A11. What is a “substantially equivalent” provision?

The MLC, 2006 provides in Article VI, paragraphs 3 and 4, that in some circumstances a national provision implementing the rights and principles of the Convention in a manner different from that set out in Part A (Standards) of the Code will be considered as “substantially equivalent” if the Member concerned “satisfies itself” that the relevant legislation or other implementing measure “is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned” and “gives effect to the provision or provisions of Part A of the Code concerned”. The Member’s obligation is principally to “satisfy itself”, which nevertheless does not imply total autonomy, since it is incumbent on the authorities responsible for monitoring implementation at the national and international levels to determine not only whether the necessary procedure of “satisfying themselves” has been carried out, but also whether it has been carried out in good faith in such a way as to ensure that the objective of implementing the principles and rights set out in the Regulations is adequately achieved in some way other than that indicated in Part A of the Code. It is in this context that ratifying Members should assess their national provisions from the point of view of substantial equivalence, identifying the general object and purpose of the MLC, 2006 Code, Part A provision concerned (in accordance with paragraph 4(a) of Article VI) and determining whether or not the proposed national provision could, in good faith, be considered as giving effect to the Part A provision (as required by paragraph 4(b)). The Committee of Experts on the Application of Conventions and Recommendations has underlined that the concept of substantial equivalence is not a matter for administrative discretion. Substantial equivalent measures should therefore be decided by a Member on a horizontal basis and not on an ad hoc basis, in response to a particular request from a shipowner. Any substantial equivalent measures that have been adopted must be stated in Part I of the Declaration of Maritime Labour Compliance that is carried on board ships that have been certified [see C5.2.3.e]. Substantial equivalence does not apply to the provisions on compliance and enforcement contained in Title 5 [see C5.1.b.].

General questions about the MLC, 2006