The Department of Transport (DoT) briefed the Committee on the Merchant Shipping Amendment Bill (B12-2015). The Bill sought to give effect to the Maritime Labour Convention (MLC), 2006 and the Work in Fishing Convention of 2007 (“C188”), and provide for matters related to them. These two conventions had been adopted under the auspices of International Labour Organisation (ILO), a United Nation (UN) body that aimed to promote the rights of seafarers at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue on work-related matters.
The MLC, 2006 provided a set of comprehensive rights and duties of seafarers at work. The convention also aimed to achieve minimum working conditions for seafarers by covering a wide range of matters, including working hours, health and safety, crew accommodation, welfare and contractual agreement of seafarers. The C188 addressed, inter alia, the responsibilities of fishing vessel owners and skippers towards the safety of the fishers on board and the safety of vessels, the minimum age for work on board fishing vessels, and for the assignment of certain types of activities. The C188 also aimed to address medical examinations and the certification required for work on fishing vessels, manning and hours of rest, crew lists, and the working agreements of fishers. There was also a concerted effort to focus on repatriation, use of private employment agencies and protection in the case of work-related sickness, injury or death. The government of South Africa, through the Department of Labour and the DoT, had participated in the international deliberations following which the MLC, 2006 and C188 had been adopted.
The objective of the Bill was to amend the Merchant Shipping Act, 1951 (Act No. 57 of 1951) in order to give effect to the MLC, 2006 and C188. The Bill had a total of 31 clauses. South Africa had ratified the Conventions on 7 July 2013 by depositing the instrument of ratification with the Director-General (DG) of the International Labour Organisation. The Department had consulted various stakeholders regarding the Bill, which had also been presented to the Global Governance Committee on 18 September 2013 and the International Cooperation, Trade and Security cluster on 1 October 2013. All the comments received during the consultation process had been incorporated in the final draft Bill.
Members wanted to know whether seafarers were able to form a union to ensure they were protected, as it was well known that the seafarers were often ill-treated on board ships. It was suggested that the Department needed to tighten up its relationship with the Department of International Relations and Cooperation (DIRCO) so that immediate assistance could be offered to distressed South Africans when they were abroad. They noted that there seemed to be a distinction that had been made between “seafarer” and “seaman,” which was part of the Fishing Convention, 2007, and asked whether the definitions should not also include fishers.
It was suggested that the Department should avoid ambiguous words such as “adequate” and “proper” in the Bill, as there was a need to be specific -- who decided what was “adequate” and “proper”? Was there any restriction on a non-South African owner of a South African ship with a South African crew, who travelled outside of the country’s jurisdiction and failed to comply with the Act? One Member wanted to know about measures to be implemented if there was a contravention of the clause prohibiting the employment of children on ships.
The Department indicated that the comments and inputs of the Members had been noted and would be incorporated in further discussions on the Bill
Briefing by Department of Transport
Adv Nosipho Sobekwa, Acting Deputy Director-General (DDG), DOT, said the Merchant Shipping Amendment Bill (B12-2015) sought to give effect to the Maritime Labour Convention (MLC), 2006 and Work in Fishing Convention of 2007 (“C188”), and to provide for matters connected therewith. The MLC of 2006 and C188 were adopted under the auspices of the International Labour Organisation (ILO), a United Nations (UN) body, and were aimed at promoting the rights of seafarers at work, encouraging decent employment opportunities, enhancing social protection and strengthening dialogue on work-related matters. The MLC, 2006 provided a set of comprehensive rights and duties of seafarers at work. The Convention also aimed to achieve the minimum working conditions of seafarers by covering a wide range of matters including working hours, health and safety, crew accommodation, welfare and the contractual agreement of seafarers.
