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Crew holiday pay
Simo
Posted: Wednesday, February 18, 2009 7:04 PM
Joined: 24/07/2008
Posts: 5


Dear Legal experts,

I have recently departed a yacht after full time employment. I resigned as I need to spend the next two months studying for my next qualification, thus left on good terms. When I got back to Europe I was told that I would not be getting the holiday pay I had earned over the 6 months. I have rung the maritime and coast guard agency and asked them for information regarding this type of situation. Their reply was that a contract is made once you sign onto the crew articles that binds the yacht to the international terms and condition recommended by IMO for all flag states signed to the agreement. The UK enforces the law set out by IMO and it states. All crew members will receive 2.5 days pro rata holiday pay per calendar month from their initial employment until the last day of employment. They go on to say even somebody that was fired would still be entitled to this payment.

The boat I just left told me that holiday pay is regarded as a “bonus” and is paid after 12 months service at the masters discretion.  Any help would be greatly appreciated.


Anonymous
Posted: Wednesday, February 18, 2009 7:38 PM
Simo.

Have a look at my blog a couple of weeks ago.  This is, sadly, absolutely normal and of course is absolutely unfair.  Your success in dealing with the issue will ultimately come down to your nerve.  The next step is often that the captain  will refer you to the owner or owner's rep and they will then say that "the owner says NO!"  It happens all the time.

You have to decide carefully what to do but a few rules are:
Keep everything in writing. 
Keep it civil.
Don't try and punish them, keep your eyes on your goal.
It may be the case that a well worded letter highlighting the reality as opposed to the masters opinion may yield what you need.  It is certain that a maritime lawyer can advise you better and more specifically given the exact circumstances of your case.  As mentioned in my blog I would bee happy to recommend one if it becomes necessary.

Good luck!

Mike French



KKS
Posted: Wednesday, February 18, 2009 7:57 PM
Joined: 02/05/2008
Posts: 40


Simo-

When you talk about the IMO (International Maritime Organization), I think you mean the Maritime Labour Convention (MLC) which is a joint convention set for by the UN offices of the IMO and ILO (International Labour Organization). It is my understanding that compliancy with the MLC is voluntary at this point. It will not be universally enforced until 2011. However, many shipping agencies are already voluntarily complying. Were you given an MLC compliant contract when you signed on? If not, it is my impression that you cannot yet force an employer to comply. Check the terms of your contract. If you have no contract, you will probably have a tough time getting that pay. It will likely cost more to litigate it from your boss than you would get from your boss. However, in a few years (assuming the MLC remains unchanged) it will be much easier to resolve issues like this in the future. In the mean time, you may be out of luck. I will send out an email and see if I can get you a definitive answer.


Simo
Posted: Wednesday, February 18, 2009 8:44 PM
Joined: 24/07/2008
Posts: 5


Thanks very much.

In the end I think I will have to right the money off anyway so I don't get into a legal battle.  The Captain should be responsible enough to look after his crew, past and present!

I just want to be clear for next time so I don't find myself in this position again. 

 


MatrixLloyd.com
Posted: Wednesday, February 18, 2009 9:01 PM
Joined: 19/05/2008
Posts: 52


Hi Simo. Thanks for your question. Your rights as to the amount of holiday to which you will have become entitled to at the time you leave, and to which you will be entitled to pay in lieu when you leave will be governed by (1) the flag state, and (2) the law expressly applicable to your contract of employment (if any), in that order of priority. DON’T WRITE IT OFF!!! Not only will you not get anything, but you’ll only encourage this sort of thing to happen to others. Don’t let yourself be bullied into forgoing the money. It may not seem like much now, while you’re earning a decent, tax-free salary, but it is not the sort of sum you should be ignoring. Invest it. Give to charity. But don’t write it off. I may be able to help you make a recovery, on a no-win-no-fee basis, and by getting us to assist (we are nice… at first!) you’ll be one step removed from any action. Give me an email at info@matrixlloyd.com. Benjamin Maltby. MatrixLloyd.
Anonymous
Posted: Thursday, February 19, 2009 1:08 AM
You say it makes you sick because you gave the owner so much time and effort, but you were only aboard for 6 months before you ELECTED to leave. Something you probably knew you were going to do when you took the job. You talk like you deserve to be treated as if you left after 6 years, not 6 months. Now the owner has to find a replacement for you and train another crew member. Instead of trying to sqeeze more money from the owner, you should be grateful for the opportunity he gave you. You obviously weren't committed to him, why should he feel any obligation to you? This is precisely the kind of attitude that gives all crew a bad reputation.
Simo
Posted: Thursday, February 19, 2009 9:35 AM
Joined: 24/07/2008
Posts: 5


