Merchant Shipping Amendment Bill [B12- 2015] : deliberations & adoption

NCOP Economic and Business Development

01 September 2015
Chairperson: Mr E Makue (ANC, Free State) (Acting)
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Meeting Summary

The Committee considered and finalised the Merchant Shipping Amendment Bill. Members were unanimous in their support of the Bill and it was adopted without amendments. Clauses 7, 8,9,14,15,18,27 and 28 that were of interest to members during the Committee’s briefing on the Bill were highlighted. Members did ask whether the Bill conformed to the Maritime Labour Convention, 2006 (“MLC, 2006”) and the Work in Fishing Convention 2007 (“C188”). Concern was raised about the Bill allowing “young persons” between the ages of 16 and 18 years to do apprenticeships or undergo training aboard ships in that they might be take advantage of. The concern was allayed in that the Bill provided recourse to protect such “young persons”. The Bill did not allow persons between the ages of 16 and 18 to be employed on a full-time basis aboard ships. Members also asked whether other pieces of South African legislation were in line with the Bill.

Committee Minutes dated the 11 August 2015 was adopted without amendment.

Meeting report

Apologies were received from the Deputy Minister of Transport Ms Lydia Chikunga and the Director General, Mr Pule Selepe, who were unable to attend the meeting.

Mr Pumlani Mbeki, Legal Manager: Maritime Policy and Legislation (DoT) represented the Department. Other members of the DoT were en route to the meeting. Adv Gary Rhoda, Parliamentary Law Advisers Office, was also in attendance.

Merchant Shipping Amendment Bill
The Acting Chairperson pointed out that the Committee had previously been briefed on the Bill by the DoT and had engaged in discussion on some of the clauses of the Bill. In as much as no member at the time had any objection to the Bill parliamentary processes prescribed the procedures to be followed in dealing with bills. The Committee had been advised that in deliberating and finalising the Bill it had to be dealt with clause by clause.

Mr Rhoda confirmed that yes the Committee had to deal with the Bill but the rules did not stipulate that the Committee had to go through the Bill clause by clause.

The Acting Chairperson pointed out that the Committee Researcher Mr Zibele Ngxishe had drafted a document summarising the contents of the Bill. He read out excerpts from the document for the benefit of members. The Committee had been advised that the Bill conformed to international conventions ie the Maritime Labour Convention, 2006 (“MLC, 2006”) and the Work in Fishing Convention 2007 (“C188”)

Mr Rhoda confirmed that the Bill conformed to international obligations.

Mr W Faber (DA, Northern Cape) stated that the DA agreed with the Bill in its totality, and not foresee any problems with the Bill.

Dr Y Vawda (EFF) asked if the DoT could very briefly clarify the issue of children over the age of 18 and those under the age of 18 as it pertained to the Bill.

The Acting Chairperson asked either the DoT or the Parliamentary Law Advisers Office to speak to the definition of a child.

Mr Rhoda said it was his understanding that the Bill used the term, “young persons” referring to persons over the age of 16. It covered persons over the age of 16 and under the age of 18. This category of persons was allowed to do apprenticeships on ships or to undergo training. The Bill provided for protection of “young persons” doing apprenticeships or undergoing training on ships. The Bill did not refer to children per se.

The Acting Chairperson wanted to have absolute clarity over the matter and asked whether the Bill spoke about “young persons” over the age of 16 years and under the age of 18 years. He also asked whether provision was only made for “young persons” to be allowed to do apprenticeships and undergo training on ships and not to be employed on a full-time basis.

Mr Mbeki confirmed what the Acting Chairperson was stating to be correct.

Mr Vawda was not entirely convinced that the Bill would adequately protect the “young persons” referred to in the Bill. He felt that “young persons” on a ship should at least be 18 years of age. It did not matter whether they were part of an internship programme or undergoing training. The age of 16 was far too young. He was concerned that people might take advantage of these “young persons”.

