The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018

Restriction on contracting out

28.—(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports to—

(a) exclude or limit the operation of any provision of these Regulations; or

(b) preclude a person from bringing proceedings under these Regulations before an employment tribunal.

(2) Paragraph (1) does not apply to—

(a) any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under sections 18A to 18C of the Employment Tribunals Act 1996 (conciliation)(1); or

(b) any agreement to refrain from instituting or continuing proceedings under regulation 26, if the following conditions are met.

(3) For the purposes of paragraph (2)(b) the conditions are—

(a) the agreement is in writing;

(b) the agreement relates to the particular complaint;

(c) the seafarer has received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on the seafarer’s ability to pursue the seafarer’s rights before an employment tribunal;

(d) there is in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or a professional body, covering the risk of a claim by the seafarer in respect of loss arising in consequence of the advice; and

(e) the agreement states that the conditions in sub-paragraphs (a) to (d) are satisfied.

(4) A person is a relevant independent adviser for the purposes of paragraph (3)(c) if the person—

(a) is a qualified lawyer;

(b) is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union; or

(c) works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.

(5) But a person is not a relevant independent adviser for the purposes of paragraph (3)(c)—

(a) if the person is, is employed by or is acting in the matter for the employer or an associated employer;

(b) in the case of a person within paragraph (4)(b), if the trade union is the employer or an associated employer; or

(c) in the case of a person within paragraph (4)(c), if the seafarer makes a payment for the advice received from the person.

(6) In paragraph (4)(a), “qualified lawyer” means—

(a) as respects England and Wales, a person who, for the purposes of the Legal Services Act 2007(2), is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act);

(b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate; and

(c) as respects Northern Ireland, a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

(7) For the purposes of paragraph (5) any two employers are to be treated as associated if—

(a) one is a company of which the other (directly or indirectly) has control; or

(b) both are companies of which a third person (directly or indirectly) has control,

and “associated employer” is to be construed accordingly.

(1)

1996 c.17. Sections 18A to 18C were added by the Enterprise and Regulatory Reform Act (c.24). Sections 18A and 18B were added by Part 2, section 7(1) of that Act. Section 18C was added by paragraph 6 of Schedule 1 to that Act.

(2)

2007 c.29. Section 18 defines authorised persons for the purposes of the Act.