Protection of Indonesian Seafarers in Overseas Employment Post Act

Number 15 Year 2016

*This article is part of ongoing research

Lina Hastuti

, Dina Sunyowati, Enny Narwati and Nina Farah Adela

Department of International Law, Universitas Airlangga, Indonesia

Keywords: Act Number 15 Year 2016, MLC 2006, Protection of Overseas Seafarers.

Abstract: Through Act Number 15 Year 2016, Indonesia ratified MLC 2006. A high expectation is desired through

this action, since MLC 2006 is striving for social security protection, work rights, and equal opportunity in

employment or occupation (nondiscrimination) for seafarers. According to data from Directorate of

Protection of Indonesian Citizens and Legal Entities by October 2015, there were 463 cases related to

seafarer handled by them. A lot of problems are faced by Indonesian migrant workers who work as

seafarers.

1 INTRODUCTION

Many legal issues faced by migrant workers abroad,

including those who work as seafarer. Data released

by the National Agency for the Placement and

Protection of Indonesian Migrant Workers

(BNP2TKI) shows the fact that Indonesia is the

third largest maritime worker in the world, totaling

254,186 people and currently working on foreign

flag ships. Based on data from the Directorate of

Indonesian Citizens Protection and Indonesian

Legal

Entities, up to October 2015, there are

approximately 463 seafarer related cases that have

been handled by the Directorate. Approximately 221

Indonesian seafarers (from 2012 - 2015) indicated to

be victims of human trafficking. Furthermore, data

obtained from the International Organization for

Migration (IOM) there are 283 cases of Indonesian

seafarers classified as trafficked fisherman until

2015 (P2K OIBPPK Kementerian Luar Negeri

Republik Indonesia, 2015).

It is a fact that seafarers and people working on

ships have different job characteristics than other

industry sectors, not only just very specific

workplaces, but also work across countries. On that

basis, in 2006 internationally agreed upon

Convention which regulates seafarer as subject

matter, that is MLC 2006 and entry into force in

2013.

As an archipelagic state and spirit of the

Nawacita Program of President Jokowi, Indonesia

ratified MLC 2006 through Act Number 15 Year

2016. This ratification has a very important meaning

for Indonesia. First, it gives protection to seafarers

where seafarers' rights and needs are preserved and

to obtain their rights without being exploited.

Secondly, as the country with the third largest

seafarers in the world, besides regulating protection,

the Convention also protects the national shipping

industry in global competition and contributes to

making Indonesia a strong maritime axis.

Having committed to MLC 2006 Indonesia has

the obligation to provide protection for seafarer,

including those who are abroad. The safeguards in

this case include also the arrangements in the

legislation at the national level. Through this

research will be reviewed the regulations that

existed before Act Number 15 Year 2016 related to

seafarer protection, then it will be compared with

the provisions contained in MLC 2006. In the end,

the ideal provisions for seafarer protection abroad

will be obtained so as to minimize the cases

occurred before.

694

Hastuti, L., Sunyowati, D., Narwati, E. and Adel, N.

Protection of Indonesian Seafarers in Overseas Employment Post Act Number 15 Year 2016.

DOI: 10.5220/0007549806940697

In Proceedings of the 2nd International Conference Postgraduate School (ICPS 2018), pages 694-697

ISBN: 978-989-758-348-3

2 SEAFARER PROTECTION

BEFORE ACT 15/2006

In national level, various marine rules have been

established, such as shipping rules, employment and

so on. In general, the national legal framework

containing such arrangements is:

a. Act Number 13 Year 2003 on Manpower;

b. Act Number 39 Year 2004 on Placement and

Protection of Overseas Workers;

c. Act Number 21 Year 2007 on the Elimination

of TPPO;

d. Act Number 17 Year 2008 on Shipping;

e. Act Number 6 Year 2011 on Immigration;

f. PP Number 7 Year 2000 on Kepelautan;

g. PP Number 20 Year 2010 on Transportation in

Waters;

h. PP Number 3 Year 2013 on the Protection of

Overseas Workers;

i. Permenhub Number 84 Year 2013 on the

Recruitment and Deployment of Ships;

j. Circular Letter of Dirjen Hubla No. UK11 /

21/12 / DJPL-06 on the Protection of Crew;

k. KKP Candidate No. 35 / Permen-KP / 2015 on

Fisheries Rights;

l. Regulation of Head of BNP2TKI Number:

PER.13 / KA / VII / 2009 concerning Data

Collection of Indonesian Overseas Seafarers

Placement Abroad;

m. Head of BNP2TKI Regulation Number PER.03

/ KA / I / 2013 concerning Procedures for

Placement and Protection of Indonesian

Workers of Fishery Seafarers in Foreign Ships;

n. Head of BNP2TKI Regulation Number: PER.12

/ KA / IV / 2013 concerning Procedures for

Recruitment of Seafarers' Placement and

Protection on Ships of Foreign Flags.

