PART 4MISCELLANEOUS
Power to require information15
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 detention16
1
Where a relevant inspector is of the opinion that:–
a
the requirements of regulation 7 have not been complied with in respect of any worker on a fishing vessel; and
b
a hazard to the health or safety of any worker is thereby created,
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 M1 (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 –
a
the reference in subsection (1)(b) to “any officer of a Minister of the Crown” includes reference to a relevant inspector as defined by these Regulations;
b
“competent authority” means the Secretary of State; and
c
for the words “this Act” in section 284(6) there shall be substituted “
the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004
”
.
Arbitration and compensation17
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–
a
in subsection (3), “to whether the ship was or was not a dangerously unsafe ship”; and
b
in subsection (5), “as a dangerously unsafe ship”.
Offences18
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.
Remedies19
1
A worker may present a complaint to an employment tribunal that his employer–
a
has refused to permit him to exercise any right he has under regulation 7(1), 7(3), or 7(4) or 11(1); or
b
has failed to pay him the whole or any part of any amount due to him under regulation 11(1).
2
An employment tribunal shall not consider a complaint under this regulation unless it is presented–
a
before the end of the period of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made;
b
within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
3
Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal–
a
shall make a declaration to that effect, and
b
may make an award of compensation to be paid by the employer to the worker.
4
The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to–
a
the employer’s default in refusing to permit the worker to exercise his right, and
b
any loss sustained by the worker which is attributable to the matters complained of.
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 out20
1
Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports–
a
to exclude or limit the operation of any provision of these Regulations, save in so far as these Regulations provide for an agreement to have that effect, or
b
to preclude a person from bringing proceedings under these Regulations before an employment tribunal.
2
Paragraph (1) does not apply to–
a
any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996 M2 (conciliation); or
b
any agreement to refrain from instituting or continuing proceedings within section 18(1)(n) of the Employment Tribunals Act 1996 (proceedings under these Regulations where conciliation is available), if the conditions regulating compromise agreements under these Regulations are satisfied in relation to the agreement.
3
For the purposes of paragraph (2)(b) the conditions regulating compromise agreements under these Regulations are that–
a
the agreement must be in writing,
b
the agreement must relate to the particular complaint,
c
the worker must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an employment tribunal,
d
there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or a professional body, covering the risk of a claim by the worker in respect of loss arising in consequence of the advice,
e
the agreement must identify the adviser, and
f
the agreement must state that the conditions regulating compromise agreements under these Regulations are satisfied.
4
A person is a relevant independent adviser for the purposes of paragraph (3)(c)–
a
if he is a qualified lawyer,
b
if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union, or
c
if he works at an advice centre (whether as an employee or as a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.
5
But a person is not a relevant independent adviser for the purposes of paragraph (3)(c)–
a
if he is, is employed by or is acting in the matter for the employer or an associated employer,
b
in the case of a person within paragraph (4)(b), if the trade union is the employer or an associated employer, or
c
in the case of a person within paragraph (4)(c), if the worker makes a payment for the advice received from him.
6
In paragraph (4)(a), “qualified lawyer” means–
a
as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), a solicitor who holds a practising certificate, or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990 M3);
b
as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate; and
c
as respects Northern Ireland, a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.
7
For the purposes of paragraph (5) any two employers shall be treated as associated if–
a
one is a company of which the other (directly or indirectly) has control; or
b
both are companies of which a third person (directly or indirectly) has control;
and “associated employer” shall be construed accordingly.
Amendments to legislation21
Schedule 2 (amendments to legislation) shall have effect.