The Maritime Labour Convention 2006: International Labour Law Redefined

Jennifer Lavelle

• Publisher: Informa Law from Routledge
• Year: 2013
• Print ISBN: 9780415857727
• eBook ISBN: 9781317931874
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

With the Maritime Labour Convention now in force (as of August 2013), the shipping industry is faced with a new international convention that has comprehensive implications across all sectors. This vital text provides timely analysis and thought-provoking essays regarding the Convention's application and enforcement in practice.

Hailed as the "Seafarer's Bill of Rights" and the "fourth pillar" of the international regulatory regime for quality shipping, the Maritime Labour Convention is set to significantly alter the playing field for key stakeholders. This book offers diverse and interesting commentary in respect of the Convention's impact on core sectors of the shipping industry, identifying both strengths and weaknesses of the Convention, as well as potential hurdles that will need to be overcome. Each chapter focuses on a different aspect of the Convention, ranging from individual rights of the seafarer to challenges of flag State implementation. Special attention is given to enforcement through examination of the innovative measures provided in the Convention itself, along with discussion of domestic enforcement mechanisms in certain States. Furthermore, the book evaluates whether the Convention has filled existing gaps in maritime labour law, resolved prior difficulties or created new problems.

This book expertly addresses issues of fundamental importance to national authorities, shipping professionals and associations, maritime lawyers and academics worldwide.

---In memory of Richard Shaw---

CHAPTER 1

The Maritime Labour Convention 2006 in the European Union

ARIADNE ABEL^*

INTRODUCTION

1.1 The Maritime Labour Convention 2006 (MLC), consolidating some 68 international maritime labour legal instruments and recommendations of the International Labour Organization (ILO), is an accomplishment and a novelty in its own right. The MLC provides a comprehensive codification of seafarers’ rights, as well as health, safety and employment standards; it sets up an enforcement and monitoring mechanism and an innovative amendment procedure. Above all, it enjoys worldwide application and acceptance and this cannot but be characterized as a success story for the ILO and for all States involved in the long process leading to its entry into force on 20 August 2013. However, there is a lot more to be said about the MLC beyond its pioneering role in modern treaty making, which has already been broadly discussed.¹

1.2 This chapter will focus on the European Union (EU) as a major actor and stakeholder in the realization of the MLC project. While formally the EU does not participate as a full member of the ILO, nor does it have the right to become a Contracting Party to the Convention, it has been instrumental in ensuring a coordinated and common position of its Member States during negotiations, and has strived to ensure high minimum standards and due implementation of those standards at EU level by making full use of the tools and procedures available and competences conferred on it by the EU constituent Treaties.

1.3 The chapter will begin with a discussion on the competences of the EU and its Member States in the areas covered by the MLC and the complications that may arise from the fact that the EU cannot become a Contracting Party to it. The second part of the chapter will focus on the conditions governing the external representation of the EU by Member States when it cannot represent itself; the conclusion of the MLC by Member States alone in the interest of the EU; and, the status of the MLC in the EU legal order under this formula. Then, attention will be drawn to the process of transposing the Convention into EU law by way of a series of directives under two legal bases provided in the Treaty on the Functioning of the European Union (TFEU); Article 155 for the implementation of the social partners’ agreement, covering Titles 1 to 4 of the MLC, and Article 100(2) covering Title 5 of the MLC on enforcement.

EU AND MEMBER STATE COMPETENCES IN THE AREAS COVERED BY THE MLC

1.4 Participation of the EU in an agreement is warranted in certain situations, namely, when competence is exclusive, when competence is shared if the EU has already exercised competence, and when the agreement covers areas that partly fall within the EU’s exclusive competence. When competence is exclusive, the EU concludes the agreement alone. In the latter cases, both the EU and its Member States would most likely ratify the agreement, resulting in a mixed agreement. As regards the MLC in particular, the EU’s exclusive competence is limited to the coordination of social security schemes,² while the bulk of the Convention’s provisions fall under shared competences in the field of social policy.³

