Lawyer Wang from Tianjin law firm is sharing Provisions on Manning Foreign-flagged Ships by Chinese Seafarers of the People.
Provisions on Manning Foreign-flagged Ships by Chinese Seafarers of the People
Chapter I General Provisions
Article 1 In accordance with Regulation of the People’s Republic of China on Seafarers as well as laws and regulations related to overseas labor service, the Provisions are formulated to regulate the recruitment and placement service to Chinese seafarers serving onboard non-Chinese flagged ships, protect the lawful rights and interests of seafarers, and promote the sound development of the shipping industry.
Article 2 The Provisions apply to institutions established in China engaged in recruitment and replacement service to Chinese seafarers serving onboard the foreign-flagged ships (hereinafter referred to as Institutions).
Article 3 Ministry of Transport of the People’s Republic of China (Hereinafter referred to as “MOT”) is the competent authority for the recruitment and placement service to Chinese seafarers serving onboard foreign-flagged ships.
Maritime Safety Administration of People’s Republic of China (Hereinafter referred to as “China MSA”) shall undertake national supervision and management of the recruitment and placement service to Chinese seafarers serving onboard foreign-flagged ships.
Article 4 Institutions shall provide all necessary support to seafarers during the service period in accordance with related laws and regulations.
Chapter ⅡQualifications of Institutions
Article 5 An Institution shall have:
1. registered as a legal person in China,
2. settled office commensurate with its business scale,
3. at least 2 full-time managing staff members with experience as seafarers at management level onboard ships engaged in international voyages, and at least 3 managing staff members with working experience relevant to overseas manning for more than 2 years,
4. capability of organizing pre-service training, job-related training and legal affairs settlement,
5. establishment of management systems in terms of seafarers service quality, personnel and resources, education and training, emergency response and business reporting, etc.,
6. not less than 100 contracted seafarers,
7. registered and paid-in capital of not less than RMB 5,000,000. After the implementation of the Provisions,
8. capacity of paying RMB 1,000,000 as reserve fund, and
9.creditability and no serious breaches of contract or laws during the previous 3 years.
Article 6 The Institutions applying for the recruitment and placement service shall submit the following materials:
1. application form,
2. Business License of Enterprise as a Legal Person or Certificate of Legal Person in a Public Institution andOrganization Code Certificate,
3. real estate ownership certificate or leasing contract of the business office,
4. supporting documents for capabilities of organizing pre-service training, job-related training and legal affairs settlement,
5. supporting documents ofqualification and experience of managing staff,
6. documents on organizational structure, personnel and their duties,
7. management documents,
8. List of contracting seafarers, labor contracts, and evidence of social insurance, and
9. evidence for the payment of the reserve fund.
Approved foreign-invested or joint-venture labor service agencies intending for recruitment and placement service shall make application in accordance with the Provisions. In addition to the aforesaid materials, photocopies of Certificate of Approval for Establishment of Enterprises with Foreign Investment and Business License of Enterprises with Foreign Investment shall also be submitted.
Article 7 The application documents shall be submitted to the designated the maritime safety administration by China MSA.
Article 8 The Maritime safety administration shall complete the paper review and on-spot verification within 15 working days, and submit the preliminary review opinion, verification result and application documents to China MSA for approval.
Article 9 Upon receiving aforesaid documents, China MSA shall make a decision of approval or disapproval within 15 working days.
Article 10 China MSA shall issue the qualification certificate upon approval. The validity of the certificate shall not exceed 5 years.
Article 11 Where there is any alternation to the name, address and legal representative recorded on the qualification certificate, the Institution shall apply for the renewal of the certificate within 30 working days.
Article 12 An Institution with Class-A certificate under Provisions of the People’s Republic of China on Seafarer Service shall also apply for the qualification before engaging in recruitment and placement service.
Article 13 Foreign enterprises and institutions which intend to recruit Chinese seafarers shall entrust qualified institutions.
Representative offices of foreign institutions in China are forbidden to carry out the recruitment service.
Article 14 The qualification and operations of Institutions shall be annually reviewed.
Article 15 The Institutions shall apply for annual review each year with the following materials:
1. application form, and
2. annual report, including the compliance of qualifications and operation.
Article 16 The qualification certificate will be endorsed if the annual review indicates the compliance of the requirements.
Article 17 Should any incompliance be identified, the Institutions shall take corrective actions within due time.Where corrective actions are taken as requested, the qualification certificate will be endorsed with the records. Otherwise, the qualification certificate will be withdrawn by China MSA.
