1998 No. 2411
The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Employment of Young Persons) Regulations 1998
24th September 1998
Laid before Parliament
7th October 1998
Coming into force
30th October 1998
Whereas the Secretary of State is a Minister designated(1) for the purpose of section 2(2) of the European Communities Act 1972(2) in relation to measures relating to the safety of ships, and the health and safety of persons on them;
And whereas, in so far as the following Regulations are made in the exercise of powers conferred by section 55 and section 85 of the Merchant Shipping Act 1995(3), the Secretary of State has in pursuance of subsection (4) of section 86 of that Act consulted persons he considers will be affected as mentioned in that subsection;
Now, therefore, the Secretary of State, in exercise of the powers conferred by the said section 2(2) of the European Communities Act 1972, and by section 55(2)(b), 85(1)(a) and (b), (3), (5) to (7) and 86(1) of the Merchant Shipping Act 1995 and of all other powers enabling him on that behalf, hereby makes the following Regulations:
Citation, commencement and revocations
1.—(1) These Regulations may be cited as the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Employment of Young Persons) Regulations 1998 and shall come into force on 30th October 1998.
(2) The Merchant Shipping (Employment of Young Persons) Regulations 1995(4) are hereby revoked.
2.—(1) In these Regulations, except where the context otherwise requires, any reference to–
(a)a numbered regulation is a reference to the regulation bearing that number in these Regulations; and
(b)a numbered paragraph or sub-paragraph is a reference to the paragraph or, as the case may be, sub-paragraph bearing that number in the regulation or Schedule, as the case may be, in which the reference appears.
(2) In these Regulations–
“the Act” means the Merchant Shipping Act 1995;
“collective agreement” means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992(5), the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;
“Company” in relation to a ship to which these Regulations apply, means the owner of the ship or any other organisation or person such as the manager, or bareboat charterer, who has assumed the responsibility for operation of the ship from the owner;
“competent person” means a person who has sufficient training and experience or knowledge and other qualities, to enable him properly to undertake the duty imposed under the relevant provision in these Regulations;
“contract of employment” means a contract of employment, whether express or implied, and if express, whether oral or in writing;
“crew agreement” means a crew agreement made under section 25 of the Act;
“employer” means a person by whom a worker is employed under a contract of employment;
“the General Duties Regulations” means the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997(6);
“health and safety” includes the occupational health and safety of persons whilst on board the ship and whilst boarding or leaving the ship;
“master” includes the skipper of a fishing vessel;
“relevant agreement”, in relation to a worker, means a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer;
“relevant inspector” means a person mentioned in paragraphs (a), (b) or (c) of section 258(1) of the Act;
“rest period” means any period which is not working time;
“sail training vessel” means a vessel which is being used either–
to provide instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour and to advance education in the art of seamanship; or
to provide instruction in navigation and seamanship for yachtsmen;
and is operating under a statutory code;
“statutory code” means–
The Code of Practice for the Safety of Small Commercial Sailing Vessels(7);
The Code of Practice for the Safety of Small Commercial Motor Vessels(8); or
The Code of Practice for Safety of Large Commercial Sailing and Motor Vessels(9);
“trainees and apprentices” does not include trainees on a sail training vessel;
“United Kingdom ship” means a ship which–
is a United Kingdom ship within the meaning of section 85(2) of the Act; or
is a Government ship within the meaning of section 308(4) of the Act; or
is a hovercraft registered under the Hovercraft Act 1968(10);
“week” means a period of 7 days starting at midnight on Sunday;
“worker” means any person who is employed by an employer under a contract of employment, including trainees and apprentices;
“workforce agreement” means an agreement between an employer and workers employed by him or their representatives in respect of which the conditions set out in the Schedule to the Working Time Regulations 1998(11) are satisfied;
“working time” means–
any period during which the worker is working, at his employer’s disposal and carrying out his activity or duties; and
any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;
and “work” shall be construed accordingly;
“young person” means any person who is under the age of 18 and, in Great Britain is over school-leaving age for the purposes of section 55 of the Act, or in Northern Ireland is over compulsory school age within the meaning of Article 46 of the Education and Libraries (Northern Ireland) Order 1986(12).
(3) Subject to paragraph (2), words and expressions used in the Regulations shall have the same meaning as in Council Directive 94/33/EEC on the protection of young people at work(13).
Application and exemption
3.—(1) Subject to paragraph (3), these Regulations shall apply to all activities of young persons engaged as workers on United Kingdom ships.
