BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Statutory Instruments


You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004
URL: http://www.bailii.org/uk/legis/num_reg/2004/20041713.html

[New search] [Help]



2004 No.1713

MERCHANT SHIPPING

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[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 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
     1. 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
    
2.  - (1) In these Regulations-

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);

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;

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[6].

Application
     3.  - (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
    
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 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 + B

C
where-

    (6) In paragraph (5), "excluded days" means days comprised in-

Rest
    
7.  - (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-

    (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.

Health assessment and transfer of night workers to day work
    
8.  - (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
    
9. 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
    
10. An employer shall-

Entitlement to annual leave and payment for leave
    
11.  - (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-

    (4) Sections 221 to 224 of the Employment Rights Act 1996[11] 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

Exceptions
    
13.  - (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-

    (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

    (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-

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

Emergencies
    
14.  - (1) Nothing in these Regulations prevents the master of a fishing vessel from requiring a worker 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.

    (2) For the purposes of this regulation the word "vessel" includes her fishing gear and the word "cargo" includes the catch of a fishing vessel.



PART 4

MISCELLANEOUS

Power to require information
    
15. An employer shall, by sending it to the MCA, provide the Secretary of State with such information on night workers as the Secretary of State may specify in writing.

Detention and enforcement of detention
    
16.  - (1) Where a relevant inspector is of the opinion that:-

the fishing vessel may be detained until the worker has had sufficient rest to resume his duties without creating a hazard to the health or safety of any worker.

    (2) The power of detention in this regulation may not be exercised unreasonably.

    (3) Subject to the modifications in paragraph (4), section 284(1) to (6) and (8) of the Act [
12] (enforcement of detention) applies to a fishing vessel which may be detained under this regulation as it applies to ships which may be detained under the Act.

    (4) The modifications referred to in paragraph (3) are -

Arbitration and compensation
     17.  - (1) Subject to the modifications in paragraph (2), sections 96 and 97 of the Act (arbitration and compensation) shall apply in relation to a detention notice under section 284 of the Act (as applied by regulation 16) as they apply to a detention notice under section 95(3) of the Act.

    (2) The modifications referred to in paragraph (1) are the omission from section 96 of the following words-

Offences
    
18.  - (1) Subject to regulation 14, an employer who fails to comply with regulation 6(2), 8(1), 8(4) or 9 shall be guilty of an offence, punishable on summary conviction by a fine not exceeding level 5 on the standard scale.

    (2) An employer who fails to comply with regulation 10 or 15 shall be guilty of an offence, punishable on summary conviction by a fine not exceeding level 5 on the standard scale.

    (3) 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
    
19.  - (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
    
20.  - (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
     21. 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

5th July 2004



SCHEDULE 1
Regulation 2(1)

     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 22


AMENDMENTS TO LEGISLATION


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

    (2) In section 18(1) (cases where conciliation provisions apply), after paragraph (m) there is inserted-

    (3) In section 21(1) (jurisdiction of the Employment Appeal Tribunal), after paragraph (n) there is inserted-

     2.  - (1) The Employment Rights Act 1996[16] is amended as follows.

    (2) In section 45A(5) (right not to suffer detriment: working time cases)-

    (3) In section 101A (2) (fairness in dismissal: working time cases)-

    (4) In section 104(4) (fairness in dismissal: assertion of statutory right), for paragraph (d) there is substituted-

     3.  - (1) The Employment Rights (Northern Ireland) Order 1996[17] is amended as follows.

