Memorandum by the Department
of the Environment, Transport and the Regions
1997 (S.I. 1997/2962)
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
(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.
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
(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
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
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