Terms & Conditions for employment of Seafarers engaged on Indian flag ships

@ rEr qrfr w6l-( / GoVERNMENT OF IND|A fr"if cR-{6q riJrfrq / MtNtsrRy oF sHtpptNc irdfi IH rorfrtqnffq, DIRECTORATE GENERAL OF SHIPPING, MUMBAI F. No CR/MLC/CBA/2017 Daled:24.04.2020 Merchant Shippinq Notice No. 7 of 2020 The Directorate Generar of Shipping, Gor in order to satisfy itserf of the provisions of Merchant Shipping Act, 1958 and Rules & Regulations made thereunder, undertaken a review in the context of Maritime Labour convention (MLc), 2006 as amended to ensure comprete effect of its provisions for emproyment of rndian seafarers engaged on rndian frag ships. The Terms & conditions were deriberated in consurtations with the stakehorders and were praced on the officiar website of D G shipping from 20.12.2019 to 20.01 .2020 for varuabre comments/suggestions of the stakeholders. The comments/suggestions so received were further examined and finarized Accordingry, the said rerms & conditions, annexed to this notice as Annexure-l are promulgated with immediate effect. 2' This' issues with the approvar of Director Generar of shipping & Additionar Secretary to the Govt. of lndia. Encl.: Annexure-l ,qil- uv/ (Subhash Barguzer) Deputy Director General of Shipping (Crew) Copy to: 1 All stakeholders through DGS website 2. Assistant Director (OL) for Hindr version 3. Computer Cell for placing this Notice in the DGS website H +eI RH.T, efi {fuf,, 0Ir{ Rid Aq(,6i{r.fis ts, 6i{fir,i(g{) jd-+ooo+z 9th Floor, BETA Building, l-Think Techno Campus, Kanjur Village Road, KanJurmarg (E), Mumbai-400042 fr;Ifi€l No.: +g1-22- 2575 2c/,ol't nB *q{I/Fax.: +91-22-2 575 2o2sl35 {-tortr"rr, ogrhip{g"@nr".rn +qff+nn"bsito: $*v.dgshipping.gov.inAnnexure-l sh ips 1. Whereas Merchant Shipping Act, 195g provides for engagement & placement of lndian seafarers on lndian flag ships. 2, And whereas Section 100 and 101 of Merchant Shipping Act, 195g require a contract to be entered into between the seafarer and master of every lndian ship. 3. And whereas in addition to the contract as mentioned above, it has also been the established practice, between the ship-owners associations and seafarers'representative unions in lndia, to negotiate and agree to more detailed terms and conditions of employment for seafarers on lndian flag ships, generally referred to as,,Collective gargaining Agreement" (CBA) as defined in Rule 3 (b) of Merchant Shipping (Maritime Labour) Rules, 201G. 4. And whereas Rule 8 of Merchant Shipping (Maritime Labour) Rules, 2016 also envisage that seafarers working on rndian frag ships shaI have a seafarers' employment agreement (SEA) as defined in Rule 2 (h) of the said rules, signed by both the seafarer and the shipowner or a representative of the shipowner. 5. And whereas Maritime Labour Convention (MLC) 2006, as amended, lays down the "terms and conditions "of emproyment of seafarers. rndia has ratified MLC and made necessary provisions in the Merchant Shipping Act, L958 and accordingly promulgated Merchant Shipping (Maritime Labour) Rules, 2016 and issued Merchant Shipping Notices and Circulars providing guidelines for compliance with MLC 2006. 6. And whereas Rule 9 (5) of Merchant Shipping (Maritime Labour) Rules, 2016 lays down that wages incruded in the cBA or sEA shall be in accordance with the guiderines as laid down in the Maritime Labour Convention, 2006. 7. And whereas minimum ',notice period,, for premature termination in accordance with Rule 8 (S) (g) and in the manner prescribed in Rule g (G) and Rule 8 (7) of the Merchant Shipping (Maritime Labour) Rules, 2016 which should be specified in CBA entered between shipowners il,organisations and seafarers organisations or AoA/SEA entered between shipowner and seafarer as the case may be; 8. And whereas particulars as per provisions under Section 101 of MerchantShippingAct, 1958and Rule 8 of Merchant Shipping (Maritime Labour) Rules, 2016, is to be followed and included in a AoA/SEA; 9. And whereas transportation of seafarers' mortal remains and/or for expenses funeral as applicable is to be borne by the shipowner as per Rule 19 (2) (d) of Merchant Shipping (Maritime Labour) Rules, 2016, in case of death of a seafarer occurring on board or ashore during the period of engagemenU L0.And whereas to deal with seafarers' personal effect left on board, if any, shall be delivered to him/her or his/her next of kin at free of cost by the ship-owner in accordance with Section 152-160 of Merchant Shipping Act, 1958; 11.And whereas provlsion of the "Financial Security" by the shipowner as r:equired under Rule 19 of Merchant Shipping (Maritime Labour) Rules, 2016 as amended and relevant Merchant Shipping Notices/Circulars and the details of which shall be made available to the seafarer