Critical gaps in SA's new Merchant Shipping Amendment Bill - Cosatu

Zingiswa Losi

The National Assembly’s Portfolio Committee on Transport is currently holding important parliamentary hearings on the Merchant Shipping Amendment Bill.This Bill provides an opportune window to address long-standing and often horrific abuses of merchant shipping workers in South Africa’s waters, many of which are foreign-flagged vessels.

Cosatu welcomes the overall thrust of the Merchant Shipping Amendment Bill and its broad progressive objectives, in particular its provisions seeking to ensure maritime safety, protection of seafarers’ labour rights, and holding their employers and vessel owners accountable for their conditions of service and adherence to the various labour laws.

It is, however, deeply worrying that the Department of Transport did not present this Bill for engagement with social partners at the National Economic Development and Labour Council (Nedlac) before tabling it at Parliament for consideration. This is in direct violation of the Nedlac Act, requiring all Bills impacting on labour rights to be tabled at Nedlac prior to Parliament. It sets a dangerous precedent where Departments seek, by omission or deliberately, to undermine Nedlac. Adherence to the Nedlac Act’s requirements for consultation with Organised Labour and Business is not a matter of indulging one’s friends but a requirement of law. It helps ensure that when legislation is brought before Parliament, it has been engaged with social partners, that their areas of concern have been addressed, and that what is before the legislature is a Bill that has been enriched by the experiences and challenges of workers and the economy.

While welcoming the Bill’s progressive provisions, Cosatu remains concerned with some of the provisions providing for compliance with our labour laws. These need to be resolved by Parliament lest they lead to confusion or the undermining of workers’ rights. Cosatu supports the majority of the Bill’s provisions, in particular those providing for powers to inspect and seize vessels, certification of crew, registration of vessels, cancellation of permits, removal of threats to seafarers, liabilities of owners, seafarers’ contracts and wages, prohibition of child labour, compensation for workers’ properties, repatriation of crew, accommodation of crew, health and medical treatment of crew, discharging and abandonment of crew and monies owed to them, codes of conduct, safety and security measures, and application of South African legislation, including the Labour Relations Act, to domestic and foreign vessels. These will play an important role towards enforcing the rights of workers on such vessels as well as holding owners accountable and improving maritime safety.

While the Bill correctly seeks to ensure compliance with our progressive labour laws, in certain provisions its drafting is either confusing in how it is written, with double negatives utilised in several instances, or deeply worrying exemptions or omissions. The Bill says it seeks to ensure compliance with the Basic Conditions of Employment Act (Bcea) but then provides massive exemptions to its application to merchant shipping and seemingly outsources its consideration to yet-to-be-determined Ministerial Determinations. This at best sends confusing signals that many seafarers will not understand and at worst sends a message to owners that they need not comply with the Bcea. As the Bcea provides for the most fundamental working conditions and rights for workers, this would expose them to serious abuses.

The application of the Occupational Health and Safety Act (Ohsa) to merchant shipping is worryingly unclear as the Bill is largely silent on this fundamental law providing the right for workers to work in a safe environment. Given the dangerous nature of working at sea, this is an omission that workers cannot afford. The Bill correctly seeks to provide compliance and clarification with regards to the Compensation for Occupational Injuries and Diseases Act (Coida) yet omits reference to compensation for the death of seafarers to their next of kin. This may be an omission but needs to be clarified by government. The Bill makes no reference to whether or not it believes the National Minimum Wage Act (Nmwa) applies or does not apply to seafarers. Again, if the law is silent, employers will take the gap, and in most instances, it will be at the expense of the workers.

Cosatu will be proposing to Parliament that the Bill be amended and strengthened to make it explicitly clear that the Bcea, Ohsa, Coida, and Nmwa apply to seafarers working on South African vessels or on vessels in South African waters. The Bill correctly speaks to the various state organs’ responsibility to enforce the Bill once it becomes law. Yet it is silent on empowering the Department of Employment and Labour’s inspectors to help enforce it. The Federation will also propose to the Portfolio Committee that the Bill be amended to cite the co-responsibility of the Department of Employment and Labour to help ensure the Bill’s enforcement once becoming law, in particular its provisions with regards to the labour rights of seafarers.

Cosatu welcomes the Bill as a whole and supports its progressive objectives and provisions. We look forward to its eventual passage, enactment, and enforcement. We are, however, deeply concerned that its vague, confusing, and contradictory drafting with regards to compliance with our progressive labour laws will at best confuse owners, seafarers, and the state; and at worst simply see workers’ hard-won rights not being applied in full to seafarers who all too often are subject to horrific forms of abuse, exploitation, danger, injury, death, and robbery. Countless seafarers have lost their lives at sea, including some of the most horrific accidents seen last year off the Cape coast.

It is critical that Parliament seize this moment to address these shortcomings to ensure a well-drafted, progressive Bill that will enhance workers’ rights and not set them back. It is also important that government, and the Department of Transport in future, ensures it complies with the Nedlac Act and tables labour and socio-economic Bills at Nedlac prior to going to Parliament in future. Society should no longer be expected to tolerate mediocrity nor a cavalier approach to complying with the laws passed by the democratic Parliament, in particular those designed to protect workers and the most vulnerable.

Cosatu President Zingiswa Losi
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