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Work in Fishing Convention, 2007 (No. 188) - United Kingdom of Great Britain and Northern Ireland (RATIFICATION: 2019)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). The Committee notes with interest the efforts undertaken by the Government and the social partners to implement the Convention. Following a first review of the available information and documents, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Articles 1-3 of the Convention. Definitions and scope of application. The Committee notes the Government’s indication that no exclusions of categories of fishers or fishing vessels have been adopted. The Committee also notes the Government’s indication that “commercial fishing” is not defined in the United Kingdom merchant shipping legislation as the Merchant Shipping (Work in Fishing Convention) Regulations 2018 (S.I. 2018/1106) relies on the pre-existing definition of “fishing vessel” in section 313 of the Merchant Shipping Act 1995. The Committee notes, however, that for the purposes of this definition “sea fish” only includes shellfish, salmon and migratory trout (as defined by section 44 of the Fisheries Act 1981)). The Committee therefore requests the Government to clarify how it gives effect to the Convention with respect to all fishers and all fishing vessels engaged in all fishing operations, including fishing operations on rivers, lakes or canals, with the exception of subsistence fishing and recreational fishing (Article 1 (a) of the Convention).

Articles 13 and 14. Manning and hours of rest. Noting that “skipper” is a person having command of a fishing vessel (Merchant Shipping (Work in Fishing Convention) Regulations 2018, regulation 2), the Committee observes that no information is provided on the requirement for a “competent skipper”. The Committee requests the Government to provide information on the laws, regulations or other measures requiring owners of a fishing vessel flying the national flag to ensure that their vessels are under the control of a competent skipper (Article 13(a)).

The Committee notes the Government’s indication that regulation 14 of the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 and paragraph 3.1.6 of MSN 1884 (F) allow the skipper to require that the hours of rest be suspended in case of emergencies. The Government also indicates that, once the emergency situation has passed, then the usual rules regarding adequate rest will apply. The Committee notes that, although the above-mentioned regulations and MSN 1884 detail possible ways of compensating for missed rest hours in case of constraints arising from the nature of fishing (weather, tidal conditions and daylight hours) and other external factors such as seasonal fishing quota, they do not regulate compensatory rest in case of emergency. The Committee requests the Government to explain the manner in which it is ensured that compensatory periods of rest are effectively provided to fishers under the conditions set out in Article 14(4).

Article 17(b). Fisher’s work agreement. Records of service. In the absence of specific information in this regard, the Committee requests the Government to provide details about the laws, regulations or other measures adopted regarding the maintenance of records concerning the fisher’s work under a fisher’s work agreement.

Article 21(2). Recovering cost of repatriation. The Committee notes that, according to Regulation 18(2) and (4) of the Merchant Shipping (Work in Fishing Convention) Regulations 2018, a fisherman's work agreement may provide that the fisherman must reimburse repatriation costs where the agreement is terminated because of the fisherman's serious misconduct. The Committee requests the Government to specify what situations constitute “serious misconduct” and how this provision gives effect to Article 21(2) of the Convention. It also requests the Government to provide information on provisions in national legislation setting out the procedure to be followed and the standard of proof to be applied before a fisher can be found to be in “serious default of his or her work agreement obligations”.

Article 22. Recruitment and placement. The Committee notes that the United Kingdom has not ratified the Private Employment Agencies Convention, 1997 (No. 181) and therefore the provisions contained in Article 22(4) and (5) of Convention No. 188 do not apply to the country. The Committee also notes the Government’s indication that no public service providing recruitment and placement for fishers operates in the country. The Committee further notes that while there is no licensing system for private recruitment agencies, the Employment Agency Standards (EAS) enforces regulations that apply to the private recruitment sector in Great Britain. The Committee requests the Government to provide information on the number of private recruitment and placement services for fishers operating in the country, as well as the number of fishers, including migrant fishers, recruited or placed through those services.

The Committee notes that the Employment Agencies Act 1973 (section 6) prohibits an employment agency and an employment business from demanding or directly or indirectly receiving any fee from any person for finding or seeking to find them work. It notes, however, that the Conduct of Employment Agencies and Employment Businesses Regulations 2003 contain circumstances in which fees may be charged to work-seekers. The Committee observes that it is not clear whether these provisions apply to fishers. The Committee requests the Government to provide clarifications in this regard. It also requests the Government to indicate the national laws, regulations or other measures prohibiting recruitment and placement services, whether public or private, from using means, mechanisms or lists intended to prevent or deter fishers from engaging for work, as required by Article 22, paragraph 3(a).

Article 23. Payment of fishers. Monthly payment or regular payment. The Government indicates that, as set out in regulation 12(1) of the Merchant Shipping (Work in Fishing Convention) Regulations 2018, where the fisherman is entitled to receive wages, the wages must be paid monthly, or at other regular intervals. The Committee notes however that regulation 12(2) provides that this does not apply to the extent that the failure to make such payment at the required time was due to a mistake; a reasonable dispute as to liability; the act or default of the fisherman; or any other cause not being the wrongful act or default of the person liable to make the payment or of that person's servants or agents. Noting that these exceptions are not foreseen in the convention, the Committee requests the Government to indicate how it ensures full compliance with Article 23 of the Convention.

