S.I. No. 266/2020 - European Union (International Labour Organisation Work in Fishing Convention) (Medical Examination) Regulations 2020

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 31st July, 2020.

I, Eamon Ryan, Minister for Transport, Tourism and Sport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Articles 7, 8 and 9 of the Annex to Council Directive (EU) 2017/159 of 19 December 2016¹ and to Article 3 of that Directive in so far as it relates to those provisions, hereby make the following regulations:

Citation

1. These Regulations may be cited as the European Union (International Labour Organisation Work in Fishing Convention) (Medical Examination) Regulations 2020.

Interpretation

2. (1) In these Regulations-

“applicant” means a person referred to in Regulation 7(1);

“approved doctor” means a medical practitioner who is for the time being entered in the register established under section 43 of the Medical Practitioners Act 2007 (No. 25 of 2007) and who is appointed under Regulation 5(a);

“authorised officer” shall be construed in accordance with Regulation 11(1);

“Category C fishing vessel” means a fishing vessel-

(a) staying within 30 nautical miles of the shore, or

(b) with no cabin accommodation other than a wheelhouse;

“competent authority” means the person designated as the competent authority under Regulation 4;

“direction” has the meaning assigned to it by Regulation 13(1);

“Directive” means Council Directive (EU) 2017/159 of 19 December 2016² ;

“fisherman” means a person who works in any capacity under a contract of employment or in an employment relationship on board a fishing vessel, including any other person engaged in activities related to fishing who is present on the same vessel in order to protect the overall health and safety of the persons on board, but does not include-

(a) a person who is a pilot within the meaning of the Harbours Act 1996 (No. 11 of 1996), or

(b) a shore person carrying out work on board a fishing vessel at the quay side;

“fishing vessel” means any ship or boat registered in the State, of any nature whatsoever, irrespective of the form of ownership, used or intended to be used for the purpose of commercial fishing;

“master” means the fisherman having command of a fishing vessel;

“medical fitness certificate” means a fisherman’s medical fitness certificate issued under Regulation 7(4);

“medical referee” means a medical referee appointed under Regulation 5(b);

“notice of detention” has the meaning assigned to it by Regulation 12(2);

“owner” means the owner of a fishing vessel or any other organisation or person, such as the manager, agent or charterer, who has assumed responsibility for the operation of the fishing vessel from the owner;

“referral centre” means a referral centre designated under Regulation 5(c).

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

Application

3. (1) Subject to paragraph (2), these Regulations apply to all fishermen on fishing vessels engaged in sea fishing.

(2) These Regulations do not apply to fishermen on Category C fishing vessels which-

(a) are less than 15 metres in length overall, or

(b) remain at sea for 72 hours or less.

Designation of competent authority

4. The Minister for Transport, Tourism and Sport is designated as the competent authority in the State for the purposes of Articles 7, 8 and 9 of the Annex to the Directive and these Regulations.

Appointment of approved doctor and medical referee, and designation of referral centre

5. The competent authority shall-

(a) appoint a person to be an approved doctor,

(b) appoint an approved doctor to be an independent medical referee, and

(c) designate a place to be a referral centre to assess colour vision.

Obligation to have medical fitness certificate

6. (1) A master shall not permit a fisherman on board a fishing vessel unless the fisherman is in possession of an unexpired medical fitness certificate that records him or her as fit to perform his or her duties.

(2) In urgent cases, and upon the request of an owner or master in that behalf, the competent authority may permit a fisherman who is the holder of a medical fitness certificate that expired within one month before the date on which the fisherman joined a fishing vessel to be on board the fishing vessel, despite the expiry of the certificate, until the next port of call at which it is possible for the fisherman to obtain a medical fitness certificate.

(3) A permission under paragraph (2) shall-

(a) not exceed a period of 3 months, and

(b) only apply to a fisherman on a fishing vessel of 24 metres in length and over or which normally remains at sea for more than three days.

