Citation and commencement

1. —(1) These Regulations may be cited as the Merchant Shipping (Maritime Labour Convention) (Recruitment and Placement) Regulations 2014.

(2) These Regulations come into force on 7th August 2014.

Interpretation and application

2. —(1) In these Regulations—

^M3 “ the Act ” means the Employment Agencies Act 1973 ;

^M4 “ the Merchant Shipping Act ” means the Merchant Shipping Act 1995 ;

^M5 “ the Conduct Regulations ” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 ;

“employment agency”—

“employment business”—

“ fishing vessel ” has the meaning given in section 313 of the Merchant Shipping Act;

“ hirer ” means a person (including an employment business) to whom an employment agency or employment business introduces or supplies or holds itself out as being capable of introducing or supplying a work-seeker;

^M6 “ the Maritime Labour Convention ” means the Convention adopted on 23rd February 2006 by the General Conference of the International Labour Organization ;

“ pleasure vessel ” means—

where, in the case of any vessel referred to in [^F2 paragraph ^F2] (a) or (b), no other payments are made by or on behalf of users of the vessel, other than by the owner; and in this definition “ immediate family ” means, in relation to an individual, the spouse or civil partner of the individual, and a relative of the individual or the individual's spouse or civil partner; and “ relative ” means brother, sister, ancestor or lineal descendant;

“ seafarer ” means any person, including a master, who is employed or engaged or works in any capacity on board a ship and whose normal place of work is on a ship;

“ sea-going ” in relation to a United Kingdom ship means—

“ ship ” includes hovercraft;

“ United Kingdom ship ” means a ship which is—

“ work-finding services ” means services provided—

“ work-seeker ” means a person to whom an employment agency or employment business provides or holds itself out as being capable of providing work-finding services.

(2) In the application of these Regulations to a hovercraft, a reference to the master of a ship includes a reference to the captain of that hovercraft.

(3) These Regulations do not apply in relation to any arrangements, supply, services, functions or business specified in—

(a) ^M11Article 11(5) of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 , where such activity takes place in Northern Ireland; or

(b) section 13(7) of the Act, where such activity takes place in Great Britain.

(4) These Regulations do not apply in relation to the employment of a seafarer on the following types of ship—

(a) pleasure vessels;

(b) fishing vessels;

(c) ships of traditional build;

(d) warships or naval auxiliaries;

(e) vessels which are not ordinarily engaged in commercial activities.

Meaning of “seafarer employment agreement”

3. —(1) In these Regulations, “ seafarer employment agreement ” means, in relation to a seafarer—

(a) ^M12 the written agreement required by regulation 9 of the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc. ) Regulation 2014 , where the seafarer works on a United Kingdom ship; or

(b) the agreement governing the seafarer's work on the ship, where the seafarer works on a ship which is not a United Kingdom ship.

(2) For the purposes of regulation 5, “ seafarer employment agreement ” includes a draft of the agreement referred to in paragraph (1) which has been prepared for signature but has not yet been entered into.

Duty on employment agencies as regards seafarer employment

4. An employment agency must not introduce or supply a work-seeker to a hirer for the purposes of employment as a seafarer on a sea-goingship unless it has verified—

(a) the identity of the work-seeker; and

(b) that the work-seeker has the experience, training, qualifications and any authorisation which the hirer considers are necessary, or which are required by law or by any professional body, to work in the position which the hirer seeks to fill.

Duty on employment agencies and businesses as regards seafarer employment agreements

5. An employment agency or employment business introducing or supplying a work-seeker to a hirer for the purposes of employment as a seafarer on a sea-goingship must—

(a) ensure that the work-seeker is informed of the rights and duties under the seafarer employment agreement prior to or in the process of engagement;

(b) ensure that arrangements are made for the work-seeker to have an opportunity to examine the seafarer employment agreement before and after it is signed by the work-seeker; and

(c) ensure that arrangements are made for the work-seeker to receive a copy of the seafarer employment agreement after it is signed by the work-seeker.

Duty on employment agencies and businesses to provide financial system of protection

6. —(1) This regulation applies to an employment agency or employment business where—

(a) the employment agency or employment business has introduced or supplied a work-seeker to a hirer for the purposes of employment as a seafarer on a sea-goingship; and

(b) the work-seeker is or has been employed as a seafarer as a result of that introduction or supply.

(2) The employment agency or employment business must establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate the seafarer for monetary loss which the seafarer may incur as a result of—

(a) a failure of the employment agency or employment business to meet its obligations to the seafarer; and

(b) a failure of the shipowner which is party to the seafarer employment agreement to meet its obligations to the seafarer.

(3) References in paragraph (2) to “obligations to the seafarer” include contractual obligations and statutory obligations.

Duty on employment agencies and businesses to maintain records

[^F47.—(1) Subject to paragraph (5), every employment agency and employment business must keep records which are sufficient to show whether the provisions of these Regulations are being complied with, including the particulars specified in paragraphs (2) and (3).