(2) Subject to paragraph (3), Regulations 1, 2, 3, 14, 15 and 16 shall apply to all activities of young persons engaged as workers on ships other than United Kingdom ships which are in United Kingdom waters.
(3) These Regulations shall not apply to or in relation to–
(a)the activities of a worker which are covered by The Health and Safety (Young Persons) Regulations 1997(14) or The Health and Safety (Young Persons) Regulations (Northern Ireland) 1997(15); or
(b)any work carried out in circumstances which are unusual and unforeseeable, beyond the employer’s control or due to exceptional events, where–
(i)that work is of a temporary nature and must be performed immediately, and
(ii)adult workers are not available, and
(iii)the young persons affected are allowed equivalent compensatory rest time within the following three weeks.
Persons on whom duties are imposed
4.—(1) Except where a duty is imposed on any other person, it shall be the duty of every employer to comply with the provisions of these Regulations.
(2) Where a person on whom a duty is imposed by any provision of these Regulations does not have control of the matter to which the regulation relates because he does not have responsibility for the operation of the ship, then any duty imposed by that regulation shall also extend to any person who has control of that matter.
Additional general duties
5.—(1) In addition to the duties contained in the General Duties Regulations, appropriate measures shall be taken to protect young persons at work from the risks to their health and safety which are a consequence of their lack of experience, or absence of awareness of existing or potential risks or the fact that young persons have not yet fully matured.
(2) No young person shall be permitted to begin work in a ship unless an assessment has first been made, either separately or as an addition to the assessment made under regulation 7 of the General Duties Regulations, of the risks to the health and safety of young persons which might arise during the normal course of their working time taking into account the inexperience, lack of awareness of risks and immaturity of young persons, and paying particular attention to–
(a)the fitting out and layout of working areas;
(b)the nature, degree and duration of exposure to physical, biological and chemical agents;
(c)the form, range and use of work equipment and the way in which it is handled;
(d)the organisation of processes and activities;
(e)the extent of the health and safety training provided or to be provided to the young persons concerned; and
(f)risks from agents, processes and work listed in the Schedule to these Regulations.
(3) Young persons shall be informed of possible risks to their health and safety identified by the assessment under paragraph (2), and of all measures adopted for their protection.
(4) No young persons shall be engaged in–
(a)work which is objectively beyond their physical or psychological capacity;
(b)work involving harmful exposure to agents which are toxic, carcinogenic, cause heritable genetic damage, or harm to the unborn child or which in any other way chronically affect human health;
(c)work involving harmful exposure to radiation;
(d)work involving the risk of accidents which it may be assumed cannot be recognised or avoided by young persons owing to their insufficient attention to safety or lack of experience or training; or
(e)work in which there is a risk to health from–
(i)extreme cold or heat, or
(5) In determining whether the work will involve harm or risk for the purposes of this regulation, regard shall be had to–
(a)the findings of the assessment carried out under paragraph (2); and
(b)the list of agents, processes and work contained in the Schedule to these Regulations.
(6) Nothing in paragraph (4) shall prevent the employment of a young person to perform any activity where that activity–
(a)is indispensable for their vocational training; and
(b)is performed under the supervision of a competent person,
and in such a case the duty shall be to ensure so far as is reasonably practicable the health and safety of the young person when performing that activity.
Rest periods for young persons
6.—(1) Where a young person is engaged as a worker on any ship, he shall be provided with–
(a)a rest period of at least 12 consecutive hours in every 24 hour period; and
(b)a rest period of at least 2 days, which shall be consecutive if possible, in every week.
(2) Where a young person’s daily working time is more than four and a half hours, he shall be provided with a rest break of at least 30 minutes which shall be consecutive if possible.
(3) Time spent on training by a young person, whether under a theoretical or practical or combined theoretical and practical work training scheme shall be counted as working time.
(4) Where a young person is engaged as a worker by more than one employer, working days and working hours shall be cumulative.
(5) (a) The minimum daily rest period provided for in paragraph (1)(a) may be interrupted in the case of activities involving periods of work that are split up over the day or of short duration.
(b)The minimum weekly rest period provided for in paragraph (1)(b)
(i)may be interrupted in the case of activities involving periods of work that are split up over the day or of short duration; and
(ii)may be reduced to a period which is not less than 36 hours where this is justified by technical or organisational reasons.
(6) Where the hours of work of a young person are subject to a schedule of duties complying with regulation 9 of the Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) Regulations 1997(16), paragraph (1) shall not apply, provided that–
(a)the young persons are allowed compensatory rest time; and
(b)measures are taken to ensure that there is no risk to their health and safety, by reason of their hours of work.
