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The UK legal claim of some P&O Ferries part-time crew members to 38 days' paid annual leave has been struck down, writes Nautilus director of legal services Charles Boyle
An employment tribunal in Ashford, Kent, recently considered several issues on how the Maritime Labour Convention, 2006 (MLC) has affected paid annual leave entitlement for seafarers.
In the case Ms A Hayford and Mr K Biddle v P & O Ferries (Jersey) Ltd, the tribunal was asked to consider three things:
- whether the MLC granted additional leave beyond paid rostered time off
- whether shipowners have to designate parts of rostered time off as MLC-derived leave for it to count as such
- whether part time workers are entitled to the same amount of MLC-derived leave as full-time workers
The period covering the circumstances out of which the claim arose was governed by the Merchant Shipping (Hours of Work) Regulations 2002, as amended by legislation implementing MLC changes to leave.
Ms Hayford was employed part-time as an assistant steward on the ferry Spirit of Britain (flagged in the UK during the relevant period), which was sailing between Dover and Calais. When Ms Hayford returned from maternity leave in 2015, she continued to work part-time based on 900 hours per year.
Her contract stated that she was entitled to 28 days' leave, based on a 12-hour day, but as she was part-time, this was reduced pro-rata to 12.5 days.
She joined and left the vessel on each working day. She arranged her working hours around her childcare commitments, and the tribunal notes that she referred to these favourable terms as a 'mum's contract'.
Mr Biddle was employed as an assistance steward on the same vessel. At the latter stage of his employment, he was working 12-hour shifts on a one-week-on/one-week-off basis and living onboard during his week on. He was entitled to take 28 days' contractual leave per annum, 14 of which would be during his rostered time on, and 14 of which would be during his rostered time off.
Can annual leave be included in rostered time off?
The tribunal referred to Directive 2009/13/EC, which implements the MLC into EU law, and amends the earlier seafarers' Working Time Directive 1999/63/EC, to bring it into line with MLC leave entitlement of 2.5 days per month.
It noted that Directive 2009/13/EC complies with the EU's Charter of Fundamental Rights, which provides that 'all workers have a right to healthy, safe and dignified working conditions, to a limit on their maximum working time and to weekly and daily rest periods and an annual period of paid leave'.
Consequently, the 2002 Regulations should be interpreted in accordance with the general principles and jurisprudence of the Court of Justice of the European Union (CJEU), which are referred to further below.
The tribunal also followed the earlier UK Supreme Court case of Russell v Transocean International Resources , which concerned offshore workers' leave entitlement under the Working Time Regulations 1998 (WTR), which implements the general EU Working Time Directive in the UK. Both those instruments apply to workers in general, including offshore workers, but not seafarers.
In the Russell case the workers were scheduled to work a two-weeks-on/two-weeks-off pattern, and the court held that their annual leave was included within that scheduled time off, during which they were paid (albeit that the first two days off in each case was considered to be a 'compensatory rest period' because they were offshore for two weeks at a time).
One question arising is: would a future tribunal reach a different conclusion if EU law does not apply to the same extent following Brexit?