(4) A master shall not permit a fisherman on board a fishing vessel to act in breach of any restriction or condition recorded on the fisherman’s medical fitness certificate under Regulation 7(6).

Issue of medical fitness certificate

7. (1) A fisherman who wishes to obtain a medical fitness certificate shall-

(a) have attained the age of 15 years,

(b) provide satisfactory proof of identity to an approved doctor, and

(c) be medically examined by the approved doctor to ascertain if he or she is fit to perform his or her duties as a fisherman, having regard to the medical standards set out in Schedule 1.

(2) If the effectiveness of an applicant’s colour vision is in doubt following an initial assessment by the approved doctor, the doctor may, having regard to the duties to be performed at sea by the applicant, require confirmatory colour vision testing at an independent referral centre for the purpose of providing the approved doctor with the necessary information to issue a medical fitness certificate.

(3) A colour vision test carried out under paragraph (2) shall be valid for such period, not exceeding 6 years, as is specified in a medical fitness certificate.

(4) An approved doctor who medically examines an applicant shall issue a medical fitness certificate to the applicant recording whether or not the applicant is fit (including in respect of the applicant’s hearing and vision) to perform his or her duties.

(5) A medical fitness certificate shall record that an applicant is unfit to perform his or her duties where he or she is suffering from any medical condition likely to be aggravated by service at sea or to render him or her unfit for such service or to endanger the safety or health of other persons on board.

(6) An approved doctor may, having regard to the results of the medical examination carried out by him or her and the nature of the duties to be performed by the fisherman, record on the fisherman’s medical fitness certificate-

(a) restrictions on the fisherman’s capacity of sea service or on the geographical areas in which the fisherman may work, or

(b) conditions subject to which the fisherman must perform his or her duties.

(7) A fisherman who has been issued with a medical fitness certificate shall have the certificate in his or her possession when on board a fishing vessel.

(8) A medical fitness certificate shall be in the form specified in Schedule 2.

Period of validity of medical fitness certificate

8. (1) A medical fitness certificate shall, subject to Regulation 9, be valid-

(a) in the case of a fisherman who has not attained the age of 18 years, for such period, not exceeding one year, as an approved doctor specifies in the certificate, and

(b) in the case of a fisherman who has attained the age of 18 years, for such period, not exceeding 2 years, as an approved doctor specifies in the certificate.

(2) Where the medical fitness certificate of a fisherman expires during the course of a voyage, the certificate shall be considered to remain in force until the end of that voyage.

Suspension and revocation of medical fitness certificate

9. (1) An approved doctor may suspend or revoke a medical fitness certificate under paragraph (2) where he or she has reasonable grounds for believing that-

(a) there has been a significant change in the medical fitness of a fisherman during the period of validity of his or her medical fitness certificate,

(b) when the medical fitness certificate was issued to a fisherman by an approved doctor (in this subparagraph referred to as a “certifying doctor”), had the certifying doctor been in possession of the full details of the fisherman’s health, the certifying doctor could not reasonably have considered that the fisherman was fit to perform his or her duties as a fisherman, or

(c) the medical fitness certificate was issued to a fisherman otherwise than in accordance with these Regulations.

(2) An approved doctor who has reasonable grounds for believing a matter referred to at subparagraph (a), (b) or (c) of paragraph (1) has occurred may-

(a) suspend the operation of the fisherman’s medical fitness certificate for such reasonable period as the approved doctor considers that the fisherman will remain unfit to perform his or her duties, or

(b) revoke the fisherman’s medical fitness certificate if he or she considers that the fisherman is likely to remain permanently unfit to perform his or her duties.

(3) An approved doctor shall, as soon as practicable after making a decision under paragraph (2), notify the fisherman concerned of that decision.

(4) An approved doctor may instruct a fisherman who holds a medical fitness certificate that has been suspended or revoked to surrender the medical fitness certificate to him or her as soon as practicable after its suspension or revocation.