(7) Where paragraph (6) does not apply, young persons may be permitted to work during the rest periods required by paragraph (1)(b) provided that–
(a)such hours are provided for in a relevant agreement;
(b)they are allowed compensatory rest time; and
(c)measures are taken to ensure that there is no risk to their health and safety.
(8) The Company shall ensure that the duties placed on the employer or other person in control of the matter are complied with.
(9) Where a young person is engaged as a worker on a fishing vessel, paragraphs (1) to (8) shall not apply, but he shall be provided with compensatory rest periods which are as long as those that the young person would have been entitled to had paragraph (1) applied to him.
7.—(1) Without prejudice to regulation 11 of the General Duties Regulations–
(a)where the assessment of risk under regulation 5(2) shows that there is a risk to the safety, the physical or mental health or development of young people; or
(b)where a young person is likely to be required to work at night,
no young person shall be engaged as a worker unless he has been provided with a free assessment of his health and capacities before he starts work, and monitoring of his health at regular intervals thereafter.
(2) The requirement for health assessments in the case within paragraph (1)(b) shall not apply where the only night work carried out is of an exceptional nature.
Young persons' medical certificates
8.—(1) Without prejudice to the provisions of the Merchant Shipping (Medical Examination) Regulations 1983(17) and subject to paragraphs (2) and (3), no young person shall be engaged as a worker in any capacity in a ship unless there has been delivered to the master of the ship a certificate granted by a duly qualified medical practitioner certifying that the young person is fit to be engaged in that capacity.
In this paragraph, “duly qualified medical practitioner” means a person who is a fully registered person within the meaning of section 55 of the Medical Act 1983(18).
(2) Paragraph (1) shall not apply in the case of engagement as a worker in a ship in which only members of the same family are employed.
(3) A superintendent or consular officer may on the ground of urgency authorise a young person to be engaged as a worker in a ship to which the Merchant Shipping (Medical Examination) Regulations 1983 do not apply, notwithstanding that no such certificate has been delivered to the master of the ship; but the young person shall not be engaged as a worker in reliance on any such authorisation beyond the first port at which the ship calls after he has embarked thereon.
(4) A certificate shall be effective for the purposes of this regulation for a period of twelve months from the date on which it is granted and no longer, but if the period of twelve months expires during a voyage in which the young person is engaged as a worker in the ship, the certificate shall remain effective until the next port of call where there is a duly qualified medical practitioner.
Record of young persons
9.—(1) There shall be included in every crew agreement a list of the young persons who are engaged as workers on the ship, together with particulars of their dates of birth.
(2) There shall be included in every crew agreement a short summary of the provisions of these Regulations.
(3) In the case of a ship in which there is no crew agreement, the master of the ship shall if young persons are engaged as workers on the ship, keep a register of those persons with particulars of their dates of birth and of the dates on which they became engaged as workers on the ship.
10. Any contravention of these Regulations shall be an offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale.
Offences by body corporate and partnerships
11.—(1) Where a body corporate is guilty of an offence under any of these Regulations and that offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, the preceding paragraph shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(3) Where an offence under any of these regulations committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of an offence and liable to be proceeded against and punished accordingly.
Onus of proving what is reasonably practicable
12. In any proceedings for an offence under any of these Regulations consisting of a failure to comply with a duty or requirement to do something so far as is reasonably practicable, it shall be for the defendant to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement.
Inspection and detention of a United Kingdom ship
13. A relevant inspector may inspect any United Kingdom ship and if he is satisfied that there has been a failure to comply in relation to that ship with the requirements of these Regulations may detain the ship until the health and safety of all young persons aboard the ship is secured, but shall not in the exercise of these powers detain or delay the ship unreasonably.
Inspection, detention and other measures in respect of ships registered outside the United Kingdom
14.—(1) A relevant inspector may inspect any ship which is not a United Kingdom ship when the ship is in United Kingdom waters, and if satisfied that the ship does not conform to the standards required of United Kingdom ships by these Regulations, may–
(a)send a report to the government of the country in which the ship is registered, and a copy thereof to the Director General of the International Labour Office; and
(b)where conditions on board are clearly hazardous to health and safety–
(i)take such measures as are necessary to rectify those conditions, or
(ii)detain the ship.
(2) The measures specified in paragraph (1) may be taken only when the ship has called at a United Kingdom port in the normal course of business for operational reasons.
(3) If either of the measures specified in paragraph (1)(b) are taken, the relevant inspector shall forthwith notify the nearest maritime, consular or diplomatic representative of the State whose flag the ship is entitled to fly.
