The Maritime Labour Convention 2006 (‘MLC ) obliges in its Regulation 4.5 regarding the social Security of Seafarers in order to ensure that measures are taken with a view to providing seafarers with access to social security protection in these terms:
“A seafarer has the right to some social security protection from the country where they are ordinarily resident. It should be no less favourable than that enjoyed by shore workers resident in the territory.
Each Member undertakes to take steps, according to its national circumstances, individually and through international cooperation, to achieve progressively comprehensive social security protection for seafarers.
Each Member shall ensure that seafarers who are subject to its social security legislation, and, to the extent provided for in its national law, their dependants, are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers”.
That is the theory which is not always fulfilled and originates a considerable lack of protection of the labour rights of seamen.
The purpose of this Convention is that each State ensures the referred rights that all seafarers and, to the extent them provided for in its national law, so that their dependants have access to social security protection in accordance with the MLC without prejudice however to any more favourable conditions. A country that has ratified the MLC must take steps, according to its national circumstances, to widen social security protection so that all the types of social security protection listed in the MLC are eventually covered. A seafarer’s country that has ratified the MLC must choose at least three types of social security protection from this list: medical care, sickness benefit, unemployment benefit, old age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit, and survivors’ benefit.
In Spain professional crew member have been obliged to be recorded in the Régimen Especial de la Seguridad Social de Trabajadores del Mar (Seafarers Special Social Security scheme) as employees , however of 2015 – Law 47/2015, of 21 October, regulating the social protection of the workers of the maritime sector and fishing , they might be recorded in the self-employed or autonomous workers within the RETA scheme (Regimen de Trabajadores Autonomos).
By red ensign vessels under the MLC, the most common is that shipowners as employers supplies a private Personal Health and Accident Policy excluding Pension schemes and leaving on behalf the employee or crew member any liability applicable regarding taxes or social security which in some cases do not fulfil with the Maritime Law Convention regulation. In those cases and the MCA can withdraw a ship’s Maritime Labour Certificate if seafarer living and working conditions are breached.
All these are general rules which need to be double checked in the specifically existing scenario – case by case – as normally in pleasure crafts from more than 24 m LOA there are different legislations and jurisdictions involved depending on the Ship´s registration, Port base, nationality and residence of the owner – and/or the ultimate beneficial owner (UBO), nationality and residence for tax purposes of the crew member, the nature oand dispositions of the employment contract, private or commercial use of the vessel , in if so establishment in another EU member State. etc.
So, if you have some queries these regards do not hesitate to contact us..
Carlos Espinosa
Solicitor & Tax Adviser
+34 627 41 32 01
carlos.espinosa@iurisnautic.com
