Seafarers (Insolvency, Collective Redundancies and Information and Consultation Miscellaneous Amendments) Regulations 2018
That the draft Regulations laid before the House on 15 January be approved.
My Lords, these regulations will amend the Employment Rights Act 1996, the Trade Union and Labour Relations (Consolidation) Act 1992 and the Information and Consultation of Employees Regulations 2004. Together with the Seafarers (Transnational Information and Consultation, Collective Redundancies and Insolvency Miscellaneous Amendments) Regulations 2018, they will transpose the requirements of the seafarers directive into Great Britain and UK law. Northern Ireland is making provisions to transpose those elements for which it has devolved responsibility.
In simple terms, the purpose of both sets of regulations is to ensure that seafarers and share fishermen, where employed, are provided the same level of employment protection as those working on UK soil with regard to insolvency, collective redundancies, transfers of undertakings, information and consultation, and works councils. They further demonstrate our commitment to ensure that employment rights are protected in the UK.
The European Commission, through a special task force, identified five employment directives that contained derogations for seafarers and therefore allowed land-based workers greater employment rights than those at sea if member states chose to apply them. The purpose of the seafarers directive was to remove these derogations and address the anomaly that land-based workers may enjoy greater employment rights than those at sea. Member states have been able to apply derogations on an ad hoc basis. The result has been that businesses in one member state have been able to comply with less favourable social protection for seafarers than those in another member state, such as the UK.
The Government have been fully supportive of the seafarers directive and have engaged with UK social partners, such as Nautilus International, which is the officers’ union, the RMT, which is the ratings’ union, and the UK Chamber of Shipping. UK social partners were at the forefront of the discussions with the European social partners and were instrumental in steering the discussion in those fora.
I will not detail all of the amendments as most of them simply omit previous clauses. I will instead draw attention to the reason for some of them. The UK had previously made use of the derogations relating to share fishermen as it considers them to be self-employed. Share fishermen are fiercely protective of their status, and I should be clear that these regulations do not amend their employment status. However, it is recognised that in certain circumstances a share fisherman may be considered to be employed and, in such circumstances, should have the same rights as those who are employed in other forms of work. These regulations amend the Employment Rights Act 1996 and the Trade Union and Labour Relations (Consolidation) Act 1992 to include share fishermen, where employed, in matters relating to insolvency and collective redundancies.
Part XI of the Employment Rights Act 1996 provides protection for employees in the event of a redundancy, which may, among other things, arise in the context of the insolvency of an employer. Regulation 2(2) removes the exclusion relating to Part XI in relation to employed share fishermen. Part XII of the Employment Rights Act 1996 provides protection for employees in the event of insolvency in Great Britain. This had previously excluded employed share fishermen, but Regulation 2(2) will amend Section 199(2) of the Act by removing the exclusion relating to employed share fishermen. Regulation 2(3) corrects a previous omission and brings merchant seamen within the scope of Part XII of the Act.
The UK had not relied on the derogation for the crews of sea-going vessels in relation to procedures for handling collective redundancies, and this was removed by the seafarers directive. However, an amendment is made to Section 284 of the Trade Union and Labour Relations (Consolidation) Act 1992 to bring employed share fishermen within scope of the collective redundancy requirements.
My Lords, we should congratulate the Minister on bringing this legislation here. Since she took up her role as Minister, it is clear that she has looked into the dark corners of the Department for Transport’s cupboards, dusted off some badly overdue legislation and brought it into the strong light of day. I regret having to say this, but I have to ask again: why is it so late? I understand that this measure is based on the seafarers directive of 2013. It should have been transposed into UK law by October last year. So we are now six months overdue. I know that the Government are distracted by Brexit, but it is a bad symptom of a situation where a Government are really struggling to cope.
Of course, I support the proposals here; on these Benches, there is strong support for the principle behind the regulations. The big issue is whether they really equalise rights for seafarers, bringing them fully into line with those who work on land. We all realise that it is a much more complex issue, because if you work at sea national boundaries are crossed less obviously and supervision of terms and conditions of employment is probably much more complex. There are also complex employment patterns, as the Minister has pointed out.
One can therefore do nothing other than welcome the increased job security that there will be for seafarers as a result of these regulations—and perhaps dwell for the moment on the fact that it is quite ironic they have been introduced as a result of an EU directive at a time when many fishing and coastal communities are among those in the UK where support for leaving the EU was strongest. I fully support the regulations and thank the Minister for her explanation.
My Lords, I come to these regulations still intellectually exhausted from biofuels and have set myself the minimum objective of trying to understand them. My few questions for the Minister are therefore just to understand them better.
