Operations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 1 of 21
Date: 25 Oct 04 / Distribution ABD
1. IMMEDIATE ACTIONS
Merchant Shipping Notice 1769(M) now makes ILO 178 inspections mandatory.
It applies to all seagoing ships of 500 GT and over (excluding Fishing Vessels).
Even though mandatory inspections are limited to ships of 500 GT and over, national regulations still apply to all ships as appropriate.
1.1ISM SHIPS
This convention applies from 2 July 2004 to UK flag vessels. No ISM Audits after this date should be undertaken without an ILO inspection (Unless special arrangements have been made, for example the ship is visiting a UK port regularly and the ILO inspection follows a few days later). (In future it is anticipated that ISM, ILO and ISPS will be carried out concurrently).
1.2DOMESTIC SHIPS (Non – ISM)
These need to be targeted separately, but should all be inspected within the same phase in period of 3 years. In due course a list of ships will be produced to aid targeting.
We have yet to agree an interpretation of “seagoing “for the purposes of ILO 178, but we are proposing the following - “vessels proceeding to sea more than 3 miles from land and being lived on either at sea or in port. For example, it does not apply to Class VI passenger ships on day excursions only.
Though ILO 178 does not apply to vessels below 500gt, certain free standing ILO Conventions do. With MCA’s greater focus on such issues, surveyors should also give consideration to living and working conditions on vessels below 500gt and continue to record these as a GI on MSF 1603 ( not as an ILO 178 inspection on MSF 1656).
2. REQUIRED STANDARDS
Only apply the requirements which are within UK law – do not go beyond statutory requirements. A list of UK Merchant Shipping regulations (updated list) is attached at Annex Ifor reference. These are the responsibility of MCA to enforce as appropriate. There will be other regulations applicable to ships and seafarers which are the responsibility of other Government Departments (OGD’s ) and you should be guided by those conventions ratified by the UK(at Annex II). Further copies of ILO documentation can be found on the ILO Website under :ILO Library, ILO Data base, ILOLEX.
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 2 of 21
Date: 25 Oct 04 / Distribution ABD
3. ARRANGING INSPECTIONS
Customer Service Managers have been asked to write to their companies and the Chief Executive has written to the Chamber of Shipping asking ship owners to forward plan these inspection requirements. The following are a range of options which will be available to them:
- Complete the inspection on more than one visit (more likely in the UK only)
- Complete the inspection in one port visit, even if this involves a slight delay.
- Surveyor may sail with the ship, for a short voyage, to complete their inspection.
- Request attendance of more than one surveyor (resources permitting), which may require allocation of more officers and crew for the inspection.
The key message is to remain flexible and work with the owner to achieve a suitable solution, which will allow adequate time for inspection.
4. REPORTING
New form MSF 1656
-MSF 1656 is a triplicate form which should be completed in the normal manner. All 16 items must be checked and recorded to constitute a proper inspection.This should be married up with MSF 1602 (Form A) and MSF1603 (Form B)which will also be completed at the same time. ,
-It may be helpful to refer to the appropriate ILO topic in the text of each deficiency if not clear. All defects relating to ILO should be kept on separate pages to those of other categories, because the report (MSF 1656 and 1603) should be posted on the Ships’ Notice Board. Also on MSF 1656 refer to the relevant page of Form B, so that there is an easy to see link between the two documents;
-The first version of MSF 1656 will be amended to include provision for the recording of a complaint triggered Inspection. These are likely to be few and far between but scope to record them is provided on the MCA Copy Only and it should not be left on board. An associated Pro Forma - MSF 1656A ( new –Annex III) should also be completed and stapled to the MCA Copy .
-Examples of completed MSF 1656, MSF 1602 and MSF 1603 were included with ILO 178 training packs.. A list of the deficiency codes to be used is attached at Annex IV
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 3 of 21
Date: 25 Oct 04 / Distribution ABD
5. RECTIFICATION OF DEFICIENCIES
-When deficiencies have been rectified, the Master should confirm in writing to MCA, and a copy of this notification should also be attached to the Ship’s Notice Board, for the information of the crew. Following a suitable period of at least two weeks, the Master may then remove the report from the Notice Board and retain the report with his official ships documents, so it available for inspection at all times (The report must be retained on board for a period of at least three years).
6. RECORD KEEPING :
Ship files
-For ILO – use CM 27/10 “International Labour Organisation – Ship Inspections”for individual ship files. It is suggested that these are cross referenced with the corresponding ISM (SMC) CM file. Where no deficiencies are found use the existing ISM file.
SIAS Completion:
- On Form A, record ILO 178 Inspections on MSF 1602 as Type of Survey = “ILO”using the usualR= Renewal or P=Part Renewal
- It should also be recorded on the MSF 1603 as an “S”=Survey.
- Where an ILO deficiency is identified at a time other than a full ILO 178 inspection, record the deficiency as “I” = Inspection
Complaints:
An option is provided on the MCA only copy to indicate if the inspection is carried out as a result of a complaint [Was inspection triggered by a complaint (Y/N)?]) If Y complete MSF1656A – this is a new form.
