Since the implementation of MLC 2006 in August 2014, there has been uncertainty among yacht crew agents (YCAs) operating in France, specifically in regard to Regulation 1.4 Recruitment and Placement.
According to Captain Rod Hatch, Chair of the PYA MLC work group, confusion has centered on: differences between flag states in interpreting the terms ‘recruitment and placement’, differences in integrating MLC with pre-existing legislation, and inconsistencies among YCAs themselves.
The French Register
At a meeting in June, Mr. Didier Vettese, Inspecteur du Travail, from the French government bureau Direccte, informed the work group that all YCAs operating in France are required to register on the "Registre national des services privés de recrutement et de placement des gens de mer établis en France” (a list of private seafarer recruitment and placement services established in France, referred to as ‘the French Register’).
This includes YCAs which are otherwise legal and tax-compliant, single independent workers operating from home and local offices of companies directed from or registered outside France, even if their role is purely to forward CVs to the main office and even if they work in France only on an occasional or temporary basis.
The requirement to register your business also applies whether or not the hiring yacht is itself subject to MLC 2006 regulation - the ruling also extends to Pleasure Yachts.
A particular concern for all YCAs has been MLC Standard A.1.4.5(c) (vi), referring to:
“a system of protection, by way of insurance or equivalent appropriate measure.”
Again, different flags have taken different positions regarding YCAs operating in their territory. Mr. Vettese stressed that for all YCAs operating in France the agency’s insurance needs only to guarantee the verification process of the appropriate certification for any position offered on board. It does not need to include any provision for unpaid salaries.
This clarification is significant not only for YCAs operating in France, but also for owners, captains and managers.
A process of verification is already underway, and Mr Vettese confirms that two agencies unaware of this requirement and are now taking steps to legalise their position, while a third has not responded and risks being summoned to appear in court in Grasse.
Consequences of Using a Non-Registered YCA
When asked about the position of a shipowner (or representative) using a YCA which is not fully compliant within the territory of its operation, the UK MCA said,
“As part of a UK MLC survey, the surveyor would ask for evidence that the R&P service is MLC compliant, even if it is based in an MLC ratifying country – recognising that this may not be available on the vessel, but the shipowner should have it.”
MCA also pointed out that such due diligence would be required both under the MLC and as part of ISM responsibilities in relation to delegated functions. MGN 475(M) will be updated to confirm this.
The obligation is on the shipowner (or captain or manager) to show evidence that any YCA used to find crew is fully MLC compliant and in France this now includes being on the French Register.
Asked if there would be any consequence for crew or owners who had already used non registered YCAs, Rod Hatch said,
“There would be no retrospective consequences for crew. Going forward, it is more a case of “caveat emptor”. There are two considerations. Firstly, why waste time with unregistered crew agencies which meticulous yachts and management companies will avoid using. Secondly, why risk giving personal data to a French YCA which, if not on the required French Register, is probably also not registered with a separate French authority under EU privacy laws?”
For owners there are no direct consequences but a failure to comply on any point during a Port State Control (PSC) or Flag State Control (FSC) inspection may trigger further investigation. As Rod Hatch points out,
“The officer may require assurance of future compliance, and a means of validating such compliance. Secondly, the officer may extend his audit, possibly causing inconvenience to guests on board. Finally, the officer may decide to investigate another area of MLC record keeping, the default area generally being Hours of Work or Rest, which is always a potential can of worms, and has led to detentions.”