SEAFARER RIGHTS AT SEA, Chapter 7
SEAFARER RIGHTS AT SEA
CHAPTER 7
CHAPTER 7
LAWS RELATING TO SEAMEN
Contractual provisions
The Agency will expect a crew agreement to contain contractual provisions governing the following matters:
· the persons between whom the agreement is made;
· the description of the voyage or voyages to which the agreement relates and their geographical limits and/or the duration of the
employment;
· the capacity in which each seafarer is to be employed;
· the pay, hours, leave and subsistence;
· the other rights and duties of the parties to the agreement;
· the terms under which either of the parties may give notice to terminate the agreement;
· the circumstances in which, notwithstanding the provisions governing the giving of notice, the agreement may be terminated by either of
the parties.
8. The provisions of the standard agreement cover the matters set out in Paragraph 7 of this notice. These provisions would be regarded as approved provisions and subject to the comments in Paragraphs 9 and 12 may be used without seeking prior approval from the Agency. The use of a standard agreement does not preclude the employer and the seafarer entering into a separate contract of employment, covering matters such as discipline, holiday entitlement etc., providing such contract does not conflict with the requirements of the crew agreement. The provisions of the standard agreement are set out in Annex 2 to this notice.
9. The clauses dealing with the duration and scope of the voyage and the rate of wages require the insertion of further particulars before they are complete. Subject to the limitations set out in Paragraph 12 of this Notice the particulars agreed between the two parties may, without a specific request for approval, be inserted within the approved provisions.
CONDITIONS AND PROCEDURES FOR STANDARD AGREEMENT
Limitation on Use of Voyage Clauses
12. The voyage clauses approved for use in the standard agreement may leave open for agreement between the parties the details of the voyage or the duration of the agreements. These provisions may only be used as approved when taken with the notice clauses to provide for employment for a maximum of 12 months. This period is subject to any additional period provided for in the associated notice clauses. The geographical limitations of a voyage clause should be clearly stated when the clause is completed and used.
Submission of Crew Agreements and Lists of Crew
13. The crew agreement and list of crew together with the Official Log Book for the same period must be forwarded to a superintendent or proper officer within 3 days of the expiry of the agreement. If the vessel closes an Agreement at a port outside the United Kingdom which does not have a resident British Consul the documents should be sent to The Registrar General of Shipping and Seamen, Anchor House, Cheviot Close, Parc Ty Glas, Llanishen, Cardiff, CF14 5JA.
CONDITIONS AND PROCEDURES FOR INDEFINITE CREW AGREEMENTS ONLY
14. The concept of fixed term crew agreements embodies certain features, which impose conditions in addition to those listed in Paragraph 7. Wages are due only on discharge or termination of the agreement and any earlier payments are considered to be advances; similarly there is no requirement for leave to be allowed and the circumstances in which a seafarer or employer can give notice are related to the location of the vessel. It would be inappropriate to apply these conditions to agreements which are to run indefinitely and so in addition to the requirements of Paragraph 7, such agreements must state:
· the intervals at which wages are to be paid;
· the method of calculating leave entitlement;
· the maximum period that a seafarer can be required to remain on board between leave periods (in many cases a copy of the duty rosters will be sufficient);
· the notice required from each party to terminate a seafarer’s employment under the agreement which should be not less favourable than the provisions of Section 49 of the Employment Protection (Consolidation) Act 1978 except in the following cases:
(a)by mutual consent;
(b)if medical evidence indicates that a seafarer is incapable of continuing to perform his duties by reason of illness or injury;
(c)if, in the opinion of the Master, the continued employment of the seafarer would be likely to endanger the ship or any person on board;
(d)if a seafarer, having been notified of the time the vessel is due to sail, is absent without leave at the time fixed for sailing and the
vessel proceeds to sea without him or if substitutes have been engaged. Substitutes shall not, however, be engaged on a crew agreement more
than 2 hours before the time fixed for sailing.
Submission of Crew Agreements and Lists of Crew
15. The crew agreement and list of crew together with the Official Log Book for the same period must be forwarded to a superintendent or proper officer within 3 days of the expiry of the agreement. If the vessel closes an Agreement at a port outside the United Kingdom which does not have a resident British Consul the documents may be sent by letter post only to The Registrar General of Shipping and Seamen.
