notes the Government’s indication that (1) the definition of the term “seafarer” under the Merchant Shipping Ordinance has undergone consultations with seafarers’ and shipowners’ organizations; (2) the term “seafarer” includes almost every personnel on board under the requirements of the MLC, 2006, especially “general workers, entertainers, housekeepers, or medical staffs such as on cruise ships”; and (3) offshore personnel is covered under the existing offshore labour regulations such as the Employment Act 1955 (Act 265), the Occupational Safety and Health Act 1994 (Act 514) and Industrial Personnel Code of Practices. While noting this information, the Committee observes that under section 2 of the Merchant Shipping Ordinance, as amended, the following categories, inter alia, are excluded from the definition of seafarer: (a) a person not directly employed for the normal manning of the ship within the deck, engine or catering department; e) any person whose work is not part of the routine business of the ship; h) non-marine personnel, employed under outsourced service agreement. The Committee notes that these exclusions, as currently drafted, are not in conformity with the Convention as they refer to persons who are employed, engaged or work in any capacity on board a ship to which the Convention applies. The Committee accordingly requests the Government to take the necessary measures to ensure that these categories of persons are considered seafarers for the purpose of the Convention. The Committee further requests the Government to indicate whether any additional determinations have been made pursuant to section 5 of NPM 07/2013, including information on the consultations held with the relevant social partners.

Article III. Fundamental rights and principles. In its previous comment, noting that Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee requested the Government to indicate how it has satisfied itself that its laws and practice respect the fundamental rights to freedom of association, in particular as regards seafarers’ rights. The Committee notes the Government’s indication that paragraph 42 of MSN 7/2013 via Appendix 2 of the Guidelines of Seafarer Employment Contract stipulates that seafarers are free to join any associations without any restrictions from shipowners and from the Government through the Maritime Department of Malaysia (MARDEP). The Committee takes note of this information.

Article VI, paragraphs 3 and 4. Substantial equivalence. In its previous comments, the Committee requested the Government to provide information with respect to the adoption of substantial equivalences. The Committee notes the Government’s information that, as indicated in the Declaration of Maritime Labour Compliance (DMLC), Part I, no substantial equivalence has been granted. The Committee takes note of this information and requests the Government to inform on any developments in the future regarding the adoption of substantial equivalence measures.

Article VII. Consultations with shipowners’ and seafarers’ organizations. In its previous comments, the Committee requested the Government to indicate whether under various provisions of the Convention, determinations were made after consultations with shipowners’ and seafarers’ organizations. The Committee notes the Government's indication that MARDEP has organized various consultation sessions with shipowners’ and seafarers’ organizations, as a form of predetermination program before promulgating any ad hoc or new requirements concerning seafarers in Malaysia. The Committee takes note of this information.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. In its previous comments, the Committee requested the Government to indicate the steps taken to give full effect to Standard A1.1, paragraph 1. The Committee notes the Government’s reference to section 73 of the Merchant Shipping Ordinance, as amended, which provides that the minimum age for employment of seafarer on board any Malaysian ship is sixteen years. The Committee notes that this is further confirmed by the requirements reflected in the DMLC, Part I. The Committee takes note of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, the Committee noted that section 73(2)(b) of the Merchant Shipping Ordinance, as amended, states that the Director of Marine may exempt seafarers between 16 and 18 from the prohibition of hazardous work when they undergo an approved training programme on board ship subject to any condition that may be determined by the Director of Marine and requested the Government to amend its legislation to give full effect to Standard A1.1, paragraph 4. The Committee notes the Government’s indication that a new legislation will be drafted to give full effect to the requirements of the Convention. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of any new text once adopted. The Committee further requested the Government to provide information on the relevant legislation establishing the list of types of hazardous work prohibited to seafarers under the age of 18. The Committee notes in this regard that the Government refers to the list of types of hazardous work mentioned in the DMLC, Part I annexed to NPM 09/2016. The Committee requests the Government to indicate whether such list was adopted after consultation with the shipowners’ and seafarers’ organizations.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate and right of appeal. In its previous comment, the Committee requested the Government to indicate the measures taken to amend the Merchant Shipping (Medical Examination) Rules 1999 and the Medical and Eyesight Standard (Rules) Rules in order to fully implement Standard A1.2, paragraph 5, in particular by ensuring the right of appeal also for new entrant seafarers in their first examination. In its reply, the Government indicates that these Rules are being amended. The Committee requests the Government to provide information on any progress in this regard to provide a copy of any relevant text as soon as adopted.