. …
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 4 of 21
Date: 25 Oct 04 / Distribution ABD
.
The complaints Pro Forma contains the following
- How was complaint received?
- Who from – crew/officer/both?
- Range of complaints (Form MSF 1656, items 1 to 16) ?
- What action was taken ?
- Was evidence found ?
- Were samples taken ?
- Was master informed ?
- Union involvement ?
- Was inspection undertaken on behalf of MCA ?
The SIAS operator will record from the MCA copy that the inspection was in response to a complaint. Further information from a drop down menu will provide complaint source options. At this point in time MSF 1656A data will be kept separate from SIAS and held on a database by Survey branch
7. CONTACT DETAILS OF THE SOCIAL PARTNERS
Welfare is an obvious point where contact with the unions/ITF may be appropriate. In the unlikely event that you feel this may be appropriate please contact Alex Steele in Survey Branch.
Where a complaint or any similar issue is involved, this should be directed to HQ who will take matters forward with the appropriate organisations. In any event it should be up to the complainant to inform their own union or organisation , not MCA.
8. E-TRACK
Number = 40715 – “ILO 178 Seafarer Conditions Survey”
Thishas been assigned as a Key Business Indicator.
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 5 of 21
Date: 25 Oct 04 / Distribution ABD
- CHARGING REGIME
UK Flag
For UK flag vessels this inspection is free of charge until further notice. Inspection times for an ILO inspection are benchmarked at 2 hours as an average. This will clearly depend on the ship type and standards encountered. A better guide might be related to 25% of the ISM audit time. These inspections are free unless a revisit is required when normal charging is applied. All extraILO survey time should be separately recorded from ISM work which remains chargeable. Extra time for ISPS is also free of charge and recorded separately. Where a combined (ISM, ILO and ISPS) survey is undertaken all travel time will be charged against the ISM audit job number. Where a free standing ILO inspection is undertaken at the shipowners request then this will be charged for in full including all travel time. This should be made clear to the owner in advance.
For a joint ISM/ILO/ISPS audit, it is estimated that on average 2 or 3 man days is required. This is apportioned approximately as:
-ISM/SMC audit – 8 hours
-ILO inspection - 2 hours
-ISPS audit - 4 hours
-Inspection/drill - 4hours
This is an average benchmark, and will be greatly increased for example for passenger ships and reduced for small coasters.
Non UK Flag ( includes REG)
These inspections should be charged to the ship at normal surveyor rates. This Convention will be extended to REG flags, but Isle of Man and Bermuda already have reporting procedure in place. Where MCA is asked to undertake an inspection on their behalf, a report on any deficiencies identified to the flag administration is required.
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 6 of 21
Date: 25 Oct 04 / Distribution ABD
10. INPUT AND CONTROL
All Marine Office SIAS operators were issued with instructions about how to enter ILO 178 inspection data on to SIAS . Further guidance can be obtained from Rita Dixon in Inspection Branch on Tel: 023 80 320 219.
For the first six months from 2 July 2004 can all surveyors also arrange for a copy of all ILO 178 inspection reports to be sent by fax to Alex Steele in Survey Branch on Fax: 023 80 329 104 PLUS the associated Forms A and B. Where a policy issue or complaint occurs and a CM /27/10 file has been raised please forward to Alex Steele in Survey Branch in Bay 1/01 with details of the problem or the complaint along with the action already taken or further proposed course of action.
- CREW AGREEMENTS
Some ambiguity has already been experienced in this area. Section 25 of the Merchant Shipping Act 1995 requires that unless specifically exempted, there shall be an agreement in writing made between each person employed as a seaman on a UK ship and the person employing him. The employer in this context may well not be the shipowner. Section 25 also provides that the provisions and form of all crew agreement must be of a kind approved by the Secretary of State.
So far as the question of crew lists is concerned all persons who are parties to the crew agreement should sign the ALC1(a).This should be available for inspection and will show individual seafarers wages. The ALC1(b) is only to be signed by persons who are exempted from the requirement to have a crew agreement. This would normally be the Master, as the employers representative, plus any persons who are subject to a specific exemption issued by the MCA or contained in the Crew Agreement Regulations. The CITRIX database contains details of recent registered Exemptions. Exemptions are issued by Seafarer Health and Safety Branch (Contact: Mike Lines).
- CONTRACTS OF EMPLOYMENT / MANNING AGENCIES
Evidence of these should be available at inspection. These can be different from different employers (manning agents). It is reasonable to expect an on board grievance procedure, which could supplement the employee/ employer (agent) agreement which may differ from employer to employer. The following recent case study may offer useful guidance :
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 7 of 21
Date: 25 Oct 04 / Distribution ABD
Question
“As a ferry operator we do use a number of agencies to provide personnel for different areas of our business. Those that are employed on board a ship are absolutely regarded as seafarers and therefore all regulations are complied with concerning, for example, Hours of Work, Medical Certificates, Food and Catering etc. They are fully represented through the safety organisation on board and standards are verified through, amongst other things, Masters inspections of crew accommodation.
