The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004

Made: 5th July 2004

Laid before Parliament: 13th July2004

Coming into force: 16th August 2004

Whereas the Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the safety of ships and the health and safety of persons on them and the organisation of working time :

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 , 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 on him by section 2(2) of the European Communities Act 1972, and by sections 85(1), (3), (5)(a), (6) and (7) and 86(1) and (2) of the Merchant Shipping Act 1995, hereby makes the following Regulations:

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 and shall come into force on 16th August 2004.

Interpretation

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• (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 , the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;

• “employer”, in relation to a worker, means the person by whom the worker is (or, where the employment has ceased, was) employed;

• “employment”, in relation to a worker, means employment under his contract of employment, and “employed” shall be construed accordingly;

• “fisherman” means every person employed, engaged or working in any capacity on board any fishing vessel, but does not include a person solely engaged as a pilot for the vessel;

• “fishing vessel owner” means the owner of the fishing vessel or any other organisation or person such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the vessel from the owner;

• “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;

• “night time” means a period–the duration of which is not less than seven hours, andwhich includes the period between midnight and 5 a.m. (local time),which is determined for the purposes of these Regulations by a relevant agreement, or, in default of such a determination, the period between 11 p.m. and 6 a.m. (local time);

• “night work” means work during night time;

• “night worker” means a worker–who, as a normal course, works at least three hours of his daily working time during night time, orwho is likely, during night time, to work at least such proportion of his annual working time as may be specified for the purposes of these Regulations in a collective agreement or a workforce agreement,and, for the purpose of paragraph (a) of this definition, a person works hours as a normal course (without prejudice to the generality of that expression) if he works such hours on the majority of days on which he works;

• “relevant agreement”, in relation to a worker, means a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer;

• “relevant inspector” means a person mentioned in paragraph (a), (b) or (c) of section 258(1) of the Act;

• “relevant training” means work experience provided pursuant to a training course or programme, training for employment, or both, other than work experience or training–the immediate provider of which is an educational institution or a person whose main business is the provision of training, andwhich is provided on a course run by that institution or person;

• “rest period” means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;

• “United Kingdom fishing vessel” means a sea-going fishing vessel which is registered in the United Kingdom;

• “worker” means a person employed (or, where the employment has ceased, who was employed) on board a fishing vessel;

• “workforce agreement” means an agreement between an employer and workers employed by him or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied; and

• “working time”, in relation to a worker, means–any period during which he is working, at his employer’s disposal and carrying out his activity or duties, andany period during which he is receiving relevant training,and “work” shall be construed accordingly.

• (2) Subject to paragraph (1), words and expressions used in these Regulations shall have the same meaning as in Council Directive 93/104/EC concerning certain aspects of the organisation of working time .

Application

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• (1) These Regulations apply to United Kingdom fishing vessels wherever they may be.

• (2) Regulations 7, 16 and 17 apply to fishing vessels registered in Member States other than the United Kingdom when they are within United Kingdom waters.

Northern Ireland

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These Regulations apply to Northern Ireland with the following modifications–

• (a) for any reference to an employment tribunal there shall be substituted a reference to an industrial tribunal within the meaning of section 42(5) of the Interpretation Act (Northern Ireland) 1954 ;

• (b) in regulation 2(1) for the definition of “collective agreement” there shall be substituted the following definition–

“collective agreement” means a collective agreement within the meaning of Article 2(2) of the Industrial Relations (Northern Ireland) Order 1992 , the trade union parties to which are independent trade unions within the meaning of that Article;

• (c) in regulation 11(4) for the words “Sections 221 to 224 of the Employment Rights Act 1996” there shall be substituted the words “Articles 17 to 20 of the Employment Rights (Northern Ireland) Order 1996 ”

• (d) in regulation 11(5) for the words “sections 227 and 228” there shall be inserted the words “Articles 23 and 24”;

• (da) in regulation 19A(1)(a) for the words “subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings)” substitute “paragraph (1) of Article 20A of the Industrial Tribunals (Northern Ireland) Order 1996 (requirement to contact the Labour Relations Agency before instituting proceedings)”;

