In light of the COVID-19 crisis many ports and states issue restrictions and guidelines concerning vessels arriving in ports and seafarers embarking or disembarking vessels. Therefore, Nautilus issued some FAQs focusing on the MLC 2006 and the Seafarers’ Employment Agreement (SEA).
Nautilus highlights that there is a high possibility that there will be differences between flag states’ laws.
1. I am due to join my ship in a Covid-19 hotspot, can I refuse?
Refusal to join a ship would be considered misconduct or gross misconduct under many SEAs even with such a looming public health concern. Check your SEA and any applicable Collective Bargaining Agreement (CBA), to see if there are any relevant clauses.
Employers demanding travel to a hotspot could be in contravention of national government travel advice, risk corporate travel insurance cover and fall foul of employee health and safety responsibilities under the MLC. Ensure your employer is aware of your concerns.
It may be that, in extreme cases, refusing to join a ship in a hotspot would be reasonable on health and safety grounds. However, a bad employer may still wish to treat this as a disciplinary issue.
2. Can I refuse to join my ship if, as part of the rotation, it is going into a Covid-19 hotspot?
Under the MLC ship owners have a duty to protect the health and safety of seafarers. However, it may be harder to justify refusing to join a ship that will visit a hot spot as part of its rotation, as the risk of contracting the virus could be considered minimal if there is no contact with the local population.
3. Do I need to self-isolate when I off-sign from a ship that has been to a Covid-19 hotspot?
Check travel advice from your country of residence, which is subject to change.
Public Health England has published guidance on specified areas with implications for returning travelers arriving in the UK, which is subject to change at any time. It currently advises travellers to self-isolate, even if asymptomatic, if they have been to Category 1 countries, icluding Wuhan city and Hubei Province China; Iran; Daegu or Cheongdo Republic of Korea; and Italy.
Travel to Category 2 countries does not require self-isolation, but should symptoms develop, you should self-isolate and call NHS 111.
4. My employer is refusing to pay me after ordering mandatory self-isolation following a trip to a known Covid-19 hotpot, is this legal?
If an employer orders you to self-isolate following a visit to a Covid-19 hotspot, you should still be paid in accordance with your SEA.
An employer should not order you to take unpaid contractual or statutory leave for which you would normally be paid. Any contravention of this can be challenged with the assistance of Nautilus.
5. My employer is refusing off-signing and repatriation at the end of my contract due to Covid-19 fears at port, is this legal?
Under the MLC you have a right to be repatriated once your tour of duty is finished.
An employer can only refuse that if, under your SEA, there is a clause that permits it to extend the tour of duty.
However, what if you would rather not get off at a hotspot? Although the MLC states that seafarers cannot forego annual leave and that they have the right to be repatriated if they have been onboard for 12 months (effectively 11 months when annual leave is subtracted) the ILO has indicated that flag states have the flexibility to make exceptions to the prohibition against forgoing annual leave for imperative reasons of public health, such as the need to contain coronavirus.
However, this should only be used with appropriate safeguards to protect seafarers, such as obtaining their consent and ensuring that they do not lose their accrued annual leave or right to repatriation. Check with your flag state to see if ship owners can extend this flexibility to you without being in danger of breaching their MLC obligations.
Your employer will be liable to pay you for any such extension of your tour of duty.
6. What if I get sick or contract the Covid-19 virus while onboard, what are my rights?
You have a duty to protect yourself while at sea and a duty to protect others who may be affected by your activities.
You should follow the general advice published by
- the World Health Organization (WHO)
- The International Maritime Health Association (IMHA)
- The International Chamber of Shipping (ICS).
You should also seek advice from the onboard medical officer and inform your line manager/master.
7. I am feeling unwell onboard and due to dock in a port that is refusing shore access, what can I do?
MLC states that when you are in port you have a right to visit a medical doctor ‘where practicable’. In an MLC-ratifying state you also have the right to shore leave and to access shore-based welfare facilities. If the master or port are preventing you exercising these rights, then contact Nautilus for advice.
However, in a known COVID-19 hotspot, you may be better off staying onboard and seeking medical advice from the ship’s medical officer.
The ship owner is also obliged to provide you with free onboard medical care.
8. I have been hospitalised abroad with Covid-19, is my employer liable for medical bills and sick pay?
The ship owner has a duty to pay for your medical care and treatment, therapeutic appliances, and board and lodging until you have recovered. You will also be entitled to full pay until you are repatriated. After repatriation you will be entitled to pay (in whole or in part – check flag state law) until at least 16 weeks from the date you became sick.
If the ship owner refuses unreasonably to allow for medical checks or medical help, that would be a serious breach of flag state MLC laws, rendering the ship owner liable to prosecution.
While in a foreign port ships will also be governed by the port state’s MLC laws. So an MLC onshore complaint may also be lodged with the local maritime authority.
Action from your union can help enforce these mechanisms.
9. I am home on leave and ready to rejoin my ship, however the ship owner is refusing to send me back. What can I do?
Firstly, Nautilus encourages seafarers to contact them, as such cases are likely to be very fact-sensitive, and require industrial and legal intervention.
Nautilus will try to get you back to work, or at least ensure that you are paid if it is the ship owner that is preventing your return.
Some SEAs allow the ship owner to suspend work for ‘force majeure’ or unforeseen circumstances without pay, depending on which national laws the SEA is governed by.
However, if your SEA is subject to UK law, and there is no such clause, then you should be entitled to continued payment.