on board; 12. And whereas provisions under section 97 and 97 A of Merchant Shipping Act, 1958 and Rules made there-under not to be contravened; 13. And whereas monthly rate of Seamen's Provident Fund (SpF) payable in accordance with Seamen's Provident Fund Act, 1966. The SpF shall be payable to Seamen's Provident Fund Organisation (SpFO) for all categories of seafarers employed on board ships except for trainees. riding crew or any other person employed on board ship who is not defined as a "seafarer" by lndian Maritime Administration; 1.4. And whereas welfare fund contribution to be made by shipping companies to Seafarers Welfare Fund Society (SWFS) in accordance with Rule 6 of Merchant Shipping (Recruitment & placement of Seafarers) Rules, 2016; 15. And whereas it has been noticed that the terms and conditions of employment of seafarers are not mentioned clearly and in unambiguous terms in many instances leading to ineffective enforcement of rights by the seafarers for resolution of disputes, especially with reference to li,wages, death and disabirity compensation and basic conditions to work on board ship. 16. ln view of the above, the following are prescribed which shall be incorporated in clear and unambiguous manner in the ,,terms and conditions "of employment in SEA/AoA for seafarers to be engaged on lndian flag ships: 16.1. The "term & conditions,, of employment of seafarers, employed on lndian flag ships, contained in sEA or AoA shall be in compliance with the Merchant Shipping Act 195g, as amended, and Rules made there under e.g. Merchant Shipping (Maritime Labour) Rules, 2016, and relevant Merchant Shipping Notices/Circulars/Orders and guidelines issued there-u nder. 76.2. For the purpose of this Notice .,Coastal Ship,,shall mean any of the following ships excrusively engaged in rndian coastar trade: (1) Ships (except tankers) under 6,000 Gross Tonnage (GT) and under 9,000 Kilowatt (KW) main propulsion power, registered under Merchant Shipping Act, 195g; (2) Dredgers under 10,000 GT and under 10,000 KW propulsion power operating in lndian ports on the lndian coast; (3) oir Tankers and vegetabre oil carriers under 3,000 GT and under 3,000 KW main propulsion power; (4) River Sea vessels (RSVs) category 1.,2,3, and 4; provided that these provisions shall not apply to: _ (a) Ships carrying bulk chemicals or gas in any form (packaged or otherwise; (b) Fishing vessels; (c) Miritary and Government ships not used for commerciar purposes. 16.3. The contents of SEA/AoA and CBA where forming part of SEA/AoA, shall also include the following: (a) GT, type of the ships and trading area (for example: Foreign Going/Nea r Coasta I Voyage/Coastal/Ha rbor); (b) National holidays are to be taken in to accounU (c) The overtime allowance whether on fixed monthly (mention hours) basis or on the basis of actual overtime hours worked; 0q(d) Other payable allowances in the wages of seafarers, if any. 16.4. The CBA shall have express provision for welfare fund contribution to be made by shipping companies to Seafarers Welfare Fund Society (SWFS) and Seamen's Provident Fund Organisation (SPFO). CBA shall not have any provision for deduction or receipt or collection of any contribution in the name of welfare fund or provident fund except for SWFS and SPFO. Provided that the ship-owners who may wish to provide any additional benefits to the seafarers not already covered under the SWFS/SPFO, are free to provide such benefits, for the welfare of seafarers, through mutual agreement entered between such ship- owners association and the seafarer union. However, such a mechanism shall not form part of the CBA. 16.5. Welfare fund contribution to be made by the shipplng companies referred to in para 16.4 above shall not be deducted from the wages payable to the seafarer. L6.6. Respective CBA agreed between ship-owners association and seafarers' organizations including wages as determined under the CBA shall be strictly implemented by the individual members, however such shipowners association and seafarers organisations should be duly registered in accordance with the lndian laws. L6.7. Where the CBA does not form part of SEA/AoA signed between seafarer and ship owner for any reason including their not being member of any shipowners association, it must comply with the following in their SEA/AoA: - (i) "terms and conditions" of employment are detailed in the AoA/SEA with respect to the amount of wages, other remuneration, death & disability compensation and other terms and conditions for a seafarer shall be no less than the amount agreed upon in any CBA [in the relevant sector [i.e. Foreign Going/HomeTrade/Coastall between any reglstered shipowners/seafarers' organization within lndia or; (ii) the amount periodically set