(5) Where a fisherman’s medical fitness certificate is suspended, an approved doctor shall, at the conclusion of the period of suspension, medically examine the fisherman to ascertain whether he or she is fit to perform his or her duties as a fisherman having regard to the medical standards set out in Schedule 1 and determine whether the suspension shall-

(a) cease and the medical fitness certificate be returned to the fisherman, or

(b) continue under paragraph (2)(a).

(6) A fisherman shall comply with an instruction under paragraph (4).

Review by a medical referee

10. (1) A person may apply to the competent authority for an independent review by a medical referee where, having been medically examined under these Regulations, he or she-

(a) has been issued with a medical fitness certificate stating that he or she is not fit to perform his or her duties as a fisherman,

(b) has been issued with a medical fitness certificate recording restrictions or conditions under Regulation 7(6),

(c) has been issued with a medical fitness certificate stating that he or she is fit to perform his or her duties as a fisherman, including a medical fitness certificate recording restrictions or conditions under Regulation 7(6), and during the medical examination indicated to the approved doctor that he or she was unfit to perform those duties,

(d) has been issued with a medical fitness certificate stating that he or she is not fit to perform his or her duties as a fisherman and the medical reason for the certification has disappeared,

(e) has been issued with a medical fitness certificate recording restrictions or conditions under Regulation 7(6) and the medical reason for the restrictions or conditions has disappeared, or

(f) has had his or her medical fitness certificate suspended or revoked under Regulation 9.

(2) A fisherman may apply to the competent authority for a review referred to in paragraph (1) within one month of the date of-

(a) in the case of subparagraph (a), (b) or (c) of paragraph (1), issue of the medical fitness certificate,

(b) in the case of subparagraph (d) or (e) of paragraph (1), the disappearance of the medical reason, or

(c) in the case of paragraph (1)(f), the notification to the fisherman of the suspension or revocation of the medical fitness certificate.

(3) As soon as practicable after the fisherman applies to the competent authority for a review referred to in paragraph (1), the medical referee shall carry out a medical examination of the fisherman having regard to the medical standards set out in Schedule 1 and shall issue a further medical fitness certificate under Regulations 7 and 8.

(4) The medical referee shall notify the fisherman, the competent authority and the approved doctor of his or her decision under paragraph (3), and the reasons for it, as soon as practicable after it is made and shall retain a copy of that decision.

(5) A medical fitness certificate issued under paragraph (3) shall, for the purposes of these Regulations but subject to paragraph (6), have effect as if it were a medical fitness certificate issued under Regulation 7(4).

(6) Subject to paragraph (7), the decision of the medical referee on an independent review shall be final.

(7) A fisherman issued with a medical fitness certificate under paragraph (3) may apply to the competent authority for a further review by a medical referee where there has been a significant change in the medical fitness of the fisherman during the period of validity of that medical fitness certificate.

Appointment of authorised officer

11. (1) A person appointed as a surveyor of ships under section 724 of the Merchant Shipping Act 1894 (c. 60) shall be an authorised officer for the purposes of these Regulations.

(2) For the purposes of ensuring compliance with these Regulations, an authorised officer may do any of the following:

(a) at all reasonable times board any fishing vessel while the vessel is in the State;

(b) search and inspect the fishing vessel and any medical fitness certificate on board;

(c) require any person on board the fishing vessel to give him or her such assistance and information as the authorised officer may reasonably require for the purposes of his or her functions under these Regulations and to produce to the authorised officer any medical fitness certificate;

(d) inspect, examine and take copies or extracts from or take away, if necessary, for the purposes of inspection or examination, any medical fitness certificate and, in the case of any copy taken, require the person by whom the original medical fitness certificate is kept or who produced the original medical fitness certificate to certify the copy as a true copy;

(e) detain a fishing vessel under Regulation 12.

(3) Where he or she considers it necessary, an authorised officer may be accompanied by a member of the Garda Síochána when exercising any powers conferred on him or her by these Regulations.

