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HOURS OF WORK CONSULTATION FEEDBACK TO IMPLEMENT, BY MEANS OF MERCHANT SHIPPING REGULATIONS, REGULATION 2.4 OF THE ILO MARITIME LABOUR CONVENTION AND INTRODUCING A RIGHT TO TAKE A CASE UNDER THE REGULATIONS TO AN EMPLOYMENT TRIBUNAL

This consultation sought your views on the Maritime and Coastguard Agency’s proposals for giving full effect to Regulation 2.4 of the ILO Maritime Labour Convention 2006 and required  amendments to the Merchant Shipping (Hours of Work) Regulations 2002 Merchant Shipping (Hours of Work) Regulations 2002 (SI 2002/2125), as amended by the Merchant Shipping (Hours of Work) (Amendment) Regulations 2005 (SI 2004/1469). (the “Hours of Work” Regulations). the MCA proposed to take the opportunity of amending the Hours of Work Regulations to provide seafarers with a right to take a case under the Regulations to an Employment Tribunal.

RESPONSES TO PUBLIC CONSULTATION

Issue

Reference

Respondee

Comment

MCA response

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On behalf of

Company size
Annual leave entitlement General Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. We do not consider that the current provisions relating to working time and leave should be changed except insofar as that may be necessary to bring them into conformity with the new Maritime Labour Convention; there is no justification for "gold plating" the Convention's provisions. See  MCA comments on individual provisions
Annual leave entitlement IA Bob Crow RMT National Union representing seafarer ratings in UK shipping industry UK seafarer ratings do not regard rest periods that follow intensive work schedules as annual leave. We believe this is compensatory leave which forms part of a seafarer agreed pattern of work. Under the current regime, seafarers commonly work a roster pattern of 84 hours per week. This is more than double the hours worked by many shore-based full-time workers, and it is ofr this reason that seafares have compensatory leave following an intensive period of work. Whether or not the agreed pattern of work includes annual leave should be specified in the contract of employment.
Annual leave entitlement IA Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. The IA could make some mention of the personal benefits that will stem from increased annual leave. Greater holiday provision should help shipping employers to recruit, retain and motivate staff and should lead to a reduction in the total amount of sickness absence and exit through illness. Noted
Annual leave entitlement IA Sarah Buckley National Oceanography Centre, Southampton Leave for all ratings employed under our terms is earned at the rate of 13 days for each calendar month of effective on board service. Leave for officers is earned at 25 days for each complete calendar month of effective on board service.. For both groups on a consolidated basis to fullly compensate for weekends at sea and in port, public holidays, privilege holidays and annual holidays. Leave does not accrue during periods of non-effective service, ie while on leave, sick, studying for higher qualifications, on special leave or on standby, or whilst attending an approved training course. As leave is already in excess of the proposed new regulations, we would not expect any additional cost. No action required
Annual leave entitlement IA Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. Without clear definitions it is difficult to say whether additional costs will be incurred. If A/L can only be taken during working time, costs could increase by 20%. Subject to company contractual arrangements, we would not expect these minimum international provisions to have any impact on UK seafarers, the vast majority of whom receive in excess of 38 days paid leave under existing working patterns.
Annual leave entitlement IA Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) Any increase in the number of days of leave that are to be specified as days on which a seafarer is, to all intents and purposes, free from the possibility of recall will potentially increase the need for short-term agency staff to be employed to cover sickness absences. One passenger ferry operator reports that even the increase to 2.5 days per month could give rise to additional costs in the region of £400k per year. If the Governemnt chooses to gold-plate the MLC by adding a further 8 days, the costs will leap once again. The IA has been amended to reflect this. However, subject to clarification of company contractual arrangements, we would not expect these minimum international provisions to have any impact on UK seafarers, the vast majority of whom receive in excess of 38 days paid leave under existing working patterns.
Annual leave entitlement MSN 1767 Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Suggest that within either the first or second paragraph and to ensure clarity that the 38 days paid annual leave comprising of 30 days paid annual leave and 8 days paid leave in recognition of public holidays are referred to as paid annual leave "within" the year. MSN amended
Annual leave entitlement MSN 1767 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. It should be made clear in para 1 that the entitlement will be 38 days within the year. MSN amended
Annual leave entitlement MSN 1767 Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals para 3: amend the wording to read "detailed arrangements for paid annual leave are a matter to be agreed between the employer and the seafarer or by collective agreement where one exists, but as a general guide…" Agreed, but 2002 regulations refer to "collective agreement or workforce agreement", and we will use that terminology here.
Annual leave entitlement MSN 1767 Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Not clear how A/L entitlement for temporary workers is calculated. This is specified in regulation 12(2). Leave must be calculated pro rata based on 2.5 days per month of employment. MSN amended to refer to Business Link website which includes guidance on the principles of calculating leave for non-standard working arrangements.
Annual leave entitlement MSN 1767 Brendan Gold Unite the Union Largest trade union in the UK, with 2 million members, and the largest representing the towage industry. [In list of bullet points for non-work time not to be counted as part of annual leave with pay] add "compensatory rest". Agreed, but for the avoidance of doubt add "compensatory rest granted under regulations 5(4) or 6(2)".