The C188 addresses, inter alia, the responsibilities of fishing vessel owners and skippers for the safety of the fishers on board and the safety of vessels, the minimum age for work on board fishing vessels, and for the assignment to certain types of activities. The C188 also aims to address medical examination and certification required for work on fishing vessels, manning and hours of rest, crew lists and working agreements of fishers. There was also a concerted effort to focus on repatriations, use of private employment agencies and protection in the case of work-related sickness, injury or death. The Government of South Africa through the Department of Labour and the DoT, had participated in the international deliberations wherein the MLC, 2006 and C188 were adopted. Most of the world trade was carried on ships and seafarers were essential to international trade and the international economy and trade system. The new labour standard consolidated and updated more than 68 international labour standards related to the maritime sector adopted over the last 80 years.
Adv Sobekwa said that the MLC, 2006 and the C188 had been designed to become a global instrument known as the “fourth pillar” of the regulatory regime for quality shipping, complementing the key conventions of the International Maritime Organisation, such as the International Convention for the Safety of Life at Sea. The other key conventions that were complementary to both the MLC, 2006 and C188 included the International Convention on Standards of Training, Certification and Watch-keeping for Seafarers and the International Convention for the Prevention of Pollution from Ships. The implementation of the MLC, 2006 and C188 was a two-fold process, and the Department of Labour was responsible for attending to all the necessary procedures to ensure ratification of the MLC, 2006 and C188. The Department was ensuring that domestic legislation was in place to enforce the articles of the MLC, 2006 and C188 that related to the Department. South Africa had ratified the Conventions on 7 July 2013 by depositing the instrument of ratification with the Director-General (DG) of the ILO. The Department had amended the Merchant Shipping Act, 1951 (Act No. 57 of 1951) to give effect to the MLC, 2006 and C188, and had attended to all the necessary requirements related to the amendments of the Bill.
The objective of the Bill was to amend the Merchant Shipping Act, 1951 (Act No. 57 of 1951) in order to give effect to the MLC, 2006 and C188 and to provide for matters connected therewith. The Bill had 31 clauses, the salient feature of which was Clause 1 which sought to amend section 2 of the Act. This section contains the definitions which guide the interpretation of the provisions in the Act. The clause proposes definitions of “fishing vessel” and “seafarer,” as well as definitions of the two conventions, namely the MLC, 2006 and C188. The first two definitions were required to bring the Act in line with the conventions. The definition of “seaman” in the Act was replaced with the definition “seafarer” and the reference to an apprentice officer in the definition was deleted. Lastly, a technical correction to the expression “South African ship” had been proposed in order to make it clear that such a ship must also be licensed in the Republic. Clauses 2, 3, 4, 5 and 6 of the Bill were consequential amendments as a result of the proposed use of the word “seafarer” in the Act, and the deletion of the expression “apprentice-officer” in the Act.
Adv Sobekwa said that clause 7 of the Bill amended section 102 by imposing a duty on the master of a ship to enter into an agreement with the seafarers on behalf of the employer, irrespective of the size of the ship or tonnage that the ship carried. Clause 8 of the Bill amended section 110 of the Act by prohibiting the master or owner of a South African ship to employ children under the age of 16. Clause 9 sought to amend section 111 of the Act by prohibiting the owner or master of a ship to employ young persons to work at night unless it was part of their training. Clause 10 of the Bill proposed the insertion of a new section 111A to deal with the seafarers’ entitlement to leave. Clauses 11, 12 and 13 of the Bill were consequential amendments as a result of the proposed use of the word “seafarer” in the Act and the deletion of the expression “apprentice-officer.” Clause 14 of the Bill amended section 121 of the Act by imposing a duty on the master or owner of a South African ship to furnish the seafarer with a monthly account of his or her wages. Clause 15 sought to amend section 130 of the Act by empowering the seafarer, by means of allotment notes, to pay over any portion of his or her wages to a person designated in the said allotment notes.
