Annual leave with pay at 2.5 days per month and the ban on agreements to forgo it (MLC Standard A2.4)

MLC, 2006 Regulation 2.4 asks two things of the flag State. Seafarers on its ships are to be given annual leave with pay, and they are to be granted shore leave. The basis for counting leave days sits in Standard A2.4, and which days are not counted as leave sits in Guideline B2.4.

Read the two together as one text and the calculation goes wrong. Standard A2.4 is mandatory and Guideline B2.4 is recommendatory. Which side a sentence sits on decides whether its value has to come out of flag State law.

This article takes the three paragraphs of Standard A2.4 and the calculation provisions of Guideline B2.4, and follows a hypothetical example from months of employment to days of leave.

Regulation 2.4 keeps annual leave and shore leave apart

1. Each Member shall require that seafarers employed on ships that fly its flag are given paid annual leave under appropriate conditions, in accordance with the provisions in the Code.
2. Seafarers shall be granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions.

Paragraph 1 is annual leave with pay. The conditions are filled in by the Code, that is, by Standard A2.4. Paragraph 2 is shore leave. It is granted for health and well-being, within what the operational requirements of the position allow.

The two paragraphs speak of different things. Shore leave is a few hours off the ship during a port call. Annual leave is a number of days that accrues in proportion to the period of employment. As shown below, the Guideline recommends that shore leave be kept out of annual leave. Record the two as one kind of leave and annual leave shrinks.

The basis is a minimum of 2.5 calendar days per month of employment

2. Subject to any collective agreement or laws or regulations providing for an appropriate method of calculation that takes account of the special needs of seafarers in this respect, the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment. The manner in which the length of service is calculated shall be determined by the competent authority or through the appropriate machinery in each country. Justified absences from work shall not be considered as annual leave.

One paragraph holds three sentences, and each does a different job.

The first sentence is the basis of calculation. a minimum of 2.5 calendar days per month of employment, that is, at least 2.5 calendar days for each month of employment. A collective agreement or legislation may provide another method that takes account of the special needs of seafarers, but the minimum the text names is this value. They are calendar days, so weekends inside the period are not taken out.

The second sentence hands the question of how a month of employment is counted to the competent authority. Whether counting starts at sign-on or at the signing of the agreement, and how a part month at the end is treated, is for the flag State to decide.

The third sentence says that justified absences from work are not to be treated as annual leave. Deducting days lost to illness or injury from leave runs into this sentence.

In a hypothetical example the single input is months of employment

Assume the flag State has decided to count in calendar months. Multiplying by the minimum in the text gives the following.

Months of employment	Minimum annual leave with pay (calendar days)
1	2.5
4	10
7	17.5
10	25

The table is nothing more than the minimum in the text multiplied out. Where a collective agreement fixes more days, that figure applies. Where the flag State has adopted another method of calculation, that method takes precedence.

What the table shows is that there is one input. Months of employment. If that number does not come out of the sign-on and sign-off records, the leave days do not come out either. Conversely, the longer the period on board, the less room there is to take the leave that has accrued. That interaction is covered in the article on the maximum period of service.

An agreement to forgo leave is prohibited outside cases the competent authority provides for

3. Any agreement to forgo the minimum annual leave with pay prescribed in this Standard, except in cases provided for by the competent authority, shall be prohibited.

Any agreement to forgo the minimum annual leave with pay is prohibited. The only exception is cases provided for by the competent authority. A signed agreement between the company and the seafarer does not open the exception.

What the paragraph targets is an agreement that converts leave into money or carries it over into the next contract. The object of the prohibition is the minimum. What happens to days above the minimum, the text does not say.

Guideline B2.4.1 lists four kinds of day to keep out of leave

From here on it is Guideline. The flag State is recommended to follow it, but it is not mandatory.

4. The following should not be counted as part of annual leave with pay: (a) public and customary holidays recognized as such in the flag State, whether or not they fall during the annual leave with pay; (b) periods of incapacity for work resulting from illness or injury or from maternity, under conditions as determined by the competent authority or through the appropriate machinery in each country; (c) temporary shore leave granted to a seafarer while under an employment agreement; and (d) compensatory leave of any kind, under conditions as determined by the competent authority or through the appropriate machinery in each country.

All four are days that look like leave but are not annual leave. Public holidays of the flag State, periods of incapacity from illness, injury or maternity, temporary shore leave during an employment agreement, and compensatory leave.

Item (c) links back to Regulation 2.4, paragraph 2 above. Recording a few hours ashore at a port as annual leave taken departs from this recommendation. Item (b) points the same way as the justified absences sentence in Standard A2.4, paragraph 2.

Paragraphs 1 and 2 of the same Guideline recommend the opposite direction as well. Service off-articles (service off-articles), attendance at an approved maritime vocational training course, and absence for illness, injury or maternity should be counted as part of the period of service. Out of leave, into service.

Pay during leave is at the normal level and periods under one year are pro rata

3. The level of pay during annual leave should be at the seafarer’s normal level of remuneration provided for by national laws or regulations or in the applicable seafarers’ employment agreement. For seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis.

Pay during annual leave should be at the normal level of remuneration fixed by legislation or by the employment agreement. Paying basic wages only differs from this recommendation.

Where employment is for less than a year, or the employment relationship ends, the entitlement is pro rata. The seven-month row in the table above is this case. It is not a structure in which leave arises only once a full year has been served.

Guideline B2.4.2, paragraph 4 confines recall from annual leave to cases of extreme emergency, and then only with the seafarer’s consent. Guideline B2.4.3 puts division and accumulation under authorization by the competent authority, and says the rule is an uninterrupted period.

Worth confirming

The passages above come from the Regulation 2.4 part of the consolidated MLC, 2006 (including the 2022 amendments). Standard A2.4 is mandatory, and Guidelines B2.4.1 to B2.4.4 are recommendatory.

Two values are handed to the flag State. The method for counting the length of service, and the exceptions to the ban on agreements to forgo leave. Neither is a value the company sets. Where a collective agreement applies, its number of days comes before the minimum in the text.

This article goes no further than the Convention text. Guideline B2.4.4 on special measures for seafarers under the age of 18, and the interaction with the maximum period of service, are taken up in separate articles.

You can consult the cited source documents

These links lead to the official publishers of the documents discussed here. Match the edition and provisions cited in the article, and check subsequent amendments and flag-state implementation before applying them.

• ILO · MLC, 2006 (2022)

Continue with the related operational guidance

• Maximum period of service on board and when the right to repatriation arises
• MLC standards for wage payment intervals, statements, exchange rates and overtime