Crew Lists on Demand
16. In order that the Agency can have up to date information on the composition of the crews of vessels, the Registrar General of Shipping and Seamen is empowered to demand a list of crew at any given date and this must be supplied within 28 days. These checks will be made on a random basis or whenever there is cause to question the composition of the crew of a particular vessel
Repatriation
17. The provisions of the Merchant Shipping (Repatriation) Regulations 1979 apply to paid crew employed on UK registered yachts and require the employer to repatriate and/or maintain crew in accordance with those regulations. In those cases where such action is not taken by the employer, UK Consuls are able to take the necessary steps, at theemployers expense.
18. Further information on crew agreement requirements for yachts can be obtained from
Statutory Instrument 1991 No. 2144
The Merchant Shipping (Crew Agreements, Lists of Crew and Discharge of Seamen) Regulations 1991 - continued back to previous page
DISCHARGE OF SEAMEN
Notice of discharge
(1) In the event of any dispute about a seaman's wages, and that dispute is at the time of discharge to be submitted to a superintendent or proper officer under section 10 of the Act (which relates to disputes about seamen's wages), then subject to regulation 24 the master of a ship shall, not less than 48 hours before the seaman is discharged from the ship or, if it is not practicable within that period, as soon as practicable thereafter, give a notice of discharge in writing to a superintendent or proper officer for the place where the seaman is to be discharged.
(2) A notice of discharge shall contain the following particulars—
(a) the name of the ship, its port of registry and official number;
(b) the place, date and time of the seaman's discharge;
(c) the capacity in which the seaman is employed in the ship.
(3) If a notice of discharge relates to more than one seaman, it shall state, in addition to the particulars specified in paragraph (2) of this regulation, the number of seamen being discharged.
Discharge
24. A notice of discharge is not required in respect of a seaman discharged
(a) if the seaman is to be discharged from a ship exempted from the requirements of section 1 of the Act by regulation 4(1); or
(b) if the seaman is exempted from the requirements of section 1 of the Act by regulation 4(2).
25. Procedure on discharge
(1) Where a seaman is present when he is discharged:
(a) the master, or one of the ship's officers authorised by him in that behalf, shall, before the seaman is discharged—
(i) if the seaman produces his discharge book to him, record in it the name of the ship, its port of registry, gross or register tonnage and official number, the description of the voyage, the capacity in which the seaman has been employed in the ship, the date on which he began to be so employed and the date and place of his discharge; or
(ii) if the seaman does not produce his discharge book to him, give to the seaman a certificate of discharge containing the like particulars;
(b) the master shall ensure that the seaman is discharged in the presence of—
(i) the master himself, or
(ii) the seaman's employer, or
(iii) a person authorised in that behalf by the master or employer;
(c) the person mentioned in paragraph (1)(b) of this Regulation in whose presence the seaman is being discharged shall—
(i) make and sign an entry in the official log book recording the place, date and time of the seaman's discharge; and
(ii) make and sign an entry in the crew agreement or, if there is a list of crew separate from a crew agreement, in the list of crew, recording the place and date of, and the reason for, the seaman's discharge, and
(d) the seaman shall sign the entry in the crew agreement and list of crew referred to in paragraph (1)(c)(ii) of this regulation.
(2) Where a seaman is not present when he is discharged, the master, or a person authorised in that behalf by the master, shall make the entries referred to in paragraph (1)(c) of this regulation.
(3) All entries in the official log book required under the preceding paragraphs of this regulation shall, in addition to being signed by the person making the entry, be signed also by a member of the crew.
(4) If a seaman so requests, within a period of 6 months from the date of his discharge from or his leaving the ship, the master, or one of the ship's officers authorised by him in that behalf, shall give to the seaman a certificate (which shall be separate from any other document) either as to the quality of his work or indicating whether he has fully discharged his obligations under his contract of employment.
