More action needed to shift the dial on seafarers’ rights
By Felicity Landon
When the International Labour Organization’s Maritime Labour Convention 2006 entered into force in 2013, it was hailed as a breakthrough; this was the regulation that brought together dozens of scattered instruments around seafarers’ rights and welfare, while providing a level playing field when it comes to enforcement.
Where are we now? Jacqueline Smith, maritime coordinator for the International Transport Workers’ Federation (ITF), says the great win from MLC 2006 was that this was a convention with teeth; it created a level playing field thanks to high ratification. “Even if a flag State hadn’t ratified it, if one of its ships came into a port where MLC had been ratified, there were powers to stop it there.” Overall, she says, MLC is working better now than it was in the early days.
However, the ITF does have concerns about non-compliance with hours of work and rest, and associated falsification of logbooks. “Ships are supposed to keep a log and workers have to sign off to say they had those hours of work and rest. But there are some trades we are aware of, particularly self-handling vessels, where the tight turnaround in ports and decreasing manning levels mean it is not possible to adhere to the hours of rest that they should have.”
Seafarers are concerned that if they say anything, they won’t be rehired, says Smith. “That still happens; it is not out in the open that they say ‘don’t hire that person’, but the manning agent can have a little star by a seafarer’s name which means they won’t be hired.”
When an ITF inspector boards a vessel, they can often sense from the atmosphere that something is wrong, she says – perhaps the captain is nervous about letting them look at the logbook, or there are signs of fatigue and anxiety among crew. Checking the records, the inspector can see where the vessel has been and when, if the crew were doing the lashing/unlashing or lifting of cargo and whether the hours of work and rest recorded were even possible within the schedule.
The ITF is opposed to seafarers handling cargo, although Smith acknowledges that this can’t be avoided in small ports where there are no dock workers available. “If seafarers have to do the work, they need to be properly trained and provided with the appropriate equipment, and hours of work and rest must be taken into account. They are effectively doing two jobs.”
Crewing levels were not at the level they should be even before the pandemic, she says. “Flag States have a minimum requirement but that is meant to be for when alongside or at anchorage, not out on the high seas. The minimum is not an operational minimum; you can get from A to B, but it doesn’t allow for all the tasks that have to be done.”
When the World Maritime University (WMU) carried out research into underreporting of work hours or adjustment of work/rest hour records, the title it chose for its report was ‘A Culture of Adjustment’.
Its research indicated that the principles in the IMO Resolution A.1047(27) for establishing minimum safe manning “are not adhered to in most instances”.
“It was apparent that flag States do not always fulfil their responsibilities, nor do they necessarily ensure that shipowners carry out theirs with regards to efficient and sufficient manning of ships. This results in an imbalance between workload and the number of personnel available to complete the diversity of onboard tasks,” says the report.
The research found a ‘culture of adjustment’ among seafarers. “Work hours are either underreported or work/ rest hour records are adjusted to facilitate compliance.”
Adjustment of records was found to extend beyond work/rest hour records, said the WMU. “Participants were of the opinion that any record has the potential to be adjusted, pointing out a number of records that are susceptible to adjustment practices. They include records of planned maintenance, drills, oil record book entries, checklists and risk assessments, and even official logbook entries.”
Eighty-five per cent of seafarers interviewed attributed adjustments to insufficient manning levels, particularly during activities in ports, the quick succession of ports and when their vessel operates on the six hours on/six hours off watch system, the WMU found.
“Other factors indicated as encouraging recording malpractices include fear of sanctions from shore management, especially considering employment insecurities, and consequences of failing third-party inspections. Financial incentives such as bonuses or overtime, meeting key performance indicators, and the nature of recording software were also mentioned as contributing factors resulting in recording malpractices. For seafarers, the sole objective of recording work/rest hours is to confirm compliance to avoid disruptions to vessel operations and not to confirm actual working time on board. They seem unable to prioritise their allegiance: ship interests or regulations.”
Flag state solutions
Jonathan Warring, senior legal assistant at the ITF, says seafarers are very vulnerable when away from home. “Refusal of an order is a fireable offence at sea. You don’t want to get on the wrong side of the captain,” he says.
He wants to see flag states take more action in terms of inspection of vessels and ensuring that records are kept up to date. “On a well-run vessel, everyone works to the exact hours they are supposed to work, but this is a hard thing to detect.”
When the WMU report was presented to the ILO’s most recent MLC meeting, “ship owners were very strongly in denial of this as an issue”, says Warring. “Obviously these ship owners are from the groups that represent ship owners at the ILO, and are highly likely to be the ones that are compliant. But they have to be aware that there are less-than-perfect operators within their industry. I would hope they take a position that this has to be stopped.
“Surely it is in their best interests for poor operators to be out of the industry; it improves their business and drives better operations. The wider industry has a role to play as well in terms of good operators either supporting seafarers reporting issues, or exposing where they cross paths with bad operators.”
As it is, seafarers tend to accept the ship culture of a level of double book-keeping – “there is a tendency to fall in line with that if it is happening”, says Warring. “It does take a lot of bravery for a seafarer to report it. If an ITF inspector comes on board after a specific complaint, it is hard to follow up without naming the person who complained or asking to see the records of that specific person.”
