Statutory Instruments
MERCHANT SHIPPING
Made
13th August 2002
Laid before Parliament
14th August 2002
Coming into force
7th September 2002
Whereas the Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972(1) in relation to measures relating to the safety of ships and the health and safety of persons on them(2) and to the employment of children and young persons(3):
And whereas, in so far as the following Regulations are made in exercise of the powers conferred by section 85 of the Merchant Shipping Act 1995(4), the Secretary of State has in pursuance of section 86(4) of that Act consulted the persons referred to in that subsection:
Now, therefore, the Secretary of State, in exercise of the powers conferred by the said section 2(2) of the European Communities Act 1972, and by sections 85(1)(a) and (b), (3), (5) and (7) and 86(1) and (2) of the Merchant Shipping Act 1995 and of all other powers enabling him in that behalf, hereby makes the following Regulations:
1. These Regulations may be cited as the Merchant Shipping (Hours of Work) Regulations 2002 and shall come into force on 7th September 2002.
2.—(1) In these Regulations—
“the Act” means the Merchant Shipping Act 1995;
“collective agreement” means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992(5), the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;
“company”, in relation to a ship, means the owner or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner;
“complaint” means any information or report submitted by a member of the crew, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to its crew;
“the Directive” means Council Directive 1999/63/EC(6) concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association and the Federation of Transport Workers' Unions in the European Union;
“employer”, in relation to a seafarer, means the person by whom the worker is employed;
“employment”, in relation to a seafarer, means employment under his contract or engagement, and “employed” shall be construed accordingly;
“hours of rest” means time outside hours of work and does not include short breaks;
“hours of work” means time during which a seafarer is required to do work on the business of the ship;
“master”, in the application of these Regulations to hovercraft, includes the captain of a hovercraft;
“MCA” means the Maritime and Coastguard Agency, an executive agency of the Department for Transport;
“Merchant Shipping Notice” means a Notice described as such and issued by the MCA; and any reference to a particular Merchant Shipping Notice includes a reference to any document amending or replacing that Notice which is considered by the Secretary of State to be relevant from time to time and is specified in a Merchant Shipping Notice;
“offshore installation” means any installation which is intended for underwater exploitation of mineral resources or exploration with a view to such exploitation;
“pleasure vessel” means—
any vessel which is—
wholly owned by an individual or individuals and used only for the sport or pleasure of the owner or the immediate family or friends of the owner, or
owned by a body corporate and used only for sport or pleasure of employees or officers of the body corporate, or their immediate family or friends,
and is on a voyage or excursion which is one for which the owner is not paid for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion, or
any vessel which is wholly owned by or on behalf of a members' club formed for the purpose of sport or pleasure which, at the time it is being used, is used only for the sport or pleasure of members of that club or their immediate family; and for the use of which any charges levied are paid into club funds and applied for the general use of the club;
and no payments other than those mentioned above are made by or on behalf of users of the vessel, other than by the owner, and in this definition, “immediate family” means, in relation to an individual, the husband or the wife of the individual, and a brother, sister, ancestor or lineal descendant of that individual or that individual’s husband or wife;
“relevant inspector” means a person mentioned in paragraphs (a), (b) or (c) of section 258(1) of the Act;
“sail training vessel” means a sailing vessel which is being used either—
to provide instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour and to advance education in the art of seamanship; or
to provide instruction in navigation and seamanship for yachtsmen;
and is operating under one of the following codes—
The Code of Practice for the Safety of Small Commercial Sailing Vessels(7);
Code of Practice for the Safety of Large Commercial Sailing and Motor Vessels(8);
The Code of Practice for the Safety of Small Commercial Motor Vessels(9); or
The Code of Practice for the Safety of Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point(10);
“seafarer” means any person, including a master, who is employed or engaged in any capacity on board a ship, on the business of the ship, but does not include persons who are training in a sail training vessel or persons who are not engaged in the navigation of, or have no emergency safety responsibilities on, such a vessel;
“sea-going” means a ship certified by the competent authority for navigation at sea;
“ship”, in the application of these Regulations to hovercraft, includes hovercraft;
“United Kingdom ship” means a ship which—
is a United Kingdom ship within the meaning of section 85(2) of the Act; or
is a hovercraft registered under the Hovercraft Act 1968(11); and
“workforce agreement” means an agreement between an employer and his employees or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied.
(2) For the purposes of these Regulations “competent authority” means—
(a)in relation to the United Kingdom, the MCA, and
(b)in relation to any other member State, the national maritime administration maintained by that State for the inspection of ships.
