6 Seafarers
| (35544)
16472/13
+ ADDs 1-2
COM(13) 798
| Draft Directive on seafarers amending Directives 2008/94/EC, 2009/38/EC, 2002/14/EC/, 98/59/EC and 2001/23/EC
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| Legal base | Article 153(1) TFEU; co-decision; QMV
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| Document originated | 18 November 2013
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| Deposited in Parliament | 22 November 2013
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| Department | Transport
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| Basis of consideration | EM of 12 December 2013
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| Previous Committee Report | None
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| Discussion in Council | Not known
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
6.1 In its 2009 Communication, Strategic goals
and recommendations for the EU's maritime transport policy until
2018, the Commission stressed the need to promote maritime
employment and address current shortages of EU seafarers. Amongst
other matters it foreshadowed establishing a Task Force to look
at measures to strike the balance between the employment conditions
of EU seafarers and the competitiveness of the EU fleet.[28]
6.2 The Task Force submitted its findings in early
July 2011, in which it:
· identified a number of EU labour law Directives
where the current exemption for seafarers should be repealed;
· called for an EU network to improve maritime
training; and
· stressed a role for the Commission in
collating information and data to support future policy developments.[29]
The document
6.3 With this draft Directive the Commission seeks
removal of exclusion clauses that exist in EU labour law Directives
that currently enable Member States to take seafarers out of their
scope. The Directives considered are:
· Directive 2008/94/EC, relating to the
protection of employees in the event of the insolvency of their
employer ('the Insolvency Directive');
· Directive 2009/38/EC on the establishment
of European Works Council ('the EWC Directive');
· Directive 2002/14/EC establishing a general
framework for informing and consulting employees ('Information
and Consultation Directive');
· Directive 98/59/EC on the approximation
of the laws of the Member States relating to collective redundancies
('Collective Redundancies Directive');
· Directive 2001/23/EC, relating to the
safeguarding of employees' rights in the event of transfers of
undertakings ('Transfer of Undertakings Directive'); and
· Directive 96/71/EC concerning the posting
of workers in the framework of the provision of services ('Posting
of Workers Directive').
6.4 The Commission proposes that no action is taken
in respect of the Posting of Workers Directive and therefore the
draft Directive would amend only the first five of the six Directives.
The Commission proposes:
· suppression of the exclusion clauses in
their entirety in the Insolvency and EWC Directives;
· specific provisions that would recognise
the maritime environment in which employees work, while still
affording them a similar level of rights to that afforded to their
land based counterparts, to be applied to the Collective Redundancies
and Transfer of Undertakings Directive; and
· making the Information and Consultation
Directive subject to derogation and allowing Member States to
deviate from the provisions of the Directive providing that they
can be seen to be affording an equivalent level of protection
to seafarers.
6.5 The draft Directive would also require the Commission,
in consultation with Member States and social partners, to report
to the Council and the European Parliament on the implementation
and application of amendments to the Directives on Collective
Redundancies and Transfer of Undertakings and Member States to
comply with the Directive within five years.
6.6 The Commission notes that it has widely consulted
on the proposals and has addressed a number of concerns raised
by Member States and social partners, such as increased costs
to industry with no or limited benefit to seafarers, and that
the draft Directive is intended to address an anomaly where land
based workers currently appear to enjoy greater employment rights
than those at sea. The draft Directive is accompanied by the Commission's
impact assessment and an executive summary of the assessment.
The Government's view
6.7 The Parliamentary Under-Secretary of State, Department
for Transport (Stephen Hammond) says first, in relation to subsidiarity,
that the Commission argues that:
· the current scenario creates an uneven
playing field within the EU and that removing the exemptions would
ensure that for EU flagged vessels there would be a common level
of protection for seafarers;
· with the exception of the Posting of Workers
Directive, which is not included in the draft Directive, only
two Member States apply all the exemptions in full;
· another one applies the exemptions in
full across four of the Directives but applies a partial exemption
against the Information and Consultation Directive;
· eight Member States do not apply any of
the exclusions and at least four of these could be considered
to have considerable maritime interests; and
· this scenario can be considered to not
be in the interests of European seafarers.