Compounded by Covid
Controlling and enforcing hours of work/ rest was already a challenge before the pandemic compounded the difficulties, says Brandt Wagner, head of the ILO’s transport and maritime unit. In the context of Covid-19 and the crisis around crew changes, the discussions about fatigue and rest have not focused so much on daily hours of rest and hours of work but more on the duration of time on vessels, he points out. “So, it is not only how much you work each day, but if you work those hours every day for a whole year, for example.”
The general sense is that during the pandemic the MLC hasn’t been fully applied by countries. “There were excuses in the beginning – ‘we can’t do anything’, etc. But as the virus went on, this was no longer a surprise situation. The big question for the industry is how long you can remain on ships, and the focus turned to port States which would not allow seafarers to leave their ships or travel.”
Seafarers’ hours are long compared with other sectors, adds Wagner, and he warns about the risks of being right at the edge all the time, constantly working people to the maximum. “The result is seafarers burning out, fatigue, mental health issues and health issues in general.” In October (2021), the Sustainable
Shipping Initiative (SSI) and Institute for Human Rights and Business (IHRB) launched a new code of conduct and self- assessment tool which has been developed to protect the human rights and welfare of the world’s nearly two million seafarers (see Delivering on seafarers’ rights article).
The partners said that the initiative goes beyond the MLC to focus on the full spectrum of seafarers’ rights and wellbeing, from fair terms of employment and minimum crewing levels to the management of grievance mechanisms. It followed eight months of consultation with ship owners, operators, cargo owners, seafarers’ associations and others. Among the SSI members involved,
Simon Bennett, general manager – sustainable development at Swire Shipping, says: “The code of conduct is an attempt to include many of the areas that are not included in the MLC. This new code is voluntary but we hope it will be enforced by all the leaders in the shipping value chain – primarily the charterers, the big-name shippers, who take the extra step to protect their reputation, making sure they ship only with shipping companies that fully respect the rights of seafarers and do the right things when ships are recycled at the end of their life.”
Bennett says that before MLC he saw instances first-hand such as when a crew agreement was coming to an end and the local agent brought the crew into the captain’s cabin one by one, trying to get them to sign on to the new agreement first, then giving them another piece of paper to sign off the old agreement. “This was effectively enslavement.”
MLC was a very worthy instrument with very good intentions and was in many ways long overdue, he adds, but it covers “nowhere near all the areas we should be covering to respect the basic human rights of seafarers”.
As a result of Covid-19, there have been many cases reported of ships waiting many weeks and months in ports around the world to work the cargo and do crew changes and they have not been allowed to do so, says Bennett. “When they ask to go to another country, they are told ‘if you leave you will lose your place in the queue’. There is no way that seafarers should be locked into their workplace and made to work longer than 12, 13, 14 months. No other work sector would accept this, so why should we expect it of seafarers?”
More vetting and more regulatory enforcement are required to treat seafarers better, he says. “The MLC must be fully enforced by every port State, every flag State and every company to give a basic minimum baseline – but we are not even there yet and, even if enforced, it doesn’t go far enough.
“We all need to do the right thing both because it is the right moral thing to do and for our reputation. Whether pressure comes from the bottom (consumers), middle, or top, the more we can raise the profile and deliver moral persuasion that the right thing should be done, the better.”
He warns that the pandemic has led to ‘the great resignation’. “It is now very difficult to convince seafarers to go back to sea because they have seen the way they can be treated. We have moved from a buyers’ market to a sellers’ market. Seafarers see that they can get better pay elsewhere; it has definitely flipped. And if we lose access to our best, most competent, certified, experienced people, whether from India, Sri Lanka, the Philippines, South Africa or wherever, it would drag the whole industry down.”
The ITF’s Smith says employers, ship managers and ship owners all have a responsibility to ensure that seafarers are properly rested and that everything is in order. Even cargo owners should be responsible, because they should be concerned about their cargo being shipped on vessels and about the humans entrusted with their cargo, she says.
Therefore, it should be commercially beneficial for companies to be upfront and doing the right thing. “We want to make sure that environmental social governance isn’t just a nice piece of paper in your annual report while there is no real progress on how it is being implemented. There needs to be some sort of benchmark.”
The SSI/IHRB Code of Conduct is a start, she says, although she is concerned about self-assessment. “That requires that companies are transparent and honest; how do you monitor that?”
In the end, she says, it’s well known that fatigue and human error are major concerns when it comes to the safety of crew, navigation and the environment. She suggests that technology could be used in some way to monitor hours of work and rest.
However, Bennett cautions that solutions such as trackers would turn even more seafarers off. “Morally we should never go down that route. Yes, the tech is there for things such as facial recognition or electronic bracelets, but seafarers are so put upon already; tracking them electronically is absolutely the wrong approach.”
The ITF’s Warring says Port State Control inspectors need to be aware of the issues and ensure that hours of work and rest are complied with. “I am sure they do those checks but perhaps we need to look at how and what questions they are asking. Are they just looking at the records and seeing happy numbers?”
One thing you very rarely see is any kind of sanction or penalty from the flag for breach of MLC, he adds. “It is the flag’s job to ensure that MLC is complied with on the ships it registers, whether it chooses to employ carrot or stick. The problem is, some ship owners who feel there is too much pressure will simply change flag.”
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