Contracts of employment
A contract of employment is constituted by offer and acceptance supported by consideration. In the majority of cases, the offer comes from the employer and is accepted in writing or by the conduct of the employee in arriving for work. There may also be situations in which persons may sue another although no contract of employment has been entered into e.g. if an employee is enticed to leave a job on the promise that he would be offered a better position which does not materialise, he is entitled to damages for breach of warranty or a collateral contract (see Gill v Cape Contracts [1985] IRLR 499). A contract of employment need not be in writing although contracts of apprenticeship must be. Statute has protected the employee by means of the implication of terms into the contract of employment, usually by generalising what is already best practice. The rights to guarantee pay, equal pay, notice and maximum working hours in factories are effected in this way. The contract of employment may change during its course as circumstances alter, even so any variation in contractual terms requires the assent, express or tacit, of both parties and should be supported by consideration.
Written statement of terms
Most employees are entitled to receive a written statement of the most important terms of their contracts of employment. This statement is not in itself a contract but it may be used to establish what has been agreed in the contract of employment. The statement must be given within two months of starting work and must include the following details:
a.the names of the employer and employee,
b.the date when the employment began and whether any previous service counts as continuous with the present contract (this has important
implications for rights such as redundancy payment and unfair dismissal),
c. a brief description of the work for which the employee is employed, the job title being very important when considering redundancy, constructive
dismissal or equal pay claims,
d.the scale or rate of remuneration, including fringe benefits, and whether remuneration is to be paid weekly, monthly or at some other interval,
e.normal hours of work, and entitlement to public and other holidays and holiday pay,
f.provision for sickness and injury and, in particular, sick pay,
g.pension rights, especially whether a contracting out certificate has been given under the Social Security Pensions Act 1975,
h.the length of notice the employer and employee must give to terminate the contract of employment,
i.if the contract is for a fixed period, the date of the end of the period must be stated,
j.in the case of non permanent employment, the period or which it is expected to continue, and
k.either the place of work or, where the employee is required to work at various places, an indication of that fact.
The statement must also contain details of disciplinary procedures relating to the employee and the employee must be notified of a person to whom he may apply if he is dissatisfied with any disciplinary decision and how such an application should be made. Companies with less than twenty employees are exempt from the obligation to include details of disciplinary procedures in the written statement of terms.
An employee who has not been provided with a written statement of employment by his employer, or who contests the accuracy of the written statement, may refer the matter to an Industrial Tribunal. The Tribunal will determine what particulars should have been given. However, an industrial tribunal has no power to include terms relating to holidays, holiday pay, sick pay, pensions and disciplinary rules where none existed by agreement between the parties since the contract was not required to contain such terms (Eagland v British Telecommunications plc [1993] ICR 644).
Rights and obligations of employer and employee
There can be no employment relationship without a power to command and a duty to obey. The courts have frequently implied a duty of co-operation between employer and employee. The general principle is that the employee must serve the employer and his interests. The most essential element for the employee is payment for hours worked. Generally, remuneration is negotiated by way of collective or individual bargain but so essential is it to the contract that in the absence of express agreement, there is still a right to reasonable remuneration.
Sick Pay
Since the introduction of statutory sick pay, the regulations effectively render the employer an agent of the Department of Social Security to administer the sickness pay rights of his employees. In outline, the scheme provides that the employer must pay sick pay for the first 28 weeks of illness and only after that is the employee entitled to state sickness benefit. The employee may not claim statutory sick pay for the first 3 days of any period of sickness and the following persons are completely excluded from claiming it:-
a. pensioners,
b. employees for less than 3 months, and
c. those who earn too little to pay national insurance contributions.
To make a claim the employee must be suffering from a disease or physical or mental disablement rendering him incapable of performing any work. Two periods of incapacity are treated as one if they are separated by not more than 2 weeks.
To claim statutory sick pay, the employee or his agent has to inform the employer that he is unfit for work. The employer can fix a time limit for notification and may set out the mode of notification. The Statutory Sick Pay Act 1991 made important changes to statutory sick pay in order to reduce government expenditure; regulations were made to limit the amount which could be recouped by an employer from national insurance contributions to 80% of the Statutory Sick Pay made.
Duty of care
It is an implied term of the contract of employment that every employer must take reasonable care for the safety of his employees. An employer is not obliged to insure the employee against the effects of unusual or dangerous work but an employer must be covered by insurance pursuant to the Employers Liability (Compulsory Insurance) Act 1969 and cannot hide behind a supplier of defective equipment (Employers Liability (Defective Equipment) Act 1969). The employee has a similar duty to take care of such of the employer's property as is entrusted to him.