6.8 The Minister continues that:
· the Commission recognises that the maritime
sector is a globally competitive market and that the workforce
employed on any given Member State vessel will be represented
by individuals from other Member States or third countries;
· there is already a strong international
regulatory regime in place for all areas of the maritime sector
and the coming into force of the International Labour Organization's
Maritime Labour Convention on 20 August 2013 addresses a wide
raft of employment rights and protection for seafarers; and
· this regime does not currently address
those rights and protection under consideration in the draft Directive.
6.9 The Minister comments that:
· while it is the Government's preference
that legislation applying to seafarers is set on the international
stage, it recognises that the draft Directive is intended to give
seafarers the same employment rights as those workers who are
land based in the EU;
· the Government considers that the current
mismatch of the application, or non-application, of the exemptions
is indicative that a level playing field of employment rights
for seafarers within the EU cannot be achieved by relying on Member
States alone; and
· the Government therefore agrees that action
at the EU level is necessary.
6.10 Before commenting on the policy implications
of the detail of the draft Directive the Minister considers the
general policy context, saying that:
· the original exclusion of seafarers from
the scope of these Directives was in recognition of the fact that
applying legislation to workers who are not land based poses longstanding
problems;
· the nature of seafaring was seen as an
obstacle to informing and consulting workers, which is a key component
of a number of the Directives — electronic means of communication
(for example, internet and satellite phones) with vessels on the
high sea were considered at the time to be expensive and difficult
to justify;
· the United Nations Convention on the Law
of the Sea generally precludes a Flag State from applying its
law to foreign flagged vessels in its territorial waters on the
grounds that this would interfere with their right of innocent
passage;
· the global nature of the shipping industry
coupled with the practical difficulties of defining which jurisdiction
applies to any particular group of seafarers has made application
of labour law at a national or EU level very difficult;
· this is why there has been, since the
late 1970s, agreement to internationally agreed conventions relating
to seafarers developed by the International Labour Organization;
· the latest agreement, the Maritime Labour
Convention 2006, pulls together in the one instrument provisions
"to secure the right of all seafarers to decent employment",
covering such issues as hours of work, annual leave, wages, employment
agreements and employer liability;
· in December 2011 the Commission circulated
a questionnaire to all Member States, seeking information on the
extent to which the existing exclusions for seafarers from several
pieces of EU labour law had been used at national level;
· the Government response was submitted
to the Commission in February 2012 — in addition, in December
2011 officials from the Department for Transport met Commission
officials to express concern that the plans would introduce further
regulatory measures which could put EU flags at a competitive
disadvantage with third country flags;
· the draft Directive is, however, considerably
revised from the plans first considered by the Commission;
· the Government welcomes the Commission's
proposal to exclude the Posting of Workers Directive — it
was clear that there would be minimal advantage to seafarers from
the inclusion of that Directive in this proposal and it would
have required major amendments to the Directive and a reassessment
of the definition of 'posting';
· the Government also accepts that the current
scenario within the EU with a mix of exclusions is untenable and
it can therefore cautiously accept the proposed removal of the
exemption for seafarer exclusions;
· there remains a concern that the proposed
measure could lead to shipping companies flagging away from the
Red Ensign and other EU flags and that in doing so the level of
protection that the Commission is seeking to apply to EU seafarers
will be lost;
· application to seafarers of the Equality
Act has, however, coincided with only a limited number of shipping
companies flagging away from the Red Ensign;
· evidence from social partners also suggests
that provided the draft Directive recognises the unique working
environment of the maritime sector the exclusions could be removed
at relatively little cost to the ship owner and with minimal disruption
to the working of the ship; and
· the Commission, in its impact assessment
and related papers, has made conciliatory references on these
points, however the Government will seek to ensure that the Directive
is tightly worded to ensure that this recognition is kept in the
legislation.
