Seafarers employment agreement (seafarers who reside in France)

Definition of the seafarers employment agreement (SEA)

The seafarers employment agreement is defined by Article L. 5542-1 of the Transport Code : as «any employment contract concluded between a seaman/seafarer and a shipowner or any other employer, the object of which is a service to be performed on board a ship, is a seafarers employment agreement.»

The object of a seafarers employment agreement (SEA) shall be a fair employment. For this, the conditions of employment of the seafarer are defined in clear terms and are mandatory and compliant with the standards set in the Transport Code.

General principles of freedom of contract

Subject to the applicable collective agreement in force, the provisions of which are binding and applicable, the general principles of contractual freedom apply to the individual seafarer employment agreement.

Parties to the SEA

Are parties to the SEA:

  • on one hand, the employee, who is a seafarer (3° and 4° art. L. 5511-1 and R. 5511-1 to R. 5511-7, code des transports) ;
  • on the other hand, the employer:
    • the shipowner (1° art. L. 5511-1, Transport Code)
    • private recruitment and placement services for seafarers (manning agencies - art. L. 5546-1-1, Transport Code) :
      • maritime employment agency (ETM – 1° art. L. 5546-1-1, Transport Code) ;
      • temporary work service agency (ETT – 2° art. L. 5546-1-1 2°, Transport Code).

Differents types of SEA

In accordance with Article L. 5542-1 of the Transport Code, there are 3 types of seafarers employment agreements.

  • 1) Permanent SEA (permanent contract)
  • 2) Fixed-term SEA (fixed-term contract)
    • Fixed-term SEA for a seafarer who is seaman: non-application of the prohibition to use a fixed-term contract to fill a permanent job related to the normal and permanent activity of the company and non-application of the limiting list of cases of the fixed-term contract situations; ;
    • Fixed-term SEA of a seafarer not seaman: application of the Labour Code provisions on cases for the use of fixed-term contracts (art. L. 5549-2, Transport Code) ;
  • 3) SEA on a voyage basis. The SEA on a voyage basis is concluded for the duration of the maritime voyage. It includes only the periods worked on board. In addition to the specific provisions of the Transport Code on the SEA on a voyage basis, the Transport Code provisions on fixed-term contracts (duration, postponement clause, waiting period) are applicable to the SEA on a voyage basis (art. L. 5542-3 of the Transport Code).

Mandatory provisions and information

The seafarer employment agreement must be in a written format (art. L. 5542-3 and art. L. 5621-12, Transport Code).

In accordance with Article L. 5542-3 of the Transport Code (application of the international Maritime Labour Convention - MLC), the agreement shall mention:

  • 1° the seafarer’s full name, date of birth or age, and birthplace; ;
  • 2° the shipowner’s name and address;
  • 3° the place where and date when the seafarers’ employment agreement is entered into;
  • 4° the capacity in which the seafarer is to be employed;
  • 5° the amount of the seafarer’s wages or, where applicable, the formula used for calculating them;
  • 6° the amount of paid annual leave or, where applicable, the formula used for calculating it;
  • 7° the health and social security protection benefits to be provided to the seafarer
    by the shipowner;
  • 8° the seafarer’s entitlement to repatriation;
  • 9° reference to the collective bargaining agreement, if applicable; and
  • 10° any other particulars which national law may require.

The SEA also specifies:

  • the notice period in the event of breach by one of the parties (art. L. 5542-4, Transport Code);
  • the modalities for repatriation of the seafrer, as an obligation for the employer (art. L. 5542-29 to 5542-33-3, Transport Code).

Establishment of the SEA

The seafarer shall:

  • have sufficient time to read the agreement and seek advice before signing it (art. L. 5542-5 and L. 5621-12, Transport Code);
  • sign and receive a copy of the agreement before boarding the ship (art. L. 5542-5 and L. 5621-12, Transport Code).

Specific rules

Persons employed on board RIF-French flagged ships cannot be under the age of 18 (art. L. 5621-6 of the Transport Code).

The maximum period on board is 6 months. It can be extended to 9 months as part of a collective agreement and in both cases, extended or reduced by no more than 1 month for reasons related to the ship operation.

Probationary period

Derogations from provisions detailed below may be provided by way of a collective agreement.