There was also a proposal to delete reference to the “National Welfare Act,” which had been repealed by the Advisory Board on Social Development Act, 2001 (Act No.3 of 2001). Clause 16 and 17 of the Bill were consequential amendments as a result of the proposed use of the word “seafarer” in the Act and the deletion of the expression “apprentice-officer.”. Clause 18 proposed a new section 159A of the Act, which would impose a duty on the master or owner of a South African ship to make accessible a complaints procedure on board ship, and also allow the lodging of complaints by seafarers. Clauses 19, 20, 21, 22, 23, 24 and 25 of the Bill was a consequential amendments as a result of the proposed use of the word “seafarer” in the Act and the deletion of the expression “apprentice-officer” in the Act. Clause 26 of the Bill sought to bring section 355 in line with the proposed amendment of the definition of “South Africa ship” and to correct references to repealed laws. Clause 27 was a consequential amendment as a result of the deletion of the expression “apprentice-officer” and “seamen” in the Act, and the proposed use of the word “seafarer” in the Act. The clause also proposed an amendment to section 356 (2) of the Act by adding references in that section to the two conventions -- the MLC, 2006 and C188.
Adv Sobekwa said that clause 28 of the Bill sought to amend section 356 bis of the Act so that the MLC, 2006 and C188 would have the force of law in the Republic from the date on which the Bill, if promulgated, took effect. The second proposal in the clause sought to enable the Minister of Transport to amend the conventions, by notice in the Gazette, after the entry into force for the Republic of any amendment to any of the conventions. Clause 29 of the Bill was a general provision for the substitution for expressions or words that were no longer used in the Act. Clause 31 contained the short title and provided for the commencement of the Bill.
The Department had engaged in consultations, as the Bill had been published for comments in the Government Gazette No: 36329 of 3 April 2013. There had been comments from Bowman and Gilfillan, the National Economic Development and Labour Council (NEDLAC), the South African Maritime Authority (SAMA) and the State Law Advisor. The Bill had also been presented to the Global Governance Committee on 18 September 2013 and the International Cooperation, Trade and Security Cluster on 1 October 2013, and both Clusters had approved the Bill to be introduced into Parliament. All the comments that had been received in the consultations had been incorporated in the final draft Bill. The Department requested the Committee to approve the Bill.
Ms S Boshielo (ANC) said the presentation by the Department was insightful. She wanted to know about the enforcement measures in place if the master or owner of the ship showed unwillingness to comply with the regulations. It was important to know whether the seafarers were able to form a union to ensure that they were protected, as it was well-known that seafarers were often ill-treated on board ships. She also asked about the procedures in place when someone had been injured or died on a ship, as there had recently been a South African ship that had been stranded in Angola and could not get any assistance until someone had died. The Department needed to tighten up on its relationship with the Department of International Relations and Cooperation (DIRCO) so that immediate assistance could be offered to South Africans abroad who were in distress.
Mr L Ramatlakane (ANC) appreciated the approach of waiting for the state law advisors to give guidance on the position to be taken by the country. It was important to know what constituted the next step for the Committee after the presentation by the Department, given the fact that there was still an opportunity for public participation. Was the Department dealing with the Bill formally or informally? He requested further clarity on how the role of the master was defined in the Act. How was the South African ship owner defined, as the Department had noted the problem where South African ships had not been flying the flag? It would be prudent for the Department to have a clearer definition of the “South African owner of the ship” so as to be able to incorporate this definition in the actual Act.
Mr C Hunsinger (DA) asked to what extent the Department was in line with the new recommendations that had been made in the MLC, 2006. He said there was also a contradiction in the inclusion of medical requirement for cadets, although the Act had made it clear that seafarers excluded masters, pilots and cadets. There seemed to be a distinction that had been made between “seafarer” and “seaman,” which was part of the Fishing Convention, 2007, and he asked whether the definitions should not also include the fishers. It was also suggested that the Department should avoid ambiguous words such as “adequate” and “proper” in clause 11, as there was a need to be specific. Who decided what was “adequate” and “proper”? Was there any restriction on a non-South African owner of a South African ship with a South African crew, who travelled outside of the country’s jurisdiction and failed to comply with the Act? There was also a contradiction regarding the exercise of power and jurisdiction between clause 18 on page 7, and clause 25 on page 9. The Bill needed to be specific and detailed about the protection that was offered to the crew and seamen, especially in cases of injury or death.
