It would seem there are already a number of people that believe the proposed amendments to the French Social Security Decree will solve the issues that have been concerning the yacht sector since the Decree was first announced in March 2017, but I am sorry to report that this is not the case.
The proposed amendments do not address:
The fact that when France ratified MLC, 2006 it stated that all nine branches in the convention are provided, when in fact contributions made to ENIM only provide seven of these branches.
The issue for older seafarers on what will happen to their contributions for retirement benefits given there is usually a need to make 15 years of contributions to get any kind of pension.
The onus on the employer to register with ENIM, irrespective of where the employers place of business is.
The fact that there is a discrepancy in the contributions to ENIM under the Decree and those for seafarers and their employers under the Registre International Francais, (RIF).
The requirement for the Employer to register with ENIM and pay six months of contributions, for those seafarers that are not exempted, with calculations carried out by that agency have not changed at all. I repeat what I have stated before in that it is the personal choice of the seafarer as to where they live. To my knowledge there is no Seafarers Employment Agreement, (SEA) that requires a seafarer to live in a particular country.
Although there appears to be a small concession to accept contributions to, and cover provided by private schemes, the minimum benefit must be in accordance with Article L. 111-1 of the French Social Security Law. The issue here is that some ILO member states that have ratified MLC, 2006, and are therefore compliant with the convention, are at this stage only required to have three of the nine branches of social security protection in place.
Using Marshall Islands (MI) as an example, they require that seafarers working on commercial flagged yachts are protected by five of the branches as per their ratification of the convention. These five branches are:
1) Medical Care
2) Sickness Benefit
3) Unemployment Benefit
4) Employment Injury Benefit
5) Survivor’s Benefit
However those five branches do not meet the requirements of Article L. 111-1, which is a requirement under the proposed amendment to the Decree and so the questions remain as follows:
Will ENIM accept the MI laws on social security protection provided to seafarers working on a MI flagged yacht where the seafarer lives in France or meets their social security residency criteria?
If ENIM do not accept the MI laws on social security protection what action will they take against the employer?
For crew living and working on board an MI commercial yacht, with no physical presence in France other than the fact the yacht exceeds the minimum number of days in French territorial waters; under what aspect of MLC, 2006 can they inspect any documents, other than the Maritime Labour Certificate and the DMLC I and II?
On this last point, Title 5.2, Regulation 5.2.1 paragraph 2 of MLC, 2006 states:
“Each Member shall accept the maritime labour certificate and the declaration of maritime labour compliance required under Regulation 5.1.3 as prima facie evidence of compliance with the requirements of this Convention (including seafarers’ rights). Accordingly, the inspection in its ports shall, except in the circumstances specified in the Code, be limited to a review of the certificate and declaration.”
The French authorities may argue that MI flagged commercial yachts do not have the same benefits in place as required under Article L. 111-1, however MI is meeting its obligations under MLC, 2006 and one Member state cannot dictate what benefits another Member state provides.
The Decree and the proposed amendment are not consistent with the way in which France would treat a shore based worker that is performing duties in a foreign country with which there is no bi-lateral agreement.
For example if a French resident shore based worker was performing their duties in say Dubai and returned to France every weekend, would the French social security office demand the Dubai based company paid social security in France?
Until such time as France changes the Decree to exclude non-resident employers from the need to register with ENIM and pay employers contributions, on the following basis, I believe owners will be reluctant to be in French waters and employee French resident crew.
The seafarer chooses to live in France.
The employer has no place of business in France.
The yachting owning company does not own a berth in France.
The payer of wages has no place of business in France.
The seafarers are protected by the social security protection of any other ILO Member that has ratified MLC, 2006.
By applying the above the seafarer, that is not exempted, will be free to choose whether or not they want to live in France and pay employee only contributions to ENIM to protect them, and where appropriate, their family. Those who are happy to live in France and pay contributions will remain in France, whilst those who believe they would be better off living in another country will move and register with the social security agency locally.
There have been numerous attempts by various associations, companies and individuals working in the yacht sector to get meaningful amendments to the Decree or at least a suspension whilst a review takes place, without any success at all.
It seems that the only kind of pressure that will work now is an economic one. I am sure that owners and employers will make the right decision according to their circumstances on this latest feeble attempt to revise what is a flawed piece of legislation.
I suggest all owners/employers that have a concern about the French Decree contact a knowledgeable maritime lawyer as soon as possible.
About Lesia Employment Services
Based in Guernsey, Lesia Employment Services (Lesia), is a non-Fiduciary company specialising in yacht crew employment, management, HR and payroll services. Lesia also offers in-house expertise to assess the social security liabilities for owners and crew, having personnel certified by the ILO to provide training at a National level on the MLC 2006.