In aderenza con quelle che sono le prescrizioni della convenzione MLC 2006 , la Francia prima tra le nazioni EU per presenza di yachts di bandiera non Francese che stazionano nelle sue acque territoriali chiede che venga assolta la parte previdenziale , da tutti i marittimi che risiedano in Francia , siano essi francesi o meno e che lavorino su Unita’ Francesi o meno.
Stessi diritti e stesse tutele per chi lavora a terra o a bordo .

Di seguito due interessanti articoli .

http://www.superyachtnews.com/crew/decree-puts-further-pressure-on-employers-in-france
By Rory Jackson
http://www.superyachtnews.com/search?author=100

Decree puts further pressure on employers in France

The French government has published a decree that makes social security registration mandatory for crew working on non-French flagged vessels who reside in France…
Image for article Decree puts further pressure on employers in France
On 11 March 2017, in the Official Journal of the French Republic, the French government published Decree no2017-307 of 9 March 2017, which cemented the government’s view on the social security affiliation of seafarers residing in France and working on non-French flagged vessels. This decree provides that, for the purposes of retirement benefits, all crew members employed on foreign flagged vessels, must be registered with French social security schemes if they reside in France unless they are registered with another EU member state, or in another state that has a bilateral social security treaty with France.
“This decree applies to all crew members that have stable and regular residence in France,” starts Jean-Philippe Maslin, associate at Ince & Co. “However, ‘stable and regular residence’ is not a defined term in French law and, rather, it is determined by the precedents set in case law.”
French case law states that your residence is the country that you have closest ties to, whether that be professional, property, family or a combination of various links to France. For instance, a number of superyacht crewmembers will have put France as their place of residence on their seafarer’s employment agreement and stating France as their place of repatriation.
“It is important to note that, with this new legislation, registration can be made voluntarily by the seafarer or, if this has not been made, directly by the French seafarers social security body (ENIM),” continues Maslin. “Employers which are not established in France are required to put up a bank guarantee or, if this is not done, a deposit to cover their social security contributions. The contribution amounts due are identical to those paid by and on behalf of French seafarers, and carry a 0.5 per cent per day interest rate on late payment.”
Until this most recent decree, as explained in Crewmembers seeking termination suits in France, for a crewmember to claim against hidden employment on the part of the employer, they would need to prove intent on the part of the employer to not register the crewmember with ENIM. It remains to be seen the impact this new decree, which makes social security registration for crew in residence in France mandatory, will have on whether Courts consider the absence of this registration as proof of the intent of the employer to hide the employment.
“The issue is that this legislation did not take the superyacht community into consideration,” Maslin says. “It was drafted to address issues with ferries in north west France without realising that it would impact the entire yachting industry as a side effect.”
The decree is now in force. However, employers have a grace period until 1 July 2017 to bring their operations into conformity with its provisions.
http://www.incelaw.com/en/knowledge-bank/publications/employment-claims-facing-yacht-owners

Employment claims facing yacht owners
28.02.2017 | Yachts and Superyachts

Employment claims facing yacht owners
Yacht owners are facing increasing risk and uncertainty arising from crew employment claims in France.

What claims?

Crew members are successfully arguing on termination that French law applies to their employment contract.

Why would French law apply to an employment contract when it is not expressly stated to apply?

French courts have long held that mandatory provisions of French law apply to an employment contract where:

• The crew member is a French resident or the employment contract has sufficient ties to France;

• The yacht on which the crew member is employed is based for long periods of the year in France;

• Other factors are in play, including the place of the crew member’s repatriation, where crew wages are paid and where the contract of employment was signed.

How do crew members make use of this?

Crew members can argue that French law applies to their employment contract and:

• The proper termination procedures under French law have not been followed;

• They are eligible for paid leave;

• They are a victim of ‘hidden employment’, i.e. the failure to register their employment with the French or another social security system has deprived them of social security benefits.

What are the consequences for yacht owners and managers?

• Arrests of yachts as security for seafarer claims for employee rights and unpaid social security contributions, leading to immobilisation of the yacht and resulting in costly inconvenience.

• Courts upholding claims against yacht owners where proper termination procedures have not been followed, regardless of whether the termination of employment was justified.

• ‘Hidden employment’ can result in criminal sanctions for the employer (imprisonment and a fine) and the obligation to pay damages to the crew member (based on their gross salary).

How can yacht owners and managers mitigate these risks?

• Where there is a risk of French law applying to a crew member’s employment contract, employers need to ensure that the employment contract is compliant with mandatory rules of French employment law.

• Employers need to ensure that they are registering crew members with the French or other social security authorities where necessary.

Additional considerations

• The Maritime Labour Convention, ratified by France, requires that seafarers subject to France’s social protection legislation are protected to the same extent as shoreworkers.

• Crew members must be registered for retirement benefits in France where they are embarked on a foreign flagged yacht, they reside in France and they are not subject to the social security legislation of another Convention State.

• A draft decree (likely to be fully applicable on 1 July 2017), provides that non-French established employers must register French residing crew members for retirement benefits through ENIM and provide a deposit or a guarantee to ENIM to secure payment of the contributions.

• Detailed and tailor-made advice to employers and yacht managers on the procedures which must be followed when terminating a crew employment contract, including drafting termination notices.

• Review of seafarer contracts of employment, to ensure that they are compliant with the mandatory provisions of French law.

• Auditing employers’ compliance with social security registration requirements, to ensure that employers are not falling foul of ‘hidden employment’ rules.

• Assisting with the consequences of a yacht arrest.

Please contact us for further information and we will be pleased to discuss how we may assist.

UPDATE

The Decree n°2017-307 of 9 March 2017 on the social security registration of seafarers residing in France and working on vessels flying non-French flags has since been published in the Official Journal of the French Republic on 11 March 2017 (the Decree).

The Decree provides for the mandatory registration, by his or her employer, to the retirement benefits regime of ENIM (the French seafarers social security body) of any seafarer who resides in a stable and regular manner in France, and who is employed on board a vessel flying a non-French flag.

Registration can be undertaken voluntarily by the seafarer, or through ENIM’s own initiative.

The contribution amounts due are identical to those paid by and on behalf of French seafarers, and carry a 0.5% per day interest rate on late payment.

Employers which are not established in France must provide a guarantee or pay a deposit to ENIM to guarantee the payment of their future contributions.

The Decree is now in force, although employers have until 1 July 2017 in order to bring their operations into conformity with its provisions.

Ince & Co is at your disposal to advise and assist you, where required, on the consequences of the above for your professional activity.

Article authors:

Andrew Charlier, Mathieu Croix, Vy-Loan Huynh-Olivieri, Jean-Philippe Maslin

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