By Rodolpho Leal Ferreira
Lawyer & Global Mobility Expert
Partner at BR-Visa
Brazilian legislation allows the commercial and operational use of foreign-flagged vessels in Brazilian jurisdictional waters, without mentioning those that fly the national flag, of course. Vessel records and flag designation are essential to indicate the legislation applicable to the use of the vessel, its documentation and, among other functions, organize the maritime space so that commercial activities can be trafficked and explored.
Since maritime movements are conducted by specialized professionals, who operate on board, the registration classification of the vessel that chooses its flag has a profound impact on the options that the maritime activity company will have to regularize its workforce. A large number of professionals used by foreign-flagged vessels are also nationals of countries other than those in which the flag is registered and travel on board from different territories to Brazilian and international waters. Here, there is a clear intersection between the topic and Brazilian migration legislation when foreign-flagged vessels operate in Brazilian jurisdictional waters, considering the application of Brazilian law in this territory.
Initially, it is worth noting that Brazil allows foreigners to operate on foreign vessels that operate in Brazilian waters, as already indicated, but regulates the need for residence authorization, visa issuance, among other measures. An important provision of migration legislation is the indication that every foreign-flagged vessel must have Brazilian professionals on board from a certain period of operation in Brazilian jurisdictional waters, considering the activities carried out by that vessel and the period in which it operates in Brazilian territory. Brazilian. The indicated provisions can be found in Normative Resolution No. 06/2017 of the National Immigration Council, in clear regulation of the provisions of Law 13,445/2017, the Migration Law.
Foreigners who act in the condition indicated above are, as indicated by Brazilian legislation, employees or contractors of a foreign company responsible for the operation of the foreign-flagged vessel. In other words, it is clear that the Brazilian company has the role of a mere intermediary as a visa applicant for the crew and other foreign members who work on board and does not act as a direct employer of foreign employees in this capacity. The legislation provides specific responsibilities for the company requesting the visa, but it is clear that there is no employment relationship between a Brazilian company and foreigners holding a work visa supported by the regulations indicated above, ruling out the application of possible labor rights and rules related to the employment contract. work supported by the Consolidation of Labor Laws in this case.
On the other hand, Brazilian employees who must be present on the vessel, pursuant to the regulations indicated above, must be hired in accordance with Brazilian legislation. For these, obviously, Brazilian legislation must be applied in its entirety and labor rules must be considered in all their nuances.
There is no doubt that companies operating in Brazilian jurisdictional waters need to pay attention to the differences noted so that they can understand the difference in treatment between their workers on board regardless of their nationality so that they comply with Brazilian immigration labor legislation.
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