Tuesday, 8 January 2019

2019 sees new rules for living and working conditions on fishing vessels came into force at the start of the new year.

Under ILO 188 what is the impact on health and safety law for those working on board fishing vessels?

The legal framework for health and safety on board UK vessels and vessels operating in UK waters is found within The Merchant Shipping Act 1995;

Various Regulations passed under the 1995 Act (for example, The Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997); and Merchant Shipping Notices (MSNs) and Marine Guidance Notices (MGNs) issued by the MCA.

Depending on circumstances, a vessel’s owner and/or skipper can be guilty of a criminal offence and/or found liable to pay compensation in the event of a breach. An awareness of the laws and rules which apply to a particular vessel is therefore essential – no easy task when it appears to be a vast and fairly impenetrable legal framework.

The detail of the health and safety laws contained within these sources are unaffected by The Merchant Shipping (Work in Fishing Convention) Regulations 2018. Whilst the 2018 Regulations are described as promoting the welfare of seafarers, they contain very little substance on what most people would consider as “health and safety”. Instead, the MCA will issue new MGNs (Marine Guidance Notices) including one relating to health and safety, a draft of which is currently available on the MCA’s website. The draft MGN is largely a reminder of the health and safety principles and rules contained in those sources described above. It is made clear that they extend to all crew on board, whether employed or as share fishermen.

There is currently some additional, limited, guidance from the MCA as to how health and safety will be enforced going forward. For example, failure to ensure the provision and wearing of personal flotation devices (PFDs) and/or fall restrain harnesses where there is a risk of falling overboard will be considered by the MCA as a breach of health and safety legislation. It may be that we will see prosecutions of owners and skippers where crew are not wearing PFDs.

The most significant addition in the 2018 Regulations relating to health and safety is the introduction of a new criminal offence for a fisherman who “fails to comply with the lawful orders of the skipper regarding health and safety”. While crew have long had a statutory duty of care for their own safety, this new offence may see crew prosecuted when they fail to do so. In the context of the MCA’s stance on the wearing of PFDs, for example, we may see disputes as to whether an “order” to do so was actually given by the skipper. Does an “order” need to be a specific instruction or does the result of a risk assessment count?

Many fishermen will find aspects of the new regulations below contradictory to their own experience growing up with boats and with family at sea.

The 2018 Regulations also contain new rules on the minimum age of persons who are employed, or engaged to work, on a fishing vessel. They are:

  • Under 16s are not permitted. The exception is 15-year-olds who are carrying out work experience during school holidays, provided that they hold a Basic Sea Survival ticket;
  • Under 18s are not permitted where the nature of their activities, or the circumstances in which they are carried out, are likely to jeopardise that person’s health, safety or morals. There is an element of subjectivity and therefore uncertainty as to how this rule will be interpreted and enforced;
  • Under 18s, with some exceptions relating to training requirements, must not work on a fishing vessel at night. While this regulation’s heading refers to “young persons on night duty” the actual wording of the regulation leaves some doubt as to whether it would apply when a crew member is sleeping overnight on board the vessel. If so, this could have a significant effect on the recruitment of school leavers for some vessel owners.

Breaches of these rules may constitute a criminal offence by the owner, skipper and employer, so it’s important that everyone is aware of the new rules and that, where there is ambiguity, clarification is established as quickly as possible.

All notices in relation to the Work in fishing convention (ILO 188)

The International Labour Organization’s work in fishing convention (ILO 188)came into force internationally on 16 November 2017. The UK government made legislation to implement ILO 188 in November 2018, and will ratify in January 2019.
ILO 188 entitles all fishermen to written terms and conditions of employment (a fisherman’s work agreement), decent accommodation and food, medical care, regulated working time, repatriation, social protection and health and safety on board. It also provides minimum standards relating to recruitment and placement and includes a mandatory requirement to have a certificate of medical fitness to work onboard a fishing vessel.

Who it applies to:

ILO 188 applies to all fishermen working on fishing vessels of any size, with more prescriptive standards for vessels over 24m in length or operating on longer voyages, three days or more.

ILO 188 statutory instruments:

SI2018/1106 The Merchant Shipping (Work in Fishing Convention) Regulations
SI2018/1107 The Merchant Shipping (Work in Fishing Convention) (Survey and Certification) Regulations
SI2018/1108 The Merchant Shipping (Work in Fishing Convention) (Medical Certification) Regulations
SI2018/1109 The Merchant Shipping (Work in Fishing Convention) (Consequential Provisions) Regulations.

ILO 188 phase in periods:

Different parts of legislation will be phased in as outlined.

MIN 575 ILO work in fishing convention medical certification grandfather rights