By Marcel Vaarzon-Morel and Kurt Lewis
Q: How does the Maritime Labour Convention (MLC) apply to the commercial boating industry, what aspects of boating does it cover and will my vessel be effected?
Do you currently own, design, manage, work on or regulate an existing or future commercial vessel? At Vaarzon-Morel lawyers we have recently received inquiries regarding the MLC and its applicability to Superyachts. After these inquiries at our office, we have written this article to answer the general questions and concerns in regards to the MLC and its applicability to those involved with commercial vessels, in particular Superyachts.
If you are involved with Superyacht’s or commercial vessels, you may want to seek advice beyond this article regarding the MLC and its effect on your rights and responsibilities whilst at sea. The Maritime Labour Convention 2006 (MLC) is an international instrument designed to eliminate substandard shipping by regulating seafarers rights and working conditions on an acceptable level.
The new laws are not to be disregarded as appertaining to large commercial vessels only. With the steady growth of the Superyacht industry in Australia the MLC has significant impacts on both domestic businesses offering the sale, hire, management of vessels and seafarers on-board Superyachts and large commercial vessels alike.
At present, over 80% of the world’s gross tonnage of ships are regulated by the MLC. The MLC governs almost all aspects of working conditions including employment terms, hours of work and rest, accommodation, recreational facilities, food and catering, medical care, health, welfare and social security protection. This article in no way covers the full scope of the MLC and its application to Superyachts, rather it is written from a legal standpoint in terms of the need for compliance and an understanding of how the new laws are regulated and upheld.
Here in Australia, the MLC has been mirrored through an array of legislation including the Navigation Act 2012 and various Marine Orders. A complete list of Marine Orders is available on the AMSA website. With the MLC internationally ratified on the 20 August 2013, and currently enforced by a multitude of legislation, it is already in full effect.
Currently MLC certification and full survey requirements only applies to Regulated Australian Vessels (RAV’s), RAV’s are defined as vessels that are Intending to undertake overseas voyages or certified to undertake overseas voyages. Those RAV’s Vessels over 500 gross tonnage were required to obtain a certificate of compliance prior to the 20th August 2013. Those RAV’s under 200 gross tonnage are not required to have MLC certification, but must comply with the relevant MLC guidelines. AMSA advises all commercial vessels to obtain a certificate of compliance to avoid possible delays in foreign ports.
Those vessels exempt from the MLC include fishing vessels, vessels of traditional build (such as dhows and junks), warship, naval or other vessels not ordinarily engaged in commercial activities.
This being said, it would be naive for any Super-yacht owner to disregard the MLC as a tool reserved for large commercial vessels. Subject to some exceptions, the MLC applies to all foreign flagged vessels in Australian waters and all commercial Australian vessels which undertake voyages beyond the exclusive economic zone (EEZ), irrespective of their weight.
Both Superyacht and large commercial vessel owners should be aware that compliance and regular inspection of ships is commonplace via Port State Control. Port State Control enables other flag state parties to the MLC to inspect and enforce the MLC no matter what flag a ship is flying. Another important mechanism to be aware of is the implementation of a strict complaint system that records any non-compliance with the MLC no matter where a ship travels.
Yacht Construction: How the MLC Affects Designers and Crew of Commercial Superyachts
Those commercial yachts built before the 20 August 2013 will not be held to the accommodation and recreational requirements of the MLC. For the purposes of the act, a ship is built when its keel is laid or at some other similar stage of construction. If a ship is built before this date it is still required to comply with the non-construction and equipment regulations in the MLC.
The new requirements for on board accommodation and recreation areas have a significant impact for designers of new Superyachts when limitations of physical, structural and customer requirements already impede design concerns. For example, the requirements on increasing size for crew member’s accommodation may increase costs, and diminish other important areas of construction. Effectively, designers may be forced to implement more complex design arrangements in order to satisfy the requirements of the MLC, which as well as increasing costs from a design perspective, will also increase the cost of boat-building when implementing more intricate designs. Owners should be aware of these design and construction concerns when considering purchase of a newly built vessel. Not only should prospective owners rely on design and construction abiding by the MLC, they should be aware that the on-board complaint system and strict compliance via Port State Control will bring any underlying construction issues to surface.
Sign-ons and Employment contracts; a thing of the past
The MLC introduces a mandatory requirement for every seafarer working on a commercial vessel which requires a Flag State approved Seafarer Employment Agreement (SEA). A SEA is required between yacht owners and all individual seafarers. Owners and vessel managers should be aware that all existing employment contracts, agreements and sign-on sheets are replaced by a single SEA. The approved details of what should be included in SEA’s for Australian vessels can be found in Marine Order 11 – Living and Working Conditions on vessels, 2013, Division 6, Section 14 and Schedule 3.
New obligations on employment agencies:
Agencies employing seafarers must conform to the MLC and to a number of obligations including informing seafarers of their rights and duties under their SEA prior to employment commencing. Employment agencies must also refrain from using blacklists to prevent any seafarer from gaining employment, examine and respond to any complaint. provide insurance or a scheme to compensate all seafarers for monetary loss for failures of shipowners under the SEA and ensure no person below the minimum age of 16 years shall work on a ship.
A summary of the MLC and its applicability to Superyachts
Although a certificate of compliance is required for vessels > 500 (gt) regularly journeying overseas, all aspects of the MLC (except for accommodation and recreational construction guidelines) apply to all commercial vessels intending to undertake an international voyage or those vessels maintaining a certificate for unrestricted operations under the Navigations Act.
Obligations on commercial vessels include:
- Minimum age restrictions (16 yrs)
- Medical certificates required for all seafarers
- Documentary evidence of seafarers qualifications
- SEA agreement including provisions for leave, wages, hours, repatriation and shipowners liability
- Food and catering
- On board medical care
- On board complaint procedures
Enforcement; Temptations to register privately; Commercial Ship Owners should not be persuaded to register private vs Commercial Registration to avoid compliance with the MLC
Ship owners should be wary that a recent rise in private registrations and decrease in commercial registrations is a trend due to the increasing regulations placed on commercial vessels. Vessel owners should not be persuaded to register their boat privately in order to avoid the additional burdens that the MLC has on design and working conditions.
With the number of Port State Control inspects on the rise since ratification in August last year, both registration and all other regulated matters under the MLC are actively enforced.
Although historically, the MLC along with other conventions is mainly concerned with regulating the transport of goods and passengers, until Yacht and Superyacht concerns become a specialised avenue of law, compliance with the MLC, although somewhat impracticable from a design standpoint, is inevitable.
If you are involved in the Superyacht industry, it is more than likely that the MLC will have some effect on you. To avoid port-side delays and potential referral to AMSA, all vessels including Superyachts should obtain a certificate of compliance, or at the least ensure documentary evidence can support the requirements set out in the MLC.
Vessel owners should note that this article is not a comprehensive analysis of the MLC and how it may apply to your particular vessel. AMSA encourages all queries regarding your vessel, business, or rights at work regarding the application of the MLC to be forwarded to LabourConventions@amsa.gov.au
Copies of the MLC, 2006 and relevant ILO guidelines can be downloaded from the website www.ilo.org.