Why this ruling matters

  • If courts follow the CRvdM’s ruling, the financial impact for shipowners could be significant.
  • Claim foundations are using the ruling to request information from shipowners, although it remains questionable whether they are legally entitled to demand all such data.
  • Shipowners are therefore well advised to seek legal counsel before providing any information to the claim foundation.

Background

Two seafarers were central to this case. One was a Filipino, employed on an oil and chemical tanker, and the other an Indonesian, employed on a technical support vessel. Both worked on ships sailing under the Dutch flag. Their employers were Dutch legal entities, and Dutch law was declared applicable to their contracts. For the Filipino seafarer, the Dutch collective labour agreement (CLA) for Merchant Shipping applied, while for the Indonesian seafarer, an international CLA for maritime technical support vessels applied.

The Merchant Shipping CLA stipulates that seafarers living in the Philippines or Indonesia are remunerated based on the principle of the country of residence, as laid down in the international CLA's agreed with the Dutch trade union Nautilus and the local Filipino and Indonesian unions, AMOSUP and KPI respectively. The shipowners’ associations and trade unions apply this country-of-residence principle, which results in significantly lower salaries than those of European colleagues on the same vessel.

Ruling of the CRvdM

The CRvdM first concluded that the working situation of these seafarers was comparable to that of their European colleagues. In the case of the Filipino seafarer, there was indirect discrimination. The country-of-residence principle appears neutral but mainly affects individuals of Filipino and Southeast Asian nationality, according to the CRvdM. The CRvdM found no objective justification for this indirect discrimination.

In the case of the Indonesian seafarer, there was direct discrimination because the applicable (foreign) collective labour agreement made a direct distinction based on nationality. Direct discrimination can only be justified on the basis of an unwritten rule of international law, which requires both a general state practice and a legal conviction (opinio juris). According to the College, that opinio juris is lacking.

International standards and opinio juris

In 1997, the (then) Equal Treatment Commission ruled that there was indeed an opinio juris to justify the difference in treatment. However, the CRvdM now states that the opinio juris has changed over the past 30 years, partly due to international treaties and policy changes. To support this, the CRvdM refers to (amongst others) the Maritime Labour Convention (MLC) of 2006, adopted by the International Labour Organization (ILO).

Guideline B2.2.2.4(a) of the MLC stipulates:
“Equal remuneration for work of equal value shall apply to all seafarers serving on the same ship, without discrimination based on race, colour, sex, religion, political opinion, national origin or social origin.”

Although not binding, this confirms the norm of equal pay for the same work on the same ship, according to the CRvdM.

In addition, the CRvdM points out that the Minister of Social Affairs and Employment, when declaring the Merchant Shipping CLA generally binding, has repeatedly made a reservation regarding the provision on the country-of-residence principle. In short, this reservation means that the minister has stated that equal treatment legislation takes precedence over the country-of-residence principle and that it is therefore possible that the provision concerning the country-of-residence principle will no longer be declared generally binding in the future.

What does this mean for shipping companies?

After the ruling, many Dutch shipping companies received letters from a claims foundation requesting extensive personnel and payment information.

  • It is highly questionable whether the claims foundation is entitled to make such requests.
  • The CRvdM’s ruling is not a court judgment; judges are not obliged to follow it.
  • A legal procedure will likely follow, in which the court will anyway make its own assessment.