(3) Subject to paragraphs (1) and (2), words and expressions used in these Regulations shall have the same meaning as in the Directive or in Council Directive 1999/95/EC concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports(12), as appropriate.
3.—(1) These Regulations apply to—
(a)sea-going United Kingdom ships wherever they may be; and
(b)regulations 15 and 16 apply to sea-going ships of member States other than the United Kingdom when they are in a United Kingdom port or in United Kingdom waters,
being ships other than—
(i)fishing vessels,
(ii)pleasure vessels,
(iii)offshore installations whilst on their working stations, and
(iv)tugs which ordinarily do not go beyond the limits of waters of categories A, B, C and D, as categorised in Merchant Shipping Notice No. MSN 1758 (M).
(2) These Regulations shall not apply to any seafarer who is subject to any requirement contained in the Working Time Regulations 1998(13).
4. Subject to regulation 8, it shall be the duty of a company, an employer of a seafarer and a master of a ship to ensure that a seafarer is provided with at least the minimum hours of rest.
5.—(1) Subject to regulation 6, the minimum hours of rest shall be not less than—
(a)ten hours in any 24-hour period; and
(b)77 hours in any seven-day period.
(2) Subject to regulation 6, hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive such periods shall not exceed 14 hours.
(3) Musters, fire-fighting and lifeboat drills prescribed by the Merchant Shipping (Musters, Training and Decision Support Systems) Regulations 1999(14) shall be conducted in a manner which minimises the disturbance of rest periods and does not induce fatigue.
(4) A seafarer who is on call on board ship shall have an adequate compensatory rest period if his normal period of rest is disturbed by call-outs to work.
(5) Nothing in this regulation shall restrict the operation of regulation 6 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Employment of Young Persons) Regulations 1998(15).
6.—(1) The MCA may authorise a collective agreement or workforce agreement permitting exceptions to the limits in regulation 5(1) and (2).
(2) Such exceptions may take account of more frequent or longer leave periods, or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ship on short voyages.
7.—(1) The master of a ship, or a person authorised by the master, shall ensure that a table of scheduled hours of rest complying with paragraph (2) is posted-up in a prominent and easily accessible place in the ship.
(2) A table under paragraph (1) shall—
(a)contain the information specified in Merchant Shipping Notice No. MSN 1767 (M);
(b)be in the format specified in that Merchant Shipping Notice, or in a format substantially like it; and
(c)be in English and in the working language of the ship if that is not English.
8.—(1) The master of a ship may require a seafarer to work any hours of work necessary for the immediate safety of the ship, persons on board ship or cargo or for the purpose of giving assistance to another ship or to a person in distress at sea.
(2) For the purposes of paragraph (1), the master may suspend the hours of rest scheduled in the table under regulation 7 and require a seafarer to perform any hours of work necessary until the normal situation has been restored.
(3) As soon as practicable after the normal situation has been restored the master shall ensure that any seafarer who has performed work in hours of rest scheduled in the table under regulation 7 is provided with an adequate rest period.
9.—(1) A record of a seafarer’s daily hours of rest shall be maintained by the master or a person authorised by the master.
(2) The procedures for keeping such records (including the intervals at which the information is to be recorded) and the format of such records shall comply with the requirements specified in Merchant Shipping Notice No. MSN 1767 (M).
(3) A record shall be in English and in the working language of the ship if that is not English.
(4) The record kept under paragraph (1) shall be endorsed by the master or a person authorised by the master, and by the seafarer in question, and a copy of the record as endorsed shall be given to the seafarer by the master or the person authorised by the master.
(5) The company and the master shall ensure that a copy of these Regulations (including any relevant Merchant Shipping Notices) and any collective agreements or workforce agreements relevant to the ship which are authorised under regulation 6 are carried at all times on board the ship in an easily accessible place.
(6) The relevant inspector shall examine and endorse, at appropriate intervals, records kept under paragraph (1).
10.—(1) Subject to paragraph (2), no seafarer under the age of 18 shall work at night.
(2) A seafarer of the age of 16 or 17 may work at night if the work forms part of an established programme of training the effectiveness of which would be impaired by the prohibition in paragraph (1).
(3) In this regulation “night” means a period—
(a)the duration of which is not less than nine consecutive hours; and
(b)which includes the period between midnight and 5 a.m. (local time).
11. A company shall provide the MCA with such information as the MCA may specify on watchkeepers and other seafarers working at night.
12.—(1) A seafarer is entitled to paid annual leave of at least four weeks, or a proportion of four weeks in respect of a period of employment of less than one year.
