What to do when things go wrong...
26 August 2019
Have you found yourself in dispute between your current or old employers after being fired or voluntarily leaving? Unfortunately, far too many yacht crew are still finding themselves in the situation of being treated unfairly or aren't paid after leaving a vessel and aren't quite sure what their rights are.
Long standing PYA Director and Captain, Richard Le Quesne, who has been providing guidance to our members on what to look out for in their work contract and what to do in the instance of being fired, has given the following advice:
Terms of your contract...
If you're working on a commercial or charter yacht, you should have been given, before you joined the vessel, a contract, now known as a Seafarers Employment Agreement (SEA) which conforms to the Maritime Labour Convention 2006 (MLC 2006), which is an international convention regulating the employment of seafarers. This convention has created the benchmark for private ‘pleasure' vessels and meant many crew are now being employed under SEA-type contracts, even though this still doesn’t provide the same legal protection and employment terms as MLC 2006. Because crew on private vessels aren’t required to be contracted under this convention, their employment terms are usually governed by the national laws of the Flag States.
Far too many crew are still finding themselves in situations where their contract doesn’t meet any of these standards, or they’re given no contract at all – especially if they're hired for a temporary period. Here are some steps you can take if you find yourself in one of the following situations:
If you leave voluntarily...
In most cases, notice of one month is required but longer notice periods are sometimes used for senior crew. Always give notice in writing, even if you have first done so verbally. Regardless of the contractual notice period, it’s desirable to give as much notice as possible so as to make the task of finding your replacement easier for the Captain and so increase the chances of getting a good reference. Do not, except under the most extreme circumstances, quit without giving notice. Not only does this put you in breach of contract and so possibly liable for expenses incurred in replacing you but it will be a blot on your record and may make finding a job harder in the future.
When the time comes to leave the yacht, you may be asked to sign a document setting out the financial details (salary owed, accrued holiday pay, etc.) of your departure. If you are, insist on being given a signed copy. Also, remember to ask the Captain or the Mate to make an entry in your Discharge Book and to give you a Certificate of Discharge – in the form of a Sea Service Testimonial, ideally on the PYA’s template, as this covers all required information. They can refuse to give you a reference but they must give you a Certificate of Discharge if you ask for it.
If you are fired...
In reality, there is no job protection in yachting and anyone can be fired at any time, without reason. Your SEA or Crew Agreement will have a list of serious faults that can lead to instant dismissal but it’s very unusual, in yachting, for these to be invoked. Much more common is for the Captain to tell you that you are to be fired for some other reason – but he does not have to specify it.
Commercial yachts and larger pleasure vessels will have a set disciplinary procedure with a series of formal warnings before you are dismissed. If fired, you should insist on being provided with transport back to the agreed repatriation destination and are entitled to ask to be paid in full on the day you leave, but, if you have confidence in the Captain, you can, instead, accept a written undertaking that you will be paid a stated amount by a stated date. As mentioned above, ask for your Discharge Book to be completed and for a signed Sea Service Testimonial /Certificate of Discharge. Once off the yacht, don’t bad-mouth the owner, the yacht or the crew because it makes you look unprofessional and could rebound on you in the future.
If you have a complaint...
On commercial yachts you should have been given a copy of the complaints procedure when you joined. Many pleasure vessels, especially the larger ones, also have a formal complaints procedure. On a commercial vessel, if you are not satisfied with the outcome of your formal complaint, you have the right under MLC 2006 to take it to the shoreside management and, ultimately, to a Port State Control inspector or a Flag State representative. On a pleasure vessel you may have the right to take your complaint to shoreside management.
What your contract should include
As stated above, crew on commercial yachts are supposed to have been given, before they joined the vessel, an MLC 2006 compliant Seafarer’s Employment Agreement . This SEA must include the following:
The seafarer’s name, date of birth and place of birth
The name and address of the ship owner (or employer)
Date and place of signing the SEA
The seafarer’s job on board
Details of the seafarer’s pay including, if relevant, how it’s calculated.
The seafarer’s entitlement to paid holidays
Termination arrangements. Note: The notice period for the employer cannot be shorter than the notice period for the seafarer.
Health and social security benefits to be provided by the employer
Reference to the Collective Bargaining Agreement, if any
Any other particulars required by the law of the Flag State
Important inclusions in the Convention
Reg. 1.4 – A seafarer must not be made to pay in any way for obtaining a job.
Reg. 2.2 – Wages must be paid, in full, at least every month.
Reg. 2.3 – Hours of work / Hours of rest must comply with international rules and must be recorded.
Reg. 2.4 – In general, all seafarers must be given at least 2.5 days of paid holiday per month worked.
Reg. 2.5 – In most circumstances, a seafarer leaving a ship must be given free transport back to his/her home.
Reg. 4.1 – In most circumstances, a seafarer must be provided with free medical care.
Reg. 5.1.5 – There must be an established on-board complaints procedure and every seafarer must be given a copy of it when joining.
Reg. 5.2.2 – Seafarers have the right to make a complaint to a shore official and this official must follow set procedures in dealing with it.
For more information or assistance contact firstname.lastname@example.org
Image credit: Photo by Simon Lund on Unsplash
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