Joint Committee on Statutory Instruments Twenty-First Report


Memorandum by the Department of the Environment, Transport and the Regions


The Committee has requested a memorandum on the following points:

    1. Explain why regulation 4(1)(b) and (2) refers to "natural or legal person" instead of "person", given that the Interpretation Act 1978, in Schedule 1, defines "person" in legislation as including a body of persons corporate or unincorporate.

The Department regrets the error and will correct it if a convenient opportunity arises.

    2. Regulation 5(1) requires the employer to ensure the health and safely of workers and other persons. Explain the scope of the application of this duty in relation to workers and other persons, in particular-

      (a) explain, whether as regards workers, it applies in relation to the activities of workers not only when aboard ship but in other circumstances, specifying those circumstances;

      (b) explain the circumstances in which it applies to other persons.

This regulation transposes the general obligations on an employer imposed by Council Directive 89/391 as respects workers, and replaces the additional requirements on an employer as respects other persons contained in the Merchant Shipping (Health and Safety: General Duties) Regulations 1984 (S.I. 1984/408). The duty is circumscribed by regulation 3 of these Regulations in that it broadly applies to workers' activities on board a UK ship as long as the Health and Safety Executive's (HSE) regulations do not already cover the activity (in practice instances of overlap are limited, because HSE application is mainly shore-side). The obligation in regulation 5(1) is to ensure that those work activities do not endanger the workers, or any other persons who are in the vicinity of the work, such as a passenger on a cruise liner while relocation or maintenance is being carried out.

    3. Paragraph (1) of regulation 5 provides that the employer's duty to ensure the health and safety of workers and other persons is to be met by the application of specified principles. Paragraph (2) provides that without prejudice to the generality of the duties under paragraph (1), the matters to which those duties extend shall include certain specified matters. Explain what duty is created by paragraph (1) for the purposes of the sanction imposed by regulation 24(1).

Paragraph (2) should read duty in each place where duties occur. The Department regrets the error and will correct it if a convenient opportunity arises. The duty for the purposes of the sanction imposed by regulation 24(1) is the duty to ensure the health and safety of workers and other persons. Whereas it might be argued that there are separate duties to (a) workers and (b) other persons, the Department feels that the better view is that there is a single duty, and is grateful to the Committee for spotting the inconsistency in the drafting.

    4. Regulation 8(1) requires the health risk assessment required by regulation 7(1) to include an assessment as respects new or expectant mothers in the following circumstances, viz.

      (a) where the workers include women with potential for child-bearing; and

      (b) the work is of a kind which could involve risk - to the health - of a new or expectant mother from processes, working conditions or certain agents [used at work].

      Explain, given the circumstances specified in (b) (in particular the reference to the worker being a new or expectant mother), the purpose and effect of requiring the existence of the circumstance specified in (a) that the workers include women with a potential for child-bearing.

It is intended that the assessment should be carried out where there could be new or expectant mothers working. A woman might not wish to notify her employer that she was pregnant in the early stages, but this provision would ensure that she was aware (under regulation 7(1)) of any significant risks to her health or that of her unborn child, and could then make a judgement whether to notify her employer or take any appropriate action for her own safety.

    5. Regulation 12(4) requires the Company to provide certain information relating to workers to every person carrying on the activity of an employment agency whose employee is to carry out work aboard a ship, and also requires the employment agency to ensure that that information is given to the said workers. Explain whether the expression "employee" is intended to refer to the employees of the employment agency or to the persons who are to be employed as workers on the ship.

The provision is intended to cover an employee of an employment agency who is to become a "worker" for the purposes of these Regulations (a crew member employed by a crewing agency would be a worker on board a ship while at the same time remaining an employee of the agency).

    6. Regulation 16(1)(d) and (e) imposes a duty on the safety officer to use his best endeavours to make representations and recommendations to the master on certain matters relating to deficiencies in the ship, and to maintain a record of certain types of accident. Contravention of regulation 16 is an offence under regulation 24(3). Explain what is meant by the underlined words in relation to the making of representations and to maintaining records.

The phrase "use his best endeavours" comes from the Merchant Shipping (Safety Officials and Reporting of Accidents and Dangerous Occurrences) Regulations 1982 (S.I. 1982/876) which these Regulations revoke and replace. It is well understood by the industry and the position (albeit in a different context) is explained in the Code of Safe Working Practices for Merchant Seamen paragraph 4.6.28. The duty on the safety officer to use his best endeavours is a limited one. If a safety office can show he has taken all reasonable steps to make representations and recommendations on deficiencies, and has maintained a record of certain types of accident then the duty will have been met. For example the Department considers there would be no offence by the safety officer if the master had consistently refused to meet him for representations and recommendations to be made, or if the safety officer had because of illness been unable to keep a record.

    7. Regulation 21(2)(b) provides that no worker shall disconnect, change or remove any safety device provided by the employer or the Company. Is it intended that this regulation should apply even where the employee is authorised by the employer or the Company to do the act in question?

It is the Department's view that the words "No worker shall disconnect, change or remove or otherwise interfere with any safety device..." and in particular the word otherwise means that the prohibition only relates to disconnection etc. which interferes with the proper working of the safety device. It is not intended that an employer should have unconditional authority to authorise the disconnection, change or removal or a safety device, since he might want it done for say economic reasons. The Department is grateful to the Committee for drawing attention to this point, and will provide further explanation in the planned revision of the Code of Safe Working Practices for Merchant Seamen.

    8. Paragraph (3) of regulation 21 requires every worker to inform the master or the safety officer or other competent person of any matter which may reasonably be considered to represent a deficiency in the Company's protection arrangements for the health and safety of persons on board the ship. On the other hand, the worker's duty to inform imposed by paragraph (4) relates to certain matters which he reasonably considers to represent a serious and immediate danger to health and safety or a deficiency in the employer's protection arrangements for health and safety. Explain, in relation to the underlined words, the reason for the difference in formulation.

The paragraph (4) scenario requires the subjective judgement of the person present at the particular time as to what is or is not considered a serious and immediate danger. The situation does not permit time to be spent objectively determining whether the matter should be reported. The situation in paragraph (3) does not have the same level of immediacy (although reporting cannot be delayed) and so permits a more considered and objective assessment.

    9. Paragraph (3) of regulation 24 makes contravention of regulation 7 (assessment of risk) an offence punishable on summary conviction by a fine not exceeding level 4 on the standard scale. On the other hand, a different penalty (fine not exceeding level 3) is provided for any contravention of regulation 8 (risk assessment for new or expectant mothers). Explain the reason for this difference in the penalty levels, given that regulation 8(1) provides that the assessment under regulation 7(1) is to include the assessment of the risk to new or expectant mothers.

Failure to carry out any risk assessment is much more serious than failure to assess risks which are specific to new or expectant mothers, and therefore warrants a higher penalty. Indeed, the fact that a risk assessment has already been carried out under regulation 7 will mean the employer has assessed and is keeping under review risks from many of the agents, processes or working conditions which could jeopardise the health and safety of a new or expectant mother.

27th January 1998

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