Mr Hunsinger suggested that clause 29 which reads: “fishers have the right to medical treatment ashore and the right to be taken ashore in a timely manner for treatment in the event of serious injury or illness,” should also be stipulated in the South African legislation. What was the meaning of “wholly engaged” in clause 26 on page 10, as this was again creating ambiguity? He asked whether the country could possibly generate extra revenue if it had the authority through the legislation to conduct inspections of other boats that were within the Convention.
Mr M Sibande (ANC) appreciated the presentation by the Department, as the maritime sector was important for the country. He wanted to know whether foreign seafarers who were operating along the shores of South Africa were authorised to lay a complaint with the Committee. It was impressive that the Department had managed to consult various stakeholders to get comments based on the Bill, but it was also important to ascertain whether the concerns that had been raised by the stakeholders, especially the one made by the Cabinet, had been considered as yet. The Department needed to strengthen the legislation that prevented child labour, as some countries were still insisting on using child labour in their offshore operations. What measures were in place to ensure that children, even from other countries, were protected? When was the last amendment to the Merchant Shipping Amendment Bill (B12-2015)? What programmes were in place for further consultation in order to assist those who would be affected by the new legislation?
Adv Sobekwa responded that the Bill that had been introduced to the Committee would mean that South Africa was empowered by the international community to regulate the vessels that were under the country’s flag -- the country had the authority to enforce the regulations. The seafarers had a right to lay a complaint with the Department of Labour if the owner had failed to comply with the regulations, as they were the custodians of the Convention. There was local union which was linked to the international labour union under the International Labour Organisation (ILO), and which dealt mainly with the complaints of workers at sea.
Adv Sipho Mbatha, Head of Maritime Legislation, DoT, said that a seafarer could invoke some of the provisions of legislation like the Admiralty Jurisdiction Act, and lodge a complaint of ill-treatment or exploitation. There were two courts in South African that dealt specifically with the complaints of seafarers, one in Durban and the other in Cape Town. The ship owner had a responsibility to repatriate a person who had been injured or had died while on board a ship. The South African owner of a ship was defined under the South African Ship Registration Act, which explained that “a South African ship means a ship having a South African nationality in terms of section 3,” and there were qualifications for a ship to be called a South African ship. The definition of the master was catered for under the Merchant Ship Act, section 2, which explained that, in relations to a ship, the master means “any person other than the pilot being in charge or in command of a ship,” and the definition had been amended according to the new Bill.
Adv Sobekwa said that DIRCO was a link between the member states of the international organisations and it was important for the Department to consult DIRCO when dealing with any international issues as they were the custodian of embassies in Pretoria. The DIRCO also became helpful when the Department was lobbying for membership or when unable to ascertain the owners of vessels.
Ms Boshielo emphasised that the Bill needed to be specific on how it would assist the seafarers who had been injured or died while on board a ship, as it might be difficult to win the cases against companies which had money to hire expensive lawyers to defend their cases. The Act also needed to clearly define the relationship with DIRCO so that assistance could be provided immediately to citizens who were in distress. The DoT should be commended for introducing the Bill, as it attempted to protect the seafarers who were often vulnerable.
The Chairperson commented that most of the questions that had been asked by the Members needed to be noted as inputs which could be considered when the Bill reached another stage.
Adv Sobekwa said it would be a process for the Department or the country to change the provided definitions of seaman, seafarer and the South African owner of the ship, as it would affect the international community that would be coming in the country. The Department could write a paper to the ILO and put forward its position on a number of things that still required further clarity, and this could then be debated at that level. South Africa was not prohibited from adding sections to the Act in order to safeguard and protect seafarers, as long as this did not deviate from the intentions of the Convention. She also agreed that the Members were empowering the Department on a number of issues that had not been considered in the Bill, and the Department would capture all the suggestions.