6.11 Turning to the detail of the draft Directive
the Minister says first, in relation to the Insolvency Directive,
that:
· this is transposed into British law by
various Insolvency Guarantee Regulations and by similar legislation
in Northern Ireland;
· the Directive presently states "where
such provision already applies in their national legislation,
Member States may continue to exclude from the scope of this Directive:
(a) domestic servants employed by a natural person; (b) share-fishermen";
· the draft Directive would remove the reference
to share fishermen;
· a share fisherman is someone working in
the fishing industry who is paid a share of the earnings or profit
of the boat (if any) rather than a pre-determined wage;
· HMRC figures in 2012 suggested that there
are less than 5,000 share fishermen in the UK; and
· the Government considers share fishermen
to be self-employed and therefore the amendment would have no
impact in the UK.
6.12 On the EWC Directive the Minister says that:
· it is transposed into UK law by the Transnational
Information and Consultation of Employees (Amendment) Regulations
2010 and by the Transnational Information and Consultation of
Employees Regulations 1999;
· the draft Directive would suppress Article
1(7) of the Directive, which provides that "Member States
may provide that this Directive shall not apply to merchant navy
crews";
· the UK makes partial use of this exemption,
with a regulation providing that no long-haul crew member may
be a member of a special negotiating body or a European Works
Council or information and consultation representative, unless
the central management of a EU-scale undertaking or group of
undertakings decides otherwise;
· a long-haul member is a defined "as
a person who is a member of a merchant navy crew other than —
(a) a ferry worker or (b) a person who normally works on voyages
the duration of which is less than 48 hours";
· the Directive only applies to undertakings
and groups with at least 1,000 employees within Member States
and at least 150 employees in each of two Member States;
· the UK Chamber of Shipping is not aware
of any shipping company based in the UK which would be within
the scope of the Directive and which does not already voluntarily
allow works councils;
· in the UK around 113 companies across
all sectors, out of approximately 265 eligible companies have
formed an EWC, giving the UK a take up rate of 42.6% against an
EU average of 38.4%; and
· creation of a EWC is not mandatory and
requires either a central management initiative or a request from
a requisite number of employees.
6.13 The Minister tells us, in relation to the Information
and Consultation Directive, that:
· the UK makes use of the current exemption
in the Directive and excludes long-haul crew members from the
provisions;
· removal of the exemption would bring those
undertakings with at least 50 employees, or with establishments
with at least 20 employees, into the scope of the Directive —
the proposed amendments are therefore more wide-ranging than that
suggested for the EWC Directive;
· the proposed amendment would only remove
the right to exclude those plying the high seas and would therefore
place the onus on those Member States who use of the exclusion
to bring into place particular provisions that would either apply
existing national legislation or provide an equivalent level of
protection;
· statutory consultation of workers already
takes place under UK health and safety legislation — rather
than workplace safety committees, the requirement here would be
to elect representatives and have committees on individual ships,
reflecting the practicalities of involving seafarers in any shore-based
arrangements; and
· the Government would look to allow information
and consultation to be permissible using ICT and other means of
electronic communication aboard ships and not specifically to
require the physical presence of a seafarer at meetings.
6.14 Noting that the draft Directive would make a
number of amendments to the current Collective Redundancies Directive,
the Minister says that:
· the Government believes that the current
British and Northern Ireland legislation on collective redundancies
goes further than the proposals;
· given that the draft Directive contains
a non-regression clause, there should be no impact on the UK;
but
· the Government will be want to ensure
that the proposal goes no further than is currently proposed.