Working hours
The Sunday Trading Act 1994 contained important protection for those persons who do not wish to work on Sundays and is now incorporated in the Employment Rights Act 1996. There is no general restriction on the number of hours of work in Britain but there are statutory provisions relating to children and women. However, the Working Time Directive will change these provisions (the Bill has been sent for consultation and it is expected to be enacted later this year). Statute provides certain rights for employees to take reasonable time off, such as trade union officials to carry out their duties, to receive ante-natal care and for an employee who is a member of a local authority, magistracy or statutory tribunal and some similar bodies.
Holidays
There is no general right to a holiday in English Law and holidays are generally dealt with in collective agreements, while custom and practice and statute have a subordinate role. However, the Working Time Directive will change these provisions (the Bill has been sent for consultation and it is expected to be enacted later this year). The only general statutory provision concerns Bank Holidays which are regulated by the Banking and Financial Dealings Act 1971. It is not an implied term of a contract of employment that an employee is entitled to payment in lieu of holidays if his employment is terminated (Morley v Heritage Plc [1993] IRLR 400].
Obey orders
At common law the employee is, in general, obliged to obey all lawful orders of the employer but the orders must be reasonable. A dismissal for failure to obey an illegal order is unlawful.
Breach of contract
The consequences of a breach of contract by the employee are that:
a. he may be disciplined in accordance with contractual procedures,
b. the employer may sue for damages in a county court or the High Court,
c. the employer may apply for an injunction to prevent the employee's breach, and
d. if the breach is serious, the employer may summarily dismiss the employee although this may make him liable for an action for damages if such dismissal is either wrongful or unfair (see also paragraph 76.11).
An employee has a licence to enter his employer's premises but this will normally be withdrawn on suspension or dismissal. An employer has a right to refuse a reference for an employee. Where an employer gives a reference, he owes a duty of care to those persons (i.e. prospective employers) whom he can foresee will rely on such a reference and also owe a duty to the employee to take reasonable care in its preparation (Spring v Guardian Assurance Plc [1994] ICR 596).
Statutory Protection
May 1998
New legislation
The Employment Rights (Dispute Resolution Act) 1998, which received Royal Assent in April 1998, is not yet in force. It is likely that Part 1 of the Act which renames Industrial Tribunals as Employment Tribunals will come into force by August 1998 and the remainder of the primary legislation will come into force by the end of the year but at the time of the publication of this chapter, the exact position was unknown.
Scope of statutory protection
Only employees and not independent contractors are eligible for most employment protection rights. The employee must also have completed the minimum qualifying period of service, which is different for each right, and make his claim in time. The qualifying period for redundancy payments has always been two years' continuous service but the time for unfair dismissal has varied. Since 1985 it has been two years' continuous service with some exceptions e.g. where dismissal is by reason of pregnancy. There has been doubt cast on the validity of this requirement and a decision is awaited from the Court of Justice of the European Communities. Consequently, tribunals are holding as "pending" any cases of unfair dismissal where there is more than one year’s continuous service.
The intention is that claims for compensation are presented promptly. The employee has three months from the effective date of termination in which to present a claim to an industrial tribunal for unfair dismissal and six months for redundancy. There is no limitation period for references to industrial tribunals of claims under the contractual redundancy pay provisions which used to exist under the Whitley Council Agreement other than the six year period under the Limitation Act 1980.
The industrial tribunal may extend the time limit where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three month period.
The general view of the courts is that an employee cannot claim employment protection rights when his contract is tinged by illegality e.g. if the parties make an agreement to submit inaccurate tax returns or evade tax, then the court would not enforce the contract (see Napier v National Business Agency Ltd 1951] 2 All ER 264). The courts may mitigate this effect by considering whether the employee was aware of the illegality, allowing severance of the illegal terms and leaving the remainder of the contract valid. Incidental illegality during the course of a contract does not render the whole contract void.