Annual leave entitlement MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Important that the regulations accurately reflect the intent of the MLC that existing arrangements for time off count towards a seafarer's annual paid leave entitlement, and that paid leave entitlement is not expected to be taken out of normal working time. The description of compensatory leave in draft text could be misconstrued as meaning that any leave granted as part of a seafarer's normal working pattern (ie three months off [in a typical 3 months on and 3 months off cycle] would not be regarded as part of the statutory leave entitlement.Text should be amended to clarify that "compensatory leave" refers to compensatory leave referred to in 6(2) of the regulations. Propose to add clarification in MSN that in many cases periods of leave which form part of the seafarer's normal working pattern (eg one month on, one month off) may include annual leave and statutory leave in lieu of public holidays as well as leave in recognition of long hours worked while the seafarer is on board ship. The nature of this leave should be made clear in the contract of employment.Refer to "compensatory rest granted under regulations 5(4) or 6(2)".
Annual leave entitlement MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Reflect the wording in reg 13 that where a seafarer is entitled to hours of rest or annual leave he may not exercise the two rights separately, but may take advantage of whichever is the more favourable. MSN amended.
Annual leave entitlement MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Clearer guidance required on how leave is to be calculated. MSN draft refers to "month worked" and regulation refers to "month of employment". This could cause problems in respect of employees on short term or day rate contracts (a significant proportion of offshore workforce) . MLC, 2006 refers to "month of employment". Under the MLC, the seafarer's employment agreement must specify either the actual leave entitlement or the formula for calculating it.
Annual leave entitlement MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Text seems to suggest that seafarer accrues full year's entitlement where on long term sick leave. Leave accrues in each month of employment.
Annual leave entitlement MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Would welcome further clarification of leave on a pro rata basis. As leave is calculated as 2.5 days per calendar month, leave accrues at a different rate in a 28 day month from a 31 day month. This would appear to be confusing especially for workers on a day rate. Guidance note should emphasise that leave entitlement is in relation to time worked. Would prefer leave to be expressed as weeks/year. MSN amended to refer to Business Link website which includes guidance on the principles of calculating leave for non-standard working arrangements. Under the MLC, the seafarer's employment agreement must specify either the actual leave entitlement or the formula for calculating it
Annual leave entitlement MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Important that the regulations take account of the fact that paid leave for day rate employees will often be providedfor in terms of a payment in lieu. Arrangements for taking leave do not usually apply. Reg 12(5)(a) and related paragraph of MSN 1767 should be amended to take account of current practice for day rate workers. MLC, 2006 refers to "month of employment". Under the MLC, the seafarer's employment agreement must specify either the actual leave entitlement or the formula for calculating it. The regulations do not allow payment in lieu of leave earned.
Annual leave entitlement MSN 1767 Jeff Young UK Dredging Medium business - 84 seafarers It is vital to make clear that the increase in entitlement is a minimum below which seafarers conditions must not fall. Where seafarers already enjoy leave entitlements in excess of the proposed entitlement, then no additional benefit will accrue [this is clear from the Impact Assessment and Explanatory Memorandum.].Needs to be also in the MSN. Supporting guidance to be reviewed.
Annual leave entitlement MSN 1767 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew "Absence from work to attend an approved maritime vocational training course" not to be calculated as paid annual leave:Who should this be approved by? It is not a given that a crew member should be allowed paid time off to attend a course. Suggest deletion Proposed that this should mean "Approved by the competent authority for seafarer training required for the role currently undertaken, or in the case of a cadet, for the completion of a cadetship, or for the next certificate of competency".
Annual leave entitlement MSN 1767 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. Fuller guidance would also be useful on the accrual of leave and the treatment of leave entitlements for temporary workers. MSN amended to refer to Business Link website which includes guidance on the principles of calculating leave for non-standard working arrangements
Annual leave entitlement MSN 1767 Peter Edwards Yachting Partners International Small business - less than 49 employees ".. As a general guide, the following should not be counted as part of annual leave with pay:…..temporary shore leave, other than in cases where a seafarer requests annual leave while the ship is in port." Suggest further definition of "temporary shore leave". Is a weekend ashore temporary? Noted.
Annual leave entitlement Q3 Calum MacDonald Scottish Environment Protection Agency Large business (more than 250 employees) but the majority are not seafarers. Yes, minor costs To be reflected in revised IA
Annual leave entitlement Q3 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew This will not affect the yachting industry as much - all the yachts we manage already receive a minimum of 2.5 days pcm. However the implementation of 8 public holidays will be an issue. This will add 9 days salary per person where crew receive 2.5 days holiday pcm and 2 days additional holiday pa on vessels where crew receive 3 days pcm. The potential cost on yachts with 2.5 days hol pcm = 16.5k Euros. Potential cost on yachts with 3 days hol pcm - 5k Euros pa. Across the fleet of 45 vessels, a potential liability of 282500 Euros pa. To be reflected in revised IA
Annual leave entitlement Q3 Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. The proposed guidance provides no clarification of what annual leave is, references to compensatory leave, shore leave, agreed pattern of work and any other absence remain undefined. In particular, the purpose of compensatory leave should be defined. Propose to add clarification in MSN that in many cases periods of leave which form part of the seafarer's normal working pattern (eg one month on, one month off) may include annual leave and statutory leave in lieu of public holidays as well as leave in recognition of long hours worked while the seafarer is on board ship. The nature of this leave should be made clear in the contract of employment.Refer to "compensatory rest granted under regulations 5(4) or 6(2)".
