Shipowners and private maritime security companies have voiced concern over moves by the Maritime Labour Convention to class armed guards as seafarers, questioning how this will work in practice.
When the MLC comes into force in August, security personnel deployed on ships could be classed as seafarers if they meet the definition outlined in Article II.1 of the convention.
If the matter is unclear, it may be left to the individual flag administration to decide whether it considers the guards to be seafarers.
Industry watchers have urged flag administrations making that call to consider factors such as duration of the guards’ stay on board, frequency of work on board, the location of his or her principal place of work, the purpose of that work and protection cover for labour and social conditions.
The Security Association for the Maritime Industry said shipowners and security firms were united in uncertainty about the practical effect of the convention. It highlighted particular concern that flag states are already divided over how to designate security personnel.
“Some state that they will be considered seafarers, while the initial International Maritime Organization decision was to consider them as supernumeraries. There are a host of potential problems which are anticipated, not least the fact that accommodation space is an issue,” Sami said.
Further concerns centre on the hours of rest requirements for guards.
The industry continues to debate the optimum size of an armed team and Sami said some shipowners planned to draw down from four to three guards. However, doing so could create problems regarding the number of hours that team members must work.
Sami is working with several flag states, maritime lawyers, shipowners and its own international membership to highlight the potential problems and to explore and implement remedial action before the MLC’s August deadline.
According to Sami, chief security officers have called for privately contracted armed security personnel to be classed as “special purpose personnel”, to provide a united and pragmatic application of MLC rules that does not unnecessarily recast guards wholly as seafarers.
Ince and Co partner Stephen Askins said shipowners may start to ask PMSCs to confirm that they employ their operatives on terms that are at least equal to the bare requirements of the MLC.
“That may mean a slight change to Guardcon so that assurance can be given as part of the obligations under the contract,” he said.
Although Mr Askins agreed that rest hours could be an issue, he pointed out that the master has authority to ask for increased working hours in an emergency.
“It may be that he will declare such an emergency for the transit of the high-risk area to allow the PMSCs to stand extended watches,” he said.
Mr Askins said the Maritime Coastal Agency had yet to rule publicly whether armed guards will be regarded as seafarers under English law. Although early indications suggested this would be the case, he said, other jurisdictions were likely to make their own decisions.
“It seems to me that it will be difficult to have a one-size-fits-all approach. How long do you have to spend on board to say that you are employed as such?” he asked. “Different groups see different problems. Those from the labour side wonder what that would mean in terms of additional training that would be needed.
“PMSCs are worried that it means more regulation, although it seems that the MCA are not likely to classify PMSCs as recruitment and placement companies.”
Mr Askins also said that while PMSCs fear that subcontractors or employees will use the MLC to secure more rights, shipowners worry that the security firms will use its rest and hours of work provisions to justify placing larger teams on board.
“I suspect that when things settle down there may not, on a practical level, be much that will bother the PMSCs. But there are a lot of unknowns at this stage,” he said.
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