The question that arises is whether the MCA will expect a Master at sea to be able to provide evidence that a seafarer employed by an organisation other than the company has the correct legal terms and conditions of employment, freedom of association/right to organise, sickness benefits etc. It would be totally proper for the Master to be able to identify who a particular seafarer works for and then for investigations to centre around that employer, but rather more difficult to have access to the appropriate contracts of employment.
As a Company we take care in selecting agencies to provide us with services and will endeavour to bring the attention of MSN 1769 to the attention to all that we presently do business with.
Answer
The following reply was given in best faith :
As the company is responsible under the ISM Code, it has a responsibility to comply with relevant mandatory rules and regulations and take account of relevant guidance. In this respect, if it uses a manning agency it should ensure that it complies with relevant Merchant Shipping regulations. For example their contracts of employment must not include any illegal clauses, such as would infringe their legal rights or anything which conflicts with the Crew Agreements. Contracts of employment are a personal document between employer and employee but surveyors have the right to check for illegal practices, such as infringement of rights to establish or join a trade union, freedom of speech, to speak to an official, their hours of work, payment for recruitment and repatriation, compliance with Crew Agreements (MGN 148) etc.
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 8 of 21
Date: 25 Oct 04 / Distribution ABD
If a company uses an employment agency, it has a responsibility to ensure persons employed onboard are in compliance with the relevant regulations. MCA would expect that the company carried out its own audits and inspect sample documents. Surveyors should expect companies to keep records/copies of those, as evidence that their manning agents also comply with regulations.
Surveyors should speak to a sample of crew members and sighting of their contracts of employment would provide objective evidence that they do not contain illegal clauses. MCA would expect crew members to have their own copy onboard. The inspections are a random sampling process, but if during questions the seafarer confirms that their legal rights have been preserved then surveyors could accept verbal re-assurance. However, the seafarer may wish to exercise their legal right and make complaints and in such cases surveyors would need to sight their contracts. MCA would recommend that the company also have copies , which MCA can sight as evidence of compliance. As these inspections take place at sea rather than in the office, it would be helpful if they were carried on board.”
12. NATIONAL MINIMUM WAGE (NMW)
UK policy is that the amount of wages is a matter between the ship owner and employee, unless the National Minimum Wage applies.
Guidance received from DTI on the NMW ( September 2004)
REVISED GUIDANCE AGREED WITH DTI
Seafarers are covered by the minimum wage legislation whilst employed to work on a United Kingdom registered ship working in the United Kingdom or its internal waters (i.e. estuaries and, also, the sea between the United Kingdom mainland and many islands). In addition, when working on board a ship registered in the United Kingdom, a seafarer must be paid at least the minimum wage (wherever in the world that ship may be) unless :-
1) - all his work takes place outside the United Kingdom (and its internal
waters) or;
2) - he is not normally resident in the United Kingdom and the ship is
outside the United Kingdom (and its internal waters).
We are informed that this is the legal position and is unlikely to change, but there remain some ambiguities, for which we are seeking better clarification. Until any further guidance is issued, the following should be of assistance.
/ Maritime and Coastguard AgencyOperations Advice Note / Document
Number:
OAN 378
Revision: 01 / ILO 178 INSPECTIONS / Page 9 of 21
Date: 25 Oct 04 / Distribution ABD
When dealing with wage inspections, simply check that the crew are paid according to the Crew Agreements and their Terms & Conditions of Employment.
If a crew complaint is received about the amount of wages in relation to the National Minimum Wage, surveyors do not have the competence to investigate, but should take the relevant details with the intention of passing the matter on to Inland Revenue (who are responsible for enforcement on behalf of DTi).Contact the Inland Revenue Minimum Helpline on 0845 6000 678. They have been made aware of this possibility and are happy to assist.
MCA has considered some common examples for illustration purposes only:
EXAMPLE SITUATIONS FOR NATIONAL MINIMUM WAGE (UK Ships)
Example Ship / Typical Trade Pattern / Time in UK “Internal Waters” / NMW(UK Resident) / NMW (Non- UK Resident)
IoW Ferry / Southampton to Isle of Wight (Internal Waters) / 100 % / Always applies / Always applies
Passenger Ferry / Dover – Calais, perhaps 4 calls to Dover per day / 25% / Always applies / Applies for 25% of wages
Passenger Cruise Ship / World Cruising – regular caller UK / 3% / Always applies / Applies for 3% of wages
Cargo Ship / World Trade – e.g. Japan - Australia / Nil / Does not apply
(provided employment wholly outside the UK). / Never applies
Offshore Supply Vessel / Aberdeen – Offshore Installation (UK Continental Shelf – but outside “internal waters”) / 30% / Always applies / Applies for 30% of wages
There is no requirement for payment of a minimum wage for non- UK registered vessels.