Origins of and Rationale for Representation in the MLC

Provisions for representation in the MLC are consolidated from Convention 134. Article 8 of Convention 134 (Prevention of Accidents (Seafarers) Convention, 1970) provides for seafarers or their representatives to play an active role in implementing programmes for occupational accident prevention. The recommended draft discussed at the MLC adoption conference also made references to other sources of influence on the MLC standards for Title 4.3 on health and safety protection, these included Convention 155. Convention 155 is

the ILO’s main health and safety convention and has broad requirements for representation.

The meeting reports had no record of who introduced the text. It was absent from the early drafts and the second preliminary draft taken at the final high-level meeting had these provisions in the non-mandatory section. Provisions for health and safety committees were also absent. It appeared that the ILO office introduced the text when it prepared the recommended draft for the PTMC (PTMC 04/1). This was also when the ILO included provisions for adopting its OSHM system into the MLC. While the paragraph containing representatives was amended to its current form during the PTMC, again any discussion as to the role of these representatives and how the mechanism was to function on board was absent. The only amendment made was to change the word “powers” in the text that, representatives “powers” shall be stated to attend health and safety meetings. Shipowners instead preferred the word “responsibilities.” The seafarers later proposed to use “authority” as a compromise, which was accepted. As Table 5.2 shows, the safety representatives’ roles and rights as outlined in the COPAP, and subsequently the MLC MOSH and ILO/MLC/ITF guidelines, are limited compared with land-based provisions, although they were inspired by land-based provisions. Much of the duties for OHSM in the MLC framework are delegated to the safety officer and the OHS committees. Table 5.3 compares the provisions for representatives’ role in the COPAP (as the document named in the MLC) with the UK’s provisions, as an example of how limited these provisions are.

Table 5.3: Comparison of Provisions for the Roles and Rights of Seafarers’ Representatives with Land-based Provisions.

Code of Practice on Accident

Prevention (COPAP) Land-based provisions – UK. Representatives should be:

• Elected or appointed by and from the crew;

• Participate in safety committee meetings;

• Not be subjected to dismissal or prejudicial measures because of their role;

• Have access to all parts of the ship;

• Participate in the investigation of accidents and near- accidents;

• Have access to all the necessary documentation, including investigation reports, past minutes of safety and health committees, etc.; and

• Receive appropriate training.

• Employees’ selection of representatives in health and safety;

• Protection of representatives from victimisation or discrimination as a result of their representative role;

• Paid time off to be allowed to carry out the function of a safety representative;

• Paid time off to be trained in order to function as a safety representative;

• The right to receive adequate information from the employer on current and future hazards to the health and safety of workers at the workplace;

• The right to inspect the workplace;

• The right to investigate complaints from workers on health and safety matters;

• The right to make representations to the employer on these matters;

• The right to be consulted over the health and safety arrangements, including future plans; • The right to be consulted about the use of health

professionals;

• The right to accompany health and safety inspectors when they inspect the workplace and to make complaints to them when necessary. Sources: ILO (1996a) 2nd_{ed. Code of Practice: Accident Prevention on Board Ships at Sea and in Port.}

Section 2.8.4.: 12; For UK regulations: Walters and Nichols (2007: 13).

Other jurisdictions such as Australia have even stronger provisions allowing representatives to require dangerous work to cease and to issue improvement notices (Johnstone, 2009). Another short coming of the MLC provisions is that they do not outline a specific relationship with the State inspectorate, nor make any detailed statements as to the role of seafarers’ representative organization in supporting representation on board. In short, provisions outlining support for representation in the MLC are absent. In the MLC framework, minimal support is suggested in the ILO/MLC/ITF guidelines (3.6 para 2: 6). These guidelines suggest the appointment of a person ashore from the company to “consult closely with the master and crew on all matters concerning safety and health.” This is however not linked to the activities of the on board

health and safety committee, and echoes provisions in the ISM Code for a designated person ashore to support the company’s safety system. Further, this support might be problematic as it is within the employer’s sphere of influence and the point of representation is to have autonomous support as a countervailing force to that of the employers.

5.4. Conclusion

This chapter presented the findings of the documentary analysis. It examined how the MLC text was negotiated generally and highlighted the competing interests and constraints. The chapter demonstrated how such efforts at global governance might come to be less substantial than intended as negotiating parties make compromises to arrive at a consensus. In respect of representation, the documents revealed that it was not discussed as expected. Considering the MLC and supporting guidelines, there is the notion of joint OHS committees, yet the role and rights of representatives are limited. Further, there is a leaning towards detailed provisions of the role of all parties except trade unions in the on board health and safety activities. The records showed that representation was included as part of the consolidation process as provisions for seafarers’ representatives to participate in on board health and safety were in other conventions and ILO guidelines. This absence of a discussion is important as it raises questions as to the rationale for including such provisions without a clear intent as to its role in achieving the ILO’s decent work objectives and how it might benefit seafarers.

The absence of a discussion on the role of seafarers’ representatives is surprising, considering representation has been shown to benefit workers’ OHS, and the evidence regarding the poor employment and working conditions on ships. The architects also acknowledged the changes in the nature and organization of work at sea, and the lack of representative organizations in some countries, but this did not lead them to discuss the viability of these provisions or the mechanisms required to support their implementation and practice. The following chapter draws upon the interviews with the architects to explore why representation was not given much consideration.

6

Accounting for Representation in the MLC

…safety in shipping should not just mean prevention of accidents to the ship that may arise due to faulty construction methods, defective equipment and lack of operator training. Rather, safety in shipping should encompass the prevention of casualties (accidental death or injury) and all associated aspects of health and safety (Nielsen and Panayides, 2005: 148). ___________________________________________________________________________

6.1. Introduction

This chapter presents the findings on the origins and rationale for the provisions for worker representation in the MLC to further address the research question as to the firmness of the regulatory lead for representation on ships. Regulations legitimize the role of representatives and provide a statutory basis for them to act and as protection from discrimination because of their role (Gunningham and Johnstone, 1999). Building on the findings in Chapter 5, this chapter explores the perspectives of the architects of the MLC text, how they rationalized the lack of discussions and detailed provisions on representation, in light of the challenges on board ships.

The MLC was negotiated by government representatives and representatives of the shipowners’ and seafarers’ groups from the ISF and ITF respectively. The ILO, as the responsible organization oversaw the negotiations although its officers were not passive as they also contributed to the text (Chapter 5). This chapter draws on interviews with key informants, referred to as the architects of the MLC. They were members of the seafarers’ and shipowners’ group and one participant from the ILO. One interviewee from the seafarers’ group had represented his government at the time of the negotiations and offered some insight from a government’s perspective. The ILO interviewee also reported on various governments’ positions. Otherwise the research relied on documentation for the governments’ perspective, as described in Chapter 5, and therefore this chapter mostly explores views of the shipowners’ and seafarers’ groups and the ILO.

The chapter is divided into three main sections and a conclusion. The first two sections examine the viability of the provisions on representation by exploring their origins in the MLC and the rationale for their inclusion. The third section explores the strength of the regulatory lead by focusing on whose interest is served by having representation in the MLC as understood by the architects and how they envision representation would be supported on board ships.