Article 18 The Institution requested to take corrective actions shall suspend to dispatch seafarers and to sign new contract of recruitment and/or manning, and shall bear the responsibilities for the dispatched seafarers within the rectification duration.
Article 19 The Institution shall apply to the maritime safety administration for the renewal of the qualification certificate at least 60 days before its expiration, with the following materials:
1. application form, and
2. documents prescribed in items 2 to 9 of Article 6 of the Provisions.
Article 20 For any of the following circumstances, an Institution shall go through deregistration procedures of the qualification certificate at the issuing administration:
1. deregistration application raised by the Institution,
2. termination of legal person;
Article 21 The reserve fund shall be deposited into a designated bank account for specific purpose.
The use and management of the reserve fund shall comply with national regulations on reserve fund for overseas labor service.
Chapter ⅢResponsibilities and Obligations of Institutions
Article 22 Institutions shall comply with relevant national provisions on management of seafarer service, certification, employment, social security and overseas labor service, as well as the international conventions that China has concluded or acceded to.
Article 23 Institutions shall take measures to ensure the effective implementation of item 5 of Article 5.
Article 24 Institutions shall ensure that dispatched seafarers have concluded labor contracts with one of the following:
1. the Institution,
2. shipowner registered outside Chinese mainland, or
3. domestic shipping company or other relevant entity.
The Institution shall, before dispatching seafarers, obtain consent from the domestic shipping company or other relevant entity which has concluded labor contract with the seafarers.
Where seafarers are to conclude labor contracts with overseas shipowners, the Institution shall review the contract. Should there be incompliance with national laws and regulations as well as international conventions or articles that infringe seafarers’ rights and interests, the Institution shall request overseas shipowners to make corrections.
Article 25 The Institutions shall purchase overseas personal accident insurance for dispatched seafarers.
Article 26 Prior to concluding manning agreement with overseas shipowners, the Institutions shall check their background in terms of business credit and operation.
Article 27 The manning agreement concluded between an Institution and an overseas shipowner shall comply with national laws, regulations and relevant international conventions, and at least includes:
1. the responsibilities, rights and obligations of both parties, including the quantity, qualification, dispatchment frequency and training of seafarers, and the liabilities of the Institution for misbehavior by seafarers,
2. working and living conditions of seafarers,
3. contract duration, and arrangements for embarkation and disembarkation,
4. wages, payment and welfare,
5. normal working hours, overtime, extra work, rest and leave,
6. seaworthiness and navigation area of vessels,
7. overseas personal accident insurance and health insurance purchased by overseas shipowners,
8. payment for social insurance,
9. follow-up management of dispatched seafarers,
10. emergency response,
11. repatriation arrangements,
12. settlement of sickness, injury and death of dispatched seafarers,
13. exemption clauses for dispatched seafarers,
14. special case and dispute settlement, and
15. liabilities for breach of contract.
Articles related to seafarers’ interests and rights in the contract shall be clarified to seafarers by the Institution.
Article 28 Institutions shall, in consideration of the vessel’s flag state and company, organize pre-service training in terms of relevant laws and regulations, management systems and social customs.
Article 29 Institutions shall conclude agreements with seafarers prior to serving on board. The agreements shall generally include:
1. all articles related to seafarers’ rights and interests in the manning agreement,
2. management and service liabilities for the dispatched seafarers of the Institutions,
3. placement liabilities for seafarers of the Institutions in case of emergencies abroad, and
4. liabilities for breach of agreements.
Article 30 Institutions shall maintain effective communication with overseas shipowners and dispatched seafarers, and handle complaints properly.
Institutions shall carry out follow-up management of safety, health, job-related skills and career development of seafarers, and provide necessary support for their implementation of the manning agreement.
Article 31 Institutions should not charge seafarers for providing job opportunities, deduct remuneration of seafarers, or claim any deposit or guarantee from seafarers.
Article 32 Institutions shall establish archive for dispatched seafarers including:
1. qualifications and experiences,
2. records of basic safety training, competency training and special training,
3. status of competency and health, and
4. Labor contract,ship manning agreement and service agreement.
Institutions shall report statistics as required, and submit lists and archives of contracted and outsourced seafarers to the maritime safety administration at regular intervals.
Article 33 Institutions shall not dispatch seafarers to:
1. Vessels black-listed in Port State Control,
2. Vessels not covered by insurers in China or international P&I club members, or
3. companies or vessels without safety and pollution prevention management systems.