Annual leave entitlement Reg 12 Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Should be made clearer in the draft that the main entitlements under the MLC (2.5 annual leave days per month, pro rata for part of a month, and 8 days paid leave during each year of employment) both apply within the year of 365 days - ie the minimum entitlement to paid leave is 38 days within the calendar year. MSN amended.
Annual leave entitlement Reg 12 Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals The following to be incorporated:(i) a statement that temporary shore leave cannot be counted towards annual leave (Guideline B.2.4.1(4)(c); (ii) annual leave to be taken in a place with which the seafarer has a substantial connection, otherwise free transportation, where the travel time does not count towards annual leave (B2.4.2(2)(3); (iii) the provision for the benefit of young seafarers to be included (B2.4.4.(1)) These provisions are already included in the revised text of the MSN, and are guidelines as in the MLC.
Annual leave entitlement Reg 12 Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals The draft Regulations, being silent on the issue of normal or compensatory leave such as for work at weekends and work beyond normal working hours, should make it clear that Paid Annual Leave is not to be construed other than for which it is intended. Propose to add clarification in MSN that in many cases periods of leave which form part of the seafarer's normal working pattern (eg one month on, one month off) may include annual leave and statutory leave in lieu of public holidays as well as leave in recognition of long hours worked while the seafarer is on board ship. The nature of this leave should be made clear in the contract of employment.Refer to "compensatory rest granted under regulations 5(4) or 6(2)".
Annual leave entitlement Reg 12 Bob Crow RMT National Union representing seafarer ratings in UK shipping industry We recommend that the regulations explicitly state that the minimum paid annual leave entitlement is 38 days. Within both the regulations and the MSN it should be clearly stated that the 30 day minimum annual leave (separate from bank holidays) provided for under the ILO Convention is implemented on the basis that two and a half days are accumulated within each month of employment. The employer should be clear that the seafarer does not have to work for 30 days to gain 2.5 days annual leave. The 30 days paid A/L and the further 8 days paid leave should be referred to as 38 days paid leave within the year. We consider that this is explicit in the regulations (Reg 12(2) specifies that for a period less than a month, the seafarer is entitled to a proportion of 2.5 days, rounded up to the nearest half-day). We will amend the second paragraph of the amending text for MSN 1767 to : "The 38 days paid leave within a full year..."
Annual leave entitlement Reg 12 Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Regulations should make clear that seafarer should be able to take their leave at a place where the seafarer has a close connection. If necessary free transportation must be arranged and the travel time should not count towards the annual leave period being taken. Guideline B.2.4.2 says "in principle" and "a substantial connection", and this is accurately reflected in MSN 1767. Should also be specified in SEA.
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. TUC strongly supports proposals to increase the minimum annual leave entitlements to 38 days per year. Work at sea commonly involves very long working hours, yet.. the need to remain alert is of vital importance. Fatigue is a contributory cause of many accidents at sea, so proper time off to recuperate from work is very important. the Government has implemented a programme designed to improve work-life balance in the broader economy. It is right that seafarers should also benefit, particularly as the long and unsocial hours that they work often puts a strain on their relationships with family and friends. No action required
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. The draft regulations could be made clearer on the following points:
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. (a) it should be made clearer that the minimum entitlement will be 38 days per year; See revised draft of MSN
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. (b) it should be made clear that compensatory leave is a separate entitlement. At the moment this is only in the guidance. See revised draft of MSN
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. (c) a clearer statement on how the accrual of annual leave will work is needed. The DfT could simply follow the position of the WTR. At the very least our view is that the 2.5 days per month guaranteed by the ILO convention must accrue at the start of each month. This is implicit in the requirement for those working less than one month to be awarded their leave pro rata.
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. (d) inclusion of a statement to the effect that temporary shore leave cannot be counted towards annual leave. This is only in the guidance (B2.4.1(4) c) These provisions are already included in the revised text of the MSN, and are guidelines as in the MLC.
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. (e) A statement that annual leave to be taken in a place with which the seafarer has a substantial connection is needed (only in the guidance). Otherwise there should be duty on employers to provide free transportation, with travelling time excluded from the leave entitlement; and The statutory provision will be in the repatriation regulations implementing the MLC.
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. (f) the provision for the benefit of young seafarers (guidance B.2.4.4.(1) should also be included in the regulations. These provisions are already included in the revised text of the MSN, and are guidelines as in the MLC.