Termination of contract
There are several ways in which the contract of employment may be terminated at common law. The contract of employment is terminated by automatic operation of law without action by employer or employee in the following circumstances :
a. a fundamental change in partners in a firm where the contract of employment is personal to the partners,
b. compulsory winding up of a company, although there is no termination where a company voluntarily resolves to wind itself up (Fox Bros. (Clothes) Ltd v Bryant [1978] IRLR 485).
c. appointment of a receiver,
d. making of a bankruptcy order,
e. permanent closure of the employee's place of employment, or
f. death of a personal employer.
Notice periods
Except in the case of a fixed term contract, an employee is employed for an indefinite period subject to termination by a reasonable period of notice. The length of notice is usually expressly agreed, in which case it must be stated in the written particulars of employment. Otherwise common law will imply a period of reasonable notice depending on the circumstances of the particular employment. The statutory rule is that the employer must give one week's notice to an employee who has served between one month and two years and thereafter one week for each year served up to a maximum of 12 weeks (for 12 years). In return, the employee must give at least one week's notice of resignation if employed for more than one month. However, this code does not apply to Crown servants, those working outside Great Britain or House of Commons staff. The statute does not prevent either party from waiving the right to notice, affect the rights of either party to terminate the contract as a result of the conduct of the other or prevent a party from accepting payment in lieu of notice.
Continuity of employment
Statutory continuity of employment is centrally important to most statutory employment protection rights including redundancy pay, maternity pay and unfair dismissal. It is vital in determining whether the employee has served the appropriate qualifying period and, if so, what is the appropriate amount of award or payment due. Continuity is extensively defined in Part XIV, Chapter 1 of the Employment Rights Act 1996. The aim of the statute is to overcome the common law rule that every change of term was a new contract which would artificially restrict employee rights; there is a special continuity regime for statutory maternity pay. Continuity is preserved even though, during an employee's service, the duties required by his contract and other incidental terms may vary. The units for measuring continuity are calendar months and years and the period of continuity begins on the day the employee starts work. Where an employee successfully claims to have been unfairly dismissed and is reinstated by his employer, a successor employer or associated employer, his continuity is preserved and he can include the time in between dismissal and reinstatement.
Change of employer
There are five important rules for maintaining continuity when an employee works in sequence for different employers. The periods are considered continuous where:
a. a trade or business or an undertaking is transferred from one person to another,
b. an employee is taken into the employment of another employer who, at the time when the employee enters the second employer's employment, is an associated employer of the first employer,
c. one body corporate is substituted for another body corporate as the employer by or under an Act of Parliament,
d. the employer dies and his personal representatives or trustees keep on the employee, even where the employee is also the personal representative, or
e. there is a change in the partners, personal representatives or trustees who employ him. This is necessary since the employees of a partnership are employed by the individual partners jointly, so that each time there is a change of partners continuity would be lost if it were not for this provision.
Transfer of undertakings
Employees achieve an automatic continuation of the contract of employment on a transfer which falls within the scope of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981 No 1794) as amended by The Collective Redundancies and Transfer of Undertakings(Protection of Employment)(Amendment) Regulations 1995 (SI 1995 No 2587). The Regulations preserve employees' terms and conditions when a business or undertaking, or part of one, is transferred to a new employer. The regulations provide that employees employed by the previous employer when he changes hands automatically become the employees of the new employer on the same terms and conditions. Therefore employees' continuity of employment is preserved as are their terms and conditions of employment under contracts of employment (except for occupational pension rights).
