RECENT NEWS

01RECENT NEWS

Image

What costs should be covered by a seafarer who is looking for a job?

Looking for a job is a stressful process for most employees and persons between jobs, and the period of being without employment may certainly generate numerous negative emotions. The same is true for seafarers; however, due to their profession, they need to be alert to unfair practices and to calculate risks.

Even though we have mentioned the issue of employment agencies for seafarers, this article is aimed at discussing and clearly presenting to seafarers who are looking for a job what an agent/employer should or should not be paid for.

Regulations concerning employment services for persons who look for jobs on ships are given in the provisions of the Maritime Labour Convention MLC 2006 as well as the regulations of the Act of 5 August 2015 on labour at sea, which include direct references to the regulations of the Act of 20 April 2004 on the promotion of employment and institutions of the labour market.

The MLC Convention adopted by the International Labour Organization in Geneva on 23 February 2006 plays a very important role in the broadly understood protection of seafarers as persons who perform work in special conditions. It is referred to as the Seafarer’s Bill of Rights and is to play the role of the common international maritime labour code. Regulations concerning recruitment and employment services for seafarers indicate directly that all seafarers have the right to use employment services without the need to cover any related costs.

The regulations included in the MLC Convention 2006 concerning employment services for seafarers are based on the principles of the effective and well-organised system of recruitment and employment agency for seafarers, in which seafarers are exempt from the obligation to cover any additional fees thereunder. The Convention allows covering fees by seafarers within recruitment or employment services related to the receipt of a health certificate required by law, a domestic seaman’s book and passport or other similar documents that entitle him to travel (however, such costs should not include the costs of obtaining a visa, which should be covered by the owner).

The Act on labour at sea was passed due to the necessity to introduce into the Polish legal system the regulations that result from the premises of the MLC Convention. According to the provisions of art. 16 of the Act on labour at sea, it is prohibited to collect fees from persons looking for jobs on ships.

‘1. Employment services for persons who look for work on ships, hereinafter referred to as ‘employment services’, involve assistance to persons who are interested in taking up jobs on a ship and assistance to owners in searching for suitable candidates to work on a ship.

  1. No fees can be collected for the activities related to employment services, either directly or indirectly, from persons who look for jobs on ships.
  2. Employment services are rendered by employment agencies mentioned in the Act of 20 April 2004 on the promotion of employment and the institutions of the labour market (Journal of Laws from 2015, Item 149, as amended), hereinafter referred to as the ‘Act on the promotion of employment’ and poviat job centres.’

The general prohibition of collecting fees (with certain strictly defined exceptions) has been also included in art. 19d of the above-mentioned Act on the promotion of employment and institutions of the labour market, according to which:

‘1. Employment agencies and entities mentioned in art. 18c (they are entities that may render the same services as employment agencies, without the necessity to obtain an entry into the register):

1) cannot collect any amounts other that specified in art. 85(2)(7) from persons for whom they are looking for jobs or other gainful employment or whom they assist in selecting a suitable job and place of employment (…);’

The amounts set forth in art. 85(2)(7) are the amounts due to job agencies for actually incurred costs involved in delegating a person to work abroad on:

  1. the travel to and from of a delegated person,
  2. the issue of a visa,
  3. medical check-ups, and
  4. the translation of documents.

The above-mentioned art. 19d determines two rules related to rendering services within employment agency activities – the prohibition of collecting fees from persons who look for jobs (with exceptions listed in art. 85(2)(7)) and the obligation to inform a person delegated to work abroad about costs of fees and other due amounts.

The principle of the free-of-charge provision of services for persons looking for jobs or other paid employment is of essential importance for the legality of employment agency’s operations. The general principle that prohibits collecting fees by an employment agency (of course, with the above-mentioned minor exceptions) is also an international standard that stems from the acts of the International Labour Organization.

The costs listed directly in art. 85(2)(7) are the actual incurred costs due to delegating a person to work abroad on: the travel to and from of a delegated person, the issue of visa, medical check-ups, and the translation of documents and they constitute a closed catalogue of costs due to an employment agency. The above-mentioned fees are the only fees that may be collected by employment agencies and entities that may provide the same services without the obligation to obtain an entry into the register within the services they render.

The above-mentioned Act on the promotion of employment and institutions of the labour market, under which employment agencies render services, includes also sanctions for violating the prohibition of collecting fees. A violation of the regulation (art. 19d) is determined during inspections carried out by the State Labour Inspectorate (PIP) and is the basis for the issue of a decision to delete an entity that runs an employment agency from the register (according to the procedure given in art. 18m(1)(5) of the Act on the promotion of employment and institutions of the labour market).

Regardless of whether the entity running the employment agency is removed from the register, collecting any fees other than those listed in art. 85(2)(7) is an offence that is sanctioned with a fine of minimum PLN 3,000.00 under art. 121(2) of the Act.

Separate regulations concerning sanctions apply to persons who are delegated to an entity in order to gain practical skills, in particular to undergo a practical placement for graduates, internship, or professional training, which is not employment or other gainful employment. Pursuant to art. 121a of the Act on the promotion of employment and institutions of the labour market:

Whoever collects from a person delegated to an entity in order to gain practical skills, in particular to undergo the practical placement for graduates, internship or professional training, which is not employment or other gainful employment, any additional fees other than listed in art. 85(2)(7), is subject to a fine of minimum PLN 3,000.00.’

Having the above considerations in mind, in the opinion of the Law Firm the essential element with respect to employment agencies for seafarers is the relationship between regulations that result from the Act on labour at sea and the regulations that stem from the Act on the promotion of employment and institutions of the labour market.

The Act on the promotion of employment and institutions of the labour market includes general regulations (concerning employment agency for a broader group of recipients) compared to the detailed regulations of the Act on labour at sea (which concern seafarers, i.e. a narrower group of receivers). According to the Latin paroimia lex specialis derogat legi generali, a detailed regulation revokes the application of a general regulation.

This principle means that seafarers who look for a job and use the services of employment agencies are exempt from any additional fees, including fees determined in art. 85(2)(7) of the Act on the promotion of employment and institutions of the labour market, which is confirmed in art. 111(2) of the Act on the labour at sea, which states:

‘A person running an employment agency who collects, either directly or indirectly, from a person looking for a job on a ship a fee for an activity related to employment services and who has not ensured that the person who looks for a job on a ship does not cover costs related directly to the delegation to work abroad, including the costs of travel to a ship and the return to a place of repatriation indicated in the seafarer’s contract of employment, the issue of visa, medical check-ups and translation of documents, is subject to a fine from PLN 1,000 to PLN 30,000.

Considering the above and in particular the fact that seafarers are covered by special protection, it has to be indicated explicitly that they should not cover any costs related to the use of services rendered by employment agencies. If a seafarer finds himself in a situation where an agent makes the rendition of an agency service depend on a payment of a fee or if he receives a bill for the rendition of such services, it is an explicit signal that he has been subject to unfair and illegal practices.

02WRITE A COMMENT

Image