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. It would be useful to make provision to accommodate any future increases in the number of public holidays, as a simplifying measure. Regulations have to be a compromise between Scotland, England and Northern Ireland, so cannot provide for an automatic increase.
Annual leave entitlement Reg 12 Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. Rest periods following intensive periods of work should not count as annual leave. The regulations allow seafarers to work up to 91 hours per week, and 84 hours per week rosters on a one-week on, one-week off basis are quite common. The off-week is an essential rest period, and holiday entitlements should be taken during periods that woudl otherwise be scheduled for work. Propose to add clarification in MSN that in many cases periods of leave which form part of the seafarer's normal working pattern (eg one month on, one month off) may include annual leave and statutory leave in lieu of public holidays as well as leave in recognition of long hours worked while the seafarer is on board ship. The nature of this leave should be made clear in the contract of employment.Refer to "compensatory rest granted under regulations 5(4) or 6(2)".
Annual leave entitlement Reg 12 Peter Edwards Yachting Partners International Small business - less than 49 employees Seafarers employed on board a yacht work 0800 to 1700 five days per week off charter. 38 days paid annual leave is a substantial amount for a seafarer working these hours and we believe that this primarily refers to the watch patterns on Merchant Ships. We suggest refining the statement to "2.5 days per 30 days engaged on ships' business" in line wth section 2.5.1 of MSN 1767(M) to allow crew to keep weekends as leisure time. This would not be in compliance with the MLC.
Annual leave entitlement Reg 12 Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. [The Regulations should provide a definition of what may constitute Annual Leave, to avoid disputes as have occurred in the offshore industry. In the recent decision in the Transocean case before a Scottish Employment Appeals Tribunal, it was ruled that the employer had the right to require the employees' annual leave to be taken during periods spent onshore when they had no work to do. We can see no reason why this principle should not be clearly adopted in the maritime regulations.] Propose to add clarification in MSN that in many cases periods of leave which form part of the seafarer's normal working pattern (eg one month on, one month off) may include annual leave and statutory leave in lieu of public holidays as well as leave in recognition of long hours worked while the seafarer is on board ship. The nature of this leave should be made clear in the contract of employment.Refer to "compensatory rest granted under regulations 5(4) or 6(2)".
Annual leave entitlement Reg 12(1) Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) Support proposal to increase minimum leave entitlement to 2.5 days for each month of employment within a year. This is necessary for the ratification of the MLC and the implementation of the European Social Partners agreement on the MLC. The Chamber is in full support of these objectives. No action required
Annual leave entitlement Reg 12(6) Bob Crow RMT National Union representing seafarer ratings in UK shipping industry [In the list of other times that seafarers may be absent from work] reference should be made to compensatory leave as agreed by the employer and the trade union (as referred to in the Guidance Note). Compensatory leave, periods of sickness and other temporary shore leave e.g. compassionate leave, should not count towards annual leave entitlement. Regulation 12(6) covers these scenarios, though not explicitly. None of these types of leave are specified in the Convention or in existing regulations, and we think the majority are best dealt with in SEAs./terms and conditions of employment. Sick leave is covered by other legislation.
Application 3A Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. We welcome the inclusion of Northern Ireland in the regulations, as we believe that seafaresr should enjoy the same rights throughout the UK. No action required
Application Reg 3A Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Welcomes the application of these regulations to Northern Ireland as to ensure uniformity throughout the UK. No action required
Application Reg 3A Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Note that regulations will be extended to Northern Ireland to ensure consistency of application. No action required
Application to non-UK Ships Reg 3(b) Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. EM explains that the amended regs will apply to non-UK ships in UK waters, but this provision does not apply reg 12. MLC requires compliance but only with MLC provisions. UK Proposals for public holidays and the entitlement to take a case to an employment tribunal cannot be enforced on non-UK ships. To be clarified. Covered in Instructions to Surveyors on implementation of the MLC. MSN is addressed to UK ships and shipowners.
Benefits Q5 Calum MacDonald Scottish Environment Protection Agency Large business (more than 250 employees) but the majority are not seafarers. None. Will provide a small group of employees with additional leave benefits - unhelpful in terms of employee relations. No action required
Compensatory leave MSN 1767 Jeff Young UK Dredging Medium business - 84 seafarers The use of the phrase "compensatory leave" caused considerable confusion last time around. It is not a term used in seafarers employment terms and conditions and its meaning is not defined in the document. The fact is that seafarers leave arrangements, whatever the status of the component parts, are consolidated into the "agreed pattern of work". For example, 2 weeks on duty followed by 2 weeks off duty. In the case of seafarers in UK dredging the element of statutory leave built into the off-duty period is defined, but there are no further distinctions are no mention of "compensatory leave". This bullet point should be removed. See revised MSN. Clarified by reference to Reg 5(4) and 6(2).
Compensatory leave MSN 1767 Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) Compensatory leave is not defined - it is referred to in the MLC only in the context of exceptions from the maximum hours of work and minimum rest periods set out in the MLC (A2.3 para 13). See revised MSN. Clarified by reference to Reg 5(4) and 6(2).