Notice of detention

12. (1) An authorised officer may detain a fishing vessel in a port in the State where he or she is of the opinion-

(a) that there is or has been a failure to comply with Regulation 6(1) or 6(4), and

(b) the detention of the vessel is necessary for the protection of the health and safety of the fishermen on board the vessel.

(2) Where a fishing vessel has been detained under paragraph (1), the competent authority shall serve a notice (in this Regulation referred to as a “notice of detention”) on the master.

(3) A notice of detention shall-

(a) state the grounds upon which the fishing vessel is detained,

(b) identify the provision of these Regulations that has not been or is not being complied with by the person,

(c) specify the action to be taken before the notice will be withdrawn and, where appropriate, the period within which that action shall be taken,

(d) inform the person of the requirement to confirm compliance with the notice under paragraph (4),

(e) inform the person of the right to appeal the notice under Regulation 14,

(f) state that a failure to comply with the notice is an offence under Regulation 16, and

(g) be signed and dated by the competent authority.

(4) A person on whom a notice of detention has been served, who is of the opinion that the notice of detention has been complied with, shall confirm such compliance in writing to the competent authority.

(5) Where a person confirms compliance under paragraph (4), the competent authority shall, on being satisfied that the person has so complied, by notice in writing to the person, withdraw the notice of detention.

(6) The competent authority may, where it considers it appropriate to do so, by notice in writing to the person on whom a notice of detention was served, withdraw the notice.

(7) A person on whom a notice of detention has been served may appeal the notice under Regulation 14.

Directions

13. (1) Where the competent authority considers that a master is failing or has failed to comply with these Regulations, the competent authority may serve a direction on that person (in this Regulation referred to as a “direction”).

(2) A person on whom a direction is served may, within 14 days of the service of the direction, make representations in writing to the competent authority in relation to the direction.

(3) Any representations made under paragraph (2) shall be considered by the competent authority in deciding to confirm, modify or withdraw the direction.

(4) The competent authority may, where it considers it appropriate to do so, by notice in writing to the person on whom a direction was served, confirm, modify or withdraw the direction.

(5) A direction shall-

(a) state the grounds upon which the direction is made,

(b) identify the provision of these Regulations that has not been or is not being complied with by the person,

(c) specify the action to be taken by the person on whom the direction is served and, where appropriate, the period within which that action shall be taken,

(d) inform the person of the requirement to confirm compliance with the direction under paragraph (7),

(e) inform the person of the right to appeal the direction under Regulation 14,

(f) state that a failure to comply with the direction is an offence under Regulation 16, and

(g) be signed and dated by the competent authority.

(6) A direction shall be complied with within such period as may be specified in the direction.

(7) A person on whom a direction has been served, who is of the opinion that the direction has been complied with, shall confirm such compliance in writing to the competent authority as soon as practicable after so complying.

(8) Where a person confirms compliance under paragraph (7), the competent authority shall, on being satisfied that the person has so complied, give notice to the person confirming that compliance.

(9) A person on whom a direction has been served may appeal the direction under Regulation 14.

Appeal

14. (1) A person aggrieved by a notice of detention or a direction may appeal-

(a) against the notice of detention, to the judge of the District Court in whose district the fishing vessel was detained, or

(b) against the direction, to the judge of the District Court in whose district that person ordinarily resides or carries on business.

(2) An appeal may be made not later than 21 days from the date the notice of detention was served under Regulation 12(2), the direction was served under Regulation 13(1) or the direction was confirmed or modified under Regulation 13(4) as the case may be.

(3) The bringing of an appeal shall not have the effect of suspending the operation of the notice of detention or the direction as the case may be, but the District Court may, on application to it by the appellant, suspend its operation until the appeal is determined or withdrawn.

(4) On the hearing of an appeal the District Court may confirm, vary or revoke the notice of detention or the direction as the case may be.

Service

15. (1) A direction, notice or other document that is required to be served on or given to a person by these Regulations shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the direction, notice or document concerned of his or her consent to the direction, notice or document (or documents of a class to which the direction, notice or document belongs) being served on, or given to, him or her in that manner.