Probationay period for permanent contracts

The provisions of the Labour Code on the probationary period (art. L. 1242-10 to L. 1240-11, Labour code) are adapted for seafarers hired under a permanent SEA. Thus, the maximum duration of the probation period (art. L. 5542-15 of the Transport code) is:

  • 4 months for officers or 8 months in case of renewal;
  • 2 months for ratings or 4 months in case of renewal.

Only the periods of work on board are counted.

For seafarers non seamen hired on permanent contracts, the Labour Code is applicable without adaptation. Thus, the probation period is calculated based on the minimum duration of the contract, with a 1 day per week ratio.

Probation period for fixed-term contracts

Art. L. 1242-10, Transport Code:

  • fixed-term contract ≤ 6 months: the probation period is calculated with a 1 day per week ratio, with a 2 weeks limits;
  • fixed-term contract > 6 months: probation period of 1 month.

No probation period for voyage-based employment agreement.

End of the SEA

End of a permanent contract

The permanent contract ends:

  • on the will of the employee (resignation);
  • on the will of the employer (dismissal for personal or economic reasons);
  • by agreement between the parties (conventional termination).

End of a fixed-term contract

The fixed-term contract of a seafarer seaman resident in France ends:

  • at the end of the term (Art. L. 5542-45, Transport Code);
  • if the term of the fixed-term contract occurs during a voyage, said contract ends on arrival at the first port where the ship carries out commercial operations (unless the return to France is scheduled within 1 month of the end of the fixed-term contract, the fixed-term contract ends on the ship’s arrival in a French port).

Cases of termination of a fixed-term contract: agreement between the parties, serious fault of the employee or the employer, force majeure, incapacity of the employee, external hiring of the employee for an indefinite period.

Effect of the termination of the SEA for a seafarer residing in France:

  • at the end of the notice period;
  • minimum period of 7 days, except for emergency or humanitarian reasons invoked by the seaman (art. L. 5542-4, Transport Code).

Subject to the public policy period set in article L. 5542-43 of the Transport Code.

In the event of dismissal for reasons other than serious misconduct (art. L. 5542-43, Transport Code):

  • 1 month notice, if 6 months of effective and continuous work onboard with the same employer + seniority due to continuous services between 1 year and less than 2 years;
  • 2 months notice, if the continuous service is at least 2 years with the same employer.

Service record to be given by the employer to the seafarer

In accordance with Decree no 2015-440 of April 17, 2015 on seafarers’ service record, this document must be issued by the employer at the end of the SEA. This document lists the identity of the parties, the period worked in the company, the rank occupied on the ship(s) and the duration of periods on board the ship, the periods worked ashore.

The record does not contain any assessment on the quality of work of the person concerned nor any indication of the salary and can be translated into English on request.

The employer who refuses to issue the said service record is liable to a fine as a 4th class ticket (Art. 5, decree no 2015-440 of April 17, 2015).

Severance pay

Severance pay for termination of a permanent contract

In accordance with Article L. 1234-9 of the Labour Code, "lemployee under a permanent employment contract, if dismissed after counting 8 months of uninterrupted seniority for the same employer, is entitled, except in the case of serious misconduct, to a severance pay."

The severance pay cannot be less than the following amounts (art. R. 1234-2, Labour Code):

  • 1/4 of the monthly salary per year of seniority for periods up to 10 years;
  • 1/3 of the month salary per year of seniority for periods above 10 years.

Allowance pay at the end of fixed-term contract

Seafarers have the right to the application of the allowance pay at the end of a common law contract, as provided for in art. L. 1234-9 of the Labour Code.
It should be noted that the law no 2013-619 of July 16, 2013 deleted the specific provisions regarding the compensation for the maritime fixed-term contract (art. L. 5542-46, Transport Code).

The allowance pay at the end of a fixed-term contract is therefore calculated based on articles L. 1243-8 and L. 1243-9 of the Labour Code, i.e. 10% of the total gross remuneration paid to the employee (this amount may be limited to 6% by a collective agreement).

Sanctions

A fine of € 3,750 in case the employer recruits a seafarer without a written employment agreement (1 ° art. L. 5542-51; Transport Code).

A seafarers employment agreement concluded improperly for a fixed term may be requalified by the judge as a permanent contract (Cass. Soc. June 8, 2016, no 14-18974).

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