BY Andrew Mwangura
The recent establishment of the Merchant Navy Wage Standards marks a major step towards better employment conditions for Kenyan seafarers.
The forgotten Kenyan seafarers, otherwise called merchant mariners, have been exploited for years through underpayment and abandonment by rogue ship owners in the overseas.
They have also suffered from social dumping caused by Mombasa based shipping companies.
The Kenyan government has initiated a process to end maritime slavery by reviewing seafarers’ pay and working agreements, a process which has not been carried out for almost four decades.
The move to develop new laws and regulations to govern the sector is aimed at ending extreme poor working conditions of more than 7,000 merchant mariners.
New Council task
Maritime Wages Council will ensure all seafarers are paid the recommended salary according to the International Labour Organization (ILO) minimum pay for an Able Seaman (AB) of $641 as opposed to the current $180 a month.
The merchant mariners are the human face of the maritime sector and usually work in physically and mentally draining conditions hence the need to be well remunerated.
Time is ripe to motivate thousands of marine pilots and merchant mariners who are subjected to different terms and conditions of service in harbor vessels, tankers, jack-up barges,cruise ships, bulk carriers, offshore oil rigs, fishing vessels and cargo ships.
Merchant Navy Wage Council will check on the implementation of the set salary structure in order to attract more people to the sea employment.
Kenya needs to set internationally accepted safety nets, reliable payment wages and ensure Merchant Navy Officers and Ratings work with recommended eight hours a day, unless they are paid over time.
Now that the wages council has been established, there is a need to come up with Seamen Wages Council Wage Regulation Order.
The proposed seamen wage regulation order should focus on matters on minimum wage standards, the Order should also regulate other working conditions for specific categories of seafarers including vacation leave, sick leave and special leave.
Scope of Order
The Order should reflect natural increases in wages and improvements to standards of living.
This legislation should be a key part of Kenya’s maritime legal framework relating to all seafarers. Its provisions should be applicable not only to employees on board ships regularly operating within the territorial waters. Rather it should also apply to employees working on board fishing vessels or foreign ocean-going merchant ships as well on offshore oil rigs and oil platforms.
The Act and the Rules should regulate most categories of seafarers aboard Kenyan-flagged vessels and all Kenyan based vessels flying flags of convenience.
The Order should be considered as being lex specialis and, in the case of conflicting provisions with the Act or the Rules, the norms of the Order should apply to hours of work, vacation leave, sickness leave, special leave and rest periods of employees working on board vessels regularly operating within the territorial waters of Kenya.
Therefore, although the Rules will specifically state that they apply to “all Kenyan seagoing ships wherever they are”, the provisions within the Order that specifically relate to all seafarers or employees operating within Kenyan territorial waters, where difference to the Rules, should prevail.
The leave requirements granted to employees regulated by the Order are more similar to those found within the Employment and Industrial Relations Act, applicable to land-based employees, than those found within the Act or the Rules.
Employees governed by the said Order should enjoy “four working weeks and four working days” of vacation leave for every calendar year of work.
The proposed Order may limit sick leave to 14 days of full pay and 14 days of half pay, which contrasts significantly with the obligations placed on charterers and ship-owners towards seafarers under the Rules.
The pariament of Kenya must understand that seafarers operating and working commercially within Kenyan territorial waters, harbor vessels on ferries and other commercial vessels represent a different class of workers to the stereotypical notion of a seafarer.
Seafarers governed by the proposed Order are less likely to live or sleep on the vessel on which they work and generally have their place of residence on land.
This divergent reality between seafarers will lead to the enactment of different sets of rules and regulations applying to the two separate groups of workers: those who work on board ships operating within Kenyan territorial waters regularly and those who do not.
It ironical to note that the Labour Institutions Act of 2007 of Kenya has not adequately addressed remuneration of seafarers and determination of minimum wages.
There is no clear regulatory structure of wages and employment for the sector despite Kenya being a member of the ILO which stipulates decent working conditions for its members.
The ILO provides provision of seafarers’ wages, hours of work and manning of ships.
The regulations recommend that the basic pay or wages for a calendar month of service “for an able seaman” should be no less than the amount periodically set by the Joint Maritime Commission, which is a body of ship-owners and seafarers established by ILO.
ILO minimum monthly basic wage figure for an able seafarer to US$618 as of 1 July 2019, US$625 as of 1 January 2020 and US$641 as of 1 January 2021.
The terms apply to all seafarers including those employed aboard all ocean-going vessels, Jack-up barges, coastal ships, cruise ships and commercial yachts.
The highest pay a seaman could receive is USD 1,000.00 per day but you have to be a Master Mariner on a Jack-up Barge to earn that. On the other hand, the average salary of Masters and Chief Engineers is around USD 11,000.00.
The average pay for an Ordinary Seaman is $46,886 a year and $23 an hour.
The average salary range for an Ordinary Seaman is between $34,962 and $56,808 a year. On average, a less than O’Level is the highest level of education for an Ordinary Seaman.