You sound like my old captain and I wouldn't mind betting that it is you. That being the case, I will leave it to the forum to work it out. Before I go though I should just add this point.

The 2.5 days per month is a fixed cost and is not dependant on the time you have served. You would have to pay the same amount if somebody stayed for one month or ten years! I think you are getting confused with the 13th month bonus or a yard bonus. I would firmly agree that these are to be distributed for longevity and loyalty and that works well as an incentive for crew to stay.

 This is a simple case of doing what is lawful. Nothing more. I don't give yacht crew a bad name for asking for what I thought was my legal entitlement, you give yacht captains a bad name for withholding it.

 

 

 


monback
Posted: Thursday, February 19, 2009 10:34 AM
Joined: 21/01/2009
Posts: 36


Just had a gab with the new crewmembers on the yacht next to me.  They both left yachts after succesfull service, one was 4 months, the other 7 months and they both recieced the additional pay or holiday pay as you call it 
Anonymous
Posted: Thursday, February 19, 2009 5:23 PM
Get it in writing!! As a Captain, my Caymans Islands Contracts that I issue to new crew, state all the fiscal and other benefits you get from the day you join the yacht on a trial period, until your last day onboard. My contracts states that no leave or leave due is paid until you have completed at least Six (6) months of your contract. We also do not grant study leave until the crew member has completed their 1st years contract and has signed on for another year. Why should I grant you Two (2) months study leave after just Six (6) months? You have shown me no longevity (6mths!!) and I would have been right not to do it. Full marks for the Captain. We have been burnt by so many crew like Simo, that join promising us his loyalty and longevity then leave us, as and when it suits them. leaving after Six (6) months because he has decided to do a course, is not the way to get a good reputation in this business and I can agree with the attitude of the Captain in this case. Legally he probably does owe you something, but you will have to pay his costs to replace you, flights for the new person to join, uniform costs, etc etc including the agency fees, if he was severely inconvenienced, which it sounds from your attitude that he was, so you will get nearly nil from the $4,700. Knock yourself out on that one!! Glad Simo put his photo up, I will bin his CV immediately when see it come across my desk!!
Anonymous
Posted: Thursday, February 19, 2009 7:11 PM
  Hey Simo...a word of wisdom. When you interview for you next position and two opportunities arise...reject the flag of convenience and go with a national flag and owner. Flags of convenience guys are always punching above their weight class, hire poor captains and will generally do whatever it takes to save a few bucks.  Go with the flag of the owner, they take pride in their yacht and its crew.
monback
Posted: Thursday, February 19, 2009 7:23 PM
Joined: 21/01/2009
Posts: 36


The above captain has been breathing bad air or has a case of the vapours. Pay no attention. Good crew leave for a variety of reasons after a short stay. Marcel, an engineer just left his yacht because its new  schedule kept him unacceptably far from his family.  The yacht fulfilled its obligations. Don't let that captain with the vapors discourage you.
Anonymous
Posted: Friday, February 20, 2009 4:01 AM
Keep it up, please. This is very instructive for Americans. Most of us would not dream of expecting holiday pay after departing a yacht after working for 6 months. And most of us have no concept of this 13th month bonus deal. In America (sadly) if you are lucky, after the first year you will get a one week vacation, two if you are very, very lucky. Americans would relish the vacation compensation program you enjoy.
Anonymous
Posted: Saturday, February 21, 2009 8:57 PM
How does 2.5 days per calendar month multiplied by six months of services equal $4,700?????
Anonymous
Posted: Saturday, February 21, 2009 9:09 PM
Wow!!!  Over $300 per day?  Were you the captain???  My guess is . . . . probably not . . . . just another yachtie thinking they're worth way more than they really are!!! 
Anonymous
Posted: Sunday, February 22, 2009 4:40 AM
Every employment situation is different, of course. Yes there are "industry standards" but these are not to be assumed as minimums.  The onus is on you to negotiate these special points when you are hired.