She said that the ambiguous words like “adequate” and “proper” were not affecting South Africa alone but worldwide as well and therefore this should be taken to the ILO. The complaint procedure fell under regulation, and the Department had introduced a new way of going forward to the ILO, as this procedure had not been available before. The Department was allowed to enforce regulations against any vessel or seafarer that was licensed and registered in South Africa.
The Chairperson suggested that the questions of Mr Hunsinger needed to be provided in writing in order to be correctly captured and given further consideration.
Mr G Radebe (ANC) indicated that the Constitution of South Africa dealt with the issue of child labour, but he wanted to know about measures that would be implemented if someone was found to have contravened the clause on page 4 which refers to the prohibition of the employment of children on ships. The clause also needed to be specific in terms of the permitted age of employment, as it stated between the ages of fifteen or sixteen years, and this needed to be aligned to the South African Constitution.
Adv Trevor Mphahlele, DDG: Policy and Legislation, assured the Committee that the comments that had been received through consultation with various stakeholders, especially the Cabinet, had been incorporated into the Bill, including the replacement of the word “seaman” by “seafarer”.
Adv Mbatha said that the legislation dealt with South African ships and any ship in South African waters, and therefore foreign seafarers could lay a complaint as long as they are in South African waters. The Department had received a lot of complaints from foreign seafarers, either over shortage of food or ill-treatment, and these complaints were often treated anonymously. If it was confirmed that there had indeed been ill-treatment, then the ship would be detained until the matter was resolved.
Although the Merchant Shipping Act dated back to 1951, this did not mean nothing had happened since then, as there had been amendments factored in and the last amendment was in 1994, if he was not mistaken. The Department had been amending the Act chapter by chapter, and was now only amending Chapter 4 of the Act which dealt with the fair treatment of seafarers. It was important to take into consideration that the country had not been allowed to participate in the international community before because of the apartheid regime.
The Chairperson wanted to get clarity on the exact year in which the Act was last amended, as Adv Mbatha had seemed unsure.
Adv Frank Jenkins, Senior Parliamentary Legal Adviser; said that although he was not an expert on the sector, he would try to assist with some of the questions. The Bill indicated that the last amendment of the Merchant Shipping Act of 1951 had been in 1998. Once the international treaty came to South Africa and was signed and ratified, it then had to be incorporated in terms of section 231 of the Constitution. The international treaty had also to comply with South African law in terms of the words that were used for the purpose of litigation, and this was the particular reason for changing “seaman” to “seafarer”. South Africa had had a huge emphasis on gender equality since 1994 and “seaman” was immediately seen to connote a patriarchal concept of a man on a ship. The laws of the country applied to the entire jurisdiction and therefore all countries were forced to comply with the regulations in the territorial waters of South Africa.
Adv Jenkins asked the Department to provide more clarity on clause 26 on page 10, and the real purpose of that provision, as it seemed like the question of jurisdiction -- when applying to South African ships -- was always beyond doubt. The Bill had also made it clear that all the registered ships that were in South African waters would need to comply with the stipulated regulations, whether they were foreign or not. The Department needed to present a map to the Committee to show all the territorial water zones, as it was important to note that there were a lot conflicts over domestic jurisdictions as well.
Mr Hunsinger wanted to know about the protection that would be offered to a South African crew on a ship that was owned by a foreign country, and the power of the country in enforcing the law in that instance.
Ms Sibande said that there were a number of ships in the country that were not registered, as some of them happened to be pirated from other countries. What measures were in place to deal with the issue of piracy?
Adv Sobekwa said that pirates were regulated internationally, as this had been a major problem especially on the African continent. The South African Navy did not have the jurisdiction to prosecute pirates and therefore it was critical important to have a working relationship with the South African Police Service (SAPS) if an incident of piracy took place on South African waters. The country was a member of the Convention Relating to Intervention on the High Seas, which also dealt with cases of piracy and prosecutions.