• (db) in regulation 19A(1)(b) for the words “(by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section” substitute “(by virtue of regulations made under paragraph (11) of that Article) the certificate issued under paragraph (4) of that Article”;

• (e) in regulation 20(2)(a) for the words “a conciliation officer has taken action under any of sections 18A to 18C of the Employment Tribunals Act 1996 (conciliation)” there shall be substituted the words “the Labour Relations Agency has taken action under Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation)”;

• (f) in regulation 20(2)(b) for the words “section 18(1)(r) of the Employment Tribunals Act 1996” there shall be substituted the words “Article 20(1)(l) of the Industrial Tribunals (Northern Ireland) Order 1996”.

PART 2 — RIGHTS AND OBLIGATIONS CONCERNING WORKING TIME

General

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The provisions of this Part have effect subject to the exceptions provided for in Part 3 of these Regulations.

Maximum weekly working time

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• (1) A worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days.

• (2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies.

• (3) Subject to paragraph (4) the reference period which applies in the case of a worker is any period of 52 weeks in the course of his employment.

• (4) Where a worker has worked for his employer for less than 52 weeks, the reference period applicable in his case is the period that has elapsed since he started work for his employer.

• (5) For the purposes of this regulation, a worker’s average working time for each seven days during a reference period shall be determined according to the formula–

$$A+BC$where–A is the aggregate number of hours comprised in the worker’s working time during the course of the reference period;B is the aggregate number of hours comprised in his working time during the course of the period beginning immediately after the end of the reference period and ending when the number of days in that subsequent period on which he has worked equals the number of excluded days during the reference period; andC is the number of weeks in the reference period.$

• (6) In paragraph (5), “excluded days” means days comprised in–

• (a) any period of annual leave taken by the worker in exercise of his entitlement under regulation 11;

• (b) any period of sick leave taken by the worker; and

• (c) any period of maternity, paternity, adoption or parental leave taken by the worker.

Rest

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• (1) A worker is entitled to adequate rest.

• (2) For the purposes of this regulation, “adequate rest” means that a worker has regular rest periods, the duration of which are expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, he does not cause injury to himself, to fellow workers or to others and that he does not damage his health, either in the short term or in the longer term.

• (3) Without prejudice to the generality of paragraph (2), a worker’s minimum rest periods shall be–

• (a) 10 hours in any 24-hour period, and

• (b) 77 hours in any seven-day period.

• (4) The rest periods referred to in paragraph (3)(a) above 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 rest periods shall not exceed 14 hours.

• (5) Paragraphs (1) to (3) also apply to fishermen.

Health assessment and transfer of night workers to day work

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• (1) An employer–

• (a) shall not assign a worker to work which is to be undertaken during periods such that the worker will become a night worker unless–

• (i) the employer has ensured that the worker will have the opportunity of a free health assessment before he takes up the assignment; or

• (ii) the worker had a health assessment before being assigned to work to be undertaken during such periods on an earlier occasion, and the employer has no reason to believe that that assessment is no longer valid, and

• (b) shall ensure that each night worker employed by him has the opportunity of a free health assessment at regular intervals of whatever duration may be appropriate in his case.

• (2) For the purpose of paragraph (1), an assessment is free if it is at no cost to the worker to whom it relates.

• (3) No person shall disclose an assessment made for the purposes of this regulation to any person other than the worker to whom it relates, unless–

• (a) the worker makes the disclosure or has given his consent to it in writing, or

• (b) the disclosure is confined to a statement that the assessment shows the worker to be fit–

• (i) in a case where paragraph (1)(a)(i) applies, to take up an assignment, or

• (ii) in a case where paragraph (1)(b) applies, to continue to undertake an assignment.

• (4) Where–

• (a) a registered medical practitioner has advised an employer that a worker employed by the employer is suffering from health problems which the practitioner considers to be connected with the fact that the worker performs night work, and

• (b) it is possible for the employer to transfer the worker to work–

• (i) to which the worker is suited, and

• (ii) which is to be undertaken during periods such that the worker will cease to be a night worker,

the employer shall transfer the worker accordingly.