1.5 The coordination of social security schemes provides a legal framework ⁴ to be observed by all national authorities, social security institutions, courts and tribunals when applying national laws, which was devised to ensure that national social security systems are not an obstacle to the freedom of movement of workers within the EU. It is not a replacement of national laws, nor does it aim to harmonize national social security laws. It merely ensures that EU nationals that reside and/or are employed in an EU country other than their own do not lose the social security rights that they would have had if they had stayed in one country. The coordination as such is based on the principle that persons moving within the EU are entitled to social security but are subject to the social security scheme of only one Member State. Recently this protection has been extended to cover non-EU nationals legally residing in an EU country.⁵

1.6 Since social security protection under this legislation covers all employed EU nationals, as well as nationals of some non-EU countries, it also covers seafarers. Seafarers’ social security protection is addressed in the MLC under Title 4.⁶ It is on this basis and to this extent that the MLC comes under exclusive EU competence, which thereby necessitates EU participation in the agreement.

1.7 For the remainder of the MLC provisions, the EU and its Member States have shared competence, as the Convention deals with social rights that are listed in Article 153 TFEU. In principle, in a field of joint competence, Member States are free to exercise their competence insofar as the EU has not already exercised its competence, although there are notable exceptions to that rule. In accordance with the doctrine of implied external powers,⁷ which was first established by the Court of Justice of the European Union (CJEU) and is currently codified in Article 3(2) TFEU, even where the Treaties provide for shared competences, implied exclusive external powers may still be conferred in cases where common rules have been adopted in pursuit of a common policy that could be hindered by individual external actions taken by Member States. This, for instance, has applied in the fields of transport and maritime safety. However, despite the obvious relevance and proclaimed importance of the MLC for transport, maritime safety and the Integrated Maritime [transport] policy in particular, its substantive provisions do not relate to that aspect of EU policy; conversely, the MLC indisputably falls under the provisions of the TFEU on social policy, where no such conferral of implied exclusive powers has taken place.

1.8 Even though certain aspects of maritime labour have been regulated at EU level, it has predominantly been on a different legal basis, either, for instance, under the Treaty provisions on the freedom of movement and services,⁸ or under Article 100(2) TFEU on air and sea transport.⁹ This is not surprising since action taken by the EU in the social field has more often than not been integrally linked to common market objectives ¹⁰; that is to say that social legislation of any form would be enacted on the basis of it being necessary in the exercise of exclusive competences or common objectives in the economic, commercial or competition areas. This is especially evident in the early decades of the EU, before social objectives became a priority for the Union. But even in the last couple of decades, despite the ever growing importance of social considerations in EU policy making, Member States have strived to retain primary decision making power over what is deemed a politically sensitive issue, particularly in the maritime sector where, notably, social legislation at EU level has also - in its majority - consistently excluded the maritime sector ¹¹ due to difficulties in reaching agreement and lobbying pressures.

1.9 EU legislation adopted on the basis of social policy provisions that addresses or includes workers on seagoing vessels, either coincides with or is based on ILO standards and conventions,¹² although much the same as the ILO rules, these measures prescribe solely minimum standards. In accordance with the AETR-ERTA case law, it is the scope of the measure that determines the extent of the duty of abstention,¹³ and in that sense minimum standards do not suffice for the conferral of implied exclusive external powers.¹⁴ The CJEU has established, however, that the existence of EU measures covering the subject matter of an international agreement, even when there is no contradiction that could affect common rules or alter their scope, is at least sufficient to limit Member States’ competence to the extent that the EU has not exercised its competence.¹⁵ The MLC covers a broad range of issues on which the EU has already legislated in the form of minimum standards; these include but are not limited to the directive implementing the social partners’ agreement on seafarers’ working times,¹⁶ which in large measure reflects the ILO convention on Seafarers’ Hours of Work and the Manning of Ships, 1996 (No. 180), as well as other legislative measures dealing with occupational health and safety ¹⁷ and medical care on board ships.¹⁸ It follows that any external action taken by Member States that could commit them to obligations relating to the subject matter of those measures is subject to the duty of loyal cooperation.

The duty of loyal cooperation

1.10 The duty of loyal cooperation, now codified in Articles 4(3) and 13(2) of the Treaty on European Union (TEU), imposes an obligation on both Member States and EU institutions, horizontally and vertically,¹⁹ to take actions to facilitate the attainment of EU objectives and to abstain from taking any action that would jeopardize the fulfilment of those objectives. This obligation guides all external action ²⁰ and is particularly relevant in the MLC context, as this is an agreement that covers both EU and Member State competences in its provisions, thus demonstrating the importance of coordination between the actors at the negotiation, conclusion and implementation stages.