Compensatory leave MSN 1767 Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) The impression given is that any leave that is granted under a seafarer's existing work pattern must be disregarded for the purposes of statutory leave entitlement. That is incorrect. Such wording will invite employment tribunal claims because it gives rise to uncertainty and may raise false expectations in seafarers. Wording in paragraph 10 must reflect regulation 13 (also WTR reg 17 and key to Scottish Employment Appeal tribunal judgement in the case involving Transocean. Propose to add clarification in MSN that in many cases periods of leave which form part of the seafarer's normal working pattern (eg one month on, one month off) may include annual leave and statutory leave in lieu of public holidays as well as leave in recognition of long hours worked while the seafarer is on board ship. The nature of this leave should be made clear in the contract of employment.Refer to "compensatory rest granted under regulations 5(4) or 6(2)".
Fatigue Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Long hours and resulting fatigue suffered by many seafarers continue to be of major concern which RMT recommend should be addressed with a fundamental review of hours of work regulations. The regulations…allow for seafarers to work over 4000 hours per year as a result of the 91 hours of work per week currently permitted. A maximum hours of work regime would at least limit the weekly maximum to 72 hours. Outside the scope of this consultation.
General General Brendan Gold Unite the Union Largest trade union in the UK, with 2 million members, and the largest representing the towage industry. Concerned that the consultation avoids the serious issues of how the current legislation is applied to tug boat workers, who we believe should come under the IW Working Time Directive. As a result of coming under the Merchant Shipping (Hours of Work) Regulations 2002, this is resulting in some members not receiving their full entitlement to holidays, because employers are claiming that compensatory rest is holidays. We would like the MCA to ensure that they enforce the holiday entitlement of our members by introducing and maintaining a proper monitoring and enforcement scheme. Outside the scope of this consultation.
General IA Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. We do not see any benefits whatsoever to operators in the towage industry as a result of amending the Regulations. Noted
Impact Assessment IA Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Do not consider that there will be any substantial additional cost for employers. However, these much needed measures do provide an important baseline to ensure adequate social conditions for seafarers and fair competition among employers in accordance with the Governments commitment to the ILO's Decent Work Agenda and the achievement of decent work within the maritime industry. Furthermore, the improved working and employment conditions for seafarers should contribute to an improvement in working conditions and the safety of life at sea for all seafarers employed on UK vessels most notably those not resident in the United Kingdom. Noted
Implementation of MLC Q1 Calum MacDonald Scottish Environment Protection Agency Large business (more than 250 employees) but the majority are not seafarers. Yes No action required
Implementation of MLC Q1 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew Yes No action required
Public holidays 12(4) Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew Calculation not correct - should mirror (2) above. Public holidays are whole days.
Public holidays MSN 1767 Brendan Gold Unite the Union Largest trade union in the UK, with 2 million members, and the largest representing the towage industry. Propose "… in recognition of the current level of public holidays. If in future the UK Government increases the number of public holidays then the 8 days will be increased to take the additional public holidays into account." Regulations have to be a compromise between Scotland, England and Northern Ireland, so cannot provide for an automatic increase.
Public holidays MSN 1767 Emily Comyn IMCA If provision for an additional 8 days is retained, guidance should make clear that seafarer may be required to work bank holiday and given a day in lieu MCA consider this is clear from MSN wording.
Public holidays Q1 Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. While the proposed regulations do cover the requirements of the MLC they go beyond what is required for their implementation. It is not a requirement of the MLC that public holidays must be considered as additional to the annual leave entitlement. [This is being] added to a figure that is already in excessof the 28 days provided for land-based employees. It was not the intention of the MLC to provide for annual leave for seafarers that is 50% higher than for other workers.   The MLC guidelines explicitly exclude public holidays from the calculation of paid annual leave.
Public holidays Reg 12 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew Not clear in the regulations what the 8 days refer to - other documents say public holidays. Propose this should go into the explanatory note rather than the regulations. It is also explained in the draft amendment to the MSN.
Public holidays Reg 12 Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Regulations explicitly state that the additional entitlement, in recognition of bank holiday leave, is a period of 8 days. There should be a further clause, or an amending clause, that states that if in the future the Govt. increases bank holiday entitlement this will be increased accordingly. Regulations have to be a compromise between Scotland, England and Northern Ireland, so cannot provide for an automatic increase.
Public holidays Reg 12(3) Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Vast majority of seafarers already receive paid leave in excess of the levels proposed. Oppose addition of 8 public holidays. This was intended for those on 20 days leave per year, and would exceed the 28 day cap on land-based workers' entitlement.. Implements MLC Guidelines as well as a manifesto commitment.
Public holidays Reg 12(3) Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) Strongly oppose creation of additional 8 calendar days paid annual leave. Noted that this is intended to represent public holidays, in line with a Government manifesto commitment. However, the regulations amending the Working Time Regulations 1998 that implemented this change in respect of workers covered by these Regulations also set a cap on the statutory entitlement at 28 days (reg 13A(3) of WTR.) The change in reg 12(1) will give a total of 30 days leave per year. There is therefore no need to implement the change in draft reg 12(3) to bring the seafarers' entitlement into line with other workers. Do not consider it appropriate to make this particular section of the guidelines in Part B mandatory, as it would amount to gold-plating of the MLC. Not required for implementation of the European Social Partners Agreement on the MLC. Implements MLC Guidelines as well as a manifesto commitment.  