(2) Leave to which a seafarer is entitled under this regulation—
(a)may be taken in instalments;
(b)may not be replaced by a payment in lieu, except where the seafarer’s employment is terminated.
13. Where during any period a seafarer is entitled to hours of rest or annual leave both under a provision of these Regulations and under a separate provision (including a provision of his contract), he may not exercise the two rights separately, but may, in taking hours of rest or annual leave during that period, take advantage of whichever right is, in any particular respect, the more favourable.
14.—(1) A relevant inspector may inspect any United Kingdom ship and if he is satisfied that there has been a failure to comply in relation to that ship with any of the requirements of regulations 4, 7 and 9 he may detain the ship.
(2) The relevant inspector shall not in the exercise of his power under this regulation detain or delay the ship unreasonably.
15.—(1) A relevant inspector may inspect a ship which has called voluntarily at a port in the United Kingdom in the normal course of its business or for operational reasons in order to verify that the requirements of regulations 4, 7 and 9 are being complied with in respect of the ship.
(2) When carrying out such an inspection the relevant inspector shall determine whether—
(a)a table complying with regulation 7(2) is posted-up in a prominent and easily accessible place in the ship;
(b)records are being maintained and carried on board in compliance with regulation 9(1) to (3) and (5); and
(c)there is proof that such records have been endorsed by the competent authority of the State in which the ship is registered.
(3) Where—
(a)a complaint has been received by the MCA which indicates that any of the requirements of regulations 4, 7 and 9 are not being complied with and which it does not consider manifestly unfounded (“a relevant complaint”), or
(b)a relevant inspector from his own observations on board believes that seafarers may be unduly fatigued,
the inspector shall carry out a more detailed inspection, in accordance with paragraph (2), to determine whether the hours of rest recorded comply with the standards laid down in regulation 5 and whether they have been duly observed, and shall take into account other records relating to the operation of the ship.
(4) Where a relevant complaint has been received, or a relevant inspector obtains evidence that any of the requirements of regulations 4, 7 and 9 are not being complied with, the MCA shall prepare a report addressed to the government of the State in which the ship is registered.
(5) The identity of a person lodging a complaint shall not be revealed to the master of the ship concerned or the company in respect of the ship.
16.—(1) If the inspection or more detailed inspection under regulation 15 reveals that any of the requirements of regulations 4, 7 and 9 are not being complied with in respect of a ship the relevant inspector shall, in the case of deficiencies which are clearly hazardous to the safety or health of seafarers, take the measures necessary to ensure that such deficiencies are rectified, and may detain the ship until deficiencies have been rectified or the seafarers in question have been sufficiently rested.
(2) If there is clear evidence that watchkeeping personnel for the first watch, or subsequent relieving watches, are unduly fatigued the relevant inspector shall detain the ship until the deficiencies found have been rectified or the seafarers in question have been sufficiently rested.
(3) If a ship is detained under paragraph (1 ) or (2) the competent authority shall inform—
(a)the master of the ship;
(b)the company in respect of the ship; and
(c)either—
(i)the administration of the State whose flag the ship is entitled to fly or the State in which the ship is registered; or
(ii)the nearest consular or diplomatic representative of the State,
of the results of any inspection under regulation 15, of any decisions taken by the inspector and of any corrective actions required.
(4) The relevant inspector shall not in exercise of his power under this regulation detain or delay the ship unreasonably.
17. Where a ship is liable to be detained under these Regulations, section 284(1) to (5) and (8) of the Act (which relates to the detention of a ship) shall apply as if for the words “this Act”, wherever they appear, there were substituted “the Merchant Shipping (Hours of Work) Regulations 2002”.
18.—(1) Sections 96 and 97 of the Act (arbitration and compensation) shall apply in relation to a detention notice under these Regulations as they apply to a detention notice under section 95(3) subject to the modifications in paragraph (2).
(2) The modifications referred to in paragraph (1) are—
(a)references to “relevant inspector” mean a person making an inspection under these Regulations;
(b)section 96 shall apply in relation to a ship to which these Regulations apply as if the following words were omitted—
(i)in subsection (1) “in pursuance of section 95(3)(b)”;
(ii)in subsection (2), the words from “unless” to the end;
(iii)in subsection (3), “to whether the ship was or was not a dangerously unsafe ship”;
(iv)in subsection (5), “as a dangerously unsafe ship”; and
(c)section 97 shall apply in relation to a ship to which these Regulations apply as if for subsection (1) there were substituted—
“(1) If on a reference under section 96 relating to a detention notice in relation to a ship, the owner of the ship shows to the satisfaction of the arbitrator that—
(a)any matter did not constitute a valid basis for the relevant inspector’s opinion, and
(b)there were no reasonable grounds for the inspector to form that opinion,
the arbitrator may award the owner such compensation in respect of any loss suffered by him in consequence of the detention of the ship as the arbitrator thinks fit.”.
