A recent application for judicial review of the Maritime & Coastal Agency’s (MCA’s) alleged failure to enforce a key provision of the Maritime Labour Convention (MLC) brings sharply into focus how the MLC can lead to criminal proceedings against the owner of UK flagged vessels and its master in his personal capacity.
By way of reminder, UK flagged vessels became subject to the terms of the MLC by regulations made in 20131 (the Regulations) after the MLC came into force. The MLC does not enable seafarers to claim compensation for breach of MLC obligations. Therefore, unless a seafarer can establish jurisdiction in the UK, which is very often not possible, that seafarer is not able to bring an Employment Tribunal claim here.
This leads many to wonder whether the MLC has real “teeth”. Such MLC-deniers may start to see how its impact is being felt following a recent case brought in the UK’s High Court which started with a complaint to the MCA by a seafarer who alleged he had been dismissed because his employer had breached the MLC.
Shipowners and their masters who breach the MLC could be liable to fines and/or imprisonment under the Regulations. So, if an UK flagged ship covered by the MLC proceeds to sea without a valid MLC certificate, or a person tampers with or falsifies an MLC certificate, they will be guilty of an offence. If copies of key MLC documents are not onboard the ship, they will be guilty of an offence. Finally, and most interestingly from an employment perspective, if a shipowner does not operate an MLC-compliant onboard complaints procedure, or the seafarer is subjected to a "detriment" on the grounds of lodging a complaint which concerns alleged breaches of the MLC, they will be guilty of an offence bearing a maximum penalty of a fine and/or imprisonment up to 2 years. Examples of a detriment might be dismissing the seafarer, bullying or harassment, giving menial or unpleasant tasks or reducing overtime.
Therefore, whilst through this mechanism seafarers cannot initiate proceedings for compensation against the shipowner directly, they can trigger an investigation by the MCA into whether a complaint has been properly handled, and whether a seafarer has been subjected to a detriment. The only defence available to a shipowner or master is to show that all reasonable steps were taken to ensure compliance with the Regulations. If the shipowner/master is found to be in breach, the MCA can prosecute. If the seafarer is dissatisfied with the MCA’s treatment of their complaint, they can apply to the UK Courts for a judicial review to establish whether the MCA has properly carried out its enforcement powers. Whilst again this is not a direct claim against the shipowner, any finding that the MCA did not properly deal with the matter will inevitably result in another more detailed investigation of the underlying issue. All amounting to considerable management time and costs for the shipowner, as well as potential fines and imprisonment for individuals and possibly detention of the ship.
The recent case of Wilson v Secretary of State for Transport (2015), which concerned such a judicial review, gives us an interesting insight into how the MCA are handling the enforcement of the obligations under the Regulations. It would appear that Mr Wilson’s complaint was the first of its kind and that the MCA was very much "feeling its way" through the process, developing a clearer understanding of its obligations, as was particularly evident by the time the case reached the appeal stage. Whether a person has suffered a “detriment” is a concept very familiar to British employment lawyers but not so much for a maritime regulator.
In this case, the seafarer, Mr Wilson, was a Fleet Trainer on board a cruise vessel. In the first months of his employment, he became unhappy about the way his employer operated in a number of respects and decided to complain. He escalated that complaint to several senior figures including the company’s President. Shortly thereafter, Mr Wilson was sent home from the voyage and dismissed. He protested to the MCA that he had suffered a detriment because he had raised grievances about breaches of the MLC. When that course of action failed, he brought judicial review proceedings before the High Court. This was also unsuccessful because the Court decided that the complaints were not about breaches of the MLC at all. Rather, they were around his annoyance at his berth being moved, clerical errors with his pay and his view that the company did not comply with its own “values” which included respect for employees. None of these are covered by the MLC.
This case should focus shipowners' minds since it highlights how they might be exposed to a complaint under the Regulations and therefore to a fine and/or imprisonment. The MLC is so widely drawn that there are a myriad of ways in which a complaint could fall within the obligations in the Regulations. Say, for example, a crew member raises a complaint about something he believes amounts to a breach of health and safety regulations, or argues that she is being paid less than her male colleagues for the same work. If those seafarers subsequently find themselves treated more poorly or ostracized by the master or sent home, then there are grounds for an MCA investigation, and depending on the facts, a prosecution.
The MCA are probably now well prepared for the next complaint it receives. So what can a shipowner or master do to protect itself? They will need to show that all reasonable steps were taken to comply with the obligation, such as properly training its masters to manage complaints and to avoid detriments being applied to those who complain. Of course, in this case, the shipowner’s defence was that it was not the complaint itself that caused the dismissal, it was the manner in which he raised the complaint at an inappropriately senior level which led to the detriment. This is an often cited defence in whistleblowing detriment cases in the UK Employment Tribunals and one which has had mixed success. It is often very difficult to draw the line between the manner and the substance of the complaint, and taking such action without investigating the complaint is certainly high risk.
Whilst this regime is limited to ships flagged in the UK, the case also referred to the right of seafarers to make a similar complaint when a ship enters a UK port, regardless of the flag, which would add an additional circumstance when such obligations might arise. And finally, it can be assumed that other jurisdictions have enacted the MLC in a similar way so that vessels flagged in those states may be subject to similar sanctions. The International Labour Organisation (ILO), which developed the MLC was joined as an “interested party” to this case, making it clear they are watching closely how far the MLC is being applied. The seafarer unions will also be watching with interest. We can safely assume that we will see more and more complaints as seafarers and their representatives seek to test the limit of their rights under this legislation. Shipowners and masters take note: manage complaints properly onboard and ensure no retaliatory action to avoid prosecution under the MLC.