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2003 No. 3049

MERCHANT SHIPPING

SAFETY

CANALS AND INLAND WATERWAYS

The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003

  Made 27th November 2003 
  Laid before Parliament 3rd December 2003 
  Coming into force 24th December 2003 

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 the organisation of working time[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 on him by the said section 2(2) of the European Communities Act 1972, and by sections 85(1), (3) and (7) and 86(1) of the Merchant Shipping Act 1995, hereby makes the following Regulations:



PART 1

GENERAL

Citation and Commencement
     1. These Regulations may be cited as the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 and shall come into force on 24th December 2003.

Interpretation
    
2.  - (1) In these Regulations - 

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 organization of working time[11].

Application
     3.  - (1) These Regulations apply to any United Kingdom ship, wherever it may be, which - 

    (2) These Regulations apply to any ship, other than a United Kingdom ship, which operates in the United Kingdom and does not go beyond the limits of waters of categories A, B, C and D, as categorised in Merchant Shipping Notice No. MSN 1776 (M).

Northern Ireland
    
4. These Regulations apply to Northern Ireland with the following modifications - 



PART 2

RIGHTS AND OBLIGATIONS CONCERNING WORKING TIME

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

Maximum weekly working time
    
6.  - (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 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 paragraphs (4) and (5) and any agreement under regulation 15, the reference periods which apply in the case of a worker are - 

    (4) Where a worker has worked for his employer for less than 17 weeks, the reference period applicable in his case is the period that has elasped since he started work for his employer.

    (5) Paragraphs (3) and (4) shall apply to a worker to whom regulation 14 applies as if for each reference to 17 weeks there shall be substituted a reference to 26 weeks.

    (6) 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 + B

C
where - 

    (4) In paragraph (6), "excluded days" means days comprised in - 

Health assessment and transfer of night workers to day work
    
7.  - (1) An employer - 

    (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 - 

    (4) Where - 

Pattern of work
    
8. 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, the employer shall ensure that the worker is given adequate rest breaks.

Records
    
9. An employer shall - 

Rest periods
    
10.  - (1) Subject to paragraph (4), a worker is entitled to adequate rest.

    (2) For the purpose 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) During any reference period[
15] applicable to a worker the total number of hours comprised in the rest periods referred to in paragraph (2) shall not be less than 77 hours for each seven days.

    (4) Paragraph (1) does not apply in relation to a worker to whom regulation 14(d) applies.

Entitlement to annual leave and payment for leave
     11.  - (1) Subject to paragraph (2), a worker is entitled to 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 - 

    (4) Sections 221 to 224 of the Employment Rights Act 1996[16] 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 - 

    (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
     12. 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

Unmeasured working time
    
13.  - (1) Regulation 6(1) and (2) does not apply in relation to a worker where, on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or pre-determined or can be determined by the worker himself, as may be the case for - 

    (2) Where part of the working time of a worker is measured or pre-determined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or pre-determined or can be determined by the worker himself, regulation 6(1) and (2) shall apply only to so much of his work as is measured or pre-determined or cannot be determined by the worker himself.

Other special cases
    
14. This regulation[17] applies to a worker - 

Collective and workforce agreements
     15. A collective agreement or workforce agreement may for objective or technical reasons or reasons concerning the organisation of work, modify the application of regulation 6(3) and (4) in relation to particular workers or groups of workers by the substitution, for each reference to 17 weeks, of a different period (being a period not exceeding 52 weeks).



PART 4

MISCELLANEOUS

Power to require information
    
16. An employer shall provide the MCA with such information on night workers employed by him as the Secretary of State (acting through the MCA) may specify in writing.

Offences
    
17.  - (1) An employer who fails to comply with regulation 6(2), 7(1) or (4), 8, 9 or 16 shall be guilty of an offence, punishable on summary conviction by a fine not exceeding level 5 on the standard scale.

    (2) 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.

Remedies
    
18.  - (1) A worker may present a complaint to an employment tribunal that his employer - 

    (2) An employment tribunal shall not consider a complaint under this regulation unless it is presented - 

    (3) Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal - 

    (4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to - 

    (5) Where on a complaint under paragraph (1)(b) an employment tribunal finds that an employer has failed to pay a worker in accordance with regulation 11(1), it shall order the employer to pay to the worker the amount which it finds to be due to him.

Restriction on contracting out
    
19.  - (1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports - 

    (2) Paragraph (1) does not apply to - 

    (3) For the purposes of paragraph (2)(b) the conditions regulating compromise agreements under these Regulations are that - 

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

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

    (6) In paragraph (4)(a), "qualified lawyer" means - 

    (7) For the purposes of paragraph (5) any two employers shall be treated as associated if - 

and "associated employer" shall be construed accordingly.

Amendments to legislation
     20. Schedule 2 (amendments to legislation) shall have effect.