The Acting Chairperson explained that the fishing/shipping trade was somewhat specialised in the manner of its employment of persons. Persons joined the trade at a young age by virtue of the shipping village in which they stayed and the family ties linked to the trade. Generations of families worked in the trade. It was inevitable that a young person would follow in his father’s footsteps. The Bill aimed to protect such a “young person”. Only if a person was over the age of 18 could he or she be employed fulltime. An apprenticeship was not considered employment per se.

Mr Mbeki once again confirmed that what the Acting Chairperson was saying about the Bill was correct. 16 years of age or younger was considered a child. The Bill covered persons from 16 years of age to 18 years of age. The idea was not to exclude a person from 16 years of age to 18 years of age from being able to do an apprenticeship or undergo training on a ship. The Bill wished to strike a balance to protect the “young person” until they were 18 years of age when they could decide whether or not to be employed on a full-time basis.

Mr Vawda was still somewhat concerned that there was a loophole where persons between the ages of 16 and 18 could be taken advantage. The fear was that the “young persons” would be exploited. Any form of apprenticeship involved tasks of labour.

Mr S Mthimunye (ANC, Mpumalanga) asked whether other pieces of South African labour legislation were in line with the Bill.

Mr Rhoda confirmed that the Bill was in line with SA’s labour law regime. The Bill contained provisions that covered the minimum ages of employment as detailed in conventions. He referred to page 24, line 20 of the Bill. The minimum age of employment in the conventions MLC 2006 and C188 was 16. The Bill however only provided for a 16 year old to be taken on board a ship for an apprenticeship or for training. The master of a ship would be held responsible if there were infringements on vocational training where there were labour transgressions such as excessive hours of training etc. The Bill made provisions for recourse to protect “young persons”. The reality was that people would always try to take advantage of people where the opportunity presented itself. There was recourse provided for in the Bill.

Mr Mbeki noted that the conventions were not contrary to SA’s domestic laws. The buck stopped with the master of the ship. The master of a ship was responsible to keep a ship in line with legislation and regulations. 

The Acting Chairperson proceeded to highlight clauses that Members had raised issues with at the time of the briefing.

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.

The Acting Chairperson asked why “seafarer” had replaced the term “seaman”?

Mr Mbeki explained that the use of “seafarer” was considered better than “seaman” as it was more neutral. There was a balance between the masculine and feminine gender.

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 sixteen.

The Acting Chairperson asked what the difference between a master of a ship and an owner of a ship was.

Mr Mbeki explained that the master of a ship was in control of a ship. He was so to say the Chief Executive Officer (CEO) of a ship. The employer was someone else who could be sitting elsewhere in the world.

Mr Masanbuka added that the master was also the employee of the owner. The master was the commander in charge of a ship.

The Acting Chairperson said it meant that the master of a ship was responsible for everybody on the ship.

Mr Masanbuka responded that the master represented the owner of the ship.

The Acting Chairperson observed that the Bill held the master accountable.

Mr Rhoda added that the master was the captain of the ship.

The Acting Chairperson said that the Bill provided adequate protection to the seafarer.

Clause 9 of the Bill amended section 111 of the Act by prohibiting the owner or master of a ship to employ a young person to work at night unless it was part of their training.

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 of the Bill 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.
The Bill also substituted the reference to the “National Welfare Act” with reference to the Social Development Act, 2001 (Act No. 3 of 2001).

Clause 18 of the Bill proposed a new section 159A of the Act. The new section imposed a duty on the master or owner of a South African ship to make accessible a complaints procedure on board a ship and also allowed lodging of complaints by seafarers.

Clause 27 of the Bill 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 namely, the MLC, 2006 and C188.

Clause 28 of the Bill aimed to amend section 356bis of the Act. The amendment sought to provide that the two Conventions, namely 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.

The Acting Chairperson having reached the end of the Bill asked members if there were any comments.

No comments were made and the Bill was found to be acceptable by members.

The Acting Chairperson read out the motion of desirability on the Bill and the Committee agreed to the Bill.

Committee Minutes
Minutes dated the 11 August 2015 was adopted without amendment.

The Acting Chairperson in conclusion provided the Committee with a breakdown of its oversight visit programme for its upcoming trip to the KwaZulu-Natal Province.

The meeting was adjourned.  
 

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