    (2) In Article 68A (right not to suffer detriment: working time cases)-

    (3) In Article 132A (fairness in dismissal: working time cases)-

    (4) In Article 135(4) (fairness in dismissal: assertion of statutory right), for paragraph (d) there is substituted-

     4. In Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996[18] (cases where conciliation provisions apply), at the end there is inserted-

     5. In regulation 18(1) of the Working Time Regulations 1998[19] (excluded sectors), for paragraph (b) there is substituted-

     6. In regulation 18(1) of the Working Time Regulations (Northern Ireland) 1998[20] (excluded sectors), for paragraph (b) there is substituted-

     7. In regulation 3 of the Merchant Shipping (Medical Examination) Regulations 2002[21] (application of Regulations), for paragraph (3) there is substituted-

     8. In regulation 3(2) of the Merchant Shipping (Hours of Work) Regulations 2002[22] (application of Regulations), at the end there is inserted "or the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004".



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations implement Council Directive 2000/34/EC of the European Parliament and of the Council (OJ No. L 195, 1.8.2000, p.41) in so far as that Directive applies to workers on sea-going fishing vessels. Council Directive 2000/34/EC amends Directive 93/104/EC concerning aspects of the organisation of working time (OJ No. L 307, 13.12.1993, p.18).

The Regulations are made under the powers contained in the Merchant Shipping Act 1995 except in respect of regulation 19 and the amendments in the Second Schedule, 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 52 weeks, and the worker's employer should take all reasonable steps to ensure that the limit is complied with (regulation 6).

A worker is entitled to adequate rest (regulation 7) and the total number of hours comprised in rest periods is not to be less than 10 hours in each day and 77 hours for each seven day period.

Regulation 8 is concerned with health assessments where a worker is a "night worker" within the meaning in the Regulations. The limits of "night work" are either prescribed by the Regulations, or may be determined by a relevant agreement, such as a workforce agreement complying with the requirements of Schedule 1. Companies may be required to provide information on their night workers to the Maritime and Coastguard Agency.

An employer must keep records of the hours worked by workers employed by him (regulation 10).

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

Regulation 19 makes provision in respect of complaints to an employment tribunal. Regulation 21 prevents contracting out of the provisions of the Regulations (subject to exceptions).

Regulation 22 and the Second Schedule 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 023 80329 100).

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. 1997/1174back

[4] 1995 c. 21; sections 85 and 86 were amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), section 8.back

[5] 1992 c. 52 The Trade Union and Labour Relations (Consolidation) Act 1992 has been amended but the amendments are not relevant.back

[6] 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.41.back

[7] 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

[8] 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

[9] S.I. 1996/1919 (N.I.16).back

[10] 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; by paragraph 5 of Schedule 2 to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, S.I. 2003/3049; by paragraph 1 of Schedule 5 to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 S.R. (N.I.) 2003 No. 497; by regulations 3 and 30 of the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004, S.R. (N.I.) 2004 No 55 and by paragraph 4 of Schedule 2 to these Regulations..back

[11] 1996 c .18back

[12] Section 284 was amended by the Merchant Shipping and Maritime Security Act 1997, Schedule 1, paragraph 5 (c.28).back

[13] 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 Employment Tribunals Act (Application of Conciliation Provisions) Order 2000 S.I. 2000/1299 article 2; 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(a); the Employment Equality (Religion or Belief) Regulations 2003 S.I. 2003/1660, Schedule 5, paragraph 1; the Employment Equality (Sexual Orientation) Regulations 2003 S.I. 2003/1661, Schedule 5, paragraph 1; the Disability Discrimination Act 1995 (amendment) Regulations 2003, S.I. 2003/1673, regulations 3 and 31; the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, S.I. 2003/3049, paragraph 2(2) of Schedule 2 and by paragraph 1(2) of the Schedule to these Regulations.back

[14] 1990 c. 41.back

[15] 1996 c. 17.back

[16] 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. Those sections were amended by paragraph 3 of Schedule 2 to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, S.I. 2003/3049.back

[17] 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. Those Articles were amended by paragraph 4 of Schedule 2 to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, S.I. 2003/3049.back

[18] See footnote (e) on page 3.back

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

[20] 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

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

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



ISBN 0 11 049479 2


  © Crown copyright 2004

Prepared 13 July 2004


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/legis/num_reg/2004/20041713.html