(2) For the purpose of this Regulation and Regulation 14(1)(b), a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

(3) Where an opinion, finding, statement or decision of the competent authority is contained in a document which-

(a) purports to have been made by or at the direction of the competent authority, and

(b) is produced in evidence by an authorised officer in any proceedings,

such document shall be admissible in evidence and shall be evidence of any such opinion, finding, statement or decision in such proceedings without further proof.

Offences and penalties

16. (1) A master who fails to comply with Regulation 6(1) or 6(4), a notice of detention or a direction shall be guilty of an offence.

(2) A fisherman who fails to comply with Regulation 7(7) or 9(6) shall be guilty of an offence.

(3) A person shall be guilty of an offence where he or she-

(a) knowingly gives false or misleading information for the purposes of obtaining a medical fitness certificate,

(b) with intent to deceive, uses or alters a medical fitness certificate or uses a medical fitness certificate so altered,

(c) with intent to deceive, permits the use of or the alteration of a medical fitness certificate or permits the use of a medical fitness certificate that has been altered,

(d) with intent to deceive, forges a document which purports to be a medical fitness certificate, or

(e) with intent to deceive, uses or permits the use of a forged document purporting to be a medical fitness certificate.

(4) A person shall be guilty of an offence where he or she-

(a) prevents, obstructs, impedes or delays an authorised officer in the performance of his or her functions under Regulation 11,

(b) fails to comply with a requirement or request of an authorised officer under Regulation 11, or

(c) gives to an authorised officer any information which is false or misleading in any material respect, knowing it to be so false or misleading.

(5) A person guilty of an offence under paragraph (1), (2), (3) or (4) shall be liable on summary conviction to a class A fine.

(6) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary, or other officer of the body corporate, or a person who was purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(7) Summary proceedings for an offence under these Regulations may be brought and prosecuted by the competent authority.

Medical fitness certificates issued to seafarers

17. A medical fitness certificate issued to a person under the Merchant Shipping (Medical Examinations) Regulations 2014 ( S.I. No. 246 of 2014 ) shall, subject to and for the purposes of these Regulations, be considered equivalent to a medical fitness certificate issued under Regulation 7(4) until the expiry date specified in that certificate.