The regulations and their accompanying Explanatory Memorandum seem, as far as I can see, to talk solely about share fishermen, where employed, and I am not clear whether the regulations affect anybody else. I thought that the easiest way to understand this might be to turn it on its head. The objective, we are told, is to turn the rights of seamen into the same rights that land-based workers have. Paragraph 7.3 of the Explanatory Memorandum identifies five directives, which are set out, covering five areas where in the present situation there is a difference between seamen and land-based workers. I was not clear whether all five were covered by the regulations. In simple terms, asking the obverse question, following the approval of the measure, what differences remain between seamen and land-based workers? If there are any differences, why have they been retained?
My Lords, these regulations are, no doubt, narrowly drawn and seek to improve protection for at least some seafarers using our ports. There are, however, some wider problems. Foreign owners and companies bring fishing vessels to British ports. They are often largely crewed by people from south-east Asia and the Indian subcontinent. When, from time to time, the owners become insolvent or the vessels break down, the crews can be left in very difficult situations. Their wages may be unpaid for long periods. They may or may not receive the redundancy payments that should be due. They may be asked to work on land or may choose to do so, even illegally, because of the threat of destitution. They may have serious difficulties in communicating with their families and their Governments.
I therefore ask the Minister: what representations have HMG received on these issues from voluntary organisations working with fishermen and seafarers? Do the Government now have proposals, other than those included in these limited regulations, for dealing with the very real, human problems—for example, over repatriation of crews? Do foreign Governments help with this, and what provision do our Government make for meeting the costs, particularly of repatriation in cases of bankruptcy when crews are stranded here through no fault of their own? The people who are affected by the problems I have mentioned are, by themselves, almost voiceless. They therefore deserve better protection than they have now.
My Lords, I thank all noble Lords for their contributions this afternoon.
Again, I can only apologise to the noble Baroness, Lady Randerson, for the late transposition: it is always regrettable when transposition is late. Although the changes are minor, they impact a number of complex areas of employment legislation, and we felt it was necessary to ensure that the changes made did not have unintended consequences in other areas. I thank the noble Baroness for her comments, and I assure her that I, along with the department, will continue to look into dark corners and ensure that we bring secondary legislation before the House as soon as we can.
The noble Lord, Lord Tunnicliffe, turned the question on its head and asked whether any difference between rights remains. The seafarers directive, this regulation and the accompanying negative SI remove the derogations for merchant seamen and/or share fishermen from the protection afforded by the five European directives. We have already covered what those rights are. The aim of the EU review of the employment of seafarers was to identify just those areas where there were differences between the rights of seafarers and those of land-based workers, and those were the five directives it came up with. Removing those derogations was the main aim—to remedy those differences—and now the employment rights of seafarers match those of land-based workers, as far as we know.
The noble Lord, Lord Hylton, asked about the insolvency of foreign vessels coming to our shores. We are in the process of implementing the 2014 amendments to the Maritime Labour Convention, which ensures that ship owners have financial security to meet seafarers’ entitlements. If the ship owner abandons the seafarers, they have the right to make a claim to the financial security provider. These regulations are expected to come into force in July 2018. Obviously, it can be a very distressing situation, and the MCA and the Department for Transport are in regular contact with the maritime charities, which form an important part of the dialogue we undertake in this area. If the ship owner and flag state of a non-UK ship in a UK port both fail to repatriate seafarers, the UK, as the port state, can indeed step in, and this is often done in conjunction with the welfare organisations. We are working on ratification of the International Labour Organization’s Work in Fishing Convention, which is expected to be completed, and we are also working on amendments to the ILO’s Maritime Labour Convention. Both conventions set minimum international standards with regard to welfare and social conditions. I hope that that addresses the noble Lord’s points.
I hope that I have answered fully the questions raised today. I hope your Lordships will agree that the objective of these regulations—to bring employment standards for seafarers to the same level as those in other areas of employment—is desirable. Given the long and important history of the maritime, and in particular seafarers, in relation to this country’s prosperity and standing on the global stage, it is absolutely right that they are given the same employment standards as those on land. I beg to move.
Motion to Approve
Government has also made very limited use of the derogations for seafarers with regard to information and consultation. However, an employer was permitted to exclude merchant navy crew engaged on voyages of 48 hours or more and long-haul crew from being a negotiating representative or an information and consultation representative. Those derogations will be removed by the regulations.
These regulations do not implement the other provisions of the seafarers directive in relation to participation in European works councils and notification of collective redundancies. Those requirements will be provided for by the Seafarers (Transnational Information and Consultation, Collective Redundancies and Insolvency Miscellaneous Amendments) Regulations 2018, which were made under the negative resolution procedure and are in force.
With regard to amendments to the transfer of undertakings directive, no further implementation into domestic law has been required, and guidance on the provisions in the directive has been published by BEIS.
The regulations before the House are intended to ensure that seafarers and share fishermen, where employed, have the same employment rights and protections as those who work in land-based roles. The measure is fully supported by UK social partners and by the Government. I beg to move.