Introduction
Scope of Order
Comments


Introduction

The Seamen Wages Council Wage Regulation Order (Subsidiary Legislation 452.51) (the Order) was recently amended by Legal Notice 469 of 2020. These amendments, which came into force on 1 January 2021, were introduced to reflect an increase in the cost of living. The legislature has increased the minimum wage for specific categories of seafarers regulated by the Order.(1)

Apart from matters regarding minimum wage standards, the Order also regulates other working conditions for specific categories of seafarers including vacation leave, sick leave and special leave. The standards thereunder are different to those imposed by the Merchant Shipping Act (the Act) or the Merchant Shipping (Maritime Labour Convention) Rules (the Rules).(2)

Scope of Order

The Order was first introduced in 1977 and has been amended repeatedly since then to reflect natural increases in wages and improvements to standards of living. This legislation is a key part of Malta's robust maritime legal framework and although the name of the Order implies that it relates to all seafarers, its provisions are applicable only to "employees on board ships regularly operating within the territorial waters of Malta" and "do not apply to employees working on board fishing vessels or foreign going ships".(3)

Understanding the limited scope of the Order is crucial to understanding how its provisions coexist with those found under the Act and the Rules, particularly in respect of assessing the rights and obligations of the employment relationship between shipowners and seafarers or people working aboard ships.

The Act and the Rules regulate most categories of seafarer aboard Maltese-flagged vessels, while the Order applies solely to people working on ships within Maltese territorial waters. Although the scope of the Order is much narrower than that of either the Act or the Rules, there is some overlap of rules applicable to people working on board Maltese-flagged ships operating locally in territorial waters.

Arguably, given its more specific application, the Order should be considered as being lex specialis and, in the case of conflicting provisions with the Act or the Rules, the norms of the Order should apply to hours of work, vacation leave, sickness leave, special leave and rest periods of employees working on board vessels regularly operating within the territorial waters of Malta.

Therefore, although the Rules specifically state that they apply to "all Maltese seagoing ships wherever they are", the provisions within the Order that specifically relate to all seafarers or employees operating within Maltese territorial waters, where different to the Rules, should prevail.

Leave requirements
The leave requirements granted to employees regulated by the Order are more similar to those found within the Employment and Industrial Relations Act,(4) applicable to land-based employees, than those found within the Act or the Rules.

Employees governed by the Order enjoy "four working weeks and four working days" of vacation leave for every calendar year of work. This differs significantly to the minimum amount of vacation leave granted to seafarers under the Rules, which is two-and-a-half days of leave per month. However, the Order limits sick leave to 14 days of full pay and 14 days of half pay, which contrasts significantly with the obligations placed on charterers and shipowners towards seafarers under the Rules.

Comment

Although not even two years had passed since the previous set of amendments were made to the Order – relating to the minimum wages of seafarers and employees operating within Maltese territorial waters – the legislature felt that the minimum wage applicable to this category of worker needed to be increased yet again.

By contrast, the last amendments made to the Order relating to vacation leave were implemented in 1990. This means the vacation leave standards under the Order are no longer on par with those generally enjoyed by land-based employees. However, it is uncertain whether the legislature will seek to amend these provisions in the near future.

The Order (and the regular amendments thereto) shows that the legislature understands that seafarers operating and working commercially within Maltese territorial waters, on ferries and other commercial vessels, represent a different class of worker to the stereotypical notion of a seafarer. Seafarers governed by the Order are less likely to live or sleep on the vessel on which they work and generally have their place of residence on land. This divergent reality between seafarers has led to the enactment of different sets of rules and regulations applying to the two separate groups of workers: those who work on board ships operating within Maltese territorial waters regularly and those who do not.

For further information on this topic please contact Michael Paul Agius at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email ([email protected]). The Fenech & Fenech website can be accessed at www.fenechlaw.com.

Endnotes

(1) The new minimum wages may be accessed here – see pages 3–5.

(2) Subsidiary Legislation 234.51.

(3) Explanatory Note for Subsidiary Legislation 425.51.

(4) Chapter 452 of the Laws of Malta.