I always draw up a simple memorandum of understanding with crew that lays out my expectations, boat rules, compensation, etc. etc.  It doesn't have to be fancy and can be generated by you or the captain. I then email that memo to the crew I've hired so there is a record of them having received it. Done and done.  If they don't agree with something on the memo that is the time to clear it up.

If you agreed with the Captain that you would get 2.5 days additional pay per month, regardless of how long you stay on, then it is owed to you (though you likely won't get it!)
If you didn't make this extra pay thing perfectly clear, forget it and move on.
How was your 6 months aboard? Did you never get a day off or was the boat running with guests 24/7?  If you were super slammed on charter, I have some sympathy for you.
If you were dockside with a day or more off per week you definitely don't deserve any extra pay.

As a captain of a smallish yacht (29m) permanent crew receive 6 weeks paid holiday with flights.  Our schedule is such that we can work 5 days a week with days off on the weekends, except when we are cruising.  This is more than generous considering how lightly used the yacht is.
Seasonal crew are paid a good wage and receive no additional pay. Personally, I consider holiday pay to be for permanent crew or crew that have been aboard over a year.




Timo
Posted: Sunday, February 22, 2009 10:06 AM
Joined: 24/07/2008
Posts: 5


Thanks everyone for the advice so far.

It would seem that the gereral feeling is that you should stay for at least a year to be elligable for holiday pay with no question. On some boats they will pay the holiday pay out to crew leaving before this time but not always.

I noted that a few people were getting a bit personal and don't really mind, but it is not very constructive. I have previously been employed for 4 years on one boat and another for 3 years, this last boat just wasn't to be. I left on good terms and felt bad for leaving but the option to further my studies was the best option at the time. I had been paid holiday pay on both my other boats. It is obvious that this was because I stayed for a long time. Thanks again. Feel free to keep the conversation going, but I feel better now.

 

On a side note. As far as training goes (which was mentioned above). A good system I have come across is very simple and benifits both crew and employer.

The crew member payes for his course up front and foots the whole bill. The boat then pays back the crew member over a period of twelve months with equal payments. This is a very fair system that makes sense to me. If the crew member leaves straight after he gets his ticket the boat will not loose a thing. Alternatively, the crew member gets the assistance of the boat financially as long as he stays committed. May not work in all cases but I think it works quite well.


Anonymous
Posted: Sunday, February 22, 2009 11:01 AM
Yes, that is indeed the correct system.  For juniors, Stcw is  paid for by the boat and we hope they last a season , many youngsters dont have the cash and are not sure that the sea life is correct for them,   For crew of your class we include the course fee in your contract benifits plan and ask that you be aware of the yachts schedule when you leave for traning.
Anonymous
Posted: Monday, February 23, 2009 2:17 PM

 

The crew member should look at what is arranged in his employment agreement. If he signed an agreement that states holiday pay then he will have some recourse. Please stress to all your readers that they have to engage in a employment agreement. A good contract discusses its termination and this will avoid 90% of the disagreements and misunderstandings. To rely on Flag State rules and regulations alone is not a good thing for either party.  The MCA is not an union and lag states in general hardly ever get involved in employment disputes about salaries and payments.

 

You are correct that the current ILO convention is not yet ratified and it will be some time before this comes into force. Each flag state will have its own legislation in place. It is therefore very important to check what flag the yachts is.

 

If the yacht is flagged in the UK then, as I understand,  ‘The Merchant Shipping (Hours of Work) Regulations 2002’ are in force. (Statutory Instrument 2002 No 2125). I can not find anything about 2.5 days per month holiday. However there is an amendment going through consultation which is discussing this. Note that this is UK legislation and will not necessary apply to other flag states.