19. The MCA shall ensure the publication, at least every month, of the information specified in Part I of Annex IX to Merchant Shipping Notice No. MSN 1725 M(16) concerning ships to which regulations 15 and 16 apply which during the previous month have been detained in a port in the United Kingdom.
20.—(1) Any contravention by—
(a)the master of a ship of regulation 4, 7(1), 8(3) or 9(1), (4) or (5);
(b)an employer of regulation 4;
(c)a person authorised by the master of a ship of regulation 7(1) or 9(1) or (4); or
(d)a company of regulation 4, 9(5) or 11,
shall be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale.
(2) Where there is a contravention of regulation 5(3) or (4) the master of the ship shall be guilty of an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale.
(3) Where there is a contravention of regulation 10(1) the employer of the young person shall be guilty of an offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale.
(4) Where there is a contravention of regulation 12 the employer of the seafarer shall be guilty of an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale.
(5) In any proceedings for an offence under these Regulations it shall be a defence for the defendant to show that all reasonable steps had been taken by him to ensure compliance with the Regulations.
21. Schedule 2 (Miscellaneous Amendments) shall have effect.
Signed by authority of the Secretary of State for Transport
David Jamieson
Parliamentary Under Secretary of State,
Department for Transport
13th August 2002
Regulation 2(1)
1. An agreement is a work force agreement for the purposes of these Regulations if the following conditions are satisfied—
(a)the agreement is in writing;
(b)it has effect for a specified period not exceeding five years;
(c)it applies either—
(i)to all of the relevant members of the workforce, or
(ii)to all of the relevant members of the workforce who belong to a particular group;
(d)the agreement is signed—
(i)in the case of an agreement of the kind referred to in sub-paragraph (c)(i), by the representatives of the workforce, and in the case of an agreement of the kind referred to in sub-paragraph (c)(ii), by the representatives of the group to which the agreement applies (excluding, in either case, any representative not a relevant member of the workforce on the date on which the agreement was first made available for signature), or
(ii)if the employer employed 20 or fewer individuals on the date referred to in sub-paragraph (d)(i), either by the appropriate representatives in accordance with that sub-paragraph or by the majority of the individuals employed by him; and
(c)before the agreement was made available for signature, the employer provided all the employees to whom it was intended to apply on the date on which it came into effect with copies of the text of the agreement and such guidance as those employees might reasonably require in order to understand it in full.
2. For the purposes of this Schedule—
“a particular group” is a group of the relevant members of a workforce who undertake a particular function, work at a particular workplace or belong to a particular department or unit within their employer’s business;
“relevant members of the workforce” are all of the employees employed by a particular employer, excluding any employee whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement;
“representatives of the workforce” are employees duly elected to represent the relevant members of the workforce, “representatives of the group” are employees duly elected to represent the members of a particular group, and representatives are “duly elected” if the election at which they were elected satisfied the requirements of paragraph 3 of this Schedule.
3. The requirements concerning elections referred to in paragraph 2 are that—
(a)the number of representatives to be elected is determined by the employer;
(b)the candidates for election as representatives of the workforce are relevant members of the workforce, and the candidates for election as representatives of a group are members of the group,
(c)no employee who is eligible to be a candidate is unreasonably excluded from standing for election;
(d)all the relevant members of the workforce are entitled to vote for representatives of the workforce, and all the members of a particular group are entitled to vote for representatives of the group;
(e)the employees entitled to vote may vote for as many candidates as there are representatives to be elected; and
(f)the election is conducted so as to secure that—
(i)so far as practicable, those voting do so in secret, and
(ii)the votes given at the election are fairly and accurately counted.
4. In this Schedule “employee” means an individual who has entered into or works under a contract of employment.
Regulation 21
l. Section 55 of the Act is amended as follows—
(a)at the beginning of subsection (1) there shall be inserted “Subject to subsection (1A),”;
(b)after subsection (1) there shall be inserted—
“(1A) A person under 16 years of age shall not be employed in any sea-going United Kingdom ship.”; and
(c)in subsection (2)—
(i)in paragraph (a), after “in a ship” there shall be inserted “which is not a sea-going United Kingdom ship”,
(ii)in paragraph (b), after “in a United Kingdom ship” there shall be inserted “which is not a sea-going ship”; and
(iii)after paragraph (b) there shall be inserted—
“(c)prescribing circumstances and capacities in which persons of at least the age of 16 but under the age of 18 or under such lower age as may be specified in the regulations must not be employed in a sea-going United Kingdom ship or may be so employed only subject to such conditions as may be specified in the regulations.”.
