Blog: Statutory annual leave, repatriation and COVID-19

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Chamber member Ince have provided guidance on what COVID-19 means for employers.

What is the rule on annual leave and repatriation for seafarers?

In Maritime Labour Convention (MLC) ratified flag states, seafarers are entitled 2.5 days’ paid annual leave per calendar month of employment, totalling 30 days per year. In addition to this, they are entitled to paid leave in respect of public holidays. They are entitled to the pro-rata equivalent if working part-time or if working for less than a year.

This means that seafarers working on ships whose flag state is the UK will be entitled to 38 days’ paid annual leave per year. Some seafarers are provided contractual annual leave in addition to their statutory entitlement. 

Any statutory annual leave must be taken in the year that it accrues. Arrangements for taking leave are agreed directly between shipowners and seafarers.

The MLC confirms that seafarers cannot be paid in lieu of their annual leave entitlement, save for on termination of employment and that entitlement to annual leave cannot be waived.

The MLC states that seafarers have the right to be repatriated in intervals of no more than 12 months. In effect, taking into account statutory annual leave, seafarers should normally be repatriated at intervals of no more than 11 months.

How is COVID-19 impacting on these rules?

Due to the COVID-19 pandemic, some seafarers have had to remain on board their vessels because of restrictions on crew changes. Ship owners are facing challenges in repatriating seafarers due to reduced availability of flights and restrictions in many countries and ports.

This has caused problems as some seafarers are unable to take their annual leave in the year it accrues as planned and their annual leave is having to be delayed. As well as this, some seafarers’ repatriation is being deferred.

Should the usual rule on taking annual leave in the year it’s accrued be enforced?

Although there are arguments that this rule should not be enforced whilst restrictions on crew changes continue to apply, unions have requested that safeguards are put in place to ensure that the relaxation of requirements to annual leave and repatriation are not abused. 

The International Labour Organisation has indicated that flag states can be flexible and that exceptions can be made against the prohibition of delaying annual leave to the next leave year for imperative reasons of public health, such as the need to prevent the spread of COVID-19.

The Maritime and Coastguard Agency (MCA) has clarified this by issuing guidance on the carryover of statutory annual leave and repatriation. The guidelines do not apply to contractual annual leave. The guidelines apply to UK flagged ships.

The guidelines are valid from 1 March 2020 to 31 August 2020 and are subject to review at monthly intervals from 1 May 2020. We therefore advise shipowners to confirm the validity of the guidance before undertaking any of its recommendations. A copy of the guidance can be found here.

What do the UK government recommend as best practice?

Shipowners should obtain consent of seafarers to the extension of their Seafarers’ Employment Agreement. They must ensure they keep seafarers regularly informed and updated about their annual leave and repatriation and should consult with them as far as possible. Any records of discussions and consultations with seafarers should be retained.

Measures should be implemented to try and mitigate the negative effects of cancelled annual leave or delayed repatriation, such as rearranging of work patterns to provide for increased shore leave (where permitted) or rest breaks, and increased/cheaper connectivity to enable seafarers to contact family and friends and to access entertainment.  

Importantly, shipowners must ensure that annual leave entitlement and the right to repatriation is not lost. Subject to the Seafarers’ Employment Agreement, the shipowner should review the situation frequently and provide seafarers with an opportunity to take annual leave and/or be repatriated as soon as reasonably practicable. 

The above does not constitute legal advice. Should you have any queries, please do not hesitate to contact the authors of this article, Martin Pratt (martinpratt@incegd.com) and/or Holly Freuchen (hollyfreuchen@incegd.com).

 

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Following recent developments in relation to COVID-19, the Ince global offices have been advising clients on a wide range of issues arising and stand ready to assist you and your business with any concerns that you might have. Click here to read more.