The UK legislation that is now in force is MSN 1767 which stipulates 4 weeks annual paid leave. This expires in October and will be most likely replaced by the below.

See annex B for the draft regulations. http://www.mcga.gov.uk/c4mca/mcga07-home/shipsandcargoes/consultations/mcga-currentconsultations/hours_of_work_consultation.htm

Hope this helps

 

Franc Jansen
Director & Head of YPI Yacht Management
YPI Management


Yachting Partners International
28/29 Richmond Place | Brighton | BN2 9NA  | United Kingdom
T: +44 (0)1273 571722 | M: +44 7713 623 194 | F: +44 (0)1273 571720

Office Locations in: Paris - Antibes – Monaco – Brighton ( UK )


Anonymous
Posted: Monday, February 23, 2009 3:03 PM
Frank’s on the right track, although MSNs certainly do NOT constitute any form of legislation – only a civil servant’s summary of the law – which can be vague and/or inaccurate. And it’s not just the good employment contracts which should cover termination – they ALL must, given that you’ll be quitting at some point. And both summary and with-notice termination must be dealt with. If you’re not offered a comprehensive contract covering these points – don’t take the job: it’s a sign that the yacht isn’t being managed properly. Out of interest, which where is the relevant vessel registered? Benjamin Maltby. MatrixLloyd.
Anonymous
Posted: Monday, February 23, 2009 3:05 PM
On the boat I run we always honour the 2.5 day rule regardless of why  or when you left.  Its standard practice around the boats.   Be aware  that crew go overboard with silly demands.  I remember last year a crew left,  a good crewmwber.   I settled all extra pay in cash before they left the boat, pre paid air ticket, I even got out of bed at 6 am to help the crew with luggage to a taxi, pre paid the taxi and thanked the crew for  service.  About two weeks later this crew emailed me and submitted a 35 quid receipt for taxi transport from Heathrow home.  Yup...I swear to god.   Perhaps now that the " great Crew Crisis " is over people will come to their senses.
Anonymous
Posted: Monday, February 23, 2009 9:02 PM
Anonymous wrote:
On the boat I run we always honour the 2.5 day rule regardless of why  or when you left. 
 
Standard where? Since when? And according to whom? Are you saying that if I hire someone and they quit after 2 months that I owe them 5 extra days pay? The way I see it they owe me for the cost of replacing them. That's ridiculous! Until I start seeing resumes with more than a season or two on each boat, the crew can worry about their own travel money. They sign on for a job, not a semester at sea. I won't consider holiday pay until I've got a commitment. No commitment, no benefits.

Anonymous
Posted: Monday, February 23, 2009 9:21 PM
Crew sign on in good faith and I behave in good faith.  People can leave for a variety of reasons, it is not my responsibilty to punish them.  If they leave under a cloud, they can be sure that I will not forward a recomendation.   but I must honour my agreement of 2.5 days . 
Anonymous
Posted: Monday, February 23, 2009 10:06 PM

If you agree to it, that's one thing. But fly-by-night crew have no reason to expect it. Perks and bonuses are something you earn, you are not entitled to them unless the owner decides to give you that entitlement. Think about it, you are giving your crew an incentive to quit.


Anonymous
Posted: Monday, February 23, 2009 10:38 PM
Normally when a crew leaves after short service I blame myself.  I hired them.  I do try and weed out people that wont make it...sometimes as captain I mess up and burn up the owners cash.  Its the life.
Anonymous
Posted: Monday, February 23, 2009 11:33 PM

It's different if you hire them and YOU decide that it did not work out. But when guys like this Simo arbitrarily choose to leave to suit their own interest, they should not be entitled to anything. I say Simo is a lucky guy if he can walk away with a reference, nevermind a cash bonus. It's obnoxious expectations like that that make owners hate their crew and give us all a bad reputation. I can only hope that now that jobs are harder to come by, crew with  "gimmie-gimmie" expectations will be weeded out. No matter what industry you are in, you have to earn your money - you're not entitled to anything.