As previously mentioned, some laws and

regulations regulate general matters, not specifically

regulating seafarers, but seafarers are part of it, such

as the Law on Manpower, Placement and Protection

of Overseas Migrant Workers, the Eradication of

TPPO. In Act Number 6 Year 2011 ……. which

includes the skipper, captain of the pilot, or any of

the articles governing the seafarer, are contained in

Article 43 (1)…. crew on duty in conveyance; d.

skippers, crew, or foreign experts aboard ships or

floating appliances that come directly with their

means of transport to operate in the waters of the

archipelago, territorial sea, continental shelf, and /

or the Indonesian Exclusive Economic Zone.

Furthermore, article 52 regulates a limited stay

permit granted to skippers, crew, or foreign experts

aboard ships, floating appliances, or installations

operating in the territorial waters and jurisdictions

of Indonesia in accordance with the provisions of

the laws and regulations. For other legislation, more

seafarers are set up, related to MLC 2006.

3 PROTECTION ACCORDING TO

MLC 2006

In general, there is a 2006 MLC assumption as

"Seafarers' Bill of Rights", as it is a "ticket" for

seafarers to claim their rights as workers, who have

a different character from workers in other industrial

sectors. At a diplomatic conference during the

adoption of MLC 2006, former Secretary General of

IMO H.E. E.E. Metropoulos, responded to the 2006

MLC as the 4th pillar of the maritime sector,

complementing the three main pillars of the existing

IMO legal instruments: Safety Of Life At Sea

Convention (SOLAS) 1974 1978, Marine Pollution

Prevention Convention (MARPOL) 1973/78, and

the Standard of Training Certification and

Watchkeeping for Seafarers Convention (STCW)

1978. MLC consists of 3 (three) parts of Articles,

Regulations and Code. Articles and Regulations

establish the fundamental rights, basic principles

and obligations of the Member States of the ILO

that have ratified the Maritime Labour Convention

2006 while the Code contains details for the

application of the rules. The Code contains two

parts: Part A contains mandatory standards that

must be applied by the States which ratify the

Convention and Part B contains non-mandatory

guidelines to be applied by States that ratify the

Convention.

Regulations and Code sets up:

a. minimum requirements for seafarers to work on

ships;

b. working conditions;

c. accommodation, recreational facilities, food and

catering;

d. health protection, medical care, welfare and

social security;

e. compliance and enforcement.

The basic right of workers in MLC 2006 is every

person who works as a seafarer sailing through

international waters has the same rights as a worker

/ labourer working on land. These rights are as

stated in the 8 ILO Basic Conventions and have

Protection of Indonesian Seafarers in Overseas Employment Post Act Number 15 Year 2016

695

been accommodated in the provisions of national

legislation.

These rights include the right of freedom from

slavery and forced labour, the right of anti-

discrimination, the right to have equal remuneration,

the right to associate and bargain collectively, the

right not to employ children in the worst forms of

employment. In addition, seafarers and crew also

have a right to get work and social protection,

including the right to a secure workplace, the right

to get protection of occupational safety and health,

the right to social security and the right to medical

treatment, facilities and accommodation including

recreation.

In MLC 2006, seafarer is defined as person who

is employed or engaged or works in any capacity on

board to which this Convention applied. This notion

includes not only the crew involved in navigating or

operating vessels but also persons working in hotel

positions providing services for passengers on

cruises or yachts.

MLC 2006 aims to ensure the rights of seafarers

around the world are well-protected and provides

standards of guidance for each country and ship

owners to provide a comfortable working

environment for seafarers. This action is needed

because of the existence of seafarers across the

country, so it is necessary to set an internationally

accepted working standard. In summary, MLC 2006

contains provisions on:

a. Minimum requirements of seafarers working

on boats, containing the minimum

requirements a seafarer must meet such as age

requirements, health condition requirements,

competency requirements, expertise, and

training as well as recruitment and placement

requirements. Generally specified include:

i. Minimum Age of Seafarer: Minimum age is

16 years old but for a night work or

hazardous area, the minimum age must be

18 years old.

ii. Health Conditions: Seafarers must enclose a

medical certificate (medical report)

recognized by the country concerned.

iii. Training: Seafarers should get trainings

related to their work before sailing.

Including personal safety training

iv. Recruitment or seafarers' placement shall be

carried out by carrying out proper

placement and registration procedures, a

complaint procedure and compensation

should exist if the recruitment process fails.

b. Working conditions, arranging contracts,

salaries, and working conditions of seafarers on

board. This includes clear contracts, breaks,

leave entitlements, repatriation to the country

of origin, and so forth. The summary is as

follows:

i. Contract of Work: The contract must be

clear, legal, and binding

ii. Salary: Sailors Salaries must be paid at least

monthly and should be transferred

periodically to the family when needed.

iii. Break Time: Rest periods must be applied

in accordance with applicable state

regulations. Maximum working hours is 14

hours a day or 72 hours a week or minimum

break time is 10 hours a day or 77 hours a

week. Furthermore, the rest period should

not be divided into more than 2 periods

where at least 6 hours of rest period should

be given sequentially in one of two periods.

iv. Leave: Seafarers have the right of annual

leave and leave for the mainland.

v. Return: Return of seafarer to his country of

origin must be free.

vi. Loss / Foundering: When the ship is lost or

run aground, sailors have compensation.