Article34 Any suspension, revocation, or withdrawal of the qualification certificate shall not exempt the obligations of the Institutions to implement the concluded contracts and agreements.
Chapter Ⅳ Emergency Response
Article 35 Where emergency occurs, the Institutions shall activate contingency plans and report to the maritime safety administration without delay.
Article 36 Institutions shall support the overseas shipowners to handle the emergency. Where the overseas shipowners fail to fulfill the obligations, the Institutions shall deal with the emergency properly to protect seafarers’ interests.
Article 37 Where the Institutions refuse to or are unable to take responsibilities for emergencies, the reserve fund can be used to cover the costs for seafarers’ return or for other emergency relief.
Article 38 Where the reserve fund is consumed, the Institutions shall replenish the fund within 30 days.
Article 39 The handling of emergencies abroad shall follow relevant regulations on overseas labor service.
Chapter V Supervision and Inspection
Article 40 The maritime safety administration shall establish management archives for the Institutions and enhance supervision.
Article 41 For the purpose of supervision and inspection, the maritime safety administration may collect information from the Institutions or individuals involved, with due concern of the protection of business secrets and personal privacies.
Article 42 The maritime safety administration shall request the Institution identified to be unqualified during inspection to take corrective actions within due time.
Where corrective actions are not taken as requested, the qualification certificate will be withdrawn.
Article 43 The maritime safety administration shall regularly release the list and brief descriptions of the Institutions, and their creditability, fulfillment of responsibilities and obligations.
Chapter VI Liabilities
Article 44 Where any of the following acts is committed in violation of the Provisions, the institutions will be requested by maritime safety administration to take corrective actions, and be subject to penalty of not less than RMB50, 000 but not more than RMB250, 000. Illegal gains and illicit certificates shall be confiscated if any.
1. having noqualification certificate,
2. obtaining the qualification certificate by illegal means,
3. usingexpired qualification certificate
4. engaging in recruitment within the period of suspension of the qualification, or
5. engaging in recruitment and placementwith forged or altered qualification certificate.
Article 45 Where any of the following acts is committed, the Institutions will be subject to penalties by the maritime safety administration.
1. overcharging seafarers, or charging beyond the published items,
2. not clarifying relevant information in the manning agreement to seafarers,
3. forging or providing false information of the manning agreement;
4. the content in the service agreement is not in conformity with the manning agreement and infringes the rights and interests of seafarers;
5. scalping, leasing, lending or other illegal transferring of qualification certificates, or
6. other fraudulent or deceiving actions.
In case of items 1 or 2 of the preceding paragraph, Institutions are subject to a penalty of not less than RMB 30,000 but not more than RMB100, 000, andsuspension of qualification certificate for not less than 6 months but not more than 2 years for serious offense. In case of items 3, 4, 5 or 6 of the preceding paragraph, Institutions are subject to a penalty of not less than RMB100, 000 but not more than RMB150,000, and revocation of qualification certificate for serious offense.
Article 46 Where dispatched seafarers have not concluded labor contracts as required by Article 24 ofthe Provisions, the maritime safety administration shall request the Institution to take corrective actions and impose a fine not less than RMB50,000 but not more than RMB 250,000and penalty of not less than 6 month but not more than 2 years qualification certificate suspension for serious cases.
Article 47 Staff members of the maritime safety administration, under the following circumstances, shall be subject to disciplinary penalties:
1. issuing the qualification certificate against the Provisions,
2. failing to perform inspection obligations as required,
3. failing to enforce administrative coercion or administrative penalties, or
4. Abusing the authority, neglecting duties and other misbehaviors.
Chapter VII Supplementary
Article 48 The terms in the Provisions are defined as follows:
1. Recruitment and Placement Servicemeans recruitment and placement service to Chinese seafarers serving onboard ships registered outside Chinese mainland.
2. Overseas shipowner means shipowner, operator or manager of ships registered outside Chinese mainland.
3. Contracted seafarer means a seafarer concluding labor contract with the Institution.
4. Emergency means an incident which occurs to seafarers or the vessels they serve on and causes injuries or threat to seafarers, and which needs urgent response.
Article 49 Where relevant overseas labor service agreements are concluded between China and other countries or regions, such agreements shall prevail.
Article 50 The Provisionsshall be implemented from 1 July 2011.
Note: All information published in this website is authentic in Chinese. English is provided for reference only.