Right to complain to an employment tribunal Explanatory Note Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) The final paragraph suggests that seafarers wlll have the right to make a claim in an employment tribunal if the seafarer has not been able to exercise any of his rights in connection with hours of work and annual leave. The regulations limit this right to a breach of reg 5(1), 5(4) or 12. Regulations and EM should be consistent. To be clarified in MSN.
Right to complain to an employment tribunal General Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. We are opposed to [Employment Tribunals becoming the forum for decisions on the application of the maritime working time regulations.] We find it inexplicable that a ministerial commitment should have been given to our social partners on this without any consultation (or even explanation to) employers. Noted.
Right to complain to an employment tribunal IA Sarah Buckley National Oceanography Centre, Southampton (National Environment Research Council) Proposed right is in our view a totally inappropriate forum for complaints of this nature. We recognise that there will be occasions when individuals feel that they have a grievance about their working environment. Our procedures are intended to meet the requirements upon NERC under the Dispute Resolution Regulations 2004. They apply to all NERC staff including Marine Staff. To amend the regulations to permit seafarers to take a case in respect of hours of rest to an ET woudl be an anomaly for which no sound business case has been presentedand would have the potential to set a precedent for other areas of employment law. The potential cost would be significant and disproportionate to any perceived benefit. The 2004 regulations have been superseded but the principle of seeking internal resolution of disputes prior to referral to an employment tribunal holds true. However the right to appeal remains. The MLC complaints procedure provides the same preliminary step for seafarers.  
Right to complain to an employment tribunal IA Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. In the last 3 years there have been an average of 37k cases p.a. based on the WTR. Inevitably there will be cases to test the water in the towage industry, looking for a more favourable interpretation. Gibbons Review of employment dispute resolution reported that a tribunal took an average of 7.71 days of management time, and the average cost of defending an ET Claim was £9000. This will be reflected in revised IA.
Right to complain to an employment tribunal IA Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) The Gibbons Review, which led to the recent abolition of the Statutory Grievance and Disciplinary procedures estimates that an employment tribunal claim takes an average of 7.71 days of management time and costs an average of £9000. This will be reflected in revised IA.
Right to complain to an employment tribunal MSN 1767 Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Welcomes the text which is clear and unambiguous. No action required
Right to complain to an employment tribunal MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Reg 20A provides a right only to appeal in case of breach of Reg 12 or reg 20A, not for every provision of these regulations as implied in the text. To be clarified in MSN.
Right to complain to an employment tribunal MSN 1767 Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) The text states that the Regulations "also introduce a right for a seafarer who considers that he has been denied any of the rights under the Regulations to take a case to an ET". This wording is a misrepresentation of the position in reg 20A. To be clarified in MSN.
Right to complain to an employment tribunal Q2 Calum MacDonald Scottish Environment Protection Agency Large business (more than 250 employees) but the majority are not seafarers. Yes, support Noted
Right to complain to an employment tribunal Q2 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew Yes, support Noted
Right to complain to an employment tribunal Q2 Steve Jellis BTA Represents operators of tugs, including private sector companies of all sizes and some trust/local authority ports. There is no evidence to suggest that the current regulatory regime is failing to provide adequate protection from fatigue or that the health and safety of seafarers will be improved by this change. Seafarers who believe that their safety is threatened by employers' actions or that they have received inadequate provision for rest or leave can complain to the MCA who have powers of enforcement. this process can enusre a speedy response and the threat of criminal prosecution is an adequate deterrent to the employer who fails to respond. This regime is clearly directed to correcting deficiencies. By contract the Tribunal system with inherent delays is directed at a compensation culture.It cannot be right that inadequate provision against fatigue can continue as long as the employee is compensated at some time in the future. Annual leave is primarily a social good rather than a safety issue.
Right to complain to an employment tribunal Q4 Calum MacDonald Scottish Environment Protection Agency Large business (more than 250 employees) but the majority are not seafarers. No costs Noted
Right to complain to an employment tribunal Q4 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew No additional costs Noted
Right to complain to an employment tribunal Reg 20A Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Welcomes this important provision. 2002 Regulations contain no such provision for individual remedy, but only create an offence for breach of the provisions punishable by fine (Reg 20(4) which should remain). It is important that seafarers have access to effective means of remedy which provides for compensation. This places them on an equal footing in this respect as those land-based workers who benefit from rights of access to Employment Tribunals under the WTR 1998. Noted
Right to complain to an employment tribunal Reg 20A Allan Graveson Nautilus UK (Nautilus International) Trade union and professional association representing 18000 masters, ships officers, officer trainees and other maritime professionals Suggest the following words be inserted (Reg 20A) concerning the ET's discretion to hear cases presented after the 3 months limitation period: "within such further period as the tribunal consider reasonable in a case where it is satisifed that it was not reasonably practicable for the complaint to be presented before the end of that period of three months taking into account in determining these issues the degree to which the seafarer was prevented or hindered from presenting a claim due to being at sea or outside the jurisdiction" MCA cannot instruct Employment Tribunals how to act, but we understand this level of discretion is already available to them.
