S.I. No. 709/2003 - European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003
I, DERMOT AHERN, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purposes of giving effect to Council Directive 93/104/EC of 23 November 19931 and to Directive 2000/34/EC of the European Parliament and Council of 22 June 20002 , hereby make the following Regulations: | ||||||||||
|
Citation | 1. These Regulations may be cited as the European Communities (Workers on Board Sea-going Fishing Vessels) (Organisation of Working Time) Regulations 2003. | |||||||||
|
Interpretation | 2. (1) In these Regulations - | |||||||||
“authorised officer” means a person appointed under Regulation 10; | ||||||||||
“Competent Authority” means the Department; | ||||||||||
“complaint” means any information or report submitted by a worker on board a sea-going fishing vessel, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the sea-going fishing vessel, including an interest in the safety or health of a worker on board a sea-going fishing vessel; | ||||||||||
“Department” means the Department of Communications, Marine and Natural Resources; | ||||||||||
“Directive” means, as the context admits or requires, Directive 93/104/EC or Directive 2000/34/EC and a reference to the Directives is a reference to each of them; | ||||||||||
“Directive 93/104/EC” means the Council Directive of 23 November 1993; | ||||||||||
“Directive 2000/34/EC” means Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000; | ||||||||||
“fishing vessel” means a vessel designed, equipped or used commercially for catching or taking fish or other living resources of the sea (including the sea bed) or freshwater; | ||||||||||
“hours of rest” means time outside hours of work and does not include short breaks; | ||||||||||
“hours of work” means any time during which a worker on board a sea-going fishing vessel is required to do work on the business of, or in connection with the vessel; | ||||||||||
“master” includes every person (except a pilot) having command or charge of a sea-going fishing vessel; | ||||||||||
“Marine Notice” means a notice described as such and issued by the Department and any reference to a particular Marine Notice includes a reference to that notice as amended or replaced from time to time; | ||||||||||
“Minister” means the Minister for Communications, Marine and Natural Resources; | ||||||||||
“partially smooth waters” means the areas of water so specified in a Marine Notice within the period or periods, if any, specified therein; | ||||||||||
“sea-going fishing vessel” means a fishing vessel going beyond the limits of smooth and partially smooth waters; | ||||||||||
“smooth waters” means any areas of water not being to sea or partially smooth waters, and in particular, the areas of water so specified in a Marine Notice; | ||||||||||
“vessel owner”, in relation to a sea-going fishing vessel, means the owner of the fishing vessel or any other organisation or person, such as the manager or charterer, who has assumed the responsibility for the operation of the fishing vessel from the owner; | ||||||||||
(2) A word or expression that is used in these Regulations and is also used in a Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive. | ||||||||||
(3) In these Regulations — | ||||||||||
(a) a reference to a Regulation or a Schedule is to a Regulation of, or Schedule to, these Regulations, unless it is indicated that reference to some other Regulations is intended, and | ||||||||||
(b) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. | ||||||||||
|
Scope | 3. (1) Subject to paragraph (2), these Regulations apply to: | |||||||||
(a) sea-going fishing vessels registered in the State wherever they may be; and | ||||||||||
(b) sea-going fishing vessels registered in a Member State other than the State, when in a port in the State. | ||||||||||
(2) Regulations 5, 6, 7, 8 and 9 do not apply to a sea-going fishing vessel that is not registered in the State. | ||||||||||
(3) For the purposes of these Regulations, a sea-going fishing vessel that is registered in two or more states is deemed to be registered in the territory of the state whose flag it flies. | ||||||||||
|
Competent Authority | 4. A function conferred on the Competent Authority by these Regulations may be performed by an authorised officer. | |||||||||
|
General duty of sea-going fishing vessel owners and masters | 5. (1) Subject to Regulation 8, it shall be the duty of every owner and every master of a sea-going fishing vessel to ensure that: | |||||||||
(a) workers on board a sea-going fishing vessel are provided with at least the minimum hours of rest or are required to work no more than the maximum hours of work specified in Regulation 6; | ||||||||||
(b) manning levels on board the sea-going fishing vessel are determined, approved or revised taking into account the need to avoid or minimise, as far as is reasonably practicable, excessive hours of work, to ensure sufficient rest and to limit fatigue. | ||||||||||
(2) It shall be the duty of every owner of a sea-going fishing vessel to provide the master of a sea-going fishing vessel with all necessary resources for the purposes of compliance with obligations under these Regulations. | ||||||||||
