The ILO Maritime Labour Convention 2006 has for a long time been one more piece of legislation on the distant horizon. Before it could come into force, it required ratification by enough nation states representing a specific proportion of the world’s shipping tonnage, and by a fixed number of nation states. These two criteria have now been met. This means that the Convention will come into force on 20th. August 2013.
There is still much confusion and misinformation within the industry regarding how MLC 2006 will affect yachting. There are three major misunderstandings. The first is about which yachts it will apply to. Effectively, it applies to virtually any yacht of any size which engages in any form of commercial activity on international voyages. Cannes to Monaco can be construed as an international voyage, so exceptions would be very rare.
MLC wording on this issue is as follows:
Para. 4 Except as expressly provided otherwise, this Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks. This Convention does not apply to warships or naval auxiliaries.
Para. 6 Where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details of the Code referred to in Article VI, paragraph 1, to a ship or particular categories of ships flying the flag of the Member, the relevant provisions of the Code shall not apply to the extent that the subject matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures. Such a determination may only be made in consultation with the shipowners' and seafarers' organizations concerned and may only be made with respect to ships of less than 200 gross tonnage not engaged in international voyages.
Para.1 The Regulations and the provisions of Part A of the Code are mandatory. The provisions of Part B of the Code are not mandatory.
Note that Article II.4 reads all ships. Apart from the provision allowed in VI.1, there is no other mention of minimum size limits. Article 1,6 as above makes it clear that a Flag authority may only make any provisions for ships of less then 200 gross tonnage in a tripartite manner.
Otherwise, the Convention is pretty much absolute – it embraces us all.
The second misunderstanding is in regard to crew accommodation spaces. There are scuttle-butt expectations that all crew are about to provided with accommodation that meets the MLC 2006 standards. In fact such standards will apply only to new ships, the keels of which are laid after MLC 2006 implementation date.
In relation to the accommodation issue, the PYA has been working very closely with the MCA, other flag states, MYBA, Nautilus, and SYBAss. In order to produce standards of “substantial equivalence” that will provide decent crew accommodation without inhibiting the future of our industry by forcing owners to forego a substantial volume of guest areas.
The third misunderstanding pertains to social security and taxation. MLC 2006 does not impose a blanket requirement for social security contributions to be made by seafarers or by shipowners, and taxation is not even mentioned. However, it is in all seafarers interests to find out what their social security status is.
By its origin and by its intent MLC 2006 is a human rights document. It prescribes a variety of seafarers’ protections in terms of work and living conditions, terms of employment, health care, social security, and related matters. All present employment contracts will become null and avoid on MLC implementation. They will have to be replaced by seafarers’ employment agreements, with mandatory prescribed particulars of conditions of employment.
To dilate a little more on this particular aspect of the Convention:
What is fundamental to the Convention is that each seafarer has a right to be informed of his/her rights. This will include the right of each seafarer to be advised that he/she should consider his/her social security status, and should determine whether nationality or residency or domicile obligates contributions to a social security system, or whether a voluntary or private scheme is preferred.
Four special features of the yachting industry are:
(i) the employee annual turnover rate, which is as high as the notorious 40% rate in the UK hotel and restaurant industries;
(ii) the seasonal or very short term nature of much employment;
(iii) crew are often recruited at very short notice, even off the dock just before sailing; and
(iv) with the exception of deck personnel who aspire to a captaincy, the great majority of entrants to the industry do not make seafaring a life-time career.
These features, combined with the multinational make-up of a typical yacht crew, make a clerical nightmare out of any attempt at providing long term social security protection, along with tracking and recording the social security provisions of a multiplicity of states of nationality, states of domicile and states of residence.
a) the situation for crew on UK vessels is settled and clear;
b) under any flag there is a general duty for an owner to provide a required minimum level of requisite health, medical and accident protection, and such duty may be discharged via a private insurance policy covering an entire crew;
c) apart from immediate on-board coverage for health, medical and accident concerns, any further obligations regarding social security provisions are the responsibility of states;
d) there should be no concern for a captain, at the time of a flag or port state inspection, if any seafarer on board is not covered by a social welfare provision which is stated in MLC to be a matter for states;
e) unless required by flag state, or by the state of residence of the owner, there is no requirement for an owner to make any deductions from a seafarer’s pay and to send on such deduction to any nominated state, nor is there any requirement for the owner to make any contribution to any seafarer’s own state scheme;
f) in instances whereby seafarers who are non-resident in their state of nationality may still be obliged to contribute to their national social protection schemes, there is no burden on the owner or captain to monitor such compliance, except as in e);.
g) where the possibility of voluntarily contributing to a social protection scheme is offered by a seafarer’s state of residence or of domicile, it is at the seafarer’s sole discretion as to whether or not to take advantage of such protection;
h) except as in e), there is no specific or implied requirement that ship owners (or captains) should assume responsibility to provide their crews with the full panoply of social protections which are common in the most developed societies.
What should our members do at this stage? Rights go hand-in-hand with obligations. So get hold of a copy of MLC 2006, and at least read the salient sections. If you don’t like wading through official documents, the PYA will shortly re-issue an earlier digest of the Convention, in order to give at least a broad overview.
Members working in private yachts will not have the same mandated protections as those in commercial yachts. Discussions are still in progress regarding means to deal with this anomaly.
For captains, there will be additional burdens to bear after implementation. There will be a procedure to follow in order to obtain a Maritime Labour Certificate and a Declaration of Maritime Labour Compliance (DMLC). And as MLC 2006 is separate from ISM, ISPS, and any other legislation, the safe course to deal with future port and flag state controls would be to keep a complete set of records dedicated purely to MLC 2006, no matter what duplication is involved.
Beyond this, be ready to provide documentary evidence that each crew member is aware of, has access to a copy of, and understands his/her rights under the Convention.
Post-implementation there will be a two way process between yachts and crew agencies with each party obligated to check the other’s compliance with the Convention. We are already very reliant on these agencies screening and checking on candidates. Despite their best efforts in talking to the appropriate flag administrations, it has not yet been made clear how the crew agencies can obtain an official certification of compliance.
This will be of great concern to the PYA, to all captains, to management companies, and even to charter brokers. The PYA will be working closely with crew agency representatives to maintain pressure to resolve this matter, as it will concern all captains, management companies, and even charter brokers.
Means for inspection and enforcement of MLC 2006 are embedded in the Convention. Over the past several years flag and port state personnel have been attending the ILO centre in Torino in preparation for monitoring and enforcing compliance. Any seafarer who has a complaint about compliance in his own ship, and is not satisfied with the on-board or management response, will have the right of direct access to the relevant inspectorate.
Given the powers given to port state control under MLC 2006, captains and management will wish to avoid matters going that far.
Members should be aware that some commercial entities are emerging with a view to profit from the pre-implementation work-load. Be wary of any entity presenting itself as a quasi-official facilitator of the DMLC process, particularly if such entity shows misunderstanding of the Convention (for instance to which yachts it applies), and if it cannot produce a Certificate issued by the ILO affirming attendance at the ILO approved course for auditors.
MLC 2006 has many facets. The PYA will continue to provide advisories and updates over the next 12 months leading up to implementation.
Captain Rod Hatch
Chairman, PYA MLC 2006 Work Group