2. Regulation 3 of the Merchant Shipping (Local Passenger Vessels) (Masters' Licences and Hours, Manning and Training) Regulations 1993(17) shall be amended as follows—
(a)at the beginning of paragraph (3) there shall be inserted “Subject to paragraph (3A)”; and
(b)after paragraph (3) there shall be inserted—
“(3A) Part III of these Regulations does not apply to a United Kingdom vessel to which the Merchant Shipping (Hours of Work) Regulations 2002 apply.”.
3. In the Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) Regulations 1997(18) the following provisions shall be omitted—
(a)in regulation 2(l), the definition of “safety committee”;
(b)regulations 6 to 10; and
(c)in regulation 17—
(i)in paragraph (1), “9”;
(ii)in paragraph (2), “7(2)”; and
(iii)paragraphs (2A) and (5) to (8).
4. The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Employment of Young Persons) Regulations 1998 shall be amended as follows—
(a)for the definition of “young person” in regulation 2(2) there shall be substituted—
““young person” means—
in relation to employment on a sea-going United Kingdom ship, any person who is of the age of 16 or 17; or
in relation to employment on any other United Kingdom ship, any person who is under the age of 18 and, in Great Britain is over school-leaving age for the purposes of section 55 of the Act or, in Northern Ireland, is over compulsory school age within the meaning in Article 46 of the Education and Libraries (Northern Ireland) Order 1986(19)”;
(b)in regulation 6—
(i)paragraph (6), and
(ii)in paragraph (7) the words “Where paragraph (6) does not apply,”,
shall be omitted.
(This note is not part of the Regulations)
These Regulations implement—
the majority of the provisions of Council Directive 1999/63/EC concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association and the Federation of Transport Workers' Unions in the European Union (OJ L 167, 2.7.99, p.33) and
European Parliament and Council Directive 1999/95/EC concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports (OJ L 014, 20.1.2000, p.29).
The Regulations:
require employers to ensure seafarers have at least the specified minimum hours of rest (regulations 4 to 6 and 8),
require records to be kept of seafarers' daily hours of rest,
prohibit the employment on a ship of a person under 16 years of age,
establish seafarers' entitlement to annual leave, and
make provision about the enforcement of the Regulations.
The Regulations are made under the powers contained in the Merchant Shipping Act 1995 except in respect of amendments in Schedule 2, where the power is provided by section 2(2) of the European Communities Act 1972.
A Regulatory Impact Assessment has been produced and a copy placed in the library of both Houses of Parliament. Copies may be obtained from the Maritime and Coastguard Agency, Spring Place, 105 Commercial Road, Southampton SO15 1EG (telephone number 023 8032 9380).
Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies may be obtained from Mail Marketing (Scotland), Bloomsgrove Industrial Estate, Norton Street, Nottingham NG7 3JG (telephone number 0115 9013336; fax 0115 9013334; e-mail mca@promo-solution.com).
International Labour Organization Conventions and Protocols are published by the International Labour Office and copies may be obtained from ILO Publications, International Labour Office, CH-211 Geneva 22, Switzerland.
A transposition note has been prepared and copies may be obtained from the Seafarer Health and Safety Branch of the Maritime and Coastguard Agency.
S.I. 1993/595.
S.I. 1996/266.
1995 c. 21; sections 85 and 86 were amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), section 8, and are applied to hovercraft by virtue of the Hovercraft (Application of Enactments) Order 1989 (S.I. 1989/1350) to which there are amendments not relevant to these Regulations.
O.J. L167, 2.7.1999, p. 33.
Published by The Stationery Office in 1993 (ISBN 0-11-551184-9).
Published by The Stationery Office in 1997 (ISBN 0-11-551911-4).
Published by The Stationery Office in 1993 (ISBN 0-11-551185-7).
Published by The Stationery Office in 2000 (ISBN 0-11-551812-6).
O.J. L014, 20.1.2000, p. 29.
S.I. 1999/2722.
S.I. 1998/2411.
Annex IX to Merchant Shipping Notice No. MSN 1725 is added by Merchant Shipping Notice No. MSN 1753.
S.I. 1993/1213.
S.I. 1986/594 (N.I. 3); Article 46 was substituted by Article 156 of S.I. 1989/2406 (N.I. 20).