|
Hours of work and rest | 6. (1) Subject to the limit of an average of 48 hours of work over a reference period not exceeding 12 months, the limits on hours of work and rest in respect of a worker on board a sea-going fishing vessel shall be either: | |||||||||
(a) maximum hours of work which shall not exceed: | ||||||||||
(i) 14 hours in any 24-hour period, and | ||||||||||
(ii) 72 hours in any seven-day period | ||||||||||
or | ||||||||||
(b) minimum hours of rest which shall not be less than: | ||||||||||
(i) 10 hours in any 24-hour period, and | ||||||||||
(ii) 77 hours in any seven-day period. | ||||||||||
(2) Hours of rest may be divided into no more than two periods, one of which shall be at least 6 hours in length and the interval between consecutive such periods shall not exceed 14 hours. | ||||||||||
(3) A worker on board a sea-going fishing vessel who is on call shall have an adequate compensatory rest period if his hours of rest are disturbed by call-outs to work. | ||||||||||
|
Exemptions | 7. (1) The Minister may, for objective or technical reasons or reasons concerning the organization of work, grant an exemption from the limits laid down in Regulation 6, provided that: | |||||||||
(a) he has consulted as far as possible representatives of the employer and the workers concerned, and | ||||||||||
(b) the exemption has regard as far as possible to the limits laid down in Regulation 6 and is subject to such conditions and limitations as will protect the health and safety of the workers in question. | ||||||||||
(2) The Minister may, on giving reasonable notice, alter or cancel any exemption granted under paragraph (1). | ||||||||||
(3) An exemption granted under paragraph (1) and an alteration or cancellation under paragraph (2) shall - | ||||||||||
(a) be given in writing, | ||||||||||
(b) specify the date on which it takes effect, and | ||||||||||
(c) in the case of the grant of an exemption, specify the terms (if any) on which it is granted. | ||||||||||
|
Exception for emergencies | 8. (1) The master of a sea-going fishing vessel may require a worker on board a sea-going fishing vessel to perform any hours of work necessary for the immediate safety of the sea-going fishing vessel, persons on board or cargo, or for the purpose of giving assistance to another vessel or persons in distress at sea or where due to any other emergency or the occurrence of other unusual and unforeseeable circumstances outside the control of the master and the sea-going fishing vessel owner it would not be practicable to comply with Regulation 5(1)(a). | |||||||||
(2) For the purposes of paragraph (1), the master may require a worker on board a sea-going fishing vessel to perform any hours of work necessary. | ||||||||||
(3) As soon as practicable after the normal situation has been restored, the master shall ensure that any worker on board a sea-going fishing vessel who has performed work during hours of rest is provided with an adequate period of rest. | ||||||||||
|
Records | 9. (1) The master, or a person authorised by the master, shall maintain and the owner of a sea-going fishing vessel shall ensure that there is maintained on board the sea-going fishing vessel a record of the daily hours of work or rest for each worker on board the vessel that complies with the requirements of paragraph (2). | |||||||||
(2) Each record under paragraph (1) shall: | ||||||||||
(a) be completed monthly in arrears; | ||||||||||
(b) be in the form set out in Schedule 1 or in a form to substantially like effect as will enable an authorised officer to understand the particulars contained therein without difficulty. | ||||||||||
(3) Each record maintained under paragraph (1) shall be endorsed by the master, or a person authorised by the master, and by the worker on board a sea-going fishing vessel in question. The master or, as the case may be, a person authorised by the master shall, no later than 7 days after the last day of the calendar month to which the record relates, give the worker on board a sea-going fishing vessel a copy of the record as endorsed. | ||||||||||
(4) The records referred to in paragraph (1) shall be retained for at least one year from the date of their making. If during that period, ownership of the sea-going fishing vessel changes, then the duty to preserve records shall be with the owner of the sea-going fishing vessel for the time being or, if the sea-going fishing vessel ceases to be registered in the State, with the last owner before ceasing to be so registered. | ||||||||||
(5) Subject to paragraph (4), records kept under paragraph (1) shall be produced for inspection at the request of an authorised officer. | ||||||||||
|
Authorised Officers | 10. (1) The Minister may appoint persons to be authorised officers for the purposes of these Regulations and the Directive. | |||||||||
(2) The Minister shall issue to every authorised officer appointed under paragraph (1) a warrant of appointment and when exercising any power or performing any function conferred or imposed on an authorised officer by these Regulations, the authorised officer shall, on request by a person affected produce the warrant to the person. | ||||||||||