Right to complain to an employment tribunal Reg 20A Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Welcome these changes and ask that they be implemented asap. It is simply unreasonable and morally wrong that seafarers do not currently have rights to claim an effective remedy through the ET system if they believe there is a failure by an employer to uphold the regulations on working time. Noted
Right to complain to an employment tribunal Reg 20A Bob Crow RMT National Union representing seafarer ratings in UK shipping industry Additional clause required to allow for the fact that seafarers, in certain instances, may not be able to present the claim within 3 months due to their working patterns..The ET should be allowed to give reasonable consideration to this depending on individual circumstances. MCA cannot instruct Employment Tribunals how to act, but we understand this level of discretion is already available to them.
Right to complain to an employment tribunal Reg 20A Bob Crow RMT National Union representing seafarer ratings in UK shipping industry MCA should consider the rights for any seafarer who wishes to now bring forward a claim under the working time regulations but is prevented from doing so, even though Government have committed to rectifying this mistake through proposed amending legislation. Outside the scope of this consultation.
Right to complain to an employment tribunal Reg 20A Bob Crow RMT National Union representing seafarer ratings in UK shipping industry MCA should make provision to ensure that companies are required to implement the existing regulations on working time as a matter of urgency. To rectify this we believe that if any claims to an Employment Tribunal are submitted before the forthcoming change in the law, and subsequently it has found the employer has fallen foul of the UK regulations, compensation should be paid to the individual from the time of the original breach of the regulations. Regulations will come into force with the MLC so as not to impose undue competitive disadvantage on the UK fleet.
Right to complain to an employment tribunal Reg 20A Bob Crow RMT National Union representing seafarer ratings in UK shipping industry DfT should take the opportunity to correct other anomalies in existing legislation. At the current time many seafarers are prevented from presenting a case to an ET for an unlawful deduction of wages or query the terms of their contract, as set out under section 199(1) of the 1996 Employment Rights Act. This is a fundamental denial of basic employment rights which subsequent amendments to the Act have not rectified. RMT has been informed that the Government is aware of the need to clarify the position for seafarers wishing to take wages, or employment contract matters, to an ET. This was being considered between DfT and the DBERR. We have also been informed by BERR that DfT has indicated the need to review the interrelationship between the MSA and the ERA. The DfT has stated that the appropriate forum for dealing with this is in discussions on implementation of the MLC. As the changes to A/L entitlement proposed are being made as a result of the MLC it would seem to be the right time to bring forward the nece Outside the scope of this consultation.
Right to complain to an employment tribunal Reg 20A Brendan Gold Unite the Union Largest trade union in the UK, with 2 million members, and the largest representing the towage industry. Additional clause required that recognises that seafarers, in certain instances, may not be able to present the claim within 3 months due to their working patterns which can involve being at sea for long periods of time..The ET should be allowed to give reasonable consideration to this depending on particular circumstances. MCA cannot instruct Employment Tribunals how to act, but we understand this level of discretion is already available to them.
Right to complain to an employment tribunal Reg 20A Brendan Gold Unite the Union Largest trade union in the UK, with 2 million members, and the largest representing the towage industry. MCA should make provision to ensure that companies are required to implement the existing regulations on working time as soon as possible. If any claims to an Employment Tribunal are submitted before the changes come into UK law, and subsequently it has found the employer has breached the UK regulations, compensation should be paid to the individual from the time of the original breach of the regulations. Regulations will come into force with the MLC so as not to impose undue competitive disadvantage on the UK fleet.
Right to complain to an employment tribunal Reg 20A Brendan Gold Unite the Union Largest trade union in the UK, with 2 million members, and the largest representing the towage industry. DfT should take the opportunity to correct other anomalies in existing legislation. Currently many seafarers are prevented from presenting a case to an ET for an unlawful deduction of wages or query the terms of their contract, as set out under section 199(1) of the 1996 Employment Rights Act. This is a fundamental denial of basic employment rights which subsequent amendments to the Act have not rectified. RMT has been informed that the Government is aware of the need to clarify the position for seafarers wishing to take wages, or employment contract matters, to an ET. We understand that RMT raised this with DfT and the DBERR who are considering. DfT has indicated that the appropriate forum for dealing with this is in discussions on implementation of the MLC. As the changes to A/L entitlement proposed are being made as a result of the MLC it would seem to be the right time to bring forward the necessary changes that also would correct the above legislation and the deficiencies for seafarers. Outside the scope of this consultation.