SCHEDULE 1

Medical Standards

Section 1 - Cardiovascular Diseases

A. Congenital

B. Valvular

C. Hypertension

D. Ischaemia

E. Arrhythmia

F. Peripheral Cardiovascular Disease

G. Pulmonary Embolism

H. Cerebrovascular Disease

I. Other

Section 2 - Respiratory Disease

A. Upper Respiratory Tract (nose, throat)

B. Lower Respiratory Tract

Section 3 - Gastrointestinal Disease

A. Oral/Dental

B. Peptic Ulcer

C. Gastritis/Oesophagitis

D. Inflammatory Bowel Disease (Ulcerative Colitis/Crohn’s Disease)

E. Other Large Bowel Conditions

F. Hernia

G. Stoma

H. Liver and Biliary Tract Disease

Section 4 - Genitourinary System

A. Sub Clinical Abnormalities

B. Renal Calculi

C. Infections (acute/chronic)

D. Renal Failure

E. Renal Transplant

F. Enuresis

G. Prostatic Disease

H. Gynaecological Conditions

I. Testicular Conditions

J. Sexually Transmitted Diseases

K. HIV and Aids

Section 5 - Musculo-skeletal System

A. Arthritis

B. Other Joint Conditions

C. Limb Prostheses

D. Back Conditions

Section 6 - Endocrine/Metabolic Diseases

A. Diabetes

B. Other Endocrine Disorders

C. Other Metabolic Diseases

D. Obesity

Section 7 - Skin Disorders

A. Infection

B. Psoriasis

C. Eczema

Section 8 - Blood Diseases

A. Anaemia

B. Inherited blood conditions (e.g. Sickle Cell Anaemia)

C. Splenectomy

D. Polycythaemia

E. Coagulation Disorders

F. Malignancy of the Haemopoietic System

G. Immunosuppression

Section 9 - Diseases of the Nervous System

A. Organic Disease

B. Epilepsy

C. Head Injury or Surgery

D. Migraine

E. Syncope

F. Meniere’s Disease/Balance Disorders/Motion Sickness

G. Ear Infections

H. Deafness

I. Speech Defects

J. Sleep Disorders

Section 10 - Eyesight Standards and Eye Conditions

A. General

B. Visual Acuity

C. Monocular Vision

D. Visual Fields

E. Colour Vision

F. Eye Diseases

Section 11 – Psychiatric/Mental Illness

A. Neurosis

B. Psychosis

C. Addiction Disorders

D. Other Psychological Disorders

Section 12 – Pregnancy

Section 13 - Miscellaneous Conditions

A. Infections

B. Neoplasms

C. Medication

D. Dyslexia

SCHEDULE 2

FORM 3

SEAFARER MEDICAL CERTIFICATE (ENG11)

(Revised July 2020)

Medical Certificate issued under the provisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978, as amended, the ILO Maritime Labour Convention 2006 and the ILO Work in Fishing Convention 2007.

Authorising Authority:Department of Transport, Tourism and Sport, IRELAND.

Seafarer Information: (For the purposes of this certificate the term “seafarer” includes fishers).

Declaration of Approved Doctor:I have examined the above named seafarer and my assessment is:

Examination Date: (day/month/year):

NOTES

To the Seafarer:

• Confirm that you have been informed of the content of the certificate and of the right to a review.

• This medical fitness certificate is your property.

• If you are off sick for more than 30 days or your medical fitness changes significantly, you must contact an Approved Doctor (preferably the one who issued the certificate) for medical review.

• This certificate must be given to the Approved Doctor when attending for your next medical examination.

• If aided vision applies you should use those aids when on watch and a spare pair of spectacles or contact lenses should always be carried.

• It is an offence to tamper with, alter or falsify this certificate in any way, and you could be prosecuted if you do.

To the Employer:

• Where the validity of this certificate is in doubt, you should send the certificate for investigation to the Mercantile Marine Office (contact details provided). The seafarer should be notified when this action has taken place.

Mercantile Marine Office

Maritime Services Division

Irish Maritime Administration

Department of Transport, Tourism and Sport

Leeson Lane

Dublin 2

Ireland

D02 TR60

Email: admin@seafarers.ie

Web: https://www.seafarers.ie

GIVEN under my Official Seal,

27 July, 2020.

EAMON RYAN,

Minister for Transport, Tourism and Sport.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations implement the medical examination provisions set out in Articles 7, 8 and 9 of the Annex to Council Directive (EU) 2017/159 of 19 December 2016, implementing the Agreement concerning the Work in Fishing Convention, 2007 of the International Labour Organization, concluded on 21 May 2012 between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche).

The Regulations apply to all seagoing Irish fishing vessels and any fisherman aboard a vessel, other than Category C fishing vessels which are less than 15 metres in length overall or which remain at sea for 72 hours or less, and require all such fishermen to undergo a medical examination and hold a medical certificate attesting to his or her fitness to work aboard a fishing vessel.

The medical examination includes hearing and eye-sight testing, including colour vision screening. The Regulations provide for confirmatory colour vision screening at a designated referral centre when the initial test is in doubt.

The medical examinations are carried out by a panel of Approved Doctors. The Regulations provide for the Approved Doctors to suspend or revoke a medical fitness certificate where certain irregularities have been found. A fisherman aggrieved by the outcome of a medical assessment may apply to the Department of Transport, Tourism and Sport for a further examination to be undertaken by a medical referee. The decision of a medical referee is binding.

1 OJ No. L25, 31.1.2017, p. 12.

2 OJ No. L25, 31.1.2017, p. 12.