Anonymous
Posted: Tuesday, February 24, 2009 12:31 PM
Skipper I agree,   Many things got ridiculous around the yachts...look at the salaries !!!  Commission driven Crew agents pushed the level to such highs that I frequently see owners fight back.  What seems to have happened is that these crew agents took  Pro, industrial strength, double season  yacht salaries then applied these numbers as industry standard.  We all know that out of the fleet of yachts, only 10 percent are full on and  must pay high compensation, crew training time off, holiday leave....to keep crew onboard.  It  amazes me that  short season domestic boats throw that kinda money around.  8  grand a month for a shorebased engineer or chef doing a  handfull  of two week cruises a year....give me a break. Perhaps times are changing.   
Anonymous
Posted: Tuesday, February 24, 2009 1:06 PM
Let's hope so, and maybe we can have our dignity back.
Anonymous
Posted: Friday, February 27, 2009 5:29 AM
First of all Simo should read what his contract stipulates re: leave pay.

If Simo left before the trial period was fulfilled it usually forfeits any bonuses.

Standard seaman law usually states that if one leaves before contract is completed then the person in question also pays for his own repatriation and cost for the relieving crew member.

Did you have to do this Simo?

I have had Filipino crew trying this and that to get themselves repatriated on medical grounds in order to avoid the clause with own cost repatriation and replacement crew flights.

Anyway, for crews looking for avoiding solicitor fees, litigating etc, there is always ITF (International Transport Federation), a call to them usually gives a swift response if there has been any de facto wrongdoings.

Anonymous
Posted: Friday, February 27, 2009 7:28 PM
I must say I find some of the more aggressive posts on this topic absolutely disgraceful. The attitude that you deserve nothing, should be grateful for any scraps you get and must subjugate any rights that are entitled to is utterly repugnant.

Your employmet is governed by contract, generating rights and responsibilities as well as collateral duties and obligations for both concerned parties. If the holiday pay clause was included the individual would be fully entitled to claim it regardless of the period served, on condition that the contract had not been terminated or repudiated. One suggestion that this individual would be liable for the recruitment costs of their replacement is completely laughable. The writer clearly missed his vocation as a stand up comedian.

Don't roll over and give up entitlements - yes, if you work 1 month or one year there will be a corresponding level of entitlement. If you have clear stipulation that you are due the 2.5 days per month for your period of employment then clearly approach the suitable individuals in a clear, direct and polite manner.

The aggressive respondents are clearly unable to intelligently appraise a situation objectively. It would appear they have no dignity nor self respect, let alone respect for others. Sadly it is an attitude that is found in this industry but thankfully it is not pervasive.

I am a lawyer, working in the yachting industry, currently on board. With such vitriol being directed at a completely reasonable request for advice and support leaves me wishing I was back wearing my gown and wig rather than my braided apaulettes.

Good luck Simo and to any others who have a rightful claim to what is owed them.

Anonymous
Posted: Friday, February 27, 2009 8:45 PM
The vitriol is spewed out of ignorance, likely by Americans who unfortunately rarely have the benefit of a contract whilst they are employed by US flag vessels. Take it with a grain of salt. Americans are funny types. They will often feel it their duty to "protect" the interests of their employer, often to the detriment of themselves and their fellow workers. These efforts are often misguided and lack foresight. Hopefully in future employment contracts will become standard practice for all levels of crew, regardless of flag.
Anonymous
Posted: Friday, February 27, 2009 8:56 PM
Don't forget trial periods work in both directions, at least if you're any good they do. It's not a question of ego, sometimes things you would like to make happen, wish for or even need financially don't work out. You have to do what's best for you at the time. Guarantee you the owner will.
Anonymous
Posted: Friday, February 27, 2009 9:05 PM
Bit like divorce innit?
Anonymous
Posted: Saturday, February 28, 2009 10:47 AM
A standard crew agreement covers your rights, including holidays, repatriation, who covers what on resignation or sacking, see link to a caymans crew agreement.http://www.cishipping.com/pls/portal/docs/PAGE/SRGHOME/CREW/MANNING/MANNINGPOLICYMANUALREV07APRIL2008.PDF
 
 Average 4 out of 5