vii. Career: Every ship must have a clear career

path.

c. Accommodations, recreational facilities, meals,

and catering, contain the rights related to

meals, accommodation and facilities that must

be provided to the seafarers. In summary, the

requested requirements are:

i. Accommodation: It is important to take into

consideration the hygiene and comfort of

the residence and work for sailors. There

are some minimal requirements for sleeping

room, entertainment room, and dormitory.

ii. Eating and Catering: The quality and

quantity of food must be arranged in

accordance to the country flag of the ship

(flag state). The ship’s cook must be trained

and qualified for the position on board.

d. Protection and health care, welfare, and social

security protection, including:

i. Medical treatment both on ships and on

land: seafarers should have access to health

facilities while on board at no cost and with

the same quality of health services as those

on the ground.

ii. Ship owners’ obligations: Seafarers should

be protected from financial consequences of

illness, injury or death related to their work.

ICPS 2018 - 2nd International Conference Postgraduate School

696

Seafarers should also still earn a salary of at

least 16 weeks from the onset of illness.

iii. Occupational health and safety: A safe and

hygienic work environment should be

provided during work or rest. Measures of

security level (hazard identification and risk

control) should be undertaken to prevent

accidents.

iv. Access to onshore facilities: Port States

should provide adequate cultural,

recreational and information facilities on

v. land and all such facilities are open to all

seafarers without distinction of race, sex,

religion and political views.

vi. Social Security: Social protection must be

available to all seafarers.

vii. Social security coverage should be

available to seafarers (and in case it is

customary in the flag state: their relatives).

e. Implementation and Execution.

a. Flag states: Flag states (responsible for

ensuring the application of rules for ships

using their flags). Each ship must be

equipped with a "Certificate of Maritime

Compliance". Each vessel is also required

to have a complaints procedure for all crew

and must investigate the complaints.

b. Port States: Port States (countries where the

ship is leaning) must conduct an inspection

depending on the existence of the

"Certificate of Maritime Compliance". If

certificates have been owned (and flags of

ships originating from countries that have

ratified MLC 2006), then investigations are

only conducted to check for indications of

non-compliance with the standards. If the

vessel does not have a certificate, the

investigation must be done thoroughly and

must ensure the ship complies with MLC

2006. Thus, MLC 2006 indirectly applies to

countries that have not ratified MLC 2006

if they wish to dock in the country that has

ratified MLC 2006.

c. Seafarers' Agencies: Agencies that provide

workers for ships should also be inspected

to ensure they are implementing MLC 2006

(as well as other rules related to social

security).

4 CONCLUSIONS

Indonesia already has legislation governing

seafarers before ratifying the 2006 MLC, even

arranging in detail as well. However, these

arrangements should still be adjusted to those in the

MLC 2006, as they apply internationally. It also

needs to be scrutinized the problems faced seafarer,

because although it has been arranged but still many

problems that arise.

MLC, 2006 was adopted by the ILO to create a

single instrument containing all international labor

principles and standards applicable in the shipping

industry. In order to provide protection to seafarers

and crews related to the fulfilment of basic rights

including wages, working conditions including

work time and rest periods, medical care, health

insurance, recruitment and placement, training and

supervision, the Government is obliged to develop

guidelines that will be guides for boat owners as

well as crew of sailors and seafarers. These

guidelines include:

a. Guidelines on the Protection of Terms and

Conditions of Work;

b. Guidelines for Recruitment and Placement;

c. Training Manual and Work Competency;

d. Law Enforcement Guidelines.

REFERENCES

Senior Lecturer in Maritime Education and Training,

Sekilas “Maritime Labour Convention

Supriyono, Hadi. 2006 (MLC 2006),

http://hadisupriyono.blogspot.com/2013/05/sekilasmar

itime-labour-convention-2006.html, accessed on 15

May, 2018.

Pusat P2K OI-BPPK Kementerian Luar Negeri Republik

Indonesia, Strategi Perlindungan dan Penanganan

Kasus Anak Buah Kapal (SEAFARER) Sektor

Perikanan Indonesia yang Bekerja di Luar Negeri,

hasil penelitian, Jakarta, 2015.

Undang-undang Nomor 15 Tahun 2016 Tentang Tentang.

Pengesahan Maritime Labour Convention, 2006,

Lembaran Negara Nomor 193, Tambahan Lembaran

Negara 5931.

Peraturan Menteri Perhubungan Nomor 13 Tahun 2012

tentang Pendaftaran dan Kebangsaan Kapal, Lembaran

Negara Tahun 2012, Nomor 204.

Undang -undang Nomor 17 Tahun 2008 tentang

Pelayaran.

Undang-undang Nomor 13 Tahun 2003 tentang

Ketenagakerjaan.

Undang-undang Nomor 39 Tahun 2004 tentang

Penempatan dan Perlindungan TKI di Luar Negeri.

Peraturan Pemerintah Nomor 7 Tahun 2000 tentang

Kepelautan.

Undang-undang Nomor 6 Tahun 2011 tentang

Keimigrasian.

Protection of Indonesian Seafarers in Overseas Employment Post Act Number 15 Year 2016

697