Transport Law de lege ferenda – KU Leuven Offshore Platforms’ workers: An excluded group within an overlooked sector? Transport Law de lege ferenda – KU Leuven

Index Introduction International regulation for offshore platforms Definition of seafarer under international law Definition of ship under international law MLC seafarer’s definition MLC ship’s definition ITF’s approach Different approaches adopted my members States Conclusion/Critique

Are offshore workers seafarers?

International regulation for offshore platforms

Existing offshore regulation ILO Practice Code for health and safety of offshore workers (1982) The lacuna of international law is covered by national legislation. Advanced national regulatory regimes: United Kingdom, Norway, United States, Canada, Australia, European Union

How does international law define seafarers?

‘the term seaman includes every person employed or engaged in any capacity on board any vessel and entered on the ship's articles. It excludes masters, pilots, cadets and pupils on training ships and duly indentured apprentices, naval ratings, and other persons in the permanent service of a Government;’ – ILO C22 ‘for the purpose of this Convention the term seafarer means any person who is employed in any capacity on board a seagoing ship to which this Convention applies.’ – ILO C166 ‘The term “seafarer’ means any person defined as such by national laws or regulations or collective agreements who is employed or engaged in any capacity on board of a seagoing ship to which the convention applies’ – IMO/ILO guidelines for the development of tables of seafarers' shipboard working arrangements and formats of records of seafarers' hours of work or hours of rest

What is a ship in international law There is no universal definition of ship in international law. The term is used with different meanings in different contexts depending on the aims and purpose of each convention. Criteria often used to define ship: Operation in the marine environment - MARPOL art.2(4) Seagoing ability – Bunker Convention 2001 art. 1(1) Navigability – 1989 Salvage Convention art. 1(b) Mechanical self-propulsion – SOLAS Convention Annex, reg I/3(a)(iii) Used for the carriage of goods by sea – Hague Rules art. 1(d) Used in international seaborne trade–Ship Registration Convention art. 2 Not being permanently moored – IMSO Convention Not being permanently attached to the sea-bed – 1988 SUA Convention

Are offshore platforms ‘ships’ under international law Fixed installations – Generally NOT, with some exceptions (MARPOL, Anti-fouling Systems Convention) Mobile installations (Jack-up rigs, semi-submersibles, spar platforms, MODU’s) – YES in most cases, but there are also other approaches (the ‘dual status’ approach, the residual approach).

MLC seafarer’s definition “seafarer means any person who is employed or engaged or works in any capacity on board of a ship to which this Convention applies.” – Article II, para 1(f)

In the event of doubt… The national competent authority must make a determination on the question after consultation with the shipowners’ and seafarers’ organisations. Resolution VII (94th International Labour Conference MLC, 2006 Resolutions) concerning information on occupational groups Criteria (i) The duration of the stay on board of person concerned (ii) The frequency of periods of work spent on board; (iii) The location of the person’s principal place of work (…)

Resolution VII concerning information on occupational groups “The Convention provides seafarers with significant rights and the benefits covering their working and living conditions that might not always be available to them in their home countries. Therefore, in resolving doubts about whether particular persons are seafarers, account should also be taken of the extent to which their national legal and social system provides protection for their labour standards comparable to that provided for under the Convention”

MLC’s definition of ship “Ship means a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply” – art. II, para 1(1) “ordinarily engaged in commercial activities” – art. II, para 4

In the event of doubt.. In the event of doubt, the national competent authority decides after consultation with the other stakeholders. National law: practice, court decisions, circumstances If it is a ship under national law, then it will be ascertained if it is a ship for the purposes of the MLC (based on its location)

Problematic because… In most jurisdictions it is still unclear what is the definition of a ship, especially with regard to its relation with offshore craft. This might create legal uncertainty for many years to follow, until a solid national case law is developed.

The ITF’s approach

Basic approach: All offshore workers are seafarers

What is the position taken by states so far For example, the position of UK has been the following: It does not see fit the MLC regime to interfere with its national offshore regulatory framework. When a MODU or other offshore installation is fixed, then the HSE regime applies, whereas the MLC status applies only to MODUS when they are in transit.

Different approaches adopted my members States Australia: On a “case by case basis” Bahamas: Excludes all “offshore units” from the definition of ship, hence it excludes offshore workers Cyprus: Excludes “specialist off-shore technicians” Germany: Considers offshore workers as seafarers with the exception of  § 3 para 3 number 7 of the German Maritime Labour Act Marshall Islands: It includes offshore workers Panama: MLC does not apply to MODU’s and other offshore units …

CONCLUSION

States having ratified MLC with robust regulation already in place VS states with inadequate regulations Robust Inadequate UK; Norway; Germany; Australia; Canada; Netherlands; Denmark Benin; Gabon; Ghana; Liberia; Togo; Nigeria; South Africa; Morocco; Philippines; Singapore; Vietnam; Malaysia

Thank you!