The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003
2003 No. 3049
MERCHANT SHIPPINGSAFETYCANALS 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 19721in relation to measures relating to the safety of ships and the health and safety of persons on them2and the organisation of working time3:
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 19954, 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—
“collective agreement” means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation Act 19925, the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;
“employer”, in relation to a worker, means the person by whom the worker is (or, where the employment has ceased, was) employed;
“employment”, in relation to a worker, means employment under his contract, and “employed shall be construed accordingly;
“MCA” means the Maritime and Coastguard Agency, an executive agency of the Department for Transport;
“Merchant Shipping Notice” means a Notice described as such and issued by the MCA; and any reference to a particular Merchant Shipping Notice includes a reference to any document amending or replacing that Notice which is considered by the Secretary of State to be relevant from time to time and is specified in a Merchant Shipping Notice;
“night time” means a period—
(a) the duration of which is not less than seven hours, and
(b) which includes the period between midnight and 5 a.m. (local time),
which is determined for the purposes of these Regulations by a relevant agreement, or, in default of such a determination, the period between 11 p.m. and 6 a.m. (local time);
“night work” means work during night time;
“night worker” means a worker—
(a) who, as a normal course, works at least three hours of his daily working time during night time, or
(b) who is likely, during night time, to work at least such proportion of his annual working time as may be specified for the purposes of these Regulations in a collective agreement or a workforce agreement,
and, for the purpose of paragraph (a) of this definition, a person works hours as a normal course (without prejudice to the generality of that expression) if he works such hours on the majority of days on which he works;
“relevant agreement”, in relation to a worker, means a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer;
“relevant training” means work experience provided pursuant to a training course or programme, training for employment, or both, other than work experience or training—
(a) the immediate provider of which is an educational institution or a person whose main business is the provision of training, and
(b) which is provided on a course run by that institution or person;
“rest period” means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;
“sail training vessel” means a sailing vessel which is being used either—
(a) to provide instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour and to advance education in the art of seamanship; or
(b) to provide instruction in navigation and seamanship for yachtsmen;
and to which one of the following codes applies6—
The Code of Practice for the Safety of Small Commercial Sailing Vessels7;
The Code of Practice for Safety of Large Commercial Sailing and Motor Vessels8;
The Code of Practice for the Safety of Small Commercial Motor Vessels9; or
The Code of Practice for the Safety of Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point10;
“ship” includes hovercraft;
“worker” means a person employed (or, where the employment has ceased, who was employed) as a member of the travelling personnel of a ship to which these Regulations apply by an undertaking which operates services for passengers or goods, but does not include persons who are training in a sail training vessel or persons who are not engaged in the navigation of, or have no emergency safety responsibilities on, such a vessel;
“workforce agreeement” means an agreement between an employer and workers employed by him or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied; and
“working time”, in relation to a worker, means—
(a) any period during which he is working, at his employer’s disposal and carrying out his activity or duties,
(b) any period during which he is receiving relevant training, and
(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement,
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/ECconcerning certain aspects of the organization of working time11.
Application
3.—(1) These Regulations apply to any United Kingdom ship, wherever it may be, which—
(a)
(a) operates, or ordinarily operates, under a certificate which does not allow the ship to go beyond the limits of waters of category A, B, C or D (as categorised in Merchant Shipping Notice No.MSN 1776 (M)), or
(b)
(b) is not required to be certificated.
(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—
(a) for any reference to any employment tribunal there shall be substituted a reference to an industrial tribunal within the meaning of section 42(5) of the Interpretation Act (Northern Ireland) 195412;
(b) in regulation 2(1) for the definition of “collective agreement” there shall be substituted the following definition—
““collective agreement” means a collective agreement within the meaning of Article 2(2) of the Industrial Relations (Northern Ireland) Order 199213, the trade union parties to which are independent trade unions within the meaning of that Article;”;
(c) in regulation 19(2)(a) for the words “a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996 (conciliation)” there shall be substituted the words “the Labour Relations Agency has taken action under Article 20 of the Industrial Tribunals (Northern Ireland) Order 199614(conciliation)”;
(d) in regulation 19(2)(b) for the words “section 18(1)(m) of the Employment Tribunals Act 1996” there shall be substituted the words “Article 20(1)(k) of the Industrial Tribunals (Northern Ireland) Order 1996”.
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—
(a)
(a) where a relevant agreement provides for the application of this regulation in relation to successive periods of 17 weeks, each such period, or
(b)
(b) in any other case, any period of 17 weeks in the course of his employment.
(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—
where—
A is the aggregate number of hours comprised in the worker’s working time during the course of the reference period;
B is the aggregate number of hours comprised in his working time during the course of the period beginning immediately after the end of the reference period and ending when the number of days in that subsequent period on which he has worked equals the number of excluded days during the reference period; and
C is the...
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