UK Offence Report

Amendment of the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003

regulation 20 of The Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2017

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

5 An employer who fails to comply with regulation 8 (pattern of work) commits an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
an employer
Conduct
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
Legal burden on the defendant

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that an employer meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

1 In any proceedings for an offence under these Regulations it is a defence for the defendant to show that all reasonable steps had been taken to ensure compliance with the Regulations.

What would breach regulation 20?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where an employer fails to comply with regulation 8 (pattern of work).
  2. Being served with a notice under the Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2017 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
5 December 2017
In force from
5 January 2018
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement Council Directive 2014/112/EU which in turn implements the European Agreement concerning certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers’ Federation (ETF) (“the Agreement”). The Regulations make a number of amendments to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049 – “the 2003 Regulations”). Regulation 3 amends the definitions contained in the 2003 Regulations in accordance with Paragraph 2 of the Agreement. Regulation 5 changes the application of the 2003 Regulations so that they apply to ships ordinarily operating in and not ordinarily going beyond the limits of UK category A-D waters (as categorised in Merchant Shipping Notice 1837(M) Amendment 1) which are not pleasure vessels. Regulations 6, 6A, 6D, 10, 10A, 10B and 15A do not apply to workers under the age of 18 because, where the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Employment of Young Persons) Regulations 1998 (S.I. 1998/2411) apply, they provide for a better level of protection for such workers. Regulation 6 amends regulation 4(d) of the 2003 Regulations to substitute “compromise agreements” for references to “settlement agreements” in regulation 19(2)(b) and (3) in relation to Northern Ireland. Regulation 7 omits regulation 5 of the 2003 Regulations. Regulation 8 replaces regulation 6 of the 2003 Regulations with new provisions governing the calculation of working time. It inserts new absolute limits on maximum daily, weekly and annual working time. It also inserts limits on maximum average weekly working time. Regulation 9 replaces regulation 7 of the 2003 Regulations with new provisions governing health assessments; the transfer of night workers to day work; the length of night work; and safety and health protection for night and shift workers. Regulation 10 amends regulation 8 of the 2003 Regulations relating to pattern of work. Regulation 11 adds to the record keeping requirements in regulation 9 of the 2003 Regulations. These require records to be available on board ship until the end of the reference period and to contain certain minimum information. Regulation 12 amends regulation 10 of the 2003 Regulations relating to rest periods. Under this regulation, a worker is entitled to rest periods of 10 hours in each 24 hour period (of which at least six hours must be uninterrupted) and 84 hours in any seven day period. Regulation 13 inserts two new provisions relating to rest breaks and working days and rest days. A worker whose daily working time exceeds six hours is entitled to a rest break of at least 20 minutes (subject to the provisions of any collective or workforce agreement). No employer can require a worker to work more than 31 days consecutively and, where a worker has worked a number of consecutive working days, they are immediately entitled to a minimum number of consecutive rest days. Regulation 14 amends regulation 11 of the 2003 Regulations to make it clear that the entitlement to 4 weeks’ annual leave is in each leave year. Regulation 15 inserts new regulation 11A into the 2003 Regulations which entitles workers to an additional 1.6 weeks of annual leave as well as the four weeks they are entitled to under regulation 11 of those Regulations. Regulation 16 amends regulation 12 of the 2003 Regulations relating to entitlements under other provisions. Regulation 17 amends regulation 13 of the 2003 Regulations to disapply the requirements relating to maximum daily, weekly and annual working time together with those relating to maximum average weekly working time and length of night work to a worker whose working time is not measured or pre-determined. Regulation 18 deals with emergency situations and allows the master of the ship to require a worker to perform any hours of work necessary where this is required for safety reasons. Once the emergency is over, a worker who has performed work during a scheduled rest period must be provided with an adequate period of rest. Regulation 19 inserts a specific provision applying to workers who undertake seasonal work on passenger ships. Employers can elect to apply different daily and weekly working time requirements to such workers and make different arrangements for rest days compared to those which apply to other workers. Regulation 20 provides for penalties for breach of obligations by an employer. In addition, it makes it an offence for a master to fail to provide a worker with an adequate period of rest once a normal situation has been restored where the worker has worked during a scheduled rest period as a result of an emergency situation. Regulation 21 updates the remedies available to a worker. Regulation 22 corrects a typographical error in regulation 19(2)(b) of the 2003 Regulations. Regulation 23 inserts new regulation 19A into the 2003 Regulations which requires the Secretary of State to review the operation and effect of the 2003 Regulations and to publish a report within three years of the coming into force of these Regulations and at intervals not exceeding five years thereafter. An impact assessment of the effect of these Regulations on the cost to business is published with the Explanatory Memorandum and Transposition Note alongside this instrument on www.legislation.gov.uk. Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies may be downloaded from the MCA’s website https://www.gov.uk/government/organisations/maritime-and-coastguard-agency or by e-subscription from mnotices@ecgroup.co.uk with ‘Subscribe’ in the subject heading, or from M-Notices Subscriptions, P.O. Box 362, Europa Park, Grays Essex RM17 9AY, tel 01375 484548, fax 01375 484556.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person “commits an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source