Regulation 1.4 and the Code. Recruitment and placement. In its previous comments, the Committee requested the Government to provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers pursuant to Standard A1.4, paragraph 5. The Committee notes the information provided by Government in this respect. The Committee also notes that section 121 of the Merchant Shipping Ordinance, as amended, regulates the issuance of a licence to private employment agencies supplying seafarers to serve on board ships, but does not give effect to the requirements of Standard A1.4, paragraph 5. The Committee requests the Government to take the necessary measures to give effect to the detailed requirements of Standard A1.4, paragraph 5.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. In its previous comment, the Committee noted that section 91(3) of the Merchant Shipping Ordinance, as amended, allows agreements to forgo the minimum annual leave with pay in cases determined by the Director of Marine. It requested the Government to provide information on any specific exceptions provided for by the Director of Marine in application of this provision. In its reply, the Government indicates that, according to seafarers’ and shipoweners’ organizations, no official complaints have been recorded for this matter. The Government further indicates that no specific exception has been authorized by the Director of Marine with regard to annual leave. The Committee requests the Government to provide information on any eventual exceptions authorized pursuant to section 91(3) of the Merchant Shipping Ordinance, as amended.

Regulation 2.1 and Regulation 2.2 and Standard A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions.

Regulation 2.5 and Standard A2.5.1. Repatriation. In its previous comments, the Committee noted that seafarers on board a Malaysian ship shall be entitled to repatriation at no cost in accordance with section 92(1) of the Merchant Shipping Ordinance, as amended. However, it noted that the Government did not provide information on the conditions for the existence of the right to repatriation, including the maximum period of service on board a ship, or on the entitlements to be accorded by shipowners for the repatriation of seafarers. Noting that the Government provides no information in this regard, the Committee requests the Government once again how it implements the requirements of Standard A2.5.1, paragraphs 1 and 2.

Referring to sections 87(1)(a) and 92(2) of the Merchant Shipping Ordinance, as amended, the Committee also requested the Government to provide information on the grounds and procedures by which a seafarer can be found to be in serious default. In its reply, the Government refers to section 114 of the Merchant Shipping Ordinance, as amended and to the Crew Contract of Agreement which contains the list of potential disciplinary defaults by a seafarer. The Committee takes note of this information.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In its previous comments, the Committee requested the Government to reply to specific questions on the implementation of these provisions of the Convention. The Committee notes the Government's indication that NPM 8/2016 reproduces the 2014 amendments to the Code of the Convention. It is addressed to shipowners, shipping agencies, Recognized Organizations (ROs) and Seafarer Organizations. It also notes the copy of the London P&I Club insurance. It further notes that NPM 09/2016 provides information on the content of the 2014 amendments and applies to all Malaysian ships ordinarily engaged in commercial activities wherever they are, to all other ships ordinarily engaged in commercial activities while they are in Malaysian waters, and to all seafarers serving on board such ships. The Committee takes note of this information.

Regulation 2.7 and the Code. Manning levels. Food and catering. In its previous comments, the Committee requested the Government to provide information on how the requirements on food and catering have been taken into account when determining manning levels. The Committee notes the information submitted by the Government in this regard which addresses its previous request.

Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comment, the Committee requested the Government to provide information on the national provisions implementing Regulation 3.1 and Standard A3.1. The Committee notes the Government’s indication that the MARDEP is preparing a draft amendment of section 131 of the Merchant Shipping Ordinance, as amended concerning ship’s accommodation. In this regard, the Committee recalls that Standard A3.1 calls on Members to adopt laws and regulations requiring that ships that fly its flag: (a) meet the minimum standards for accommodation and recreational facilities set out in Standard A3.1, paragraphs 6-17; and (b) are inspected in conformity with Standard A3.1, paragraph 18, to ensure initial and ongoing compliance with those standards. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 3.1 and Standard A3.1.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. In its previous comments, the Committee noted that there was no relevant national legislation giving effect to this provision of the Convention. It requested the Government to indicate the measures taken or envisaged to comply with this requirement. In its reply, the Government indicates that MARDEP is in process of developing legislation to give effect to Standard A3.2, paragraph 2(b) of the Convention. The Committee hopes that the implementing national legislation will be adopted in the near future and requests the Government to provide copy of any new text once available.

Regulation 4.1 and the Code. Medical care on board and ashore. In its previous comment, the Committee requested the Government to provide information on the implementation of Regulation 4.1, paragraphs 2-3 and Standard A4.1, paragraph 1(c) and (d). The Committee notes that the Government refers to the sample employment contract annexed to the MSN 07/2013, which addresses its previous request.

The Committee also requested the Government to provide information on the implementation of the requirement of Standard A4.1, paragraph 4(d). The Committee notes the Government’s indication that MARDEP will collaborate with P&I BlueMed and the International Radio Medical Centre to extend their services to domestic ships and to companies that have restricted access to shore medical advice. The Committee requests the Government to indicate how it ensures that medical advice by radio or satellite communication is available 24 hours a day free of charge to all ships irrespective of the flag they fly, as required by Standard A4.1, paragraph 4(d). Noting the absence of information on this point in the Government’s report, the Committee reiterates its request to provide information on the application of Regulation 4.1, paragraph 3 (access to the Member’s medical facilities on shore).

