Since the start of the Coronavirus pandemic, the PYA's Member Assistance Service (MAS) has received a number of questions from members about various situations that they find themselves in now that multiple countries have gone into lockdown and travel has been restricted.
The following advice has been prepared by the team behind the PYA's MAS to give you some general guidance. Please note carefully that the circumstances of each case will be different and that specific advice should be sought from the appropriate parties: Flag State (of the vessel), Port State (where the vessel is currently lying), National State (of the seafarer) etc.
In addition, every effort should be made to discuss matters with your employer and/or your captain and to reach agreement amicably.
In general, the issues that have been raised by crew fall into three categories;
A - The employer wants to reduce costs
B - Seafarers cannot leave the vessel
C - Seafarers cannot join the vessel
A - PAY REDUCTIONS / UNPAID LEAVE
We have received a number of enquiries from seafarers who are being told they must accept a significant reduction in pay because it's probable there will be little or no yachting activity in the coming (northern) summer. It's implied, if not stated outright, that the seafarer's employment will be terminated if he/she does not accept the proposed lower rate of pay.
Our advice to our members is that this change in the terms and conditions of employment is legal so long as it is done in accordance with the notice requirements of the employment contract.
We have also heard from seafarers who have been asked to take unpaid leave - which amounts to a pay cut AND means paying your own living expenses. Furthermore it may not even be possible to travel from the yacht to the seafarer's home (see below).
Whilst we do not advise these members whether or not they should accept the proposed change, we do point out that finding a new job at this time might be a bit of a challenge.
B - DISEMBARKING
Many seafarers who are due to take leave, to go 'off rotation' or to go home at the end of their employment are finding they cannot do so because of movement restrictions or because there are no flights.
On top of this, it seems that many ports will not even allow seafarers to disembark.
For seafarers due to take leave it seems that the best solution is simply to defer the leave. However, for those working under MLC 2006 contracts this could be in contravention of Regulation 2.4 which requires that all seafarers receive paid leave at least once in each year of service. It should be noted that the ILO is encouraging Flag State administrations to waive application of this rule. This means that seafarers' engagement can be extended until circumstances permit them to take their leave - although it may not be possible to extend beyond 12 months of service on board.
For seafarers due to go 'off rotation', it seems the best solution is to temporarily alter the rotations - especially as the person due to take over may not be able to travel to the vessel.
For seafarers whose employment is ending, there does not seem to be any obvious solution. In our view it's the employer's responsibility to make the travel arrangements and, if travel to the seafarer's home is not possible, to make alternative arrangements for the seafarer's board and lodging, either aboard or ashore.
We strongly advise members in this situation not to sign any discharge documents unless/until they have evidence that suitable arrangements for them have been made.
Equally, we strongly advise members not to disembark without having confirmation that their onwards transportation and their immigration status are ok.
C - JOINING
There are similar problems for those trying to rejoin their vessel (after leave or an 'off rotation') and for those starting a new job.
For those trying to rejoin the solutions proposed above seem to apply whereas those trying to join a vessel for the first time are in a more difficult position.
In yachting it's common, even on vessels subject to MLC 2006, for seafarers to sign their employment contract after they arrive on board and this complicates the legal position if they are not able to travel to the vessel. In English law (and under many other jurisdictions) a contract is deemed to exist if there has been 'offer and acceptance' and so a seafarer who, in an exchange of e-mails, has accepted a job offer can probably claim that an employment contract already exists.
Because it is the employer's responsibility to arrange, and pay for, the seafarer's travel from his/her home to the vessel the seafarer could claim that he/she is already employed and so entitled to be paid.
However common sense suggests that it is in the interest of both sides to reach some compromise.
As noted in the introduction, every case is different and these comments give only an overview of possible problems and solutions.
To get advice on your individual circumstances, please email firstname.lastname@example.org.