(4) The relevant inspector shall not in exercise of his power under this regulation detain or delay the ship unreasonably.
Enforcement of detention
15. Where a ship is liable to be detained under these Regulations, section 284(1) to (5) and (8) of the Act (which relates to the detention of the ship) shall apply as if for the words “this Act”, wherever they appear, there were substituted “the Merchant Shipping and Fishing Vessels (Health and Safety) (Employment of Young Persons) Regulations 1998”.
16. Sections 96 and 97 of the Act (Arbitration and Compensation) shall apply in relation to a detention notice or order under these Regulations as they apply to a detention notice under section 95(3) of the Act and in such application, “relevant inspector” means a person making an inspection under these Regulations.
17. The General Duties Regulations shall be amended as follows–
(a)in regulation 2(2) in respect of the definition of “sail training vessel” at the end there shall be inserted “and is operating under a statutory code”;
(b)in regulation 2(2), after the definition of “sail training vessel” there shall be inserted “statutory Code” means–
The Code of Practice for the Safety of Small Commercial Sailing Vessels(19);
The Code of Practice for the Safety of Small Commercial Motor Vessels(20); or
The Code of Practice for Safety of Large Commercial Sailing and Motor Vessels(21);
(c)in regulation 3(3) at the end there shall be inserted “or the Management of Health and Safety at Work Regulations (Northern Ireland) 1992”(22);
(d)in regulation 4(1)(b) and (3) the words “natural or legal” shall be deleted;
(e)in regulation 5(2) in each place where it occurs the word “duties” shall be substituted with “duty”;
(f)in regulation 17(1) after “1977” there shall be inserted “or the Safety Representatives and Safety Committees Regulations (Northern Ireland) 1979”(23);
(g)in regulation 25 after paragraph (2) there shall be inserted–
“(3) Where an offence under any of these Regulations committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of an offence and liable to be proceeded against and punished accordingly.”
Signed by authority of the Secretary of State for the Environment, Transport and the Regions
Parliamentary Under Secretary of State,
Department of the Environment, Transport and the Regions
24th September 1998
SCHEDULENon-exhaustive list of agents, process and work
1.—(a) Ionising radiation;
(b)Work in a high pressure atmosphere, eg in pressurised containers, diving.
2.—(a) Biological agents belonging to groups 3 and 4 within the meaning of Article 2(d) of Council Directive 90/679/EEC of 26 November 1990 on the protection of workers from risks related to exposure to biological agents at work (Seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)(24).
3.—(a) Substances and preparations classified according to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances(25) with amendments and Council Directive 88/379/EEC of 7 June 1988 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations(26) as toxic (T), very toxic (Tx), corrosive (C) or explosive (E);
(b)Substances and preparations classified according to Directives 67/548/EEC and 88/379/EEC as harmful (Xn) and with one or more of the following risk phrases:
danger of very serious irreversible effects (R29),
possible risk of irreversible effects (R40),
may cause sensitisation by inhalation (R42),
may cause sensitisation by skin contact (R43),
may cause cancer (R45),
may cause heritable genetic damage (R46),
danger of serious damage to health by prolonged exposure (R48),
may impair fertility (R60),
may cause harm to the unborn child (R61);
(c)Substances and preparations classified according to Directives 67/548/EEC and 88/379/EEC as irritant (Xi) and with one or more of the following risk phrases:
highly flammable (R12);
may cause sensitisation by inhalation (R42);
may cause sensitisation by skin contact (R43);
(d)Substances and preparations referred to in Article 2(c) of Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work (Sixth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC)(27);
(e)Lead and compounds thereof, inasmuch as the agents in question are absorbable by the human organism;
Processes and work
1. Processes at work referred to in Annex I to Directive 90/394/EEC.
2. Manufacture and handling of devices, fireworks or other objects containing explosives.
3. Work with fierce or poisonous animals.
4. Animal slaughtering on an industrial scale.
5. Work involving the handling or equipment for the production, storage or application of compressed, liquefied or dissolved gases.
6. Work with vats, tanks, reservoirs or carboys containing chemical agents referred to in paragraph 1.3.
7. Work involving a risk of structural collapse.
8. Work involving high-voltage electrical hazards.
9. Work the pace of which is determined by machinery and involving payment by results.
(This note is not part of the Regulations)
These Regulations, which revoke the Merchant Shipping (Employment of Young Persons) Regulations 1995 (S.I. 1995/972), give effect as respects shipping activities in the United Kingdom both to Council Directive 94/33/EC on the protection of young people at work (O.J. L216 20.8.94 p.12), and in part to The Merchant Shipping (Minimum Standards) Convention 1976 (International Labour Organisation Convention 147) (Cmnd 7183). Young persons are defined as persons who are under 18 but over compulsory school leaving age (regulation 2(2)).