Pattern of work

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Where the pattern according to which an employer organises work is such as to put the health and safety of a worker employed by him at risk, in particular because the work is monotonous or the work-rate is predetermined, the employer shall ensure that the worker is given reasonable rest breaks.

Records

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An employer or fishing vessel owner shall–

• (a) keep records which are adequate to show whether regulations 6(1), 7(1), (3) and (4) and 8(1) are being complied with in the case of each worker or fisherman employed by him in relation to whom they apply; and

• (b) retain such records for two years from the date on which they are made.

Entitlement to annual leave and payment for leave

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• (1) Subject to paragraph (2), a worker is entitled to at least four weeks' annual leave and to be paid in respect of any such leave at the rate of a week’s pay in respect of each week of leave.

• (2) In respect of a period of employment of less than one year, a worker is entitled to annual leave of a proportion of four weeks equal to the proportion the period of employment in question bears to one year; the proportion to be determined in days and any fraction of a day to be treated as a whole day.

• (3) Leave to which a worker is entitled under this regulation–

• (a) may be taken in instalments;

• (b) may not be replaced by a payment in lieu, except where the worker’s employment is terminated.

• (4) Sections 221 to 224 of the Employment Rights Act 1996 shall apply for the purpose of determining the amount of a week’s pay for the purposes of paragraph (1), subject to the modifications set out in paragraph (5).

• (5) The provisions referred to in paragraph (4) shall apply as if–

• (a) references to the employee were references to the worker;

• (b) references to the employee’s contract of employment were references to the worker’s contract;

• (c) the calculation date were the first day of the period of leave in question; and

• (d) the references to sections 227 and 228 did not apply.

• (6) A right to payment under paragraph (1) does not affect any right of a worker to remuneration under his contract (“contractual remuneration”).

• (7) Any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under this regulation in respect of that period; and, conversely, any payment of remuneration under this regulation in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Entitlements under other provisions

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Where during any period a worker is entitled to a rest period 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 a rest period or annual leave during that period, take advantage of whichever right is, in any particular respect, the more favourable.

PART 3 — EXCEPTIONS

Exceptions

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• (1) The Secretary of State may grant an exception from the limit in regulation 6(1) or the requirements of regulation 7(3) and 7(4) for objective or technical reasons or reasons concerning the organisation of work if–

• (a) he has first (so far as is possible) consulted representatives of the employers fishing vessel owners, fishermen and workers concerned, and

• (b) the exception is subject to such conditions and limitations as will protect the health and safety of workers and fishermen.

• (2) The Secretary of State may, on giving reasonable notice and after consulting such persons (if any) as he considers may be affected, alter or cancel any exception granted under paragraph (1).

• (3) An exception granted in accordance with paragraph (1) above

• (a) shall be limited to the extent necessary for the reasons mentioned in that paragraph; and

• (b) may take account of the granting of compensatory leave periods to workers in place of the limit in regulation 6(1) and the rest periods required by regulation 7(3) and 7(4).

• (4) An exception under paragraph (1) may relate to classes of cases (a ”class exception”) or to individual cases (an “individual exception”).

• (5) An individual exception granted under paragraph (1), and an alteration or cancellation of such an exception under paragraph (2), shall–

• (a) be given in writing,

• (b) specify the date on which it takes effect, and

• (c) in the case of the grant of an exemption, specify the conditions and limitations subject to which it is granted in accordance with paragraph (1)(b) of this regulation.

• (6) A class exception granted under paragraph (1), and an alteration or cancellation of such an exception under paragraph (2)–

• (a) may relate to particular types of fishing vessel and methods of fishing, and

• (b) shall be specified by the Secretary of State in a Merchant Shipping Notice which is considered by him to be relevant from time to time.

Emergencies

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• (1) Nothing in these Regulations prevents the master of a fishing vessel from requiring a worker or fisherman to work any hours of work necessary for the immediate safety of the fishing vessel, persons on board the fishing vessel or cargo or for the purpose of giving assistance to another ship or to a person in distress at sea.