6.15 The Minister says that:
· the UK does not currently make use of
the exemption in the Transfer of Undertakings Directive;
· the draft Directive goes a little further
than removing the exclusions for crews of seagoing vessels;
· it would provide that Member States could,
after consulting with social partners, allow that Chapter II (Safeguarding
of employees' rights) does not apply if the object of the transfer
consisted exclusively of one or more seagoing vessels or the undertaking
or business to be transferred operated only one seagoing vessel;
· in proposing these exclusions, the Commission
has recognised that to apply the requirements of this Directive
without the ability for Member States to exclude certain types
of transfer could put the EU maritime sector at a global disadvantage;
· the UK applies the Directive's requirements
in full notwithstanding that the transfer of an undertaking, business
or part of an undertaking or business, or a service provision
change, is governed or effected by the law of a country or territory
outside the UK and the employment of persons employed in the undertaking,
business or part transferred or, in the case of a service provision
change, persons employed in the organised grouping of employees,
is governed by any such law; and
· it is possible that this could be an extra
burden on UK business, however it is the Government's understanding
that very few seafarers are directly employed by a UK-based undertaking
or business, the majority being employed through an offshore entity,
and that impact on UK businesses would therefore be limited.
6.16 On consultation, impact assessment and financial
implications the Minister tells us that:
· the Government has not undertaken a public
consultation, but has received written communication from the
UK Chamber of Shipping, which is representative of those businesses
which are most likely to be affected by the proposal;
· the unions and their representatives have
been urging the Government to facilitate the progress of the proposal
and are strongly in favour of the amendments;
· Department of Transport officials have
reiterated to the Commission that it is the Government view that
matters relating to seafarers employment rights are best dealt
with at an international level to ensure the protection afforded
is uniform regardless of flag;
· the Government will assess the potential
costs of the draft Directive based on evidence already submitted
— no figures are currently available but the initial assessment
is that if the proposal is implemented as currently drafted the
cost to business will be low;
· this is, however, dependent on electronic
communication being sufficient to satisfy the amendments to the
Information and Consultation Directive and on a more detailed
analysis of the impact of the amendments to the Transfer of Undertakings
Directive;
· the Commission's own impact assessment
does not suggest potential costs for the Information and Consultation
Directive, as statistical data does not exist for how many seafarers
from the merchant navies and fishing fleets ply the high seas;
· however the Commission estimates that,
in regard to the EWC Directive, communication by satellite phone
would be €633 (£527) per member per meeting;
· these costs have not been tested but if
extrapolated across the wider maritime sector it gives an indication
that the costs should be relatively low provided that there is
the ability to disseminate the information on board the vessel
in a timely manner;
· the Commission's impact assessment follows
extensive consultation with EU social partners and Member States
over a number of years;
· it has considered a number of policy options,
the potential costs and the impact on the EU maritime industry;
· it has used a number of sources for statistics
— a number of these sources will be based on information
provided by Member States and this should not be considered an
issue;
· however, due to the nature of the information
requested, there is inevitably a variation in the figures and
it should also be noted that these data sources will not be as
current as Member States' own data;
· in regard to employment costs, the Commission's
assessment is based on 2009-10 data — UK employment costs
will tend to be higher than the EU average and it therefore must
be assumed that, allowing for an increase in the EU average since
2009-10, UK employment costs will be a step higher;
· against that, ICT in the maritime sector
has increased in reliability and scope and costs have correspondently
decreased; and
· costs to UK industry are, therefore, still
assumed to be of low impact.
Conclusion
6.17 We note the Government's conclusion that
only EU legislation would create harmony of employment rights
for seafarers within the EU. However, we note also the caution
with which the Government accepts the proposals in the draft Directive
and the need to ensure that negotiation of the text does not lead
to an unacceptable outcome.
6.18 Accordingly, before considering the draft
Directive again we wish to hear, in due course, of developments
in Council working group consideration of the proposals. Meanwhile
the document remains under scrutiny.
28 (30393) 5779/09: HC 19-xi (2008-09), chapter 3
(18 March 2009) and Gen Co Debs, European Committee A,
11 May 2009, cols. 3-18. Back
29
For the report see http://ec.europa.eu/transport/modes/maritime/seafarers/doc/2011-06-09-tfmec.pdf. Back
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