The Regulations apply to all United Kingdom ships (regulation 3(1)), and ships which are not United Kingdom ships when in United Kingdom waters are subject to regulations covering inspection and detention (regulations 3(2) and 14–16). The Regulations do not apply if the Health and Safety (Young Persons) Regulations 1997 (S.I. 1997/135) or the Health and Safety (Young Persons) Regulations (Northern Ireland) 1997 (S.R. 1997 No. 387) cover the matter (regulation 3(3)(a)), or if the work carried out is exceptional in various respects and equivalent compensatory rest time will be allowed in the next 3 weeks (regulation 3(3)(b)).
An obligation is placed on the employer to comply with the requirements of the Regulations as well as on any person specifically named in the provision. There is facility to extend the employer’s duty to another person if the employer is not in control of the particular matter because he does not have responsibility for the operation of ship (regulation 4(1) and (2)).
In addition to general duties required by the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (S.I. 1997/2962) the employer shall take appropriate measures to protect young persons at work (regulation 5(1)). This includes making an assessment of the risks to their health and safety in accordance with the provision of this regulation (regulation 5(2) and (5) and the Schedule). He shall inform young persons of identified risks and protective measures (regulation 5(3)), and shall ensure that they are not engaged in certain specified work (regulation 5(4)). Where the assessment shows the young person’s safety or health is at risk, or the young person will be regularly required to work at night, free health monitoring shall be provided (regulation 7).
The employer shall provide the young person with specific minimum daily and weekly rest periods, and the Company (owner) is required to ensure that the employer meets that obligation (regulation 6).
Except in specific circumstances no young person shall be employed on ship without an appropriate medical certificate (regulation 8).
A record shall be kept of the young persons engaged as workers and providing a short summary of the provisions of these Regulations (regulation 9).
Contravention of each separate duty provided for in these Regulations is a criminal offence with a maximum penalty of £1000 (regulation 10).
Provision is made for corporate and partnership offences (regulation 11) and the burden of showing that failure to comply with a duty in these Regulations was not reasonably practicable is on the defendant (regulation 12).
Inspection and detention of United Kingdom and non-United Kingdom ships are separately provided for (regulations 13 and 14), and sections in the Merchant Shipping Act 1995 dealing with arbitration and compensation are applied (regulation 16).
Various matters in the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 are amended including providing for partnership offences in Scotland (regulation 17).
These regulations are made under powers contained in the Merchant Shipping Act 1995, except in respect of their application to Government ships (regulation 2(2)).
1972 c. 68; by virtue of the amendment of section 1(2) of the European Communities Act by section 1 of the European Economic Area Act 1993 (c. 5) regulations may be made under section 2(2) of the European Communities Act to implement obligations of the United Kingdom created or arising by or under the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (Cm 2073) and the Protocol adjusting the Agreement signed at Brussels on 17th March 1993 (Cm 2183).
1995 c. 21; sections 85 and 86 were amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), section 8, and are applied to hovercraft by the Hovercraft (Application and Enactments) Order 1989 (S.I. 1989/1350).
1992 c. 52.
Published by The Stationery Office in 1993 (ISBN 0–11–551184–9).
Published by The Stationery Office in 1993 (ISBN 0–11–551185–7).
Published by The Stationery Office in 1997 (ISBN 0–11–551911–4).
1968 c. 59.
S.I. 1986/594 (N.I. 3).
O.J. L216, 20.8.94, p.12.
S.R. 1997 No. 387.
1983 c. 54.
Published by The Stationery Office in 1993 (ISBN 0–11–551184–9).
Published by The Stationery Office in 1993 (ISBN 0–11–551185–7).
Published by The Stationery Office in 1997 (ISBN 0–11–551911–4).
S.R. 1992 No. 459 amended by S.R. 1994 No. 478.
S.R. 1979 No. 437.
O.J. No. L374, 31.12.1990, p.1.
O.J. No. 196, 16.8.1967, p.1. As last amended by Directive 93/697/EEC (O.J. No. L268, 29.10.1993, p.71).
O.J. No. L187, 16.7.1988, p.14. As last amended by Directive 93/18/EEC (O.J. No. L104, 29.4.1993, p.46).
O.J. No. L196, 26.7.1990, p.1.