Onshore complaint handling for seafarers and the steps up to the flag State and the ILO (MLC Standard A5.2.2)

A ship is alongside in a foreign port, and one seafarer believes the wages paid do not match the agreement. The on-board complaint procedure is posted on the ship but has not been used. May this seafarer speak to an officer met on the quay, and if so, what happens next?

MLC, 2006 Regulation 5.2.2 and Standard A5.2.2 answer that. The answer is built as an order in which a complaint climbs from the ship to the shore, with the places where that order can be skipped written into it.

A complaint can go straight to an officer in the port the ship has called at

Each Member shall ensure that seafarers on ships calling at a port in the Member’s territory who allege a breach of the requirements of this Convention (including seafarers’ rights) have the right to report such a complaint in order to facilitate a prompt and practical means of redress.

It is the right to report. Not something done by leave, but a right. And the duty to secure that right falls on the country the port belongs to, not on the flag State of the ship.

A complaint by a seafarer alleging a breach of the requirements of this Convention (including seafarers’ rights) may be reported to an authorized officer in the port at which the seafarer’s ship has called. In such cases, the authorized officer shall undertake an initial investigation.

The person who receives it is the authorized officer in that port. And what that person then does is fixed. They undertake an initial investigation. The verb in the provision is shall, so whether to investigate is not a choice.

In an EU port one more layer attaches.

All complaints shall be subject to a rapid initial assessment by the competent authority. This assessment shall make it possible to determine whether a complaint is justified.

First it is sorted by whether it is justified. Where it is, the authority takes the necessary action while letting anyone directly concerned by the complaint make their views known. Where the authority deems it manifestly unfounded, it does not simply let it drop: it informs the complainant of that decision and of the reasons for it.

Whether the on-board procedure was used is weighed, but it is not a condition of entry

Where appropriate, given the nature of the complaint, the initial investigation shall include consideration of whether the on-board complaint procedures provided under Regulation 5.1.5 have been explored. The authorized officer may also conduct a more detailed inspection in accordance with Standard A5.2.1.

What the sentence calls for is consideration. It means the initial investigation weighs whether the on-board procedures were explored, not that they must be explored before a complaint is taken. One more condition sits in front of that: Where appropriate, given the nature of the complaint. Depending on the nature of the complaint that weighing may not happen at all.

The place where the step is skipped is written out in the Guideline, with its reasons.

There should be good reasons for considering a complaint before any on-board complaint procedures have been explored. These would include the inadequacy of, or undue delay in, the internal procedures or the complainant’s fear of reprisal for lodging a complaint.

Good reasons are required, and three examples follow. Internal procedures that are inadequate, internal procedures that are unduly delayed, and the complainant’s fear of reprisal for having lodged the complaint. The first two are states of the procedure and the third is a state of the seafarer. Because the third one is in there, a well built company procedure does not by itself close this door.

Whether it is one person’s case or the whole ship’s decides the next door

Where a complaint referred to in Standard A5.2.2 is dealt with by an authorized officer, the officer should first check whether the complaint is of a general nature which concerns all seafarers on the ship, or a category of them, or whether it relates only to the individual case of the seafarer concerned.

What is sorted first is the reach of the complaint. The next step then follows from which way it went.

Nature of the complaint	Next step the Guideline recommends
General, concerning all seafarers on the ship or a category of them	Consider a more detailed inspection in accordance with Standard A5.2.1
Relating only to the individual case of that seafarer	Examine the results of the on-board procedures, and where they were not used, suggest taking advantage of them

There is one further fork here. Where the investigation or the inspection reveals a non-conformity falling within the scope of paragraph 6 of Standard A5.2.1, that paragraph applies as it stands. A procedure that began as a complaint merges into the procedure that stops the ship from sailing.

Where it is not resolved on board, the flag State has to answer within a deadline

The officer, where appropriate, pushes for the complaint to be resolved at the ship-board level. In any investigation the master, the shipowner and anyone else involved in the complaint have to be given a proper opportunity to make their views known. It is not a structure that runs on one side’s account.

Where it is not resolved on board, the next step opens.

Where the provisions of paragraph 4 of this Standard do not apply, and the complaint has not been resolved at the ship-board level, the authorized officer shall forthwith notify the flag State, seeking, within a prescribed deadline, advice and a corrective plan of action.

Two conditions have to overlap before it goes to the flag State. The non-conformity route of the previous section must not apply, and the complaint must not have been resolved at the ship-board level. What is sought from the flag State is also two things. Advice and a corrective plan of action, with a prescribed deadline attached.

The place where the officer may step back is written into the Guideline. It is where the flag State demonstrates that it will handle the matter, that it has effective procedures in place for that purpose, and that it has submitted an acceptable plan of action. All three have to be there together.

Where it is still not resolved, the report goes to the Director-General

Where the complaint has not been resolved following action taken in accordance with paragraph 5 of this Standard, the port State shall transmit a copy of the authorized officer’s report to the Director-General. The report must be accompanied by any reply received within the prescribed deadline from the competent authority of the flag State.

The port State sends a copy of the officer’s report to the Director-General of the ILO. Where the flag State replied within the deadline, that reply is attached. The fact that a flag State did not answer is recorded the same way. The same goes to the shipowners’ and seafarers’ organizations in that port State, and statistics and information on complaints that were resolved are submitted regularly as well. The provision states the purpose too. A record is kept so that parties which might want to use the relevant recourse procedures can see it.

In EU ports there is one more line of notification. Member States inform the flag State administration, with a copy to the ILO where appropriate, of complaints that are not manifestly unfounded and of the follow-up action taken.

The name does not reach the master or the shipowner

Appropriate steps shall be taken to safeguard the confidentiality of complaints made by seafarers.

The MLC sets only the test: take appropriate steps. The EU Directive nails down the minimum those steps have to include.

The identity of the complainant shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall take appropriate steps to safeguard the confidentiality of complaints made by seafarers, including ensuring confidentiality during any interviews of seafarers.

Two things. The identity is not revealed to the master or the shipowner, and confidentiality is kept during interviews of seafarers as well. The second is attached because the interview itself can give the identity away. If the ship can see who was called in, the outcome is the same as naming the person.

This locks into the Guideline above. Fear of reprisal is a reason for skipping the on-board procedure, and once the complaint is filed, keeping the identity closed is what reduces that fear.

Worth confirming

The passages above come from Regulation 5.2.2, Standard A5.2.2 and Guideline B5.2.2 of the consolidated MLC, 2006, and from Article 18 of EU Directive 2009/16. Standard A is mandatory and Guideline B is not. The step that sorts by the reach of the complaint and the place where the officer may step back are in Guideline B5.2.2, so what matters is how the country took them up. Who counts as the officer in that port, where a complaint is filed, and how many days the prescribed deadline runs are filled in by that country’s own system.