Laurence Rees, a Partner and Kate French, an Associate, both in the Employment Group comment on the implications of the European Commission’s consultation paper on seafaring jobs in the EU.
On 10 October 2007 the European Commission released a first phase consultation paper entitled “Reassessing the regulatory social framework for more and better seafaring jobs in the EU”. The European social partners (EUwide organisations representing management and labour) have until 21 November 2007 to provide their response. The outcome of this consultation could have important implications for the maritime sector.
Why consult on seafaring jobs specifically?
At present, many European Directives allow national governments to exclude certain categories of seafarers from the scope of various provisions of employment legislation. This is due to the particular nature of seafaring work, as such workers often regularly work away from their home countries, and on ships registered abroad. Traditionally, it has been thought to be impracticable to apply the same rules and regulations to seafarers as to other workers, but the Commission is now keen to ensure that seafarers receive adequate protection.
What areas are being consulted upon?
The Commission is consulting on whether or not adequate protection is provided by Directives in each of the following areas:
1. Insolvency of employer. Currently, Member States can exclude claims by certain categories of employees from the scope of protective legislation in this area (including seafarers), so long as adequate protection is provided for those employees through other guarantees. In addition, any Member State whose national law already excluded share-fishermen from the scope of such legislation is permitted to retain that exclusion. At present, only six Member States (including the UK) make use of these permitted exclusions in the case of seafarers. The Commission has concerns as to whether such exclusions are justified.
2. European works councils. Member States can exclude merchant navy crews from the scope of the EU Directive providing for the establishment of European Works Councils in EU-scale undertakings and groups of undertakings. European Works Councils are bodies set up by large European wide employers for the purpose of discharging the requirements for informing and consulting employees at European level. The UK has not made use of this exclusion, although it has provided mechanisms to adapt the legislation to seafarers by enabling seafarers to participate if central management allows them to do so. The Commission is questioning whether this exclusion remains justified, given that only a minority of the Member States makes use of it and since the Directive may be flexible enough so that no specific exclusion is actually needed in any event.
3. Information and consultation. Currently, Member States cannot completely exclude seafarers from rights under the EU Directive on the establishment of information and consultation procedures at national level (e.g. Works Councils) but can make particular provisions for “the crews of vessels plying the high seas”. The UK made such provisions which allow seafarers to become representatives for information and consultation purposes if the employer permits this. The Commission proposes to examine whether the particular provisions applying to seafarers which exist are in conformity with the Directive.
4. Collective redundancies. The Directive relating to consultation with employee representatives about large-scale redundancies does not apply to the crews of seagoing vessels, and UK law makes use of this exclusion. As far back as 1991, the Commission viewed this exclusion as unjustifiable, and would like to see it re-examined.
5. Transfers of undertakings. Sea-going vessels are generally excluded from the scope of the EU “Acquired Rights” Directive (which is intended to protect employees’ rights on transfers of undertakings and businesses). The legislation implementing the Directive in the UK (the Transfer of Undertakings (Protection of Employment) Regulations 2006 – ‘TUPE’) does not in fact exclude seagoing vessels. Since a number of Member States take the same approach of not excluding sea-going vessels from their own legislation, the Commission considers that this exclusion has no real justification and should be removed. In practical terms, therefore, any review of this aspect of employment law would be unlikely to have any real effect in the UK.
6. Posting of workers. The EU “Posted Workers” Directive (which gives rights to workers posted between Member States) does not apply to “merchant navy undertakings as regards seagoing personnel”. The Commission believes that this exclusion remains justified.
7. Health and safety. There are in fact 28 Directives which deal with health and safety, and only two of these contain exclusions for those in the maritime sector (namely, those concerning the minimum health and safety requirements for the workplace, and the minimum safety and health requirements for work with display screen equipment). In addition, specific legislation, agreements and conventions have been introduced separately to cover the maritime sector, such as the ILO Maritime Labour Convention 2006, the ILO Work in Fishing Convention 2007, a Directive dealing with medical treatment on board vessels and a further Directive dealing with health and safety requirements on board fishing vessels (although small vessels are currently excluded from the scope of this). The Commission believes this ‘small vessels’ exclusion to be justified but would like to see an end to the high level of work accidents in fishing.
8. Coordination of social security schemes. There is a general principle that workers and members of their families do not lose social security protection if they move within the EU. However, seafarers are only covered when the flag of the vessel is that of a country within the EU / EEA or Switzerland; and even then, workers from countries outside Europe may not be covered. In addition, the scope of the legislation providing for social security protection does not apply to certain insurance schemes and collective agreements, and this means that many seafarers miss out on certain social security rights, including pension rights. It should be noted that the ILO Maritime Labour Convention 2006 will provide some protection for seafarers as it aims to set a minimum level of social security protection comparable with the protection afforded to onshore workers resident in a Member State. The Commission believes further protection could be achieved by increasing the number of international agreements which incorporate social and equal treatment provisions.
Questions raised by the commission
The Commission has provided the Social Partners who are being consulted with a list of specific questions for consideration:
1. Do they share the Commission’s views as to which exclusions are justified?
2. Where the current exclusion is not justified, should seafarers be brought within the general scope of the legislation, and what priorities should be given to this?
3. Where the current exclusion is justified, is equivalent protection provided for by other means? Should specific legislation relating to seafarers be introduced?
4. How best can health and safety on board vessels be enhanced?
5. What should be done to improve the social security protection of maritime workers?
What happens next?
If, after reviewing the responses to this consultation, the Commission views Community action as being advisable, it will then consult further with the Social Partners on any proposal. This could result in EU legislation being amended to enhance protection for seafarers, and each Member State would then need to change its national laws to the extent necessary to ensure compliance with any new provisions, although this will take some time. The shipping industry should therefore “watch this space”.