The regulations apply when an undertaking or part of an undertaking is transferred from one employer to another. Some examples of transfers are:
a. where all or part of a sole trader's business or partnership is sold or otherwise transferred,
b. where a company, or part of it, is bought or acquired by another, provided this is done by the second company buying or acquiring the assets and then running the business and not acquiring the shares only,
c. where two companies exist and combine to form a third, or
d. where a contract to provide goods or services is transferred in circumstances which amount to the transfer of a business or undertaking to a new employer. (This point is unclear at present, particularly in respect of undertakings with few tangible assets other than employees - clarification of the legislation is expected soon)
The regulations apply regardless of the size of the transferred undertaking (i.e. large or small business) and apply equally to public or private sector undertakings. The regulations do not apply to transfers by share take over, transfers of assets only or transfers of undertakings situated outside the United Kingdom. The new employer takes over the contracts of employment of all employees who were employed in the undertaking immediately before the transfer or who would have been so employed if they had not been unfairly dismissed for a reason connected with the transfer. The new employer takes over all rights and obligations arising from the contracts of employment but the Regulations do not oblige the new employer to continue an occupational pension scheme. Neither the new employer nor the previous employer may fairly dismiss an employee because of the transfer or a reason connected with it unless the dismissal is necessary for an economic, technical or organisational reason entailing changes in the work force. If there is no such reason, the dismissal will be unfair. The new employer may not unilaterally worsen the terms and conditions of employment of any transferred employee. An employee claiming to have been unfairly dismissed because of a transfer has the right to complain to an industrial tribunal. Employees who are transferred and find that there has been a fundamental change for the worse in their terms and conditions of employment as a result of the transfer have the right to terminate their contract and claim unfair dismissal before an industrial tribunal. If the dismissal is considered fair employees may still be entitled to a redundancy payment.
Pensions
The Secretary of State can pay into the funds of a pension scheme certain unpaid employer's and/or employees' contributions, within limits, owed to the scheme when an employer becomes insolvent. An application for the payment of contributions may be made by "persons competent to act" i.e. the trustees, the scheme administrators or the employer's representative. The right to unpaid employer's pension contributions extends to :
a. arrears accrued over 12 months prior to insolvency,
b. arrears certified to be necessary to pay employees’ benefits on dissolution of the scheme, or
c. 10 per cent of the last 12 months' payroll for the employees covered by the scheme.
The maximum payable is the lowest of these figures, any unpaid contributions owed to the pension scheme above these limits cannot be paid by the Secretary of State. The Secretary of State will defer payment until an insolvency practitioner is appointed. Where an employee receives arrears of pay under the insolvency provisions, the employer's representative should deduct pension scheme contributions from the payments and pay them to the pension scheme. In the event of a dispute the matter may be referred to an Employment Tribunal. For details regarding Pensions generally, see Chapter 61.
Redundancy payments
The insolvency of an employer will frequently lead to redundancies and the employee retains the three basic rights as set out in paragraph 76.26. The main condition for receipt of a redundancy payment is that the person must have worked for at least 2 years for the insolvent employer since the age of 18. An employer proposing to dismiss as redundant an employee whose job is recognised by an independent trade union must consult trade union representatives about the dismissal. If an employer fails to consult with a trade union, a complaint may be presented to an Industrial Tribunal unless it can be shown that there were special circumstances which made it impracticable to comply with the requirement. "Special circumstances" are not defined in the Trade Union and Labour Relations (Consolidation) Act 1992 but it has been held that insolvency alone is not a special circumstance (Clarks of Hove v Bakers Union [1979] 1 AllER 152). This is supported by the decision in GMB v Rankin and Harrison [1992] IRLR 514 that there is nothing intrinsically special about an insolvent employer or a receiver. In addition, the making of an administration order has been held not, in itself, to be a special circumstance (Re Hartlebury Printers [1993] 1 AllER 470). The amount of
EMPLOYMENT LAW
§ Employees' Rights and Remuneration
§ Pensions
§ Occupational Health and Safety
EMPLOYEES' RIGHTS AND REMUNERATION
India's labour laws are overlapping, potentially inconsistent and cumbersome, with more than 45 pieces of relevant legislation. Employers face particular difficulties in terminating employment and closing industrial establishments.The Workmen's Compensation Act, 1923 provides for compensation to workers for industrial accidents and occupational diseases resulting in disability and death. The minimum compensation for death is Rs80,000 and for total disability Rs90,000. The maximum compensation for death is Rs456,000 and for total disability is Rs548,000.
The Payment of Wages Act, 1936, and the Minimum Wages Act, 1948 call for regular and timely payment of wages, industry wage boards to recommend the minimum wage and fix the wage-rate structure for each industry.The Industrial Disputes Act, 1947 covers layoffs, retrenchment compensation, labour-management disputes and unfair labour practices. The Act also addresses reinstatement of workers by a labour court or tribunal order that the employer can appeal to a higher court. A reinstated worker is entitled to 100% of wages while the decision of the higher court is pending.