1.11 The CJEU’s jurisprudence on the duty of cooperation is especially interesting in that it suggests that the treaty making powers of Member States are actually restricted, even in areas of shared competence, to actions that do not impede EU policy or common strategy, even if that policy has not been yet translated into either internal legislative measures or an international agreement.²¹ That is to say, that even in areas of joint competence where no EU measures exist, if there are strategic objectives or the intention to act at EU level, Member States are prohibited from taking unilateral external action, almost identically to the case of exclusive EU competences.²² The CJEU has, furthermore, linked the duty of cooperation with the principle of uniform external representation ²³ and, more recently, with the obligation to maintain consistency between the actions of the EU and its international representation.²⁴

EU MEMBER STATES ACTING JOINTLY IN THE INTEREST OF THE UNION

1.12 The EU is not and cannot, for the time being, become a full participating member of the ILO, as the ILO constitution is only open for States. This is a significant hurdle when it comes to negotiating and concluding agreements over which the EU has competence. The CJEU has found that, in such situations, EU competence may be exercised through the Member States acting jointly in the EU’s interest ²⁵ and that such joint action is to be guided by the duty of loyal cooperation.

1.13 To overcome the practical difficulties of EU participation in the ILO, a mechanism has been set up to allow EU presence as an observer.²⁶ In combination with the internal consultation processes between the EU institutions and its Member States, this formula ensures coordinated negotiations of EU Member States that coincide with EU objectives, thus ensuring uniform external representation, consistency and loyal cooperation in the negotiation of agreements, including in the MLC. This however does not solve the problem of the EU not being able to become a Contracting Party to the MLC, or to any ILO convention for that matter.

1.14 When the EU cannot ratify an agreement itself, a practice has developed whereby a Council decision, or sometimes a regulation,²⁷ expressly authorizes Member States to ratify an agreement for the parts falling within its competence and in the interest of the EU. This has also been the case with the MLC, which was ratified by Member States ‘in the interests of the Community’ ²⁸ and ‘for the parts falling under Community competence’ ²⁹ pursuant to Council Decision 2007/431/EC.

1.15 A Council decision is a Union act creating an obligation for those to whom it is addressed to perform a specific action. In the case of Decision 2007/431/EC, it creates a binding obligation for Member States to ratify the MLC. Against this background, it is necessary to first take a closer look at the criteria that determine the existence of such an obligation.

1.16 According to the CJEU, an obligation to ratify exists – and thus can be reflected in a bin...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Preface
• Acknowledgements
• Table of Cases
• Table of National Legislation
• Table of European Legislation
• Table of International Conventions and Instruments
• CHAPTER 1: THE MARITIME LABOUR CONVENTION 2006 IN THE EUROPEAN UNION
• CHAPTER 2: INCREASED SEAFARER PROTECTION UNDER THE MARITIME LABOUR CONVENTION 2006: A MALTESE FLAG PERSPECTIVE
• CHAPTER 3: THE SHIPMASTER AND THE MARITIME LABOUR CONVENTION 2006
• CHAPTER 4: YACHTING AND THE MARITIME LABOUR CONVENTION 2006
• CHAPTER 5: CREWING INSURANCE UNDER THE MARITIME LABOUR CONVENTION 2006
• CHAPTER 6: SEAFARER ABANDONMENT INSURANCE: A SYSTEM OF FINANCIAL SECURITY FOR SEAFARERS
• CHAPTER 7: SEAFARERS AND MODERN PIRACY
• CHAPTER 8: THE ENFORCEMENT PROCEDURES OF THE MARITIME LABOUR CONVENTION 2006
• CHAPTER 9: HOW TO DETERMINE JURISDICTION AND GOVERNING LAW IN DISPUTES ARISING OUT OF A SEAFARER’S EMPLOYMENT AGREEMENT
• CHAPTER 10: IMPLEMENTATION OF THE MARITIME LABOUR CONVENTION 2006
• APPENDIX
• Index