Signed by authority of the Secretary of State for Transport


David Jamieson
Parliamentary Under-Secretary of State, Department for Transport

27th November 2003



SCHEDULE 1
Regulation 2(1)


WORKFORCE AGREEMENTS


     1. The following are the conditions that must be satisfied for an agreement between an employer and workers employed by him or their representatives to constitute a workforce agreement for the purposes of these Regulations - 

     2. For the purposes of this Schedule - 

     3. The requirements concerning elections referred to in paragraph 2 are that - 



SCHEDULE 2
Regulation 20


AMENDMENTS TO LEGISLATION


     1. In regulation 11 of the Merchant Shipping (Local Passenger Vessels) (Masters' Licences and Hours, Manning and Training) Regulations 1993[
20] (application of provisions about masters' hours of work), paragraph (a) is revoked.

     2.  - (1) The Employment Tribunals Act 1996[21] is amended as follows.

    (2) In section 18(1) (cases where conciliation provisions apply), the word "or" preceding paragraph (1) is omitted and after that paragraph there is inserted - 

    (3) In section 21(1) (jurisdiction of the Employment Appeal Tribunal), the word "or" preceding paragraph (m) is omitted and after that paragraph there is inserted - 

     3.  - (1) The Employment Rights Act 1996[22] is amended as follows.

    (2) In section 45A (right not to suffer detriment: working time cases), after subsection (4) there is inserted - 

    (3) In section 101A (fairness in dismissal: working time cases), the existing provision shall become subsection (1) and after it there is inserted - 

    (4) In section 104(4)(d) (fairness in dismissal: assertion of statutory right), at the end there is inserted "or the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003".

     4.  - (1) The Employment Rights (Northern Ireland) Order 1996[23] is amended as follows.

    (2) In Article 68A (right not to suffer detriment: working time cases), after paragraph (4) there is inserted - 

    (3) In Article 132A (fairness in dismissal: working time cases), the existing provision shall become paragraph (1) and after it there is inserted - 

    (4) In Article 135(4)(d) (fairness in dismissal: assertion of statutory right), at the end there is inserted "or the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003".

     5. In Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996[24] (cases where conciliation provisions apply), at the end there is inserted - 

     6. In regulation 18(1) of the Working Time Regulations 1998[25] (excluded sectors), for paragraph (c) there is substituted - 

     7. In regulation 18(1) of the Working Time Regulations (Northern Ireland) 1998[26] (excluded sectors), for paragraph (c) there is substituted - 

     8. In regulation 3(3) of the Merchant Shipping (Medical Examination) Regulations 2002[27] (application of Regulations), at the end there is inserted "or the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003".

     9. In regulation 3(2) of the Merchant Shipping (Hours of Work) Regulations 2002[28] (application of Regulations), at the end there is inserted "or the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003".



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations implement Council Directive 93/104/EC concerning aspects of the organization of working time (OJ No. L 307, 13.12.1993, p.18), as inserted by Directive 2000/34/EC of the European Parliament and of the Council (OJ No. L 195, 1.8.2000, p.41), so far as the Directive applies to mobile workers on inland waterways.

The Regulations are made under the powers contained in the Merchant Shipping Act 1995 except in respect of regulation 18 and some of the amendments Schedule 2, where the power is provided by section 2(2) of the European Communities Act 1972.

Subject to the exceptions in Part 3 of the Regulations, a worker to whom the Regulations apply should not work more than 48 hours a week, averaged over a reference period of 17 weeks, and the worker's employer should take all reasonable steps to ensure that the limit is complied with (regulation 6). A reference period of 26 weeks applies in the case of a worker to whom regulation 14 applies (e.g. where there is a foreseeable surge of activity, as may be the case in relation to tourism). By virtue of regulation 15 a different reference period not exceeding 52 weeks applies where there has been a collective or workforce agreement to that effect and there are objective or technical reasons, or reasons concerning the organisation of work, justifying a longer reference period.

A worker is entitled to adequate rest (regulation 10) and, whatever the reference period applying to the worker, the total number of hours comprised in rest periods is not to be less than 77 for each seven days.

Regulation 11 provides for a worker's entitlement to paid annual leave.

Regulation 7 is concerned with health assessments where a worker is a "night worker" within the meaning in the Regulations. Companies may be required to provide information on night workers to the Maritime and Coastguard Agency.

An employer must keep records of the hours worked by workers (regulation 9).

Regulation 18 makes provision in respect of complaints to an employment tribunal. Regulation 19 prevents contracting out of the provisions of the Regulations (subject to exceptions).

Regulation 20 and Schedule 2 contain amendments to primary and secondary legislation.

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 02380 329216).

A transposition note has been prepared and copies may be obtained from the Seafarer Health and Safety Branch of the Maritime and Coastguard Agency (at the address given above).

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).