The Act requires industrial establishments with 100 or more workers to draw up standing orders that specify working conditions (hours, shifts, holidays, vacation, sick pay, termination rules and grievance procedures). These orders must meet minimum state standards, and they may be changed only with the consent of the workers or the unions and only to augment benefits. The code of discipline in industry adopted by the Standing Labour Committee (a type of national 20 India International Tax and Business Guide conference held by the Ministry of Labour) defines the rights and responsibilities of employees and workers, and it provides for a grievance procedure and the settlement of disputes by voluntary arbitration.
The Industrial Employment (Standing Orders) Act, 1959 requires employers in industrial establishments to define conditions of employment.The Maternity Benefit Act, 1961 covers mandatory maternity benefits.The Payment of Gratuity Act, 1972 requires employers to pay a gratuity to workers earning less than a certain limit upon termination of service.The Equal Remuneration Act, 1976 prohibits job and wage discrimination based on sex, except for prohibiting or restricting the employment of women in certain categories of work.The Essential Service Maintenance Act, 1981 empowers the government to prohibit strikes in any industry that is declared essential.
Occupational Health and Safety
Health and safety of the employees are important aspects in an organization's smooth and effective functioning. Good health and safety environment ensures an accident-free industrial set up. Maintenance of occupational safety and health is very closely related to productivity and good employer-employee relationship. Awareness of Occupational Health and Safety (OH&S) has improved in India considerably. Achieving high OH&S performance has become one of the key aspects of business activities.
Management of Occupational Health and Safety demands adoption of a structured approach for the identification of hazards, their evaluation and control of risks in the organisation. Bureau of Indian Standards has formulated an Indian Standard on OH&S management systems. It is called as the IS 18001:2000 Occupational Health and Safety Management Systems. This standard prescribes requirements for an OH&S Management Systems to enable an organization to formulate a policy and objectives, taking into account legislative requirements and information about significant hazards and risks, which the organization can control and over which it can be expected to have an influence, to protect its employees and others, whose health and safety may be affected by the activities of the organization. All the requirements in this standard are intended to be incorporated into any OH&S management system. This standard also provides informative guidance on the use of the specification.
Organizations interested in obtaining licence for OH&S Management System as per IS 18001 should ensure that they are operating the system according to this standard. The organization should apply on the prescribed proforma ( Form IV ) at the nearest Regional Office of BIS along with Questionnaire ( Form X ) and the prescribed application fee. The application shall be signed by the proprietor or the Chief Executive Officer (CEO) of the organization or any other person authorised to sign on behalf of the organization. The name and designation of the person signing the application must be recorded legibly in a space set apart for the purpose in the application form. Each application must be accompanied by a documented Occupational Health and Safety Management System Documentation (such as OHS manual etc.)
The Directorate General of Mines Safety (DGMS) and the Directorate General of Factory Advice Service and Labour Institutes (DGFASLI) are the two field organisations of the Ministry of Labour and Employment in the area of occupational safety and health in mines, factories and ports. The Directorate General, Factory Advice Service & Labour Institutes (DGFASLI), Mumbai,which is an attached office of the Ministry of Labour and Employment,functions as a technical arm of the Ministry in regard to matters concerned with safety, health and welfare of workers in factories and ports/docks. Directorate General of Mines Safety is the Indian Goverment Regulatory agency for safety in mines and oil-fields. The mission of the DGMS is to continually improve safety and health standards, practices and performance in the mining industry and upstream petroleum industry.
1. Loss of life, personal injury and illness
Damages, compensation, wages, maintenance, hospital, medical and funeral expenses for which a Member may be liable arising out of loss life, personal injury or illness of:
(a) the Master or a member of crew,
(b) any person on board any other ship,
(c) any other person;
Provided Always that:
(i) insofar as they relate to a member of the crew or Master nothing shall be recoverable if the liability arises pursuant to the terms of a contract of employment or contract of service or crew agreement and would not have arisen but for those terms, unless the said contract or agreement has been previously approved by the Managers in writing;
(ii) nothing shall be recoverable if the liability relates to a person other than a member of crew or Master unless they arise out of any negligent act or omission on board or in relation to the handling of cargo from the time of receipt of that cargo from the shipper or pre-carrier at the port of shipment until delivery of that cargo to the consignee or onward carrier at the port of discharge;
(iii) there shall be no recovery under this paragraph arising out of a Member's liability under a contract of indemnity between the Member and third party;
NB: see sub-rule 17 of this Rule.