Article 24. Payment of fishers. Transmission of payments to families. The Committee notes the Government’s indication that, according to the Merchant Shipping (Seamen’s Allotments) Regulations 1972, as amended, all fishermen employed or engaged on board a ship to which the Merchant Shipping (Work in Fishing Convention) Regulations apply, may allot all or part of their wages to any person or persons. The Committee notes however that those Regulations provide that costs incurred in making an allotment may be recovered from the fisherman; where it is necessary to exchange currency to make the allotment this should be at a reasonable exchange rate. Recalling that according to Article 24 of the Convention fishers working on board fishing vessels shall be given a means to transmit all or part of their payments received, including advances, at no cost, the Committee requests the Government to indicate the measures taken to ensure compliance with this provision of the Convention.

Article 31. Occupational safety and health and accident prevention.The Committee notes the Government’s reference to the provisions of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 implementing Article 31 of the Convention. Noting that the referred provisions do not reflect the detailed requirements of Article 31(b), the Committee requests the Government to indicate the measures adopted concerning training for fishers in the handling of types of fishing gear they will use and in the knowledge of the fishing operations in which they will be engaged.

Articles 34-37. Social Security. The Committee notes the Government’s indication that mariners resident in the United Kingdom, who are employed under a contract of service, work on any ship or vessel as masters or crew members, and entered into their contract in the country, are covered by particular provisions of the Social Security (Contributions) Regulations 2001. Specific rules apply to resident fishers who are not regarded as mariners, including “share fishermen”, who are not employed under a contract of service, are masters or crew members of a British fishing vessel manned by more than one person, and get all or part of their pay by sharing the profits or gross earnings of the fishing vessel. People who used to work on a British fishing vessel, but now work ashore in the United Kingdom, may also count as share fishermen. The Government also indicates that payment of National Insurance provides qualification for social security benefits, subject to qualifying conditions being met. The Committee requests the Government to indicate (i) the contingencies for which coverage is currently available for fishers and their dependants, listing the relevant applicable provisions; and (ii) the percentage of fishers covered, specifying the number of fishers currently registered with the existing social security schemes.

In addition, the Governmentrefers to the Protocol on Social Security Coordination in the UK-EU Trade and Cooperation Agreement, covering all European Union Member States, as well as several reciprocal social security agreements with other countries. The Committee requests the Government to provide information on whether and how the above-mentioned agreements cover fishers who reside in the United Kingdom and work on foreign-flagged vessels or foreign fishers that work on United Kingdom-flagged vessels.It also requests the Government to provide information on the number of fishers who are ordinarily resident in the United Kingdom but work on foreign-flagged fishing vessels, outside the country and outside the countries with which social security agreements were concluded. Finally, the Committee requests the Government to provide information on how it ensures the maintenance of social security rights which have been acquired or are in the course of acquisition by fishers working on board United Kingdom-flagged fishing vessels, regardless of residence (article 36).

Articles 40-42. Compliance and enforcement. Flag State inspections. The Committee notes that the system of inspection is regulated by Merchant Shipping (Work in Fishing Convention) Regulations 2018 (S.I. 2018/1106) and MSN 1885(F), which provide for the procedure for initial and renewal surveys, as well as for a Work in Fishing Convention Certificate to be issued to confirm that the vessel has been inspected and complies with the provisions of the Convention concerning living and working conditions. The Committee also notes the Government’s indication that the MCA conducts inspections in accordance with the ILO guidelines for Flag State inspections under the Work in Fishing Convention and that the Merchant Shipping (Work in Fishing Convention) (Survey and Certification) Regulations 2018 (S.I. 2018/1107) allow any "certifying authority" to complete ILO C188 surveys on board fishing vessels. The Committee requests the Government to specify which organizations have been authorized to carry out inspections of living and working conditions on board fishing vessels and issue relevant documents on behalf of the State,and to provide an example or examples of authorizations given. It also requests the Government to provide information on: (i) the number of qualified inspectors to fulfil its responsibilities under Article 41, indicating their training and qualification requirements; (ii) the number of inspections undertaken on fishing vessels, and to supply examples of the reports drawn up following these inspections; and (iii) the number of Work in Fishing Convention Certificates issued.

Article 43-44. Compliance and enforcement. Complaints. The Committee notes that the complaints process is regulated by Merchant Shipping (Work in Fishing Convention) Regulations 2018 (S.I. 2018/1106) and MGN 589 (F). It also notes the Government’s indication that very few non-United Kingdom fishing vessels call in the United Kingdom ports, the number of complaints received through the MCA dedicated e-mail box is very small and the majority of the complaints received have been dealt with by the local marine office and surveyors before an official ILO 188 complaint has reached the MCA. In order to promote the right of fishermen to raise a complaint if they feel they are not receiving their entitlements, the MCA has produced and distributed a poster in the main languages of crew on board fishing vessels. The Committee requests the Government to clarify how it ensures that: (i) the complaint may be submitted by a fisher, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the vessel, including an interest in safety or health hazards to the fishers on board; and (ii) in taking the measures referred to in paragraph 2, the nearest representative of the flag State shall, if possible, be present (Article 43(3) and (4)).In addition, the Committee requests the Government to provide up-dated information on the number of investigations carried out and on measures taken as a result, and to describe any port State control measures taken in pursuance of Articles 43 and 44.