by the Joint Maritime Commission or another body authorized by the Governing body of the lnternational Labour Office. aiNote 1: Since the CBA is the agreement between majority of the stakeholders based on an intense consultative process, which is also revised from time-to-time based on various relevant factors, is a vital document for bench marking the wages of different categories of seafarers and anything below that mentioned in SEA, which does not refer to any CBA, is considered to be unfair and inappropriate. lt has been considered that the CBA, which contains the wages and other terms and conditions of employment of a seafarer on board a ship, is a result of a consultative process between the association/bodies representing employers and the employees and provides a benchmark for the purpose. Note 2: For greater clarity it is further explained that the MLC, 2006 includes the international procedure for establishing a minimum monthly basic pay or wage figure for able seafarers (AB). The minimum wage as set periodically by the lnternational Labour Organisation's Joint Maritime Commission. Although this minimum wage relates only to able seafarers, in practice the wage level for other seafarers is extrapolated from the amount agreed in the Joint Maritime Commission, IRef. C2.2-wages, Compendium of Maritime Labour lnstruments of ILO Second Edition, 20151 16.8. The terms and conditions for employment of seafarers shall be set out or referred to in a clear & unambiguous manner. Any provision made in the AoA/SEA/CBA should not contravene the provisions under Merchant Shipping Act, 1,958, as amended or Merchant Shipping (Maritime Labour) Rules, 2016) or any other rules made or Notices/Circulars/ Guidelines issued thereunder or any other applicable Act or Rules. However, following points are reiterated for compliance: - (a)all travel arrangements and costs including boarding & lodging arrangements where required, for seafarers when joining ship and for repatriation upon sign off from ship which will be responsibility of the shipowner; (b) personal protective and working gear, food & catering, drinking water, hygienic and healthy living conditions and recreational ilryfacilities on board shail be provided to the seafarers free of cost which shall be mentioned in the CBA/AoA/SEA; (c) death and disability compensation for all ,,trainees,, shall not be less than Rs. 10 Lakh, [As per decision of lndian Maritime Administration conveyed to INSA vide F.No.CR/CDC/1/2018, dated 15.10.2018I 16.9. The payment of "Gratuity,, is optional as may be agreed in the CBA/AoA/SEA. 15.1.0. Agreement should be gender neutral. (provisions of the Maternity Benefit Act, i.961, as amended, should apply). 16.1L. The disability compensation which shall be over and above the cost of treatment and the wages payable as applicable. A disability of 50% or more shall be considered as full disability. L6.12. ln case of loss or damage to the personal effects of the seafarer, as a result of the vesse[s, where he/she is emproyed, foundering or being lost, the compensation to the seafarer wiil be made in accordance with the terms and conditions agreed in CBA/AoA/SEA. 16.13. cBA/AoA/sEA shail specify the riabirity of ship-owner to provide regar support and to bear legalexpenses and means to coverthis liability in the event if a seafarer is stranded, detained, arrested or in the captivity at a port during the course of employment onboard ship. L6.14. The provision for probation period in case of Deck or Engine cadet or Trainee Rating [a probation period of not exceeding 10 weeks shail be applicable.l 16.15.Considering the principle of free collective bargaining system, the wages as determined in the CBA, sector wise [vig. Foreign Going/Home Trade/Coastall shall prevail. 15.16.Without prejudice to the principle of free collective bargaining it system, must be ensured that the CBA/AoA/SEA shall not contravene provisions under section 97 and 97 A of Merchant Shipping Act, 1958 and Rules made there-under. 16.17.Union/Association may collect their subscription & fee directry from seafarers and it shail not be part of cBA. Any deduction towards union fee, donation from wages of a seafarer or on beharf of seafarer wiil be ild,subject to the seafarer giving a clear written authorization to the employer. 16.18.These terms and conditions contain minimum broader requirements; the collective agreements may cover other requirements under Merchant shipping Act, 195g as amended and Maritime Labour convention, 2006 as amended in detair as may be mutuaily agreed under CBA. 16'r-9. Copy of a cBA entered/renewed shalr be submitted to Administration IDirectorate General of Shipping, Shipping Master Office & Seamen,s Employment Office] for reference and record. W,