Right to complain to an employment tribunal Reg 20A Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Seafarers should have access to a proper complaints procedure. However, proposal would set an unhelpful precedent, and seems at odds with Government policy of encouraging resolution of disputes in the workplace (also MLC A5.1.5). As part of procedures for enforcement of MLC, employers will have to provide details of how leave is provided, and there are provisions for complaints procedures (both flag and port state). Anecdotal evidence suggests ETs disrupt workplace relations, are time consuming and produce solutions which are unsatisfactory to both sides. No evidence and therefore IMCA unconvinced that there is a proper case for amending the current system. The intention is to give seafarers the same rights as shore-based workers, and the same principles about resolution of disputes in the workplace apply in both cases.
Right to complain to an employment tribunal Reg 20A Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. If agreed, the existing penalty for breach of reg 12 should be removed, avoiding duplication These are separate provisions with different remedies - prosecution punishes the offender but does not provide restitution for the victim.
Right to complain to an employment tribunal Reg 20A Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. There is some concern that the regulations are not currently being adequately enforced. For example, the autumn 2008 Labour Force Survey data tells us that 37 % of employees in the sea and coastal transport sector report that they have less than 20 days leave. It is therefore important to develop dual channel regulation, with both MCA inspection and the right to take ET cases. In addition, MCA should continue to develop and improve the inspection of these regulations. A dual channel regime is used to enforce the National Minimum Wage - complaints to HMRC National Minimum Wage Inspectorate or lodge an ET case. This was introduced because government was determined that all those who were eligible for the NMW should actually receive it. Noted
Right to complain to an employment tribunal Reg 20A Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. No seafarer should lose out because they have up to now not been able to take an ET case to enforce their rights. Either the normal 3-month limit should be waived to allow older claims to come forward, or the MCA should pick up such claims and underatke necessary enforcement to give seafarers their holiday rights. Do not propose to apply these regulations retrospectively.
Right to complain to an employment tribunal Reg 20A Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. Support the points made in the RMT submission on broader access to ET. Seafarers should also be able to take cases to ET to protect themselves from unlawful deductions from wages and to query the terms of their contracts. Outside the scope of this consultation.
Right to complain to an employment tribunal Reg 20A Paul Sellers TUC National Trade Union body, with 59 affiliated unions representing just over 6.5 million members. We regard the implementation of the new entitlements as a matter of some urgency. New regulations should be introduced as soon as possible. Regulations will come into force with the MLC so as not to impose undue competitive disadvantage on the UK fleet.
Right to complain to an employment tribunal Reg 20A Tim Springett Chamber of Shipping Trade association for British Shipowners and managers. 85 companies owning or managing 860 ships (totalling 23m gt) Strongly oppose suggestion that seafarers be given the right to present a complaint under MS HoW Regs to an employment tribunal. Consider this to be unnecessary, potentially harmful to workplace relations and out of line with Govt policy to encourage the resolution of workplace disputes at an early stage. MLC provides sufficient protection (Declaration of Maritime Labour Compliance, A/L provisions shown in SEA (subject to inspection), complaints procedure. ETs not an appropriate forum - a precedent for extending to other entitlements in MS legislation. Seafarers will have a variety of alternative enforcement mechanisms - potentially increasing costs for employers. The policy aim is to give seafarers the same rights as shore-based workers, which includes the right to seek restitution through an employment tribunal. Although there are other enforcement options through the MLC, none of these are designed for this purpose.
Shore leave MSN 1767 Jeff Young UK Dredging Medium business - 84 seafarers Shore leave: I suggest that a reference to local security arrangements should be added to the list of potential restrictions to shore leave. MSN to be amended
Taking annual leave MSN 1767 Jeff Young UK Dredging Medium business - 84 seafarers Paragraph 4 is unnecessarily wordy. The first 3 sentences, up to ""should not be required to take annual leave due to them in another place" is all that needs to be said. Arrangements for repatriation are already provided for in crew agreements and seafarers' contracts. The second half of this paragraph contradicts the first. You have already said that "seafarers should be allowed to take leave in the place to which they are entitled to be repatriated". Why do you then need to be prescriptive about travel arrangements to any other place for the purposes of taking leave? The next 2 sentences should be deleted.The final sentence should be retained. MSN to be amended
Taking annual leave MSN 1767 Lucy Medd Burgess Yachts Medium business with 100 employees, responsible for 1000 crew "Seafarers should in principle be able to take A/L in the place with which they have a substantial connection, which would normally be the same place as the place to which they are entitled to be repatriated." this is not workable. Seafarers should take annual leave in the place of engagment or place of residence. Any additional wording is unnecessary. The statutory provision will be in the repatriation regulations implementing the MLC.
Taking of paid leave MSN 1767 Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Clearer guidance required on how to decide on timing of annual leave. A provision is required to allow the employer to direct the timing of A/L (Guideline B.2.4.2) in the absence of agreement. We consider this is covered by the current draft of the MSN.
Taking of paid leave Reg 12(1) Emily Comyn IMCA Trade association representing offshore, marine and underwater engineering companies in the oil and gas industry. Does not allow for annual leave to be accrued - could be argued that employer is in breach if a seafarer did not take any leave in a particular month. Specific provision required for accrual. 12(1) specifies paid annual leave within that year. That makes clear that leave can be accrued within the year.