(3) An appointment of an authorised officer shall cease where the Minister revokes the appointment or, where it is for a fixed period, upon expiry of that period. | ||||||||||
(4) For the purpose of the Regulations and the Directives, an authorised officer may- | ||||||||||
(a) at all reasonable times board any sea-going fishing vessel or enter any premises or place at a port in the State for the purpose of carrying out an inspection under these Regulations, | ||||||||||
(b) search and inspect the sea-going fishing vessel and any documents or records found on board, | ||||||||||
(c) require any person on board the sea-going fishing vessel to produce to the authorised officer any report, document or record (including, in the case of information in a non-legible form, a copy of the information or of extracts from it in permanent legible form) kept or used in connection with the vessel's working arrangements, and | ||||||||||
(d) inspect, examine and take copies or extracts from or take away, if necessary, for the purposes of inspection or examination, any report, document or record (including in the case of information in non-legible form, a copy of the information or of extracts from it in permanent legible form) kept or used in connection with the vessel's working arrangements and require the person by whom such document or record is kept or who produced the document or record to certify a copy thereof as a true copy. | ||||||||||
(5) Where the Competent Authority is satisfied that an authorised officer has, in good faith, duly exercised a power conferred on him by or under these Regulations, the Competent Authority shall indemnify the officer against all actions or claims however arising in respect of the exercise by the officer of that power. | ||||||||||
(6) Where he or she considers it necessary, an authorised officer appointed under these Regulations may be accompanied by a member of the Garda Síochána when exercising any powers conferred on an authorised officer by these Regulations. | ||||||||||
|
Inspections | 11. (1) An authorised officer may, acting on a complaint or otherwise carry out an inspection under these Regulations without giving prior notification of the inspection to any relevant person or undertaking. | |||||||||
(2) The identity of any person making a complaint to the Competent Authority shall not be revealed to the owner or master of the sea-going fishing vessel concerned. | ||||||||||
(3) Where an authorised officer is satisfied that there has been a failure to comply, in relation to a sea-going fishing vessel registered in the State with any of the requirements of Regulations 5 or 9, the authorised officer: | ||||||||||
(a) shall take such measures as the authorised officer believes necessary to ensure compliance with those Regulations or to avoid future infringements; and | ||||||||||
(b) may detain the sea-going fishing vessel. | ||||||||||
(4) An authorised officer may inspect any sea-going fishing vessel registered in a Member State other than the State that has called voluntarily at a port in the State in the normal course of its business or for operational reasons. | ||||||||||
(5) Where in the case of a sea-going fishing vessel referred to in paragraph (4) an authorised officer obtains evidence that the standards referred to in Directive 2000/34/EC are not being complied with, the Competent Authority shall prepare a report addressed to the government of the state in which the sea-going fishing vessel is registered. | ||||||||||
(6) Where in the case of a sea-going fishing vessel referred to in paragraph (4) an authorised officer obtains evidence of a failure to comply with the requirements of Directive 2000/34/EC, the authorised officer shall, in the case of deficiencies which are clearly hazardous to the safety or health of workers on board the vessel, take the measures necessary to ensure that such deficiencies are rectified and may detain the sea-going fishing vessel until the deficiencies have been rectified or the workers on board the sea-going fishing vessel in question have been sufficiently rested. | ||||||||||
(7) An authorised officer shall not, in the exercise of his powers under this Regulation, unreasonably detain or delay a sea-going fishing vessel. | ||||||||||
(8) If a sea-going fishing vessel is detained under paragraph (6), the Competent Authority shall inform: | ||||||||||
(a) the master; | ||||||||||
(b) the sea-going fishing vessel owner; and | ||||||||||
(c) either the administration of the state where the sea-going fishing vessel is registered or under whose flag it flies or the nearest consular or diplomatic representative of that state. | ||||||||||
(9) The Competent Authority may give a direction to the owner or master of a sea-going fishing vessel for the purposes of paragraphs (3) or (6) and the owner or master, as the case may be, shall comply with the direction. | ||||||||||
|
Offences | 12. (1) A person being - | |||||||||
(a) the master of a sea-going fishing vessel who fails to comply with Regulation 5(1)(a) or (b), 8(3), 9(1) or (3), | ||||||||||
