Seafarer employment rights: 10 years of the Maritime Labour Convention and other developments

Seafarer employment rights: 10 years of the Maritime Labour Convention and other developments
13 September 2024 https://www.hilldickinson.com/insights/articles/seafarer-employment-righ...

It is now ten years since the UK ratified the Maritime Labour Convention (MLC) in August 2014 and we take the opportunity to look both at the impact that the MLC has had on crew arrangements and at other developments in UK law applying to seafarers.

The MLC has undoubtedly had an impact on the approach to contractual documentation issued to seafarers, setting the requirements which have now become standard practice. It stipulates that seafarers working on board commercial vessels should be issued with a seafarer’s employment agreement (SEA) (in English) setting out basic details of their employment including:

the shipowner’s name and address;
the seafarer’s name, date and place of birth;
the place and date where the agreement was signed;
the conditions for the termination of the agreement;
the health and social security protection benefits provided by shipowner; and
the seafarer’s right to repatriation.

Seafarers must be given the right to read and consider the SEA before signing it.

In addition, the MLC enshrines seafarer’s rights to a number of fundamental terms, including:

regular wages and statements of account;
access to money transfer facilities and reasonable currency conversion rates;
proper rest periods;
holiday pay;
repatriation arrangements; and
onboard medical care.

Rights and duties outside the MLC

The MLC provides a baseline position but is not a comprehensive statement of all the rights and duties that a shipowner may want to include in an SEA. For example:

It permits local variations between ratifying countries – a common example is in relation to holiday pay where specific local advice on rights afforded by the flag state may be necessary.
It does not cover provisions that many employers would consider normal or essential, for example:
confidentiality – it is advisable to include terms protecting the privacy rights of owners, passengers or other crew; in the case of yacht crew, this can be an important protection for the owners or charterers and should include terms relating to the taking and use of images and the reporting of conversations or events; and
fitness to work and substance use – terms relating to the use of alcohol and other legal or illegal substances are essential and may include the obligation to submit to testing.
It does not provide for any maternity, adoption, paternity or related rights – analysing whether a seafarer has any such rights (e.g. to maternity leave or pay) will involve looking at the jurisdictional matrix, which includes factors such as their country of residence and nationality and the flag state, ownership state and location of the ship.

In addition, the MLC does not give seafarers protection against unfair dismissal or discrimination, which is where the local law position becomes relevant.
Developments in UK law – dismissal and discrimination cases

Seafarers can have protection under UK employment law even if they are working wholly outside Great Britain. In order to establish rights against unlawful discrimination under the UK Equality Act 2010, the following conditions must be satisfied:

they must work on a UK registered ship, and
they must be a citizen of the UK, an EEA state or certain other designated states, and
the legal relationship of their employment must be located within Great Britain or retain a sufficiently close link with Great Britain.

The test is slightly looser for seafarers working wholly or partly in Great Britain, as the Equality Act will then apply in the above circumstances even if they are on an EEA registered ship, provided that the ship is in UK waters adjacent to Great Britain.

The conditions for establishing the right to bring an unfair dismissal claim are different again and are determined by where the employee’s “base” is, which will be a question of fact. In considering whether an employee’s base is in the UK, Tribunals will consider how closely the UK is linked to the employment. Very recent cases in the UK Employment Appeal Tribunal offer interesting examples on this point:

Stena Drilling PTE -v- Smith: the EAT held that a seafarer had a sufficiently close link with the UK to bring an unfair dismissal claim because his employment was administered by the HR department of an English company within the employer’s group, even though he was actually employed by a group company registered in Singapore.

Yacht Management Company -v- Gordon: the EAT held, following earlier case law, that the seafarer had a sufficient connection with the UK to bring an unfair dismissal claim because:

she lived in Aberdeen, UK, and so that was where her “tours of duty” began and ended, even though she worked on a yacht outside British waters; and
her home was her “base” for work purposes – there was no requirement in law that a seafarer’s base be a port or the location of a vessel.

Conclusions

The requirements for seafarer documentation under the MLC are now well-established. However, most owners and operators will want to use a form of SEA that has additional protections.

The issue of wider seafarer rights under UK law is more complex and needs to be considered on a case-by-case basis. For assistance in this area, please contact Blair Adams or Will Steed.