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Work on board the fishing vessel not necessarily based on the employment contract 2017-02-24

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Inga Klimašauskienė

Recently, it has become difficult to interpret and apply legislation defining legal relations between the owner of a fishing vessel and fishermen working on board the vessel. According to some opinions, fishermen can work on board only on the basis of labour relations, i.e. to perform particular functions under an employment contract concluded with the employer, the owner of a ship. However, there is no explicit legal basis in this regard.

Essential features of the labour relations

According to the Labour Code in force (the LC), an employment contract shall be an agreement between an employee and an employer whereby the employee undertakes to perform work of a certain profession, speciality, qualification or to perform specific duties in accordance with the work regulations established at the workplace, whereas the employer undertakes to provide the employee with the work specified in the contract, to pay him the agreed wage and to ensure working conditions as set in labour laws, other regulatory acts, the collective agreement and agreement between the parties.

In practice it is not easy to draw a line between a person’s work under an employment contract and a subject of civil law: a contract regarding provision of particular services or performance of work. The case-law is what helps to find the answer to this question.

The case-law of the court of cassation on the interpretation of the legal nature of employment contract establishes that the essential characteristics of the employment contract that are specified in Article 93 of the LC and that distinguish it from other contracts under which remuneration is paid are the following:

  • the employee performs work of a certain profession, speciality, qualification or performs specific duties;
  • the employee works in accordance with work regulations established at the workplace.

The first characteristic means that the employee performs a particular work function, which is defined by features of the kind rather, than a particular assignment; whereas the second characteristic implies that the employee is not independent in performance of his function, he must obey the lawful instructions of the employer[1]. Thus, in labour relations the employee and the employer are connected by subordination relations, which is not the case in civil contracts, and this means that performance of the work functions is inseparable from the employer’s control and obeying his instructions[2].

Legal grounds for work on board the fishing vessels

Working on a board of a fishing vessel may be based on both the labour relations and the civil legal relations. The legislation in force and the case-law allow pointing to this conclusion.

As it has been clarified in the Maritime Shipping Law of the Republic of Lithuania, the seaman means a member of the ship’s crew, including the captain of the ship, employed, hired or working on board the ship, except for persons whose main work is performed ashore and their work on board is other than regular occupation related to daily activity of the ship. Thus, the law provides for various legal forms of the seaman’s grounds for his activity on board. The seaman on board may be both “employed”, which is treated as labour relations, and “hired or working”, which has been provided for by the civil law.

In existence of such independent legal grounds, the seaman on board may carry out particular functions. This reasoning has been supported by the case-law as well. As it has been noted by Klaipėda District Court in the administrative offense case No ATP-352-255/2015 of 27 May 2015, neither the Maritime Shipping Law of the Republic of Lithuania, nor any other regulatory act prohibits the ship owners to receive particular services on the basis of service contracts.

The circumstance that members of the ship crew may act on the grounds other than labour relations with the manager of the ship has been directly confirmed by part 1 of Standard A2.1 ‘Seafarers’ Employment Agreements’ of the Maritime Labour Convention of the International Labour Organisation according to which “Each Member shall adopt laws or regulations requiring that ships that fly its flag comply with the following requirements:(a) seafarers working on ships that fly its flag shall have a seafarers’ employment agreement signed by both the seafarer and the ship owner or a representative of the ship owner (or, where they are not employees, evidence of contractual or similar arrangements) providing them with decent working and living conditions on board the ship as required by this Convention” (the Republic of Lithuania ratified this Convention by Law No XII-367 dated 13 June 2013).

It is worth noting that on 11 October 2016 Lithuania ratified the Convention Concerning Work in the Fishing Sector, adopted in Geneva on 14 June 2007, according to which the fisher's work agreement means a contract of employment or other similar arrangements, or any other contract governing a fisher's living and working conditions on board a vessel. This provision clearly indicates that a fisher may perform his functions on board the ship on the basis of both the employment relations and other agreements, civil legal transactions. This position is strengthened by further provisions of the Conventions, under which it is the responsibility of the fishing vessel owner to ensure that each fisher has a written fisher's work agreement signed by both the fisher and the fishing vessel owner or by an authorized representative of the fishing vessel owner, and it is emphasized that where fishers are not employed or engaged by the fishing vessel owner, the fishing vessel owner shall have evidence of contractual or similar arrangements. This provision is a solid legal basis for the statement that a fisher on board of the fishing vessel may perform functions on the grounds of both the employment contract and any other civil arrangement.

[1] (Decision of the Supreme Court of Lithuania in civil case No 3K-3-387/2006, dated 27 June 2006)

[2] (Decision of the Supreme Court of Lithuania in civil case No 3K-3-114/2011, dated 15 March 2011)

 

By Inga Klimašauskienė, Associate Partner at Law Firm GLIMSTEDT


Teisininkai: Inga Klimašauskienė

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