Regulation 4.2, paragraph 1 and Standard A4.2.1. Shipowners’ liability. In its previous comments, the Committee requested the Government to indicate the measures adopted or envisaged to implement the requirements of Regulation 4.2 and Standard A4.2.1. The Committee notes that section 131(3) of the Merchant Shipping Ordinance, as amended, provides that the owner shall provide the following benefits to all seafarers engaged on a Malaysian ship: (a) medical care; (b) sickness benefit; and (c) employment injury benefit. It also notes the Government’s indication that the limitation of the shipowner’s liability to pay wages in whole or in part will be further stated in the Collective Bargaining Agreement via the upcoming agenda under the Tripartite Committee Meeting of Malaysia. The Committee requests the Government to indicate whether and how under section 131(3) of the Merchant Shipping Ordinance, as amended, the shipowner is liable to pay the costs and expenses provided for by Standard A4.2.1, paragraphs 1(a), (c) and (d). Recalling that any limitations to the shipowner’s liability pursuant to Standard A4.2.1, paragraphs 2 and 4 may only be established through laws or regulations, the Committee requests the Government to indicate any information in this regard.

Regulation 4.2 and Standard A4.2.1 and Standard A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. The Committee requested the Government to indicate the measures adopted or envisaged to implement the requirements of the amendments of 2014 to the Code of the Convention. The Committee notes the Government’s reference to NPM 09/2016 which refers to the requirements of the 2014 amendments and addresses its previous request.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. In its previous comment, the Committee requested the Government to provide information on the laws, regulations and other measures adopted to implement Standard A4.3. Noting the absence of information in the Government’s report on the measures adopted to implement this Standard, the Committee requests the Government to take the necessary measures to give effect to Regulation 4.3, paragraph 3 and Standard A4.3.

The Committee also requested the Government to provide details on the national provisions implementing Standard A4.3, paragraph 2(d). In its reply, the Government refers to the DMLC, Part I, stating that shipowners shall specify the authority of the ship’s seafarers appointed or elected safety representatives to participate in ship’ safety committee meetings. The Committee, however, observes that the DMLC, Part I annexed to NPM 09/2016 does not refer to the relevant national legal provisions. The Committee recalls that under Standard A4.3, paragraph 2(d), a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. The Committee therefore requests the Government to indicate the laws, regulations and other measures giving effect to Standard A4.3, paragraph 2(d).

Regulation 4.5 and the Code. Social security. In its previous comment, the Committee requested the Government to provide information on the implementation of Regulation 4.5 and Standard A4.5. In its reply, the Government refers to section 108 of the Merchant Shipping Ordinance, as amended. The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide social security protection to all seafarers ordinarily resident in its territory, including those working on board ships flying a foreign flag. The resulting protection shall not be less favourable than that enjoyed by resident shoreworkers. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The Committee accordingly requests the Government to provide statistics on the number of seafarers resident in Malaysia who work on ships flying a foreign flag, as well as information on any bilateral or multilateral agreements covering social security of those seafarers.

The Committee also notes the Government’s statement that as for moving forward under Standard A4.5, paragraph 6, MARDEP is in the midst of exploring various benefits under section 131(2)(o) of the Merchant Shipping Ordinance, as amended. The Committee requests the Government to provide information on any development in this regard.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. In its previous comment, the Committee requested the Government to provide information regarding the implementation of Standard A5.1.2, paragraph 4. The Committee notes that the Government provides the list of the authorized ROs as well as instructions for ROs (including reference to Maritime Labour Certificates) and a model for ROs’ and third parties’ surveyor audits. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance. In its previous comment, the Committee noted that the DMLC, Part I annexed to NPM 07/2013, did not contain the necessary reference to the national legal provisions. It requested the Government to amend it. In its reply, the Government indicates that the current DMLC, Part I will be amended accordingly following the latest amendments to the Code of the Convention of 2018. Noting that the DMLC, Part I, annexed to NPM 09/2016 still does not contain the necessary reference to the national legal provisions, the Committee hopes that the process of amending the DMLC, Part I will be completed in the very near future embodying the provisions of the Convention by providing a reference to the relevant national legal provisions in addition to the information on the main content of the national requirements. It requests the Government to provide a copy of the revised DMLC, Part I, as soon as it is available.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee requested the Government to provide information on the measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4, as well as on the implementation of Standard A5.1.4, paragraph 7(c). In its reply, the Government indicates that section 131(e) of the Merchant Shipping Ordinance, as amended, is supported and supplemented by internal MARDEP guidelines and RO Instructions. The Government also indicates that the Accredited Quality Management System is used as a benchmark for inspectors’ skills and refers to internal MARDEP guidelines of auditor qualifications and to the model for ROs’ and third parties’ surveyor audits. The Committee takes note of this information.

[The Government is asked to reply in full to the present comments in 2024.]