Notes:

[1] 1972 c. 68.back

[2] S.I. 1993/595.back

[3] S.I. 1997/1174.back

[4] 1995 c. 21; sections 85 and 86 were amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), section 8. Sections 85 and 86 apply to hovercraft by virtue of the Hovercraft (Application of Enactments) Order 1989 (S.I. 1989/1350), to which Order there are amendments not relevant to these Regulations.back

[5] 1992 c. 52.back

[6] Certain vessels are required to comply with the codes by the Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998, S.I. 1998/2771, amended by S.I. 2000/482 and S.I. 2002/1473.back

[7] Published by The Stationery Office in 1993 (ISBN 0-11-551184-9).back

[8] Published by The Stationery Office in 1997 (ISBN 0-11-551911-4).back

[9] Published by The Stationery Office in 1993 (ISBN 0-11-551185-7).back

[10] Published by The Stationery Office in 2000 (ISBN 0-11-551812-6).back

[11] OJ No. L 307, 13.12.1993, p.18; amended by Directive 2000/34/EC of the European Parliament and of the Council, OJ No. L 195 1.8.2000, p.41back

[12] 1954 c. 33 (N.I.); section 42(5) was substituted by paragraph 1 of Schedule 1 to the Industrial Tribunals (Northern Ireland) Order 1996, S.I. 1996/1921 (N.I. 18).back

[13] S.I. 1992/807 (N.I. 5); the definition of "collective agreement" was amended by Schedule 2 to the Trade Union and Labour Relations (Northern Ireland) Order 1995, S.I. 1995/1980 (N.I. 12).back

[14] S.I. 1996/1921 (N.I. 18); Article 20 was amended by paragraph 10 of Schedule 2 to the Race Relations (Northern Ireland) Order 1997, S.I. 1997/869 (N.I. 6); by paragraph 20 of Schedule 1 to the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998, S.I. 1998/1265 (N.I. 8); by section 30(2) of the National Minimum Wage Act 1998 (c. 39); by paragraph 5 of Schedule 2 to the Employment (Northern Ireland) Order 2002, S.I. 2002/2836 (N.I. 2); by regulation 33 of the Working Time Regulations (Northern Ireland) 1998, S.R. (N.I.) 1998 No. 386; by regulation 33(2) of the Transnational Information and Consultation of Employees Regulations 1999, S.I. 1999/3233; by paragraph 2 of the Schedule to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, S.R. (N.I.) 2000 No. 219; by paragraph 3 of Part I of Schedule 2 to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002, S.R. (N.I.) 2002 No. 298; and by paragraph 5 of Schedule 2 to these Regulations.back

[15] See regulation 5(3) to (5) in relation reference periods.back

[16] 1996 c. 18.back

[17] Regulation 14 is relevant to regulations 6(5) and 10(4).back

[18] 1996 c. 17; section 1(2) of the Employment Rights (Dispute Resolution) Act 1998 (c. 8) provides for the Industrial Tribunals Act 1996 to be cited as the Employment Tribunals Act 1996. Section 18 was amended by the National Minimum Wage Act 1998 (c. 39), section 30(1); the Working Time Regulations 1998, S.I. 1998/1833, regulation 33; the Transnational Information and Consultation of Employees Regulations 1999, S.I. 1999/3323, regulation 33(1); the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, S.I. 2000/1551, Schedule, paragraph 1(a); the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2001, S.I. 2001/1107, regulation 2; the Employment Act 2002 (c. 22), section 24(2) and Schedule 7, paragraph 23(2); the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, S.I. 2002/2034, Schedule 2, paragraph 2, paragraph 2(a) and paragraph 2(2) of Schedule 2 to these Regulations.back

[19] 1990 c. 41.back

[20] S.I. 1993/1213, to which there is an amendment not relevant to these Regulations.back

[21] 1996 c. 17.back

[22] 1996 c. 18; section 45A was inserted by regulation 31(1) of the Working Time Regulations 1998, S.I. 1998/1833 (the 1998 Regulations) and amended by the Employment Relations Act 1999 (c. 26), section 18(3) and Schedule 9, Table 3; section 101A was inserted by regulation 32(1) of the 1998 Regulations and section 104(4)(d) was inserted by regulation 32(2) of those Regulations.back

[23] S.I. 1996/1919 (N.I. 16); Article 68A was inserted by regulation 31(1) of the Working Time Regulations (Northern Ireland) 1998 (S.R. (N.I.) 1998 No. 386) ("the 1998 Regulations") and amended by the Employment Relations (Northern Ireland) Order 1999, S.I. 1999/2790 (N.I. 9), Article 20(3) and Schedule 9; Articles 132A and 135(4)(d) were inserted by regulation 32(1) and (2) of the 1998 Regulations, respectively.back

[24] See footnote (b) on page 3.back

[25] S.I. 1998/1833; regulation 18 was substituted by the Working Time (Amendment) Regulations 2003, S.I. 2003/1684, regulation 4.back

[26] S.R. (N.I.) 1998 No. 386; regulation 18 was substituted by the Working Time (Amendment No. 2) Regulations (Northern Ireland) 2003, S.R. (N.I.) 2003 No. 330.back

[27] S.I. 2002/2055.back

[28] S.I. 2002/2125.back



ISBN 0 11 048215 8


  Prepared 3 December 2003


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