Crew holiday pay
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.
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.
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.
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.
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.
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 JansenDirector & Head of YPI Yacht ManagementYPI Management
Yachting Partners International28/29 Richmond Place | Brighton | BN2 9NA | United KingdomT: +44 (0)1273 571722 | M: +44 7713 623 194 | F: +44 (0)1273 571720Office Locations in: Paris - Antibes – Monaco – Brighton ( UK )
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.
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.