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The UK legal claim of some P&O Ferries part-time crew members to 38 days' paid annual leave has been struck down, writes Nautilus director of legal services Charles Boyle
An employment tribunal in Ashford, Kent, recently considered several issues on how the Maritime Labour Convention, 2006 (MLC) has affected paid annual leave entitlement for seafarers.
In the case Ms A Hayford and Mr K Biddle v P & O Ferries (Jersey) Ltd, the tribunal was asked to consider three things:
- whether the MLC granted additional leave beyond paid rostered time off
- whether shipowners have to designate parts of rostered time off as MLC-derived leave for it to count as such
- whether part time workers are entitled to the same amount of MLC-derived leave as full-time workers
The period covering the circumstances out of which the claim arose was governed by the Merchant Shipping (Hours of Work) Regulations 2002, as amended by legislation implementing MLC changes to leave.
Ms Hayford was employed part-time as an assistant steward on the ferry Spirit of Britain (flagged in the UK during the relevant period), which was sailing between Dover and Calais. When Ms Hayford returned from maternity leave in 2015, she continued to work part-time based on 900 hours per year.
Her contract stated that she was entitled to 28 days' leave, based on a 12-hour day, but as she was part-time, this was reduced pro-rata to 12.5 days.
She joined and left the vessel on each working day. She arranged her working hours around her childcare commitments, and the tribunal notes that she referred to these favourable terms as a 'mum's contract'.
Mr Biddle was employed as an assistance steward on the same vessel. At the latter stage of his employment, he was working 12-hour shifts on a one-week-on/one-week-off basis and living onboard during his week on. He was entitled to take 28 days' contractual leave per annum, 14 of which would be during his rostered time on, and 14 of which would be during his rostered time off.
Can annual leave be included in rostered time off?
The tribunal referred to Directive 2009/13/EC, which implements the MLC into EU law, and amends the earlier seafarers' Working Time Directive 1999/63/EC, to bring it into line with MLC leave entitlement of 2.5 days per month.
It noted that Directive 2009/13/EC complies with the EU's Charter of Fundamental Rights, which provides that 'all workers have a right to healthy, safe and dignified working conditions, to a limit on their maximum working time and to weekly and daily rest periods and an annual period of paid leave'.
Consequently, the 2002 Regulations should be interpreted in accordance with the general principles and jurisprudence of the Court of Justice of the European Union (CJEU), which are referred to further below.
The tribunal also followed the earlier UK Supreme Court case of Russell v Transocean International Resources [2011], which concerned offshore workers' leave entitlement under the Working Time Regulations 1998 (WTR), which implements the general EU Working Time Directive in the UK. Both those instruments apply to workers in general, including offshore workers, but not seafarers.
In the Russell case the workers were scheduled to work a two-weeks-on/two-weeks-off pattern, and the court held that their annual leave was included within that scheduled time off, during which they were paid (albeit that the first two days off in each case was considered to be a 'compensatory rest period' because they were offshore for two weeks at a time).
One question arising is: would a future tribunal reach a different conclusion if EU law does not apply to the same extent following Brexit?
In the Hayford/Biddle case the tribunal held that the claimants were free from work-related obligations when not working on the vessel and were genuinely provided with a break from work. In support, it noted that MLC guideline B2.4.2 recognises that seafarers have a right to take leave in a place where they have a substantial connection, as were the circumstances for Hayford and Biddle.
The tribunal held in this case that P&O was entitled to treat the rostered time off as leave. It refused to agree that seafarers are entitled to treat rostered time off as merely 'a justified absence from work'.
Must leave be recorded or designated as such?
The claimants also argued that they had not been provided with full entitlement to leave because their employer had not always recorded or designated leave, as set out in their contracts. The tribunal rejected this, stating that what mattered was whether the employer permitted the seafarers to take their leave, which it had. Poor record keeping or a failure to designate rostered time off as leave did not change that.
How many days of annual leave are seafarers entitled to?
The claimants had argued that they were entitled to 38 days' leave, regardless of the amount of time they worked.
The legislative background is that the MLC grants 2.5 days' leave per month, as does the 2002 Regulations (the latter also grants a further eight days' leave per annum pro-rata for UK public holidays). Neither the MLC or the 2002 Regulations make any distinction between, on the one hand, full-time workers and, on the other, part-time workers.
As part of its submissions, P&O argued that it would be absurd if a worker contracted to work one day each month was entitled to 38 days' leave. The tribunal agreed, again relying on EU case law, and concluding that the claimants were only entitled to leave on a pro-rata basis.
In reaching the formula for calculating pro-rated entitlement, the tribunal noted that Directive 1999/63 states that the normal working hours of a seafarer is based on an eight-hour day, with one rest day per week and rest on public holidays (the MLC also states this in its hours of work and rest provisions). Therefore, a full-time worker works 274 days each year (e.g. 6 x 52 – 38 leave days). Part-time workers will therefore be entitled to leave pro-rated on the proportion their annual working days are of 274 days for a full-time worker.
In these cases that meant:
Ms Hayford worked 75 days each year, being 27.4% of 274 days; she was therefore entitled to 27.4% of 38, being 10.4 days leave at the daily rate of her 12-hour working day.
Mr Biddle worked 168.5 days each year, being 61.5% of 274; he was therefore entitled to 61.5% of 38, being 28 days leave at the rate of his 12-hour working day.
Comment
Due to its status as an employment tribunal ruling, this judgment is not binding on tribunals in subsequent cases; however, it provides a useful insight into how MLC-derived leave has been treated. Furthermore, it interprets how the 2002 Regulations (as amended) implement Regulation 2.4 of the MLC into UK law.
It does not follow that other UK tribunals or those in other jurisdictions will take the same approach.
In reaching its decision, the tribunal took account of EU legislation and the case law of the CJEU, as well as the MLC.
One question arising is: would a future tribunal reach a different conclusion if EU law does not apply to the same extent following Brexit?
It should be noted that the relevant provisions are now contained in the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (SI 2018/58), although this consolidation would not make any difference to this case.
The UK leave provisions in the 2018 Regulations apply to UK ships wherever they may be, and to non-MLC ships while they are in UK waters.
As for foreign MLC ships in UK waters, the 2018 Regulations state that they must provide leave based on Regulation 2.4 of the MLC itself, so a minimum of 30 days per annum; however, their flag state may grant more, and this must be stated on each seafarer’s employment agreement.
Nautilus members with leave entitlement queries can contact the Union at legal@nautilusint.org.
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