Crew employment
Governing: flag-state law and MLC 2006 for foreign-flag yachts; Merchant Shipping Act 57 of 1951 and BCEA 75 of 1997 for SA. Builds on: L1.3. See also: From South Africa to Superyachts.
CAUTION - General information only Employment and tax law turn on facts. Use this lesson to frame questions for the management company and a local labour or tax adviser.
Three situations
| Situation | Main rules |
|---|---|
| SA crew member on a foreign-flag yacht | Flag-state law, the seafarer employment agreement, MLC 2006 where the flag applies it |
| SA crew member on an SA-flag vessel | Merchant Shipping Act and its regulations; BCEA largely excluded (below) |
| SA day-worker or contractor working on a yacht in port | Depends on who engages them and how; often SA law ashore |
Foreign-flag yachts
A foreign-flag yacht in Cape Town remains under its flag's employment rules. For crew signed on, that means a seafarer employment agreement meeting the flag's requirements and, where the yacht is within scope, MLC 2006. The management company is usually the employer or employing agent. South Africa ratified MLC 2006 on 20 June 2013, so a South African seafarer will recognise the framework.
The BCEA and seafarers
South Africa's Basic Conditions of Employment Act 75 of 1997 sets minimum standards for most employees: for example a 45-hour ordinary working week and at least 21 consecutive days' annual leave. Seafarers are treated differently. Section 3(3), as reproduced in two secondary texts, provides that the Act, except section 41, section 62A and Chapters 3, 4, 5 and 6, does not apply to persons employed on vessels at sea to which the Merchant Shipping Act 1951 applies, except as provided in a sectoral determination and the National Minimum Wage Act.
| Part of the BCEA | Topic | Seafarers under the MSA |
|---|---|---|
| Chapter 2 | Working time | Excluded |
| Chapter 3 | Leave | Applies |
| Chapter 4 | Particulars of employment | Applies |
| Chapter 5 | Termination | Applies |
| Chapter 6 | Child and forced labour | Applies |
| Section 41 | Severance pay | Applies |
Hours of work and rest for seafarers come instead from maritime rules (STCW and MLC hours of rest, and SA's own shipping regulations).
WARNING - Day-workers ashore A local contractor or day-worker engaged through a Cape Town company is employed ashore under SA law, not as crew. Clarify who the employer is before anyone starts work.
Tax for SA crew working at home
SA crew often assume that any work on a foreign yacht is "foreign employment". The exemptions in s10(1)(o) turn on days outside the Republic: the foreign employment exemption requires more than 183 days outside SA in a 12-month period, including more than 60 continuous days, and the seafarers' exemption requires more than 183 full days outside SA. A yacht lying in Cape Town for a four-month refit is in South Africa, and so is its crew. SA crew should keep a day log and take advice.
Foreign crew in South Africa
Foreign crew on the crew list are generally treated as crew in transit while the yacht is in SA. If the yacht operates commercially in SA (L1.3) or crew are engaged locally for work ashore, their immigration status is a question for the agent and the BMA.
TIP - Put it in writing For every local hire, write down the employer, the flag, the contract type, pay currency, hours and rest, leave and termination terms. It resolves most disputes before they start.