(iv) there shall be no recovery under this sub-rule arising out of a Member's liability to supernumeraries or to passengers;
(v) there shall be no recovery in respect of losses directly or indirectly caused by human immunodeficiency virus or similar diseases or in respect of any sexually transmitted disease.
(vi) there shall be no recovery in respect of death by natural causes or pre-existing medical conditions.
2. Ancillary Expenses
The cost to a Member of putting in to or remaining in port solely in circumstances which do or would entitle the Member to recovery under sub-rule 1 of this Rules but confined to port charges and the net loss to the Member in respect of bunkers, insurance, wages of crew, stores and victualling necessarily incurred as a result of the change of itinerary while securing medical attention or awaiting a substitute.
3. Supernumeraries
Liability which a Member incurs to or in respect of s supernumerary under any of the sub-rules of this Rules as if such supernumerary was a member of the crew;
Provided Always that ( except in the case of a relative of the Master or of a member of the crew):
(i) an indemnity against the consequences of the supernumerary's action in a form approved by the Managers backed by a suitable guarantee acceptable to the Managers shall be taken by he Member; and
(ii) the Member shall ensure that the person giving the indemnity has taken out a suitable insurance to cover his obligation towards the Member;
And Further Provided that in all cases, including in respect of relatives of the Master or of a member of the crew, the Mangers shall have given their prior written approval of the presence on board of a supernumerary and the terms and conditions on which he is carried and the Member has paid or ha agreed to pay such additional class or premium as may be required by the Association.
4. Repatriation
(a) Repatriation expenses which are not recoverable under sub-rule 1 of this Rule and are incurred under statutory obligation or contract of employment or contract of service or crew agreement approved by the Managers in respect of the Master or a member of the crew, and
(b) expenses which are necessarily incurred by a Member in discharging his statutory obligations towards or making necessary arrangement for stowaways or refugees or for the Master or members of the crew who desert or go on strike;
Provided Always that:
(i) there shall be recovery when the expenses result from the termination of a contract of employment or contract of service following the expiry of notice given in accordance with the terms of the relevant contract or termination as result of discharge by mutual consent or breach by the Member of any such contract or from any other discretionary act of the Member or from the sale of the entered ship;
(ii) the Member shall take or has taken all appropriate steps permitted by law to recover such expenses from the Master, member of the crew, deserter, stowaway, refugee or from any other person, insurer or from any national or international bodies or organisations concerned with such persons.
5. Substitutes
Expenses necessarily incurred in sending a substitute or engaging and subsequently repatriating a substitute to replace the Master or a member of the crew who shall have died or been left behind in consequences of illness, injury, desertion or any other cause where in the sole discretion of the Managers liability for such expenses could not reasonably have been avoided;
Provided Always that:
(i) there shall be recovery when the engagement of the substitute is necessitated by the termination of a contract of employment or contract of service following the expiry of notice given in accordance with that contract or by mutual consent or by breach by the Member or resulting from any other discretionary act of the Member;
(ii) wages shall be only recoverable as part of the said expenses when payable to a substitute engaged abroad awhile awaiting or during repatriation.
6. Loss of Personal Effect
Compensation payable by a Member under statutory obligation or collective or special agreements, or contract of employment or contract of services approved by the Managers in respect of loss of or damage to personal effects of the Master or a member of the crew, on board an entered ship; PROVIDED ALWAYS that no payment shall be made for theft or pilferage of crew's personal effects.
7. Distressed Seamen
Expenses incurred by or chargeable to a Member under statutory obligation or collective or special agreements or contract of employment or contract of service approved by the Managers in respect of distressed seamen, where such expenses are not recoverable under any other sub-rule of this Rule, except those ensuing upon the termination of a contract of employment of contract of service in accordance with the terms there of or by mutual consent or by breach by the Member or resulting from any other discretionary act of the Member or from the sale of the entered ship.