Adv Mbatha said that there was a clause in section 312 which dealt with offences and penalty provisions for any breach of the legislation, and those employing children under the age of 16 would be covered by this legislation. The Act covered South African ships as well as those that were foreign owned, but the ship’s flag indicated the state which had the responsibility to ensure that the seafarers complied with the legislation of a particular country. In cases of a non-South African ship with South African seafarers, then the Maritime Safety Authority of the particular country must ensure that the ship owner and the master of the ship complied with the international and domestic legislation of the state whose flag it flies. Seafarers who had been injured on board had a right to medical treatment at the nearest port where they could get assistance. The Labour Relations Act and Basic Conditions of Employment Act were both domestic pieces of legislation, and therefore could not be applied internationally, and that was why these two pieces of legislations would apply to South African ships.
Adv Adam Masombuka, Chief Director: Legal Services, said that all the issues that were related to piracy were currently catered for in the Defence Act of 2002.
Mr Ramatlakane asked whether it was possible to insert the explanation of the master, as it was not clear in the Act.
Mr Hunsinger indicated that the matter on clause 26 was not about seeking clarity on “wholly engaged in plying between ports in the Republic,” but the whole clause did not make any sense.
Mr M de Freitas (DA) wanted clarity on how children had been incorporated in merchant shipping legislation.
The Chairperson asked about the relationship between the terminologies that were used in the country’s Constitution and Acts, and the Conventions outside the shores of South Africa.
Adv Sobekwa responded that the issue of child labour in merchant shipping sometimes arose, although it was not very common. The issue was usually related to poverty and children often lied about their real age in order to be able to work at sea. This often resulted in the exploitation of children and the ILO had decided to regulate this matter to prevent these abuses. There was a need to harmonise the international community in international treaties, so as to ensure that there was a general consensus on agreements that had been ratified.
Adv Mbatha said that the definition of “master” had been incorporated in the Merchant Shipping Act, 1951 and the definition of “South African ship” fell under the South African Ship Registration Act, so there was no need for them to be reincorporated in the Act. There was a particular reason for the exclusion of the pilot, as the pilot could be in charge of the ship but the responsibility still rested with the master.
Adv Jenkins advised that the Committee would need to decide on the date for public participation and further submissions by different stakeholders to the Committee.
Mr Radebe asked whether it was possible to develop a new Bill that would be drastically re-drafted in order to be aligned with the Constitution and policies of South Africa.
Adv Sobekwa replied that the process of drastically starting over with a new Bill would be a huge task as it would require an overhaul of the Merchant Shipping Act, 1951. The Department had already gone far in ensuring that the Bill was aligned to both the Convention and the Constitution of the country
Mr Sibande reminded Members that the country had made a promise during the negotiations settlement not to repeal everything that had been created by the apartheid regime, but to go step by step.
The Chairperson indicated that all the comments, recommendations and inputs that had been made by the Members needed to be noted in order to be incorporated into further discussions on the Bill. The comments of the state and Parliamentary law advisers would also need to be incorporated in further consultations. The Committee would still need to do a clause by clause analysis of the Bill to see if there was a consensus on the wording that had been used, and guidance on clauses that needed to be removed or inserted. The Committee would publish information on the invitation for public hearings. The Chairperson thanked the Department for the presentation and suggested that there would be a need to look into a new law that would encompass all the priorities of the government, instead of doing amendments on a piecemeal basis.
Adoption of minutes
The Chairperson requested Members to adopt the minutes of 10 March, 25 March, 14 April, 17 April and 28 April 2015.
Mr Ramatlakane moved the adoption of the minutes of 10 March, and was seconded by Mr de Freitas. The minutes were adopted as is.
Ms Boshielo moved the adoption of the minutes of 24 March, and was seconded Mr Radebe. The minutes were adopted as is.
Mr Hunsinger moved the adoption of the minutes of 14 April, and was seconded by Mr Radebe. The minutes were adopted as is.
Ms Boshielo moved the adoption of the minutes of 17 April, and was seconded by Mr de Freitas. The minutes were adopted as is.
Mr Ramatlakane moved the adoption of the minutes of 28 April, and was seconded by Ms Boshielo. The minutes were adopted as is.
The meeting was adjourned.
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