(2) The particulars to be included in relation to every application received by the employment agency or employment business from a work-seeker are—

(a) the date on which the application was received;

(b) the work-seeker’s name, address and, if under 22 on the date the application was received, the date of birth;

(c) any terms which apply or will apply between the employment agency or employment business and the work-seeker, and any document recording any variation of the terms;

(d) details of the work-seeker’s training, experience, qualifications, and any authorisation to undertake particular work (and copies of any documentary evidence of the same obtained by the employment agency or employment business);

(e) details of any requirements specified by the work-seeker in relation to taking up employment;

(f) the names of hirers to whom the work-seeker is introduced or supplied;

(g) details of any resulting engagement and date from which it takes effect;

(h) a copy of any contract between the work-seeker and any hirer entered into by the employment agency on the work-seeker’s behalf;

(i) the date on which the application was withdrawn or the contract terminated (where applicable);

(j) in the case of an employment agency that is permitted by the Conduct Regulations to charge fees to work-seekers—

(i) the dates of the requests by the employment agency for fees from the work-seeker and of receipt of such fees, with copy statements or invoices, numbers and amounts; or

(ii) statements of dates and amounts of sums deducted from money received by the employment agency on the work-seeker’s behalf in accordance with regulation 25 of the Conduct Regulations, to the extent that these are not required to be comprised in records maintained in respect of a client account in accordance with paragraph 12 of Schedule 2 to the Conduct Regulations;

(k) details of enquiries made under regulation 4 about the work-seeker and the position concerned with copies of all relevant documents and dates they were received or sent as the case may be.

(3) The particulars to be included in relation to every application received by the employment agency or employment business from a hirer are—

(a) the date on which the application was received;

(b) the hirer’s name and address, and location of the work to be done for the hirer;

(c) details of the position the hirer seeks to fill;

(d) the duration or likely duration of work;

(e) any experience, training, ability, qualifications, and authorisation required by the hirer, by law, or by any professional body and any other conditions attaching to the position the hirer seeks to fill;

(f) the terms offered in respect of the position the hirer seeks to fill;

(g) a copy of the terms between the employment agency or employment business and the hirer, and any document recording any variation of the terms;

(h) the names of work-seekers introduced or supplied;

(i) details of each resulting engagement and date from which it takes effect;

(j) the dates of requests by the employment agency or employment business for fees or other payment from the hirer and of receipt of such fees or other payments, and copies of statements or invoices.

(4) The records mentioned in paragraph (1) must be kept—

(a) for a period of at least one year starting with the date of their creation; and

(b) for a period of at least one year starting with the date on which the employment agency or employment business last provided services in the course of its business as an employment agency or an employment business to the applicant to whom they relate.

(5) The obligation to keep records of the particulars referred to in paragraph (1) does not apply to applications in respect of which the employment agency or employment business takes no action.

(6) The records mentioned in paragraph (1) must be kept by an employment agency or employment business either—

(a) at any premises it uses for or in connection with the carrying on of an employment agency or employment business; or

(b) at another location where the records are readily accessible by it.

(7) The records an employment agency or employment business is required to keep pursuant to this regulation may be kept in electronic form, provided that the information so recorded is capable of being reproduced in legible form. ^F4]

Offences

8. —(1) A person who contravenes regulation 4, 5, 6(2) or [^F5 7(1), (4) or (6) ^F5] is guilty of an offence.

(2) A person who makes or causes to be made or knowingly allows to be made any entry in a record required to be kept in pursuance of these Regulations which that person knows to be false in a material particular is guilty of an offence.

(3) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Offences: extension of time limit

9. —(1) For the purposes of this regulation a relevant offence is an offence under regulation 8 in respect of which proceedings are brought by—

(a) the Secretary of State; or

(b) the Department for Employment and Learning.

^M13 (2) Notwithstanding section 127(1) of the Magistrates' Courts Act 1980 (limitation of time) an information relating to a relevant offence which is triable by a magistrates' court in England and Wales may be so tried if it is laid at any time—

(a) within 3 years after the date of the commission of the offence; and

(b) within 6 months after the date on which evidence sufficient in the opinion of the Secretary of State to justify the proceedings came to the knowledge of the Secretary of State.

^M14 (3) Notwithstanding section 136 of the Criminal Procedure (Scotland) Act 1995 (time limit for certain offences) in Scotland proceedings in respect of a relevant offence may be commenced at any time—

(a) within 3 years after the date of the commission of the offence; and

(b) within 6 months after the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings came to the knowledge of the Lord Advocate.

^M15 (4) Notwithstanding Article 19(1)(a) of the Magistrates' Courts (Northern Ireland) Order 1981 (time within which complaint charging offence must be made to give jurisdiction) a complaint relating to a relevant offence may be made at any time—

(a) within 3 years after the date of the commission of the offence; and

(b) within 6 months after the date on which evidence sufficient in the opinion of the Department for Employment and Learning to justify the proceedings came to the knowledge of that Department.

(5) For the purposes of this regulation a certificate of the Secretary of State, Lord Advocate or the Department for Employment and Learning (as the case may be) as to the date on which evidence came to the knowledge of that person is conclusive evidence.

Offences: cost of investigation

10. The court in which a person is convicted of an offence under these Regulations may order that person to pay a sum which appears to the court not to exceed the costs of the investigation which resulted in the conviction—

(a) to the Secretary of State, in respect of proceedings falling within regulation 9(1)(a); or

(b) to the Department for Employment and Learning, in respect of proceedings falling within regulation 9(1)(b).

Offences by bodies corporate

11. —(1) Where an offence under these Regulations committed by a body corporate 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, that person, as well as the body corporate, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) This regulation does not extend to Northern Ireland.

Inspection

^M16,M1712. For the purposes of the enforcement functions conferred by section 9 of the Act (inspection) and Article 7B of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 , these Regulations are to be treated as having been made under that Act and that Order respectively.

Review

13. —(1) The Secretary of State must from time to time—

(a) carry out a review of these Regulations;

(b) set out the conclusions of the review in a report; and

(c) publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Maritime Labour Convention is implemented in other member States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.