(b) a person authorised by the master of a sea-going fishing vessel who fails to comply with Regulation 9(1) or (3), | ||||||||||
(c) the owner of a sea-going fishing vessel who fails to comply with Regulation 5(1)(a) or (b), 5(2), 9(1)or (4), or | ||||||||||
(c) the owner or master of a sea-going fishing vessel or a person authorized by the master of such vessel who fails to comply with the conditions and limitations of an exemption granted under Regulation 7. | ||||||||||
is guilty of an offence. | ||||||||||
(2) A sea-going fishing vessel owner or master who fails to comply with a direction given by the Competent Authority under Regulation 11(9) is guilty of an offence. | ||||||||||
(3) A person who obstructs or interferes with an authorised officer when the authorised officer is exercising a power under these Regulations, or who fails or refuses to comply with a request or requirement of an authorised officer under these Regulations is guilty of an offence. | ||||||||||
(4) A person who wilfully gives to an authorised officer information which he or she knows to be false or misleading in a material respect, or makes any such false or misleading statement reckless as to its truth or otherwise, is guilty of an offence. | ||||||||||
|
Defence | 13. In any proceedings for an offence under these Regulations, it is a defence for the defendant to show that he or she had taken all reasonable steps to ensure compliance with these Regulations. | |||||||||
|
Penalties | 14. A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €3,000. | |||||||||
|
Prosecution of offences | 15. Proceedings for an offence under these Regulations may be brought and prosecuted by the Minister. | |||||||||
|
Offence by body corporate | 16. Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of any director, manager secretary or any other officer of such body who was purporting to act in any such capacity, such person is also guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence. | |||||||||
| ||||||||||
|
SCHEDULE 1 MODEL FORMAT FOR RECORD OF WORKING TIME OR REST PERIODS FOR WORKERS ON SEA-GOING FISHING VESSELS | ||||||||||
Name of Vessel:_________________________________ | ||||||||||
Vessel Registration No.______________ | ||||||||||
Worker (Full Name):_____________________________ | ||||||||||
Month and year:_________________________________ | ||||||||||
Please complete the Table on the reverse side, using an X mark or a continuous line or arrow to show periods of either work or rest. | ||||||||||
I agree that this is an accurate record of the hours of work or rest of the worker concerned. | ||||||||||
Name of master or person authorised to sign this | ||||||||||
record:________________________________________ | ||||||||||
Signature of master or authorised | ||||||||||
person:____________________________________________________ | ||||||||||
Signature of | ||||||||||
worker:_______________________________________________________________ | ||||||||||
A copy of this record is to be given to the worker. | ||||||||||
| ||||||||||
|
EXPLANATORY NOTE | ||||||||||
(This note is not part of the Instrument and does not purport to be a legal interpretation) | ||||||||||
These Regulations implement those provisions of Council Directive 2000/34/EC which bring workers on sea-going fishing boats within the scope of the organisation of working time regime originally established by Council Directive 93/04/EC of 23 November 1993. | ||||||||||
These Regulations prescribe maximum hours of work and minimum hours of rest for workers on board sea-going fishing vessels, require records to be kept of their hours of work or rest and provide for enforcement measures. | ||||||||||
European Communities (Workers on Board Sea-going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (S.I. No. 709 of 2003) | ||||||||||
These Regulations implement those provisions of Council Directive 2000/34/EC which bring workers on sea-going fishing boats within the scope of the organisation of working time regime originally established by Council Directive 93/04/EC of 23 November 1993. They prescribe maximum hours of work and minimum hours of rest for workers on board sea-going fishing vessels, require records to be kept of their hours of work or rest and provide for enforcement measures. | ||||||||||
Workers on board sea-going fishing vessels were excluded from the scope of the 1993 Directive, but were included among the categories brought within the ambit of the working time legislation by the Directive of 2000. | ||||||||||
The deadline for implementation of the seafishing requirements in Ireland was August 2003. In view of the Taoiseach's instruction to implement outstanding Directives before the end of the year, it has not been possible to undertake an additional programme of consultation with the industry to that which occurred at the time of the negotiations leading to the finalisation of the Directive. | ||||||||||
Any comments received in relation to the Statutory Instrument will be examined by the Department in the context of the implementation of the Statutory Instrument. It will also be placed on the agenda of the